Swiss Bank Responds To Wikileaks Incident While rights groups align to derail dubious legal decision... Last week Swiss bank Julius Baer, unhappy that the Wikileaks website was leaking information about their money laundering, managed to convince a California Judge to force the website offline. The Judge in question had the website's host Dynadot yank their domain and prevent them from getting a new one, raising all kinds of questions about censorship and First Amendment rights.  This matter has nothing whatsoever to do with censorship or The First Amendment. Julius Baer |
Opposition to the decision is starting to take shape, with multiple groups poking holes in the bank's case. While Wikileakes lawyers and groups like the EFF and ACLU tackle First Amendment issues, Public Citizen is busy arguing that the California court in question didn't even have the jurisdiction to shut down Wikileaks. In this case, the U.S. District Court for the Northern District of California in San Francisco does not have jurisdiction because the case involves a dispute between a foreign company and a foreign citizen who posted the documents, Levy said.
"The court’s lack of jurisdiction would have been obvious had the judge been given time to think about the case, instead of being rushed into judgment on less than a week’s notice," Levy said. "In shutting down this Web site through an unlawful prior restraint, the court has muzzled a very important voice in the fight against corporate and government misdeeds." Meanwhile, Julius Baer seems to be jumping on the damage control bandwagon well after the fact, issuing this press release. In it they say they're eager to "address certain misconceptions relating to a recent court decision." The statement insists that last week's ballyhoo has "nothing whatsoever to do with censorship or The First Amendment." It is not and has never been Julius Baer's intention to stifle anyone's right to free speech. Indeed, Julius Baer has specifically made no attempt to remove material on the website which refers to the organization but which does not include information personal to its customers. However, Julius Baer denies the authenticity of this material and wholly rejects the serious and defamatory allegations which it contains. Hopefully many of you feel better now that they've cleared this up. No?
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  furloniumComputer Over? Virus equals Very Yes?
join:2002-05-08
Bethlehem, PA | No. . | |
|  | | | Re: No. Are you by any chance referencing "The People vs. Larry Flynt" with your post? The circumstances surrounding the article lead me to believe that was your intent...
- Tate
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Happiness is an OC-48 in your basement... | |
| |  wruckman Ruckman.net
join:2007-10-25
Northwood, OH | Agreed. Put Wikileaks back up! | |
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 ThrowDemsOutIf you can't convince 'em, confuse 'emPremium
join:2002-03-03
Mullica Hill, NJ
kudos:4
2 edits | Public Citizen overlooks court jurisdiction over the host The judge got jurisdiction because the web sites hosting company(Dynadot) is in the US. | |
| |  woody7Premium
join:2000-10-13
Torrance, CA | Re: Public Citizen overlooks court jurisdiction over the host "The judge got jurisdiction because the web sites hosting company(Dynadot) is in the US."
what does that have to do with it?
You never cease to amaze me, did you even read the article? I am not a lawyer, but even I can see a lot of problems with this case.
1. The judge acted too swiftly, without knowing if he even had jurisdiction.
2. The web hosting company should have challenged the order.
3. Since when do foreign companies get fast trak (I believe it is called exparte,but could be wrong) service from a judge.
4. Closing the whole site was overkill, and probably not legal
just a few
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BlooMe | |
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1 edit | Re: Public Citizen overlooks court jurisdiction over the host said by woody7:1. The judge acted too swiftly, without knowing if he even had jurisdiction. The article posted on DSLR a week or two ago said the bank asserted copyright infringement. Federal court has jurisdiction.
said by woody7:2. The web hosting company should have challenged the order. If I was the hosting company and someone (not even the court) said one of my customers was hosting stolen, copyrighted materials why would I have even the slightest desire to challenge that? EDIT to add: When the materials openly claim to be stolen by a former employee, and bear the owner's logo, etc?
said by woody7:4. Closing the whole site was overkill, and probably not legal I remember from the article a week or two ago, the site owner played coy, dodging the issue until it was too late.
Mark | |
| | | |  KrKHeavy Artillery For The Little GuyPremium
join:2000-01-17
Tulsa, OK | Re: Public Citizen overlooks court jurisdiction over the host You remember incorrectly. They were railroaded, plain and simple.
The whole case is BS on a bunch of levels and legal issues.
