Censorship

Yesterday, the US House Judiciary Committee hosted a panel of Constitutional Law and national security scholars to look at the question of whether Wikileaks or Julian Assange could or should be prosecuted for publishing leaked data from the US. The three and a quarter hour hearing is available here, and an article has been posted about it today by Matt Schafer on Lippmann Would Roll.

LWR's overall verdict was as follows:

When all was said and done, the witnesses seemed to agree, in part, that the government is overclassifying information, the Espionage Act of 1917 is likely unconstitutional, the SHIELD Act, proposed recently by Sen. Joe Lieberman [I-CT], rests on a shaky constitutional footing also, and it is important that the legislature not overreact to the WikiLeaks cables. ...

Almost all witness cited flaws within the Espionage Act, while the consensus on whether WikiLeaks is protected by the First Amendment did not enjoy a similar consensus. With all witnesses having testified, four argued that Wikileaks is protected by the Constitution, two argued that it should be prosecuted, and witness Stephen Vladeck abstained from making a determination on WikiLeaks.

Lawfare: Problems with the Espionage Act

The law also has two additional problems that receive relatively little attention but which are important in contemplating its use. The first is that it contains no limiting principle in its apparent criminalization of secondary transmissions of proscribed material. ...

By its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations. It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them–in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents. Taken at its word, the Espionage Act makes felons of us all. As long as this deficiency remains, it will be a poor instrument against an outlet like Wikileaks, precisely because there will be no way in principle to distinguish between the prosecution of Assange and the prosecution of just about anyone else–from the New York Times to the guy on the street who reads the newspaper and talks about it. That will make Espionage Act prosecutions seem like far more of a menace to legitimate speech than would a prosecution under a better-drawn law. There are ways to fix this problem–an intent element and a clear limitation to material not already made public would be a start–but as long as it goes unfixed, I oppose any prosecutions under it for secondary transmissions.

The second problem is that the statute, by its clear terms, does not cover the overwhelming bulk of the material that Wikileaks disclosed. The Espionage Act is not a general bar against leaking or publishing classified information. It covers only material “relating to the national defense.”

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Lawfare: Seven Thoughts on Wikileaks

But as all the hand-wringing over the 1917 Espionage Act shows, it is not obvious what law he has violated. It is also important to remember, to paraphrase Justice Stewart in the Pentagon Papers, that the responsibility for these disclosures lies firmly with the institution empowered to keep them secret: the Executive branch.

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The Hill: Judiciary panel to take up Espionage Act, legal options against WikiLeaks

The Judiciary Committee will be looking at the World War I-era Espionage Act and the "legal and constitutional issues raised by WikiLeaks," as directed by Chairman John Conyers (D-Mich.).

It will be the first congressional hearing on WikiLeaks since the Nov. 28 publication of thousands of classified diplomatic cables, some of which have proven embarrassing to the U.S. government because of their frank tone. The witness list was not yet available.

Incoming Judiciary Chairman Rep. Lamar Smith (R-Texas) also vowed to conduct hearings when he takes the gavel in the new Congress.

But the Justice Department is proceeding with caution: Most experts agree the case crosses into new legal territory where there is little certainty.

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ARTICLE 19 is extremely concerned by the political pressure governments and elected officials are exerting on internet companies, to force them to deny provision of services to WikiLeaks without prior authorisation from a court. Recent actions by a number of internet companies against WikiLeaks raise several issues about the rights of free expression on the internet, which is largely controlled by private companies but still subject to state threats.

Intermediaries, such as internet companies, facilitate connections between the providers of information and the users of that information. Increasingly, they are the subject of legal and other actions whose actual end targets are their service-users. Where these companies can do so lawfully, they should resist such interference.

Any removal of information on internet, or blocking of internet access to information should be authorized only by a court. Actions that seek to limit freedom to donate to their service-users should only be allowed after a finding by a court that a service-user has violated the law. Internet companies in turn should be transparent in actions affecting users of their services.

The Icelandic Parliamentary General Committee met yesterday to discuss the ban that Visa and Mastercard placed on donations to WikiLeaks, reports The Reykjavik Grapevine. In attendance were representatives of Icelandic electronic payment companies Valitor and Borgun, which work with Visa and Mastercard, The Consumers' Alliance, Amnesty International, and WikiLeaks spokesman Kristinn Hrafnsson, who joined via video link.

