Once the Cat's Out of the Bag, Should Cloning It Be Prohibited?

Wikileaks, the website that was "shut down" by a federal court last month because it carried confidential bank documents, is back up under its plain-English address now that U.S. District Judge Jeffrey White has rescinded his injunction. Even when the order was in force, Wikileaks, which is dedicated to publicizing evidence of government and corporate wrongdoing, was accessible under its numerical address and at various mirror sites. But civil libertarians were dismayed by Judge White's order, which the ACLU likened to closing a newspaper because of one objectionable article. Critics of the injunction noted that it flew in the face of Supreme Court rulings regarding prior restraints on speech. On Friday, White came to his senses, saying the injunction "raises issues regarding possible infringement of protections afforded to the public by the First Amendment." According to Time, he also expressed discomfort at adjudicating "a squabble between the Cayman Islands branch of a Swiss bank and a global confederation of whistle-blowers whose Net domain is owned by John Shipton, an Australian national residing in Kenya."

The Time report, headlined "A Disquieting Victory for Wikileaks," is ambivalent, reflecting a concern raised by Hit & Run commenters the last time I discussed this case: What happens to privacy if third parties are free to disseminate previously confidential information obtained by others (in this case, a disgruntled bank employee bent on exposing what he portrayed as tax evasion and money laundering schemes) in violation of contracts or the law? In practical terms, people are already free to do so. As White noted regarding the vain effort to recapture the bank documents, "The cat is out of the bag." But in principle, should third parties be punished for passing on information they never agreed to keep secret? If so, under what circumstances? Should similar rules apply to classified government information obtained and disseminated by third parties, as in the case of the two former AIPAC analysts charged with violating the Espionage Act (and scheduled to be tried next month) or the Espionage Act prosecutions of journalists contemplated by Alberto Gonzales?