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Archive for April 13th, 2009

In Britain, Web Leaves Courts Playing Catch-Up – Wikileaks

From Wikileaks, March 29, 2009

By Noam Cohen (New York Times)[1]

On March 17, hours after publishing leaked documents on its Web site showing the lengths Barclays had gone to in order to reduce the taxes it paid in Britain, The Guardian newspaper was ordered by a judge to take the material down. His reasoning was that the bank had a right to confidentiality.

In the ruling, the judge in London, Nicholas Blake, also added a peculiar twist: The Guardian must not tell readers how easy it is to locate the documents at Web sites outside of Britain. It was only the latest example of British courts trying to preserve what it saw as litigants’ rights even in the face of an onslaught of information on the Internet. To some, this may be a final, futile effort.

In November, a court order prevented British newspapers from printing a leaked list of members of the far-right British National Party. Unfortunately for the court, that material was available at, among other sites, wikileaks.org, which also hosts the Barclays documents.

In that earlier case, British newspapers, including The Guardian, took great pleasure in (wink, wink, nudge, nudge) directing its online audience to the list they had been forbidden to publish. The height of absurdity came when those papers published blog posts from reporters describing the experience of reading the list at wikileaks.

‘The Internet is throwing sharp relief to the illogical nature of our system,’ said Alan Rusbridger, the editor of The Guardian. ‘Technology is way ahead of the law, and the law is limping along trying to make sense of it.’

The effect of the Internet on judges’ rulings is not a uniquely British problem, said Jonathan Zittrain, a Harvard law professor who taught at Oxford. There is at least one example, he said, of an American court ordering a Web site not to link to content it had been ordered to take down. But he added that ‘British courts may be a little more confident of their own power, and be less willing to cave in to practicalities.’

The Barclays case pits two interests against each other, said James Edelman, a law professor at Oxford who argues media law cases. Since 1988, Professor Edelman said, British law has given great protection to the right of confidentiality, applying it to third parties like The Guardian, which received the documents from someone else. Yet, the ‘public interest’ in learning about what is contained in those documents, he said, can often outweigh confidentiality considerations.

Finally, there is a basic factual question: is the material already in the public domain? And this is where the Internet throws a wrench into the proceedings.

The courts recognize, Professor Edelman said, that there is no point in banning the publication of something already widely disseminated. In the Barclays case, the court met in secret to determine if the material had crossed that threshold.

Mr. Rusbridger, who said he, too, was awakened in the wee hours to receive the order to take the material down, characterized the scene: ‘We were pretending that by discussing this in secrecy in a court in London that no one was discussing it elsewhere.’

The entire situation, he said, puts newspapers ‘in a uniquely disadvantaged position where we cannot discuss what is being discussed elsewhere.’ There was a silver lining, Mr. Rusbridger said. For the hearing, he wrote a witness statement, which included summaries of what was contained in the memos and the analysis of a tax expert retained by The Guardian, to explain to the judge why it was in the public interest to publish the memos. That material was unaffected by the order.

Mr. Rusbridger’s summaries later appeared in The Guardian.

The leaked memos come from Barclays’ structured capital markets division and were given to a member of Parliament. They explain complex arrangements — given names like Project Berry and Project Knight — involving, say, transactions between an Isle of Man subsidiary and the Luxembourg branch of a German bank. Collectively, The Guardian wrote, they show that the division ‘has for years been engaged in engineering numerous inventive schemes to avoid very large sums of tax.’

In a statement, the chief executive of Barclays, John Varley, responded: ‘Barclays complies with taxation laws in the U.K. and in all the countries where we do business.’ He wrote that his company placed great emphasis on meeting its obligations to the British tax agency, Her Majesty’s Revenue and Customs. ‘From our perspective, this has enabled H.M.R.C. to carry out detailed and robust assessments of our tax affairs with an emphasis on our structured capital market transactions. We provide them with further explanations and documentation as required.’

He concluded: ‘We are confident that the leaked papers do not highlight any deficiency in our disclosures and explanations to H.M.R.C.’

Nonetheless, Barclays was quoted by Reuters as saying the publication of the documents would damage its business.

Professor Edelman of Oxford said that Judge Blake’s order could represent a last example of British courts ignoring the changed reality of by the Internet.

‘What is significant about the ruling,’ he said, ‘is that it will open people’s eyes that even if you can get an injunction to preserve information that is able to be obtained over the Internet, I suspect that the injunction won’t last.’ The publicity over the injunction creates more interest in the material, leading other sites to publish it. The Guardian will be able to return to court, he said, and argue the injunction no longer serves any purpose.

Mr. Rusbridger said that the newspaper still had not decided whether to do that. The cost for being wrong, he said, could be as much $300,000 in legal fees.

Seeming to prove Professor Edelman’s larger point, however, when Wikileaks became overloaded by the traffic about a week ago, another site, techcrunch.org, published the seven memos under the heading ‘How Barclays Ensured That Everyone Would See Their Confidential Tax Documents.’