Róbert Marshall, the chairman of the committee, said that "People wanted to know on what legal grounds the ban was taken, but no one could answer it. They said this decision was taken by foreign sources." The committee has asked for more information from the companies, to prove that there were legal grounds for such a ban. Marshall added that it was the committee's opinion that Visa and Mastercard's operating licenses be "seriously reviewed," reports The Reykjavik Grapevine.

Datacell, the company handling credit card donations for WikiLeaks, has already declared that it would file legal action against Visa and Mastercard.

PostFinance, the banking arm of the Swiss Post, found itself under investigation as well for potentially breaching secrecy laws by publicly disclosing that it has closed Julian Assange's bank account, reports AFP. "We are investigating if, in relation to the Postfinance press statement, there has been punishable action," Hermann Wenger, examining magistrate of the Bern-Mittelland region, told Sonntags Zeitung.

As previously reported, the Wau Holland Foundation also initiated legal action against PayPal, resulting in PayPal agreeing to release the blocked funds. In an interview with Der Spiegel today, Hendrick Fulda, a board member of the foundation, said that "Every new publication by WikiLeaks has unleashed a wave of support, and donations were never as strong as now. More than €80,000 was contributed in one week via PayPal alone. We will have to see what impact the removal of PayPal has on our incoming funds."

Visa became today the fifth financial institution to suspend payments to WikiLeaks, after Moneybookers, PayPal, Mastercard, and PostFinance. A spokesman said: "Visa Europe has taken action to suspend Visa payment acceptance on WikiLeaks' website pending further investigation into the nature of its business and whether it contravenes Visa operating rules," reports the Press Association.

The Guardian wrote: "Charles Arthur, the Guardian's technology editor, points out that while MasterCard and Visa have cut WikiLeaks off you can still use those cards to donate to overtly racist organisations such as the Knights Party, which is supported by the Ku Klux Klan.

The Ku Klux Klan website directs users to a site called Christian Concepts. It takes Visa and MasterCard donations for users willing to state that they are 'white and not of racially mixed descent. I am not married to a non-white. I do not date non-whites nor do I have non-white dependents. I believe in the ideals of western Christian civilisation and profess my belief in Jesus Christ as the son of God.'"

Probably no further comment is needed. (You can still donate to WikiLeaks via other methods.)

So many people have said so many things in the last days against and in favor of secrets of state that it is really hard not to get lost between the words and the feelings that those words expose. And this is maybe one of the most frustrating realities of the debate: feelings are, instead of ideas, what determine the discussion, which could not be any worse. People from the spheres of political power—plus the military, the media and the most determinant group of the corporations—have reacted with embarrassment, which is understandable due to the nature of the secrets disclosed but unacceptable coming from institutions that carry such authority and therefore such responsibility. The embarrassment has turned into rage, a completely misguided idea of nationalism, abuse of power, and a sense of pride that in not so important circumstances would move us to spontaneous laughter.

"The first serious infowar is now engaged. The field of battle is WikiLeaks. You are the troops," wrote John Perry Barlow on Twitter.

The censorship vs. free speech battle is escalating. This week has seen Amazon, Tableau, EveryDNS and PayPal dropping WikiLeaks services in quick succession, DDoS attacks that caused the site to go offline multiple times, and mounting political pressure from the US (2), Australian and French governments.

The US government went so far as to warn Switzerland against granting Julian Assange political asylum, reports 20 Minuten. In an open letter in Der Sonntag, the US ambassador to Switzerland, Donald Beyer, wrote that "Switzerland will have to consider very carefully whether to provide shelter to someone who is a fugitive from justice." However Swiss politicians including Cédric Wermuth, president of the Young Socialist Party, Bastien Girod, president of the Greens National Council, and the Swiss Pirate Party have reiterated their support for Assange and willingness to grant him asylum.

RSF: WikiLeaks hounded?

Reporters Sans Frontières (Reporters Without Borders) issued an official statement on WikiLeaks and Cablegate. The French version is available here.

"Reporters Without Borders condemns the blocking, cyber-attacks and political pressure being directed at cablegate.wikileaks.org, the website dedicated to the US diplomatic cables. The organization is also concerned by some of the extreme comments made by American authorities concerning WikiLeaks and its founder Julian Assange.

Earlier this week, after the publishing several hundred of the 250.000 cables it says it has in its possession, WikiLeaks had to move its site from its servers in Sweden to servers in the United States controlled by online retailer Amazon. Amazon quickly came under pressure to stop hosting WikiLeaks from the Senate Committee on Homeland Security and its chairman, Sen. Joe Lieberman, in particular.

