WikiLeaks about to hit the fan

Abstract:
In Schenck v. United States (1919), Justice Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Owing to globalization, the digitization of expression, and other modern conditions a metaphorical global theater is emerging. In this theater, speakers’ voices and the physical and psychological effects of domestic expressive activities will frequently traverse or transcend territorial borders. This Article draws upon several recent events -- the Quran burning in Florida, the international reaction to an Internet posting calling for a “Draw Mohammed Day” event, the criminalization of the provision of expressive assistance to designated foreign terrorist organizations, the posting of potentially inciting speech on the Internet, and the WikiLeaks disclosures -- to examine how First Amendment doctrines relating to offensive expression, incitement, hostile audiences, treason, and the distribution of secret or potentially harmful information might apply in the global theater.

One of the most pressing challenges to governmental regulation of trans-border information flow in the emerging global theater concerns the global publication of government secrets. From his base in Switzerland, WikiLeaks‘ publisher, Julian Assange, shared detailed information regarding United States battlefield operations in Iraq and Afghanistan and diplomatic cables with several western newspapers. Assange, who allegedly obtained the information from a Private in the United States Army who had illegally procured it and is now being prosecuted for his actions, posted some of the material on the WikiLeaks website. According to the United States Department of Defense, some of this information may have compromised military missions and covert agents working in the field. The White House and State Department decried the release of diplomatic cables, suggesting that diplomatic relations and lives had been endangered by the disclosures. The United States Justice Department opened a criminal investigation targeting Assange and WikiLeaks.

As the WikiLeaks episode shows, in the emerging global theater information sources have proliferated such that anyone with an Internet connection can cheaply and widely distribute even closely held official secrets. Trans-border information platforms like the United States mail and other regulated telecommunications channels are rapidly being replaced by technological channels that are not subject to direct control by United States or other officials. This raises additional regulatory complexities, particularly where governmental secrecy has been breached and information has traversed international borders and appeared on the Internet as a result of actions by foreign speakers beyond U.S. territorial borders.

Assange appeals extradition to U.K. high court
(The Associated Press, November 15, 2011)

LONDON - WikiLeaks founder Julian Assange filed a bid Tuesday to challenge his extradition to Sweden in Britain's highest court, says the Judicial Office.

On Nov. 2, two judges rejected the 40-year-old hacker's challenge to an order that he be extradited to Sweden to face questioning over allegations of rape and molestation.

Assange will ask High Court judges at a Dec. 5 hearing to rule that his case raises a question of general public importance and should be considered by the Supreme Court.

Wikileaks spokesman Kristinn Hrafnsson declined to comment on why Assange decided to apply for a hearing in the Supreme Court, saying he did not have the full details.

"This is a personal matter not a WikiLeaks matter," he told The Associated Press. "This is a separate issue from the organization."

"This is a personal matter not a WikiLeaks matter," he told The Associated Press. "This is a separate issue from the organization."

Google Tells Congress Financial Embargo Of WikiLeaks Shows How To Deal With Web Piracy
(Andy Greenberg, Forbes.com, November 16, 2011)

A massive copyright fight is scaling up over the Stop Online Piracy Act, a bill that Hollywood sees as a panacea for online copyright violation and Silicon Valley sees as a fundamental threat to the Internet itself.

But Google, the sole witness brought forward to testify against the bill at a House Judiciary Committee hearing Wednesday that otherwise consisted largely of SOPA supporters like the Motion Picture Association of America and the U.S. Copyright Office, offered a surprising alternative to the bill’s means of handling “rogue sites”: the same sort of financial embargo that has paralyzed the secret-spilling site WikiLeaks.

“You look at WikiLeaks. I think this is a good example of the fact that this a strong remedy: choking these sites off at their revenue source,” Google copyright policy counsel Katherine Oyama told the hearing. “I think [copyright infringing sites] are in business because they can sell advertising or because they can process from subscribers. If you could get the entire industry together and choke off advertising and choke off payments to those sites, you could be incredibly effective without introducing the collateral damage we discussed to free speech or internet architecture.”

Google is fighting SOPA’s provisions that would require it to not only cut off advertising on and payments to copyright-infringing sites, but also cease linking to them in its search results and filter content on sites like YouTube for infringement. Other tech firms have lined up against the bill as well, including Facebook, Twitter, Yahoo, eBay, LinkedIn, Zynga, and Aol. Groups like the Electronic Frontier Foundation, Human Rights Watch, Public Knowledge and many other groups have argued that the bill will censor huge swathes of the Internet and have called it the “Great Firewall of America.”