First appeared in the New York Times. Thanks to Noam Cohen and the New York Times for covering this leak. Copyright remains with the aforementioned.”

(Via .)

Western internet censorship: The beginning of the end or the end of the beginning? – Wikileaks

From Wikileaks, March 29, 2009

EDITORIAL (WikiLeaks)

We’re arresting you for speeding.
What’s the speed limit, officer?
The speed limit is secret.

Shortly after 9pm on Tuesday March 24, Wikileaks related buildings in Dresden and Jena, were raided by 11 plain clothes German police.

Why?

Over the last two years, Wikileaks has exposed detailed secret government censorship lists or plans for over eight countries, including Thailand, the United Arab Emirates, Australia, and Germany.

Although Wikileaks’ main site has been censored by the Chinese Public Security Bureau since early 2007, last week saw the site placed onto a secret list of sites ‘forbidden’ by the Australian Media and Communications Authority, or ACMA.

The pro-censorship governments exposed by Wikileaks can be divided into three broad categories:

1. Countries with a mandatory censorship system in place: Thailand, the UAE, and Lebanon (films).
2. Countries proposing a mandatory censorship system: Australia and Germany.
3. Countries in which the internet censorship system is an unregulated agreement between several large ISPs and the police: Norway, Denmark and Finland.

Australia and Germany are the only liberal democracies proposing a mandatory internet censorship regime.

All of the schemes operate, or are proposed to operate, through multi-million dollar national networks of censorship machines.

The machines spy on the nation as each citizen attempts to read on the internet, and compares requested pages to those listed on a secret government ‘blacklist’.

If the page is on the blacklist, the government forcibly prevents the citizen from viewing the information by intercepting his or her internet communication and diverting it to a machine controlled by the censorship system. This machine is often configured to record the identity of the person attempting to access the forbidden information. If the page is not on the blacklist, the government grants permission for the citizen to view the page.

Although originally marketed, in all countries, as a way of combating child pornography, the blacklists obtained by Wikileaks show that the systems have already been corrupted into censoring other content, including political content.

For instance, the secret blacklist for Thailand censors thousands of sites per year deemed to be critical of the Thai Monarchy, from academic books and YouTube to the Economist magazine and Wikileaks itself.

Similarly, the blacklist for Australia contains an anti-abortion site, fringe religions, a dentist clinic, gay sites, gambling sites, islamist sites, euthanasia activist sites, an astrologer’s blog, misclassified material, and, like Thailand, Wikileaks itself. Even the Australian government’s ‘Minister for censorship’, Senator Stephen Conroy, has admitted that fully half of the sites on the secret list are unrelated to child pornography.

As newspapers and other publications migrate to an exclusive life on the internet, such totalizing censorship systems are able to instantly snatch ‘pages’ from the laps of citizens across an entire nation, interdicting communications between publisher and reader, and the new civil discourse between readers and each other. The scale, speed and potential impact of this centralized intervention has no historical precedent.

Secret national censorship systems are dangerous and unaccountable. They are an afront to natural justice, due process and the balancing power of the fourth estate. They must be, and will be, stopped.

The Australian Government has stated it plans to increase the size of its blacklist list by 10 fold, from roughly 1,200 blocked pages to over 10,000, although the plan is now seems unlikely to pass the Australian Senate after the revelations of the last month.
* * * * *

To make what has happened clear to those who understand traditional book censorship, we provide the following simple analogy:

Within the libraries and book catalogues of Germany and Australia there are books (web pages) forbidden by the state.

The government of Australia has compiled a secret list of books it forbids. About 1,200 books are on the list.

Not even authors or publishers whose books are placed on the list are told their book has been banned.

Germany plans to adopt and expand a version of the Australian scheme.

Under the plans of the German and Australian governments, every attempt to borrow a book (read a web page) will be checked against the secret ‘forbidden books’ (forbidden web pages) list.

If a book is on the list, the attempt to borrow it is noted down in another secret list and permission is refused. If the book is not on the blacklist, permission is granted.

The list of forbidden books (the blacklist) is a forbidden book.

The lists of books forbidden in other countries are also forbidden books.

Any book that mentions the title (URL) of a forbidden book is itself a forbidden book.

An international investigative newspaper (Wikileaks) reveals key internal documents on the censorship expansion plans for Germany, Australia and other countries. For Australia this expose includes the lists of forbidden books and the presence of clearly political books on the list. The newspaper warns that Australia is acting like a ‘democratic backwater’ and risks following the censorship path of Thailand.

The article and lists, and then the entire newspaper secretly added to the list of publications banned by Australia.

The Australian ‘Minister for censorship’, Senator Stephen Conroy, states ‘Any citizen who distributes [the blacklist] is at serious risk of criminal prosecution’. The Minister threatens to refer the leak to the Australian Federal Police.

That same week, the newspaper releases three more articles on censorship and updates the lists of forbidden books.

