Category: Uncategorized

BU Today has an interview about the Wikileaks.org shut-down with Computer Science Department chair Azer Bestavros. His point–that “once the information makes it to the Internet, it’s impossible to take it back”–has profound implications about the ability of anyone, governmental or private, to restrict speech. It’s a point that Larry Lessig makes in his discussion of the Pentagon Papers case in Code 2.0 (Chapter 12, for those following the program): “Publishing requires a publisher, and a publisher can be punished by the state. But if the essence or facts of publication are punished elsewhere first, then the need for constitutional protection disappears. Once the piece is published, there is no further legal justification for suppressing it.” Professor Bestavros’s conclusion will be familiar to anyone who has taken my Internet law course or read Code 2.0: “Places like this bank should use much better technologies to protect their content.” In other words make if more difficult to leak sensitive information; rely on architecture, not law.

Wikileaks.org–which can’t be found using that domain address since a judge’s ruling last week, but which can still be viewed at http://88.80.13.160/wiki/Wikileaks, its IP address, and at mirror sites (http://wikileaks.be/, http://wikileaks.de, and http://wikileaks.cx–permits anyone to post documents and other leaked material exposing unethical or illegal corporate and government behavior. A bank employee posted documents on the site purporting to disclose how Julius Baer Bank & Trust assists in money laundering and tax evasion. Last week, in a lawsuit brought by the bank, a federal district court judge in San Francisco ordered the wikileaks.org domain name disabled and locked to prevent its transfer to another domain name registrar. As a New York Times article reports, the judge’s order order “had the effect of locking the front door to the site — a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look . . . The feebleness of the action suggests that the bank, and the judge, did not understand how the domain system works, or how quickly Web communities will move to counter actions they see as hostile to free speech online.”

The judge’s permanent injunction and temporary restraining order, issued without accompanying analysis of the free speech issues, violate the First Amendment. It is hard to fathom why the judge believed these acts of censorship to be legal. The Times articles notes that the U.S. Supreme Court rejected prior restraint of speech in the Pentagon Papers case in 1971, notwithstanding the Nixon administration’s argument that publication threatened our national security. (Every semester presents an opportunity to tell students that, because of the Pentagon Papers case, many people of my generation will forever view government claims that information must be suppressed on grounds of national security with profound skepticism.) Even if Julius Baer Bank & Trust has a legitimate trade secret interest in preventing disclosure–an argument not raised in the Time’s article–then shutting down the website or disabling the domain name would not be appropriate remedies. This is a bad decision that should be overturned on appeal; the Internet has already rendered it moot.

UPDATES: A New York Times editorial on this story and Citizen Media Media Law Project analysis of the legal issues.