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The Net Remembers, for Good and Bad

I have a column running on the Guardian’s website today. It’s entitled “Freedom of information” — and is reprinted below:

What does a Swiss bank that does business in the Cayman Islands have in common with a Hong Kong actor who jets around the globe? They are object lessons this month in a reality that anyone handling information needs to understand. Like toothpaste squeezed from a tube, information, once out in the wild, is all but uncontainable.

The Julius Baer Bank is a protagonist in the now-famous Wikileaks case. The bank’s lawyers managed to persuade a US federal judge, Jeffrey White, that the first amendment of the US Constitution had no meaning, obtaining an injunction and follow-up order that, among other things, required blocking the visibility of the domain in the internet’s Domain Name System (DNS). A former bank employee had posted documents on the anonymous whistle-blowing website, allegedly describing shady dealings – hmmm, Cayman Islands, Swiss banks – on behalf of clients.

“The orders don’t just direct the take down of existing content, they also enjoin any future publication of the material,” says David Ardia, director of the Citizen Media Law Project at Harvard University Law School’s Berkman Center for Internet & Society (of which I’m a co-founder). “Even more significantly, the second order requires anyone who receives notice of the order to refrain from publishing, distributing or linking to the documents.”

In a blog post on the project’s site, Ardia called the judge’s action “unthinkable”:

“He issued an order that is so broad I haven’t been able to find a single example in the US that comes close: he ordered the complete shutdown of the Wikileaks website. He did this not by ordering that the parties shut off access to the offending documents (that came in a second order), but by ordering that [Wikileaks’s domain registrar] erase the ‘navigation information’ that directs people to the site … . That is like telling a newspaper it can continue to print its paper, but the delivery drivers all have to go home.”

The judge blatantly abused his power. Luckily, due to the nature of the internet and the anger of the online community, it had precisely the opposite effect of what was intended.

First, Wikileaks’s proprietors are not stupid. They have several “mirror” sites with other domain names (such as where the bank documents, among 1.2 million other documents contributed by whistle-blowers around the world, can also be found. Meanwhile, people sympathetic to Wikileaks immediately began putting up their own mirrors and distributing the documents in question. And due to the judge’s (and bank’s) utter cluelessness about how the internet actually works, the injunction (essentially a rubber-stamp of something the bank’s lawyers wrote) didn’t prevent the Wikileaks site from being visible via its more direct URL – – which the DNS translates into words we recognise.

If I were a customer of that bank, I’d quickly withdraw my business on several grounds, not least the institution’s inability to keep records secure in the first instance but also the way it flailed about once the records were public. (If I were a member of the US Congress I’d be launching an official inquiry into judge White’s fitness for office as well, though Congress is not noted these days for its understanding of, much less appreciation for, the Constitution.)

But the bank’s dilemma does elicit some sympathy, and suggests a larger issue that proponents of whistle-blowing and transparency – count me loudly among them – should acknowledge. The dissemination of information may be all but unstoppable, barring an absolute crackdown on and censorship of all online data (which could never be fully effective in any event). But there are troubling implications.

Consider, in that context, the sad case of Edison Chen, a Vancouver-born actor who now makes his base in Hong Kong. He famously took photographs of himself and at least five women (sequentially, not all together) in sexual situations and stored them on his laptop computer. After he took the machine for repairs, the photos made their way to the internet, apparently copied by a technician at the shop and then put online. It is trivially easy to find the images online now.

This was not about blowing whistles on possible corruption. Chen doesn’t deserve this, however foolish he was to leave the pictures, unencrypted, on a disk that he put in someone else’s hands. The women especially don’t deserve it, however foolish they were to participate in the photo sessions. These pictures were never meant to be public, and the people who participated in their distribution – including, in my view, anyone who continues to send them around – are morally and legally wrong. (Disclosure: I did obtain them to verify how easily this could be done, and then immediately deleted them from my computer.)