After being ousted from Amazon, WikiLeaks found a refuge for part of its content with the French Internet company OVH. But French digital economy minister Eric Besson today said the French government was looking at ways to ban hosting of the site. WikiLeaks was also recently dropped by its domain name provider EveryDNS. Meanwhile, several countries well known for for their disregard of freedom of expression and information, including Thailand and China, have blocked access to cablegate.wikileaks.org.

PayPal joined Moneybookers, Amazon, Tableau and EveryDNS in cancelling services for WikiLeaks.

In a statement posted on its website, the company wrote: "PayPal has permanently restricted the account used by WikiLeaks due to a violation of the PayPal Acceptable Use Policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity. We’ve notified the account holder of this action."

Daniel Ellsberg and many WikiLeaks supporters have called for a boycott of Amazon. PayPal may be next.

There are many other ways for supporters of truth and free speech to contribute to WikiLeaks, and we would like to encourage you to do so: http://213.251.145.96/support.html

France: The French minister for industry, energy and digital economy, Eric Besson, wrote to CGIET, the body governing internet use, to ask that hosting for WikiLeaks in France be terminated, reports Libération. WikiLeaks has been partly hosted by French provider OVH since December 2nd, after Amazon cancelled its hosting service under political pressure from Sen. Lieberman's office.

Besson wrote that "The situation is unacceptable. France cannot host websites that violate diplomatic relations secrecy and endanger persons protected by diplomatic confidentiality. We cannot host sites that have been called criminal and rejected by other countries on the basis of harm to national rights." One would be tempted to ask Mr. Besson whether he is suggesting that Le Monde cannot be hosted in France either, seeing as how the paper has published exactly the same material as WikiLeaks.

OVH however did not bow to the pressure, responding in a letter that it will refer the issue of the legality of hosting WikiLeaks to a judge, and that "it was not up to the politicians or OVH to request or decide the closure of the site."

Pakistan: The Lahore High Court on Friday dismissed a petition seeking a ban on the Wikileaks website. The petition argued that "since Pakistan had good bilateral relations with a number of countries, particularly Saudi Arabia, the leakage of secret information would adversely affect these ties," reports Pakistan Dawn

High Court Justice Sheikh Azmat Saeed dismissed the petition, calling it non-maintainable. "We must bear the truth, no matter how harmful it is," Justice Saeed was quoted as saying.

Russia: While the Washington Times prominently featured an op-ed by Jeffrey T. Kuhner titled "Assassinate Assange," Pravda's legal editor David R. Hoffman argues for transparency and a free press:

"And we see many right-wing commentators demanding that Assange be hunted down, with some even calling for his murder, on the grounds that he may have endangered lives by releasing confidential government documents.

Yet, for the right-wing, this apparently was not a concern when the late columnist Robert Novak "outed" CIA agent Valerie Plame after her husband Joseph Wilson authored an OP-ED piece in The New York Times criticizing the motivations for waging war against Iraq. Even though there was evidence of involvement within the highest echelons of the Bush dictatorship, only one person, Lewis "Scooter" Libby, was indicted and convicted of "outing" Plame to Novak. And, despite the fact that this "outing" potentially endangered the lives of Plame's overseas contacts, Bush commuted Libby's thirty-month prison sentence, calling it "excessive."

Why the disparity? The answer is simple: The Plame "outing" served the interests of the military-industrial complex and helped to conceal the Bush dictatorship's lies, tortures and war crimes, while Wikileaks not only exposed such evils, but also revealed how Obama's administration, and Obama himself, are little more than "snake oil" merchants pontificating about government accountability while undermining it at every turn.[...]

And damn the right-wing outrage over the Wikileaks revelations. It is the American people who should be outraged that its government has transformed a nation with a reputation for freedom, justice, tolerance and respect for human rights into a backwater that revels in its criminality, cover-ups, injustices and hypocrisies.

So savor the Wikileaks documents while you can, because soon they'll be gone. And for the government criminals of the world, and for those who protect them, it will again be business as usual."

United States: We have already covered Amazon, Tableau and EveryDNS dropping WikiLeaks services, and at least the first two clearly linked to political pressure. It had been already reported that the State Department had prohibited its staff from accessing WikiLeaks, but now we learn that it went as far as to warn prospective student interns to "NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter."