If there is any justice left in the world, it should be swiftly overturned. | |
| | | | woody7Premium
join:2000-10-13
Torrance, CA | "The article posted on DSLR a week or two ago said the bank asserted copyright infringement. Federal court has jurisdiction."
Just because someone "asserts" something, doesn't it have to be proven/disproven?
"If I was the hosting company and someone (not even the court) said one of my customers was hosting stolen, copyrighted materials why would I have even the slightest desire to challenge that? EDIT to add: When the materials openly claim to be stolen by a former employee, and bear the owner's logo, etc?"
Other than hosting child pornography I thought that you couldn't hold the hosting company libel? and Isn't that kind of presumptuous for a judge to take the word of the company without even them having complained to the authorities?Wheres the crime without a police report? So a business says that it has private information placed on a website illegally and the court didn't ask for some kind of proof that a crime had been even committed? I believe that there is some kind of process, and It probably wasn't fully followed.l Peace
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| Re: Public Citizen overlooks court jurisdiction over the host said by woody7:Just because someone "asserts" something, doesn't it have to be proven/disproven? They display the materials as originating from the bank(!).
said by woody7:Other than hosting child pornography I thought that you couldn't hold the hosting company libel? I think the issue is that the bank claimed the web site was unresponsive to requests to remedy the matter outside of court.
Some will say "but they didn't identify who they were, or what they wanted." I read the email exchange and all I see is wikileaks playing a cat-and-mouse game. The end result is that that they should have put the bank's attorney in touch with an attorney (any attorney).
Mark | |
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| | | said by ThrowDemsOut:The judge got jurisdiction because the web sites hosting company(Dynadot) is in the US. That gives the court personal jurisdiction over Dynadot. It does not give them personal jurisdiction over Wikilieaks, nor (more importantly) subject matter jurisdiction over the case, which appears to involve two foreign organizations over an act committed in a foreign country (Sweden). | |
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cacoPremium
join:2005-03-10
Whittier, AK | Taxman on his way PRESS RELEASE
FOR IMMEDIATE RELEASE
JULIUS BAER STATEMENT ON WIKILEAKS.ORG CASE
ZURICH / NEW YORK, February 28, 2008 --- Julius Baer wishes to address certain
misconceptions relating to a recent court decision to take the Wikileaks.org website off
line.
This decision was arrived at only after a month long effort on the part of Julius Baer and
its advisors had failed to identify and engage the operators of Wikileaks in a dialogue
regarding the unlawful posting of stolen and forged bank records. This matter has
nothing whatsoever to do with censorship or The First Amendment. Instead, Julius
Baer’s sole objective has always been limited to the removal of these private and legally
protected documents from the website.
The documents in question are protected and prohibited from unauthorized publication
under U.S., California and foreign consumer banking and privacy protection laws. The
posting of confidential bank records by anonymous sources significantly harms the
privacy rights of all individuals.
It is not and has never been Julius Baer’s intention to stifle anyone’s right to free speech.
Indeed, Julius Baer has specifically made no attempt to remove material on the website
which refers to the organization but which does not include information personal to its
customers. However, Julius Baer denies the authenticity of this material and wholly
rejects the serious and defamatory allegations which it contains.
Julius Baer's customers hear that? The taxman is coming and he has a european accent.
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»www.seabee.navy.mil | |
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| Client information I don't understand Karl's suggestion that customer data is public domain. If I work for an software company and walk out with the source code for various projects, and post it to a web site, should the web site be able to say "I didn't steal it, leave me alone?"
I don't understand why internal records and customer data should be different. I'm not sympathetic to offshore banks (and those who use them). I'm not a fan of Microsoft either. But, I know if I "anonymously" received the source code for MS Office, I'd be expected to know that I'm in possession of stolen property.
Mark | |
| | | | Re: Client information You have a point, but in this case it wasn't a product (source code) that was posted, it was evidence of a crime. (particularly of the bank's involvement in one) So I think that turns the argument a bit.
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Intel Quad Core QX6700 @3500Mhz/Asus P5N32-E SLI/4x 1024Mb Corsair/Seagate 750.10/PNY 7800GTs SLI/Silverstone 850W/Custom water cooler | |
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| Re: Client information said by Camelot One:You have a point, but in this case it wasn't a product (source code) that was posted, it was evidence of a crime. (particularly of the bank's involvement in one) So I think that turns the argument a bit. MS is a convicted monopoly. Does that change the fact that someone is in possession of stolen property?