Chen, the women and the authorities can and probably should pursue various legal remedies to punish whoever put the photos on the internet. Apart from asking the rest of us to be decent and honourable, however, they have few further options.

The situations of Julius Baer Bank, Edison Chen and a host of others are fodder for the control freaks of our age. Governments and big business fear their power will dissolve. Moral crusaders fear almost everything. They all quake at the consequences of what they consider liberty run amuck.

So there are powerful forces at work to clamp down on this infinitely valuable medium. It can never be a 100% solution, of course, because digital information can be encrypted, disguised and otherwise manipulated to make porous even the most seemingly impenetrable barriers. But the rich and powerful interests that want to control our lives can make it vastly more difficult to have any measure of free speech.

I tend toward the absolutist side of the argument. Yes, there are negative consequences to freedom. Liberty brings risk. We take those risks because they are essential to progress, and to fundamental human rights. Abuses by the wielders of great power are much more dangerous than those by the rest of us.

But that doesn’t absolve us from doing the right thing. Let’s keep the control freaks at bay, but exercise some self-control, too.

3 Comments on “The Net Remembers, for Good and Bad”

  1. #1 Jon Garfunkel
    on Feb 26th, 2008 at 7:03 pm

    re: “(If I were a member of the US Congress I’d be launching an official inquiry into judge White’s fitness for office as well, though Congress is not noted these days for its understanding of, much less appreciation for, the Constitution.)”

    Well, write Congresswoman Lofgren, who represents Silicon Valley, and who’s on the Subcommittee on Courts, the Internet, and Intellectual Property. They’re in fact having a hearing tomorrow — on patent reform. (I know that Lessig doesn’t have his heart in this, but I wish that some cyberlawyer could sit in on the hearings.)

    So, I dunno, maybe an investigation of a federal judge should take precedence. There’s only been 13 federal judges impeached in our history, and 7 convicted. And these are for high crimes and misdemeanors– bribery, corruption. Only one was removed for a ruling; you’d have to go back to Thomas Pickering in 1799 for that.

    I’m not a lawyer either. But as a I understand, judges make bad decisions all the time without the need for Congress to investigate. The decisions get appealed and overturned.

  2. #2 Jon Garfunkel
    on Feb 29th, 2008 at 4:35 pm

    Congress did not need to investigate. Jonathan Glater at the NYT “Bits” blog follows up:

    “Among other things, the judge asked whether the bank should be suing Dynadot and Wikileaks at all, whether a ‘right to privacy trumps the freedom of access to information…'”

    Not quite (lazy blogger). Judge White was framing the question about privacy vs. disclosure. And he followed that question with a trio of precedents where privacy did trump access, adding:

    “How do the amici respond to the court’s holding in Virgil v. Time, Inc., 527 F.2d 1122, 11228 (9th Cir. 1975), in which the Ninth Circuit held that ‘the public’s right to know is, then, subject to reasonable limitation so far as concerns the private facts of its individual members’? Is the private financial information of Plaintiffs’ customers privileged as newsworthy?”

    There’s two camps. The Free Speech Absolutist crowd, in the tradition of Justice Hugo Black, pounds the First Amendment and shuts off all argument. The Free Speech Balance crowd understands that there are reasonable limitations, and that privacy is one of them. Remember: speech denied is speech deferred, while privacy breached is privacy broken.

    In your Guardian column, you wanted to articulate a balance– between two separate cases. But my sense is that each case needs to be decided on its own. Not that anyone has done a good job of explaining just what is in the Baer documents; I read several press accounts, and no one quoted a tax-shelter expert investigator who said “this is a smoking gun.” Then again, no one has anyone explained the privacy implications either.

  3. #3 Juris-imprudence: the silencing of «
    on Oct 10th, 2008 at 1:19 pm

    […] Center for Citizen Media blogs explains how the Wikileaks site can stay up, despite the judge’s order: The judge blatantly […]