Tuesday, February 19, 2008

Speech vs. Privacy vs. Reality

It seems a relatively clueless federal judge out in California has seen fit to not merely issue a takedown notice to a website, but to strike all DNS records of it (the part your PC looks at to ask "where do I find www..com") until further notice, and then lock the DNS to the current registrar so the domain can't be transferred to a registrar outside the jurisdiction.

The website, www.wikileaks.org, was dedicated to that relatively odd form of free speech known as "whistleblowing", which many cogently argue is a vital restraint upon the public and private actions of governments and other organizations. Wikileaks provided an anonymous forum for folks to publish data with what it represented as a reasonable guarantee of anonymity.

Not surprisingly, some small number of folks who found this distressing - usually folks that aren't eager for public scrutiny.

In a case brought by Swiss banking group Julius Baer concerning several documents posted on the site allegedly revealing bank involvement with money laundering and tax evasion, attorneys for the bank group demanded the documents be removed.

The judge then issued an order, and having been issued half a clue, attempted to "take something off the net". While arguments of freedom of the press (and speech) vs. privacy in such circumstances are still being hammered out with occasional spicy bits from their friends libel and slander, the judge in question failed to address or understand a basic question.

You can't call back the wind.

A simple google search draws a blank on "wikileaks", even when one uses the oft-relied upon google "cache" function - oddly, that's been purged. However, when one searches on "Wikileaks alternatives", oh my - wikileaks.org is now replicating virally (i.e., copies of the site are springing up on servers all over the place) on servers in countless nations even as the number of folks examining wikileaks skyrockets as a result of the "temptation of the forbidden fruit" and simple publicity.

I'm somehow doubting that becoming a worldwide laughingstock was the goal of the judge issuing this order, nor was bringing contempt upon the judicial system of the United States. Similarly, I doubt the banks attorneys sought, as a goal, to ensure vastly broader readership for the documents they sought to censor.

Both failed to understand a basic reality - that once information is out there in the internet, it can *never* be called back (and that's the gentle happy warm fuzzy version). The version of the statement with fangs and hair is that heavy handed attempts to call back the wind by law enforcement or judicial bodies tend to be vastly counterproductive - in all but a few cases (things found universally repugnant, such as child porn), it sends large ratio's of the more geekish into a quietly dangerous rage on an international basis, and the power of tech looms large in the land.

The thing is, when a geek gets peeved about freedom of speech he or she is seldom ever carrying a sign in front of the offending jurisdiction. While despite rumors to the contrary, most geeks can be exposed to sunlight without damaging them, carrying a picket sign is...silly. The geekish protest is to launch a server or three carrying the censored materials back to the web - precisely what we see occuring with wikileaks - and those tend to be copied to servers located around the world as other geeks hear of censorship in action, grow annoyed, and launch their own servers in their own nations...in this case, many nations well beyond the reach of a U.S. District Court Judge.

At least at this point, once a document is on the web, to attempt a judicial order to "call it back" is at best self-defeating, and at worst counterproductive.

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