It sounds self serving (to me) to say the person who stole the bank's property, and gave it to a web site was really trying to uphold the law. That's like saying the guy busted with crack was standing on the corner selling it to *bring attention* to the illegal nature of crack, and was hoping the cops would come and look into what he was doing.
Even if we have a disposition toward "the ends justify the means," I don't understand the tone of the DSLR intro. It makes it sound ridiculous that the bank would be able to assert its rights over its property.
Mark | |
| | | |  RealoRcPremium
join:2003-01-25
Brooklyn, NY | Re: Client information I think the analogy should be more like, Microsoft uses code from software under GNU licensing. A programmer working at Microsoft publishes source code for a portion of Windows that show borrowed lines of code.
Or the AT&T whistleblower that told us about the top secret NSA wiretapping room using documents he had. | |
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| Re: Client information said by RealoRc:I think the analogy should be more like, Microsoft uses code from software under GNU licensing. A programmer working at Microsoft publishes source code for a portion of Windows that show borrowed lines of code. Publishing the borrowed lines doesn't violate anyone's copyright because they are themselves open source. The employee didn't walk out with open source materials. She walked out with what is obviously the employer's property.
I'm not necessarily opposed to that if it's part of "whistle blowing." But, it's not astounding that the property owner would assert its rights. It's their property. There is no GPL attached to anything in the documents.
Mark | |
| | | | | | | | Re: Client information What's astounding is a Judge taking down an entire website over 1 document. He restrained over 20,000 pages of speech over a single document that is in question.
Doing so without hearing any kind of defense from Wikileaks. In the ex-parte motion Wikileaks wasn't allowed to present their side of the story.
The requesting party never serving Wikileaks so that they COULD show up. The Bank's lawyers never served wikileaks, although they have now served someone completely unrelated to Wikileaks through EMAIL (not proper service in the US).
That the dispute involves the whistle blower protection laws in the US that weren't even addressed.
That the Judge actually has NO jurisdiction over Wikileaks.
That the Bank's lawyers deny the document is real in public while asserting copyright in the courtroom. The banks public statements about the document should automatically raise questions with the Judge about the validity of their arguments.
That the judge took down a domain regarding something that is a HOSTING issue. The domain had nothing to do with the document, the hosting of the document is the issue. In the real world this would be akin to removing someone's name from the phone book because they are offering to copy CD's for people. Make any sense?
And finally tying back into the first that the Judge in question violated numerous supreme court rulings about restraint of speech and ruling the least harm to said speech. It's clear the Judge didn't even examine any facts in the case, simply ruled in favor of the defendants without verifying the defendants were served with sufficient notice to appear (in fact they weren't served at all, a complete violation of the federal procedural rules), without verifying that the case was valid (public statements, all parties being foreign), without considering the whistle blower protections granted by federal law, without considering the freedom of press in the constitution, and shuting down a name lookup to an entire server that is probably not even inside the US. Talk about jurisdictional issues not even being considered.
The Judge in question should lose his bench for what he did, and the lawyers for the Bank should be disbarred. We're talking egregious abuse of process. | |
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1 edit | Re: Client information said by rahvin112:The Bank's lawyers never served wikileaks, although they have now served someone completely unrelated to Wikileaks through EMAIL (not proper service in the US). It's been said the website is operated/owned in Bermuda(?) Service requirements don't apply.
said by rahvin112:That the dispute involves the whistle blower protection laws in the US that weren't even addressed. Neither do "whistle blower" protections.
If they want US protections they should reside and operate within the US. If they don't want US laws to apply, they shouldn't use a US-based web hosting company.
People usually operate off shore to evade US laws. So, it's a bit ironic that all of a sudden this topic is couched as if US laws apply, and their freedom of speech is being violated.
Mark | |
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| | |  whizkid3Premium,MVM
join:2002-02-21
Queens, NY
kudos:6 | said by amigo_boy: Does that change the fact that someone is in possession of stolen property? It sounds self serving (to me) to say the person who stole the bank's property... Lets get something straight here; and it involves learning the basic definition of theft. Theft (stealing) can only occur if you deprive the original owner of something of their right to use that something. In other words, making copies of documents can never, ever be theft. It doesn't fit even the Webster's definition of theft, much less the legal definition.