And in an even more surprising development, Talking Points Memo reports that the Library of Congress has blocked access to the Wikileaks site on its staff computers and on the wireless network that visitors use.

If something looks wrong with this picture, it probably is.

Daniel Ellsberg has posted an open letter to Amazon at Antiwar.com:

"I’m disgusted by Amazon’s cowardice and servility in abruptly terminating today its hosting of the Wikileaks website, in the face of threats from Senator Joe Lieberman and other Congressional right-wingers. I want no further association with any company that encourages legislative and executive officials to aspire to China’s control of information and deterrence of whistle-blowing.[...]

I understand that many other regular customers feel as I do and are responding the same way. Good: the broader and more immediate the boycott, the better. I hope that these others encourage their contact lists to do likewise and to let Amazon know exactly why they’re shifting their business."
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DNS provider EveryDNS.net has dropped the wikileaks.org domain, apparently after DDoS attacks, WikiLeaks has said on Twitter.

EveryDNS explained its decision: "The interference at issue arises from the fact that wikileaks.org has become the target of multiple distributed denial of service (DDOS) attacks. These attacks have, and future attacks would, threaten the stability of the EveryDNS.net infrastructure, which enables access to almost 500,000 other websites."

You can still reach WikiLeaks via http://46.59.1.2/, http://213.251.145.96/ or at http://collateralmurder.com as of the time of this update.

You can support WikiLeaks via http://46.59.1.2/support.html , http://213.251.145.96/support.html , https://donations.datacell.com/ or http://collateralmurder.com/en/support.html

Cablegate releases are reachable at http://statelogs.owni.fr or via torrent search.

Update: WikiLeaks is now accessible at http://wikileaks.ch/

After Amazon pulled WikiLeaks off its hosting platform following not a legal order but a call from Sen. Lieberman's office, today Tableau Software, which hosted data visualizations created for the Cablegate material, followed suit. A statement on the Tableau website says:

"Our decision to remove the data from our servers came in response to a public request by Senator Joe Lieberman, who chairs the Senate Homeland Security Committee, when he called for organizations hosting WikiLeaks to terminate their relationship with the website."

Let us look at this more closely. First, the visualizations contained no classified data at all, but merely described the distribution of the data according to various criteria. Secondly, Joe Lieberman's "public request" carries no more legal authority than the next person's.

As Glenn Greenwald wrote today, "Those are the benign, purely legal documents that have now been removed from the Internet in response to Joe Lieberman's demands and implied threats. He's on some kind of warped mission where he's literally running around single-handedly dictating what political content can and cannot be on the Internet, issuing broad-based threats to "all companies" that is causing suppression of political information.[...]

"If people -- and journalists -- can't be riled when Joe Lieberman is unilaterally causing the suppression of political content from the Internet, when will they be? After all, as Jeffrey Goldberg pointed out in condemning this, the same rationale Lieberman is using to demand that Amazon and all other companies cease any contact with WikiLeaks would justify similar attacks on The New York Times, since they've published the same exact diplomatic cables on its site as WikiLeaks has on its. What Joe Lieberman is doing is indescribably pernicious and if "journalists" cared in the slightest about their own self-interest -- never mind all the noble things they pretend to care about -- they ought to be vociferously objecting to this."

TechDirt notes: "Of course, beyond the problem that the government would be doing this in the first place is a separate concern: the role of corporations in helping make this happen. Some have argued, in the case of Amazon, that as a private company it has the right to refuse service to anyone. That's absolutely true. But if it's refusing service based on political pressure from those in positions of power, that's still censorship."

Tech President points to a Google cache version of a post on Tableau's blog on Sunday boasting that "Wikileaks is using Tableau to show the breadth of the data by subject, country, origin and classification, organization, program and topic." The original post has in the meantime been deleted from the website.

Update 1: In related news, Sens. John Ensign, Scott Brown and Joe Lieberman unveiled a bill which would amend the US Espionage Act and would give US authorities "a tool to prevent something like this (WikiLeaks disclosures) from happening again," said Sen. Brown. According to AFP, "the bill would make it illegal to publish the names of informants serving the US military and intelligence community. It was not immediately clear whether the new rule would also apply to traditional US media."

Dave Weigel at Slate has posted the full text of the SHIELD Act. Weigel notes that "Right now, the information protected is 'any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications.' One of the problems for the people who want to nail WikiLeaks is that the information being leaked, while embarrassing, hasn't been highly classified. It's been secret, or marked 'NOFORN,' but it's not classified."