Google’s Oyama suggested in the hearing that instead of asking Web firms to police content, a move that might undo the copyright safe harbors for sites like YouTube under the Digital Millenium Copyright Act, a new anti-piracy act should focus on financially embargoing piracy sites.

“We would support legislation that goes through the Department of Justice…You would have a court determine that a site is infringing and serve orders on U.S.-based payment providers and advertising,” Oyama said. “If you cut off someone’s financial incentives, they’re not going to want to pay for the servers the bandwidth and the infrastructure.”

“Much of international law enforcement was going after WikiLeaks, and if you go to WikiLeaks home page now, it says they are going down because payment providers shut them off,” Oyama said at another point in the hearing. In fact, for almost a year now, Visa, MasterCard, Bank of America, Western Union and Paypal have all cut off donations to WikiLeaks, despite the fact that none of WikiLeaks’ staff have been charged with any crime related to the site’s publication of formerly secret documents. Founder Julian Assange recently declared that the group would take a hiatus from publishing to focus on fundraising.

In fact, SOPA does include provisions to cut off payments and advertising on infringing sites, allowing copyright holders to file complaints with the payment providers and advertisers directly and only giving the infringing site five days from the time of that filing to respond before the payment firms and advertisers are legally obliged to cut off the site. “There’s barely any judicial review,” argues Electronic Frontier Foundation legal activist Trevor Timm. “Even if sites are innocent, it’s hard to contest without being cut off for at least a short period of time. That leaves up-and-coming startups in a difficult position if they don’t have a lawyer to deal with this, and gives big companies a huge advantage.”

In its written testimony to the Judiciary Committee, Google also opposed that portion of the legislation, arguing that the time period for the complaint was too short.

Google, notably, has refused to participate in the U.S. private sector’s ad hoc sanctions on WikiLeaks. Former Google chief executive Eric Schmidt told Reuters in January that the company “looked at the appropriateness of indexing WikiLeaks” and decided to continue to link to the site’s documents “because it’s legal.”

The EFF’s Trevor Timm said he was overall happy with Google’s arguments in the hearing, but he thought the use of WikiLeaks as an example and the company’s focus on “following the money” revealed that it was more interested in its own search business than in freedom of speech.”They seemed to be endorsing the way that payment processors and advertisers should be censoring sites,” said Timm. ”I think it really shows why they should have had more of a representation of people at the hearing. Google is looking out for its interests, but we’re looking out for the interest of everyone on the Internet. Categorizing Wikileaks as a rogue site isn’t something we agree with.”

the same sort of financial embargo that has paralyzed the secret-spilling site WikiLeaks.

WikiLeaks Mom Calls For Australian Intervention
(by The Associated Press, November 17, 2011)

Julian Assange's mother protested outside Parliament House during President Barack Obama's visit Thursday, demanding Australia lobby the United States against extraditing her son in a WikiLeaks investigation.

Scores of protesters in Australia's capital demanded the government show independence from U.S. foreign policy.

Christine Assange accused Australian government leaders of being "star struck" by Obama, who received a standing ovation after addressing Parliament on his first Australian visit as president.

"The looks on the faces of the Australian politicians were no different to teenagers at the airport waiting for Beyonce," Christine Assange told The Associated Press, referring to the U.S. singer.

U.S. prosecutors are investigating the release of hundreds of thousands of classified documents disclosed by WikiLeaks, and its founder Assange fears the United States could extradite him to face possible charges there.

This week, the 40-year-old Australian citizen filed court papers in Britain in a last-ditch effort to stave off extradition from there to Sweden in a separate sex-crime investigation.

Christine Assange, a 60-year-old professional puppeteer from rural Queensland state, has written to Foreign Minister Kevin Rudd, asking for the government to intervene on behalf of an Australian citizen to prevent her son's extradition to the United States.

Rudd's office told AP in a statement Thursday that extraditions were not the foreign minister's responsibility. The attorney general's office has not commented on Christine Assange's request.

The Australian government has condemned WikiLeaks' release of the U.S. documents as reckless, but a police investigation has failed to find any evidence that Julian Assange has broken any Australian law.

Christine Assange blamed U.S. "lax security" for the release of secret documents through WikiLeaks.

"The consensus of the Australian people I've spoken to ... is the credibility loss at the moment globally for the U.S. is coming more from their reaction to WikiLeaks than the leaks themselves," she said.

"I might stand by my children emotionally if they've done the wrong thing, but I don't stand by them publicly, intellectually and philosophically if they've done the wrong thing — I never have," she said.

"It was only after a year of exploration into WikiLeaks myself, investigating whether or not