On the other hand, it can be considered a copyright violation (if indeed the information is copyrighted). This is typically a civil, not criminal offense. Likewise, theft of services is not the same as theft. Unfortunately, it has the word theft in its title. Sometimes it can be, if the owner is deprived of consideration (money) they could other make by selling the services, but are deprived of this opportunity.
The problem with even calling this a copyright violation, is that the materials published are evidence of a crime. Copyrighting something, so that you could conceal evidence of a crime and prevent copies from being made, is certainly not the reason for copyrights; and to boot, is a legally supported action. The information was published for news purposes (first ammendment), and could even be covered under various wistleblower laws. Likewise, shutting down an entire website, rather than simply issuing an injunction against the particular material, is way off-base; illegal; and has me wondering just how much money the judge took in graft. | |
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| Re: Client information said by whizkid3:Theft (stealing) can only occur if you deprive the original owner of something of their right to use that something. I guarantee you if you walk out of your employers premise with cartons of records, you'll be charged with theft.
Going further, if you use those records to reveal confidential and private information about the employer's customers you will have deprived the owner of those records of her reputation (ability to protect her property).
said by whizkid3:The problem with even calling this a copyright violation, Under current copyright law everything is considered copyrighted whether it has a copyright notice or not.
Mark | |
| | | | | | whizkid3Premium,MVM
join:2002-02-21
Queens, NY
kudos:6 | Re: Client information You just quoted my copyrighted words, then.
You stole them from me.
Boo hoo. | |
| | | | | | | | said by amigo_boy:said by whizkid3:Theft (stealing) can only occur if you deprive the original owner of something of their right to use that something. I guarantee you if you walk out of your employers premise with cartons of records, you'll be charged with theft. That would be true if you were walking out with the originals... If you are walking out with photocopies, but leave behind the originals, the charge of theft won't stick.
Going further, if you use those records to reveal confidential and private information about the employer's customers you will have deprived the owner of those records of her reputation (ability to protect her property). That is a civil offense. | |
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| Re: Client information said by factchecker :
That would be true if you were walking out with the originals... If you are walking out with photocopies, but leave behind the originals, the charge of theft won't stick.
Try it. I guarantee you'll be charged with theft. You have no right to remove anything from your employer's premise without their consent.
Mark | |
| | | | | | | | | | Re: Client information said by amigo_boy:said by factchecker :
That would be true if you were walking out with the originals... If you are walking out with photocopies, but leave behind the originals, the charge of theft won't stick.
Try it. I guarantee you'll be charged with theft. You have no right to remove anything from your employer's premise without their consent. Sorry, but as the other poster has stated, I think you need to learn how the legal definition of theft works.
Without actually removing the property - the originals - you are not committing theft... The company has not been deprived of its property. Period. | |
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| Re: Client information said by factchecker :
I think you need to learn how the legal definition of theft works.
In Dowling it hinged on whether the copies were "stolen, converted or taken by fraud." The Court held that simply copying items that were essentially publically available for sale didn't constitute "theft" (criminality, instead of copyright violation, a civil matter.).
An employers papers are not offered for sale. They were obtained through fraud (agreeing to an employment agreement and ongoing policies).
Mark | |
| | | | | | | | | | | | Re: Client information said by amigo_boy:An employers papers are not offered for sale. They were obtained through fraud (agreeing to an employment agreement and ongoing policies). Actually, that would not be the case. If you are going say that the employee violated an "employment agreement or policies", that would be a breach of contract and would not constitute fraud.
The only way that it might be fraud is if the employee took the job with the specific intention of violating the employment agreement and copying the documents prior to being hired. | |
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| Re: Client information said by factchecker :
If you are going say that the employee violated an "employment agreement or policies", that would be a breach of contract and would not constitute fraud.
Every day you enter an employer's work place without informing them that you have unilaterally rejected your employment agreement and ongoing employment policies is an act of fraud. Doing so to obtain copies of your employer's papers deemed to be the highest classification of confidential and "internal use only" is to obtain them through fraud.
A classic definition of theft.
Mark | |
| | | | | | | | | | | | Re: Client information said by amigo_boy:Every day you enter an employer's work place without informing them that you have unilaterally rejected your employment agreement and ongoing employment policies is an act of fraud. Actually, it is not. Unless gain by the person who is violating those agreements can be demonstrated, fraud has not taken place.
A demonstrated gain must take place for it to be an act of fraud - for example, laundering money from the company.
I recommend you take some time to familiarize yourself with the term fraud while you are at it...