TechDirt commented: "As if to more directly trample the First Amendment, Lieberman has now introduced an anti-Wikileaks bill, which would expand the Espionage Act to make it a criminal act if you publish the name of a US intelligence source. Note that it is already illegal to leak such a name, but this bill seeks to make it illegal to publish the names after they've been leaked. This seems like a classic violation of the First Amendment. As Wired notes, something like this would make it illegal for a newspaper to publish the fact that former Panamanian dictator Manuel Noreiga was once a paid CIA intelligence source. Hell, there are claims that Osama bin Laden worked with the CIA decades ago. Should it be illegal to report that?"

Update 2: Amazon now claims that "There have been reports that a government inquiry prompted us not to serve WikiLeaks any longer. That is inaccurate," in a statement quoted by BoingBoing. Rob Beschizza comments: "Does this add up? Amazon just happened to take an interest in the intellectual property status of government documents after being called by the same U.S. Senator who another company reports was explicitly demanding the removal of Wikileaks material? A Senator who was able to make a public statement about Amazon's removal of the material, as the removal occurred?"

Amazon has pulled WikiLeaks off its cloud hosting infrastructure, bowing to political pressure from Sen. Joe Lieberman and the Department of Homeland Security.

The Guardian quotes Lieberman's statement: "[Amazon's] decision to cut off WikiLeaks now is the right decision and should set the standard for other companies WikiLeaks is using to distribute its illegally seized material. I call on any other company or organisation that is hosting WikiLeaks to immediately terminate its relationship with them."

The department of homeland security confirmed Amazon's move, referring journalists to Lieberman's statement, notes The Guardian.

"I will be asking Amazon about the extent of its relationship with Wikileaks and what it and other web service providers will do in the future to ensure that their services are not used to distribute stolen, classified information," Lieberman said, according to Reuters.

Ryan Calo, a lecturer at Stanford University's Center for Internet and Society told Reuters that "It would set a dangerous precedent were companies like Amazon to take down things merely because the senator or another government entity started to ask question about them."

The New Yorker's Amy Davidson writes: "Lieberman may be exaggerating his own role, and Amazon can make choices about what business to be in. Still, is Amazon reporting to a senator now? Is the company going to tell him about “the extent of its relationship” with WikiLeaks—with any customer? He’s free to ask, of course, but in terms of an obligation to answer: Does somebody have a warrant or a subpoena for that? One wonders if Lieberman feels that he, or any Senator, can call in the company running The New Yorker’s printing presses when we are preparing a story that includes leaked classified material, and tell them to stop it. The circumstances are different, but not so different as to be really reassuring."

"This certainly implicates First Amendment rights to the extent that web hosts may, based on direct or informal pressure, limit the materials the American public has a First Amendment right to access," EFF senior staff attorney Kevin Bankston told Talking Points Memo.

TPM reports that "Committee staff had seen news reports yesterday that Wikileaks was being hosted on Amazon's servers. The service, we should note, is self-serve; as with services like YouTube, the company does not screen or pre-approve the content posted on its servers. Staffers then, according to the spokeswoman, Leslie Phillips, called Amazon to ask about it, and left questions with a press secretary including, 'Are there plans to take the site down?' Amazon called them back this morning to say they had kicked Wikileaks off, Phillips said."

It does not appear that Amazon was served with a legal order to take WikiLeaks down, but rather that the decision was based on verbal criticism from Lieberman and other establishment members. The fact that a website can be taken down without any due process in a country which once had a vaunted tradition of free speech should be an alarm call to anyone who understands the importance of a free media.

Everything is interconnected. In some disciplines and particularly in hard sciences that is rather an obvious and therefore useless statement than a secret. But in the area I have been trained—literature, but I could use general terms like art or simply culture—the same obvious statement is often forgotten or decisively denied. The academic studies of culture and even sometimes the very products of high culture—poetry, philosophy, art—ignore, both purposely and accidentally, the connection between their abstractions and the riddle of power. Due to a good reason, though: the abstract thinking that rules high culture and the specificity of the academic studies of culture demand focusing. There is no room here for an extended explanation of this point, so I will be satisfied with the words copied from a letter of Maurice Blanchot, a radical writer of the kind that embraces its own isolation by creating a sort of exclusive language: “One [of the two impulses of a writer] is the passion, the realization, and the speech of the whole in dialectical accomplishment”, he says: the prosecution, the chase—that is what it is—of the whole.