Two buildings related to the newspaper in Germany are then raided by 11 plain clothed police. The police demand the keys (passwords) to a protected room (server) containing the newspaper’s printing press so they can disable it. The newspaper staff refuse to comply–both the keys and the press itself have been sent to Sweden, a country with stronger legal protections for journalists.

The German police then seize what they believe to be the newspaper’s archives (a hardrive) and a typewriter (laptop) ‘for evidence’.

* * * * *

The story might end there, but 12 hours after the police raid, on Wednesday the 25th of March, the German Cabinet announced the completion of a proposed law for a nationwide, mandatory censorship system–to be pushed through before national elections in September, 2009.

For every noble human desire, in this case, the strong protective feelings most adults have towards children, opportunists such as Senator Conroy and his German equivalent, CDU Minister Ursula von der Leyen, stand ready to exploit these feelings for their own power and position.

Von der Leyen apparently hopes to raise her profile before a national election by promoting a national censorship ’solution’ to child pornography.

But forcibly preventing the average parent from seeing evidence of what may be an abuse against a child is not the same as stopping abuses against children. Absense of evidence is not evidence of absense.

Censoring the evidence promotes abuses by driving them underground, where they are difficult to track. Such schemes divert resources and political will away from proven policing solutions which target producers and consumers.

Children depend, even more than their parents, on the quality and viability of government. An assault against those systems and ideals which keep government honest and accountable – public oversight, natural justice, and protection from state censorship – is not just an affront to Enlightment ideals, but an assult on the long term interests of children and adults alike.

The March 24th raid is not the first time the German state has attempted to censor Wikileaks; back in December 2008, Ernst Uhrlau, former police chief and current head of the BND, Germany’s equivalent to the CIA, threatened to prosecute the site unless it removed a BND dossier on corrupt officials in Kosovo and other information. The dossier was not removed. There is no evidence that the police action and the BND incident are related, but the situation, together with a recent Bundestag inquiry documenting illegal BND spying on the German press, does not paint a flattering picture of the state of German government.

Germany deletes WikiLeaks.de domain after raid – Wikileaks

From Wikileaks, April 9, 2009

GMT Mon Apr 13 19:27:10 2009 GMT

Update

According to claims of German registration authority DENIC, the Wikileaks.de domain has been sent to DENIC by the Internet domain registrar, ‘Beasts Associated’ and therefore is ‘In Transit’. The registrar claims this had happened as a consequence of ‘contract breach’ by the domain owner. WikiLeaks has open questions that cannot be answered at this point in time. It also remains unclear whether the ‘breach of contract’ is related to content on the website or administrative issues. An update will be posted as soon as we have all information required to assess the situation.

Fri Apr 10 19:39:36 2009 GMT

WIKILEAKS PRESS RELEASE

On April 9th 2009, the internet domain registration for the investigative journalism site Wikileaks.de was suspended without notice by Germany’s registration authority DENIC.

The action comes two weeks after the house of the German WikiLeaks domain sponsor, Theodor Reppe, was searched by German authorities. Police documentation shows that the March 24, 2009 raid was triggered by WikiLeaks’ publication of Australia’s proposed secret internet censorship list. The Australian Communications and Media Authority (ACMA) told Australian journalists that they did not request the intervention of the German government.

The publication of the Australian list exposed the blacklisting of many harmless or political sites and changed the nature of the censorship debate in Australia. The Australian government’s mandatory internet censorship proposal is now not expected to pass the Australian senate.

On March 25 the German cabinet finalized its own proposal to introduce a nation-wide internet censorship system. Australia and Germany are the only Western democracies publicly considering such a mandatory censorship scheme.

While last week German police claimed to the news magazine Der Spiegel that they had been ignorant about WikiLeaks’ role as an international press organization, this ‘excuse’ is surely no longer valid. Despite being questioned by the press, German authorities have still not contacted WikiLeaks or its publishers to resolve the issue, or indeed, at all. The lack of contact is inexcusable.

The situation is similar to the legal dispute between WikiLeaks and the Swiss bank Julius Baer last year. WikiLeaks had published documents exposing hundreds of millions dollars hidden by Baer under Cayman Islands trusts. That case saw the ‘wikileaks.org’ domain temporarily disabled by a California judge following an ex-parte hearing by the bank. Publishing continued on other WikiLeaks domains and following representations by WikiLeaks lawyers and 20 major media and civil liberties organizations, including the American Civil Liberties Union, the Reporters Committee for the Freedom of the Press, the EFF, the Associated Press and Public Citizen, the judge admitted his error and rescinded his orders.

Like the Swiss bank, German authorities have attempted to silence an entire press outlet over their objection to a handful of documents or articles.

WikiLeaks continues publishing on its other (non-German) domains. If the German cabinet’s censorship proposal passes the Bundestag, presumably those WikiLeaks domains would be added to Germany’s secret blacklist.

Germany and China are now the only two countries currently censoring a WikiLeaks domain.