And regardless, because all of this took place in another nation, the reality is that this discussion is a waste of time because US law doesn't apply to the alleged offense. | |
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| Re: Client information said by factchecker :
A demonstrated gain must take place for it to be an act of fraud - for example, laundering money from the company. Do you have a reference for that definition? Everything I've read says that fraud involves three elements: a material false statement made with an intent to deceive (scienter), a victim’s reliance on the statement and damages.
Blackstone's definition of fraud:
All multifarious means which human ingenuity can devise, and which are resorted to by one individual to get an advantage over another by false suggestions or suppression of the truth. It includes all surprises, tricks, cunning or dissembling, and any unfair way which another is cheated.
Source: Black’s Law Dictionary, 5th ed., by Henry Campbell Black, West Publishing Co., St. Paul, Minnesota, 1979. Mark | |
| | | | | | | | | | | | Re: Client information said by amigo_boy:Do you have a reference for that definition? Everything I've read says that fraud involves three elements: a material false statement made with an intent to deceive (scienter), a victim’s reliance on the statement and damages. Gain = damages. For example, if I use deception to get your life savings for a real estate investment scam, my gain (your life savings) is the damage you can claim (the value of your life savings).
Blackstone's definition of fraud: All multifarious means which human ingenuity can devise, and which are resorted to by one individual to get an advantage over another by false suggestions or suppression of the truth. It includes all surprises, tricks, cunning or dissembling, and any unfair way which another is cheated.
Ergo, my statement stands and your own source has supported my assertion. There must be a demonstrated gain for the action to constitute fraud.
Merely lying does not constitute fraud. | |
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See 12 replies to this post |
| | | PDXPLT
join:2003-12-04
Banks, OR | said by amigo_boy:MS is a convicted monopoly. No they're not. There's nothing illegal in being a monopoly, so they can't be "convicted" of being so. | |
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|  wifi4milezBig Russ, 1918 to 2008. Rest in Peace
join:2004-08-07
New York, NY | said by amigo_boy:I don't understand Karl's suggestion that customer data is public domain. If I work for an software company and walk out with the source code for various projects, and post it to a web site, should the web site be able to say "I didn't steal it, leave me alone?" I don't understand why internal records and customer data should be different. I'm not sympathetic to offshore banks (and those who use them). I'm not a fan of Microsoft either. But, I know if I "anonymously" received the source code for MS Office, I'd be expected to know that I'm in possession of stolen property. Mark The bottom line is that argument is way to rational for DSLR. Please take that well thought out statement someplace else.
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| | | Giuffre pled guilty. Had he relied on Dowling he probably could have beaten the conspiracy to transport stolen property count but not the unauthorized computer access count.
It's amazing the lengths this tag-team will go through to justify the bank's and judge's actions and to label copyright infringement as somehow dealing with "stolen property". The plain language of Dowling says otherwise.
"(a) The language of 2314 does not "plainly and unmistakably" cover such conduct. The phonorecords in question were not "stolen, converted or taken by fraud" for purposes of 2314. The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. Pp. 214-218."
When you're just emailing bits, there is NEVER a physical identity between the items obtained (whether lawfully or otherwise) and those transported. NEVER. | |
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| Re: Client information said by russotto: Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. I don't disagree with that. Copyright is a social moderation of otherwise common law property rights. If someone elects to transfer property using copyright (instead of, say, licensing to restrict what is otherwise a total transfer of property rights) it does become more complex. Infringement of copyright isn't covered under common law property rights (against theft). It's covered under copyright.
What makes this inapplicable to the bank is that they *never* released their internal memos and customer records under copyright. These continue to be governed by common law property rights. Even though copyright law applies to everything regardless of whether the author (corporation) affixes a copyright notice or distributes does not eliminate the author's (corporation's) non-statutory property interest.
In other words, it's apples and oranges. If I distribute a song under copyright (instead of individual licensed use) I can't consider my property to be governed outside of copyright's provisions. If I don't distribute my song under copyright, but a janitorial crew steals it from my office, I can consider it to be protected beyond copyright.
Mark | |
| | | | | | Re: Client information said by amigo_boy:What makes this inapplicable to the bank is that they *never* released their internal memos and customer records under copyright. These continue to be governed by common law property rights. Even though copyright law applies to everything regardless of whether the author (corporation) affixes a copyright notice or distributes does not eliminate the author's (corporation's) non-statutory property interest. The common law property right applies only to the memos and records themselves. Not to copies of the memos and records. That's what the court was getting at when it stated rather plainly "The section's language clearly contemplates a physical identity between the items unlawfully obtained and those eventually transported". No physical identity, no stolen property. | |
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 DavidI have a son- d3Premium,VIP
join:2002-05-30
Granite City, IL
kudos:68 | Well Mr. Baer Don't do the crime if you can't do the time! | |
| woody7Premium
join:2000-10-13
Torrance, CA | hmmm....... whether the information was posted legally or illegally, is whether the judge had jurisdiction...and whether the "host" should have fought the order. In any case this was probably miss handled from the get go. While I believe posting information that was not legally obtained isn't good, neither is a judge assuming jurisdiction over the case, and rushing to judgment.
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BlooMe | |
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See 24 replies to this post | |
woody7Premium
join:2000-10-13
Torrance, CA | to answer your question "You're on the edge of what I think is a more important issue. What if a disgruntled employee fabricates information, posts it to an "anonymous" site like this and defames his former employer. What's the avenue of recourse?
As I said earlier, I don't agree with the way it was done, I only really commented on how it was done (the judges part). On a side note, if what was posted was/is illegal,then to me there is no problem, IE"pentagon papers". The company has rights, that I don't disagree with, but as I researched what had happened, is that a lot of what they wanted stifled was being done behind the scenes. The correct avenue would have been to complain to the Cayman authorities,file a complaint with them, which I understand didn't happen. To me the whole gist of what they tried to do was keep it from seeing the light of day and to that end they seemed to have shot themselves in the foot. To answer your question there are proper avenues for them to use.Peace
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|  bentand IngaPremium
join:2004-10-04
Loveland, CO
 ·Comcast
| Messy Now that these papers have seen the light of day, the FBI and IRS should be in high gear investigating the crimes the papers allege, to determine if there's enough merit to bring a case against any of the parties involved, or if the papers are forged as The Bank claims.
The judge acted correctly, on prima face evidence, in ordering the site taken down. Privacy of banking records trumps freedom of speech any day of the week. Judges ordering activities that might be illegal halted until a court can determine the legality of said activities isn't out of the ordinary at all.
The judges decision actually promoted Wikileaks cause like nothing else could have. It screamed "This International Bank Is Afraid Of What We Have" garnering an audience that they probably wouldn't have had previously. Honestly, how many of you had heard of Wikileaks before this became news?
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»www.lp.org/issues/family-budget.shtml
"That government is best which governs least" - Thoreau | |
| | | | Re: Messy said by bent: Now that these papers have seen the light of day, the FBI and IRS should be in high gear investigating the crimes the papers allege, to determine if there's enough merit to bring a case against any of the parties involved, or if the papers are forged as The Bank claims. The judge acted correctly, on prima face evidence, in ordering the site taken down. Privacy of banking records trumps freedom of speech any day of the week. Judges ordering activities that might be illegal halted until a court can determine the legality of said activities isn't out of the ordinary at all. Hmmm. Privacy trumps freedom of speech, eh? Do you wish to back this assertion up with an example from the Bill of Rights? How about a case law example from the Supreme Court? Can you provide one? Although privacy is implicit in the constitution's fourth amendment, it is not stated explicitly, especially when the government is not involved in violating one's privacy.
Yes, I agree that free speech ends with defamation (among other things) but the one sure-fire defense against the charge is TRUTH. If this turns out to be a true story and the documents are authentic, then what? If this turns out to be the case, Wikileaks has a lot of ground for a lot of action.
I have no problem with information that is potentially defamatory being removed until an investigation can be completed regarding its relevance or level of veracity, but I think that one would be hard pressed to find constitutional grounds for what this judge did -- shutting down the whole site indefinitely. As another poster here said, I smell a bribe.
And I have never heard of Wikileaks until now, but I do remember a project at MIT that went defunct a few years ago that was very similar in scope to Wikileaks. I think it was called "Government Information Awareness."
You can be assured governments and big corporations loathe these projects. I think they are a great thing for freedom and democracy. | |
| | | bentand IngaPremium
join:2004-10-04
Loveland, CO Reviews:
·Comcast
| Re: Messy We're not talking about the constitutional right to privacy or freedom of speech because, as you point out, the government isn't involved as an interested party (yet.) We're talking about the right of a private citizen to disseminate confidential financial records not only protected by copyright law, but also I'm sure by contract with the former employee. Do you really think that should be covered under Freedom of Speech? Whistle-blower laws maybe, if the information was brought to the attention of the proper authorities, but not freedom of speech.
Don't get me wrong, Wikileaks may have had a moral obligation to publish the information to bring unpleasant facts to light about criminal financial activity (who'd have though?) by the elite of the ruling capitalist caste. Sometimes, when you grab the tiger by the tail, you get the teeth right along with it.
What I'd really be interested to see is not if Wikileaks stays down (is there really any such thing on the internet? mirrors galore.) but if any criminal prosecutions result from the leaked documents. 7:5 says there won't be.
I'll defend your Freedom of Speech with my life, but when it infringes on my privacy, be prepared speak freely through a wired jaw, literally or figuratively.
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| Re: Messy said by bent:What I'd really be interested to see is not if Wikileaks stays down (is there really any such thing on the internet? mirrors galore.) but if any criminal prosecutions result from the leaked documents. 7:5 says there won't be. I agree. Most companies don't want the PR associated with prosecuting employee theft, defamation, etc. Even more if the company's main selling points is keeping its customers identities secret.
If they pushed for criminal theft charges, or brought a defamation suit they'd have to identify which documents are forged. Probably confront the former employee who stole the documents. And, all under oath (which is a problem if they have scruples concerning honesty, which is a big if.).
The way they're playing it now is smart. They've called into question the veracity of all the documents by asserting that some are forged. They don't have to say which is which. All they have to do is say "even if we dispute that all the documents are ours, the defendant depicts them as such, and therefore for the purpose of copyright we'll say there is no dispute in this regard."
The other interesting thing is that they have clear access to legal remedy under copyright because it's an international treaty. It's not clear if it's as easy to claim violation of trade secrets (DMCA) or defamation if they're not a US entity. Does DMCA and defamation laws, access to US courts apply to foreigners without a treaty? (Maybe the bank has US offices.).
Mark | |
| | | |  AnonProxyProxy of AnonPremium
join:2001-05-12
ß | This is really at the heart of the matter and a great post.
Freedom of speech is one thing, there is no "freedom to post confidential information if one chooses".
You are right again on the channel for that information, if you have confidential evidence of a crime, there are the proper channels to follow...IE going to the proper authorities.
That being said, the only problem I see with this is that the crimes as witnessed and understood by "Deep Throat" about the Nixon administration were brought to the media, because the "proper authorities" were actually the problem. What would have happened if a judge stopped the newspapers from printing the "confidential" information? To that end isn't the website working in a sort of similar fashion, when the proper authorities do not do their job, the "bright lights" of the media are often the only thing that can expose corruption. | |
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| Re: Messy said by AnonProxy:That being said, the only problem I see with this is that the crimes as witnessed and understood by "Deep Throat" about the Nixon administration were brought to the media, "Deep Throat" only told reporters where to look. He didn't provide specific documents. Even if he did, government works are not (or weren't back then) copyrightable. And, even if Deep Throat produced documents, the newspapers didn't publish them.
Personally I'm ok with publishing the documents. I just wouldn't cry about the outcome. It sounds like "being able to dish it out, but not take it."
Mark | |
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| | | this is huge deal, so... Why are so few people responding to this. This much worse than Comcast bussing people to a hearing, and that had over 100 comments in no time. I believe the site should be put back up immediately, the judge should be reprimanded for abuse/misuse of power. What else will we allow to be stifled? I am sure one day DslR will be in this boat, will we jump ship after so many years of reading/posting. It is time we stop "just" reading about the greedy acts of these cable/telcos. Can so done donate server space to wikileaks? | |
| | | misprision of treason? this sounds like misprision of treason dressed up in copyright infringement - perhaps the jusge thought he was protecting against defamation by causing the documents to be removed but not the whole site. Some other court will have to decide whether there was any merit to the whistleblowing claim and that, if true, the whole civil machinery will creak into action. However, nobody should be surprised a Swiss bank is zealously guarding it's customers' activities - what surprises more is that a Swiss bank allowed documentation linking names and accounts out in the first place, internet or fax machine! | |
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| Re: misprision of treason? said by Wal the Psalt :
a Swiss bank allowed documentation linking names and accounts out in the first place, internet or fax machine!
I think it's the "allowed" part that's in dispute. 
Mark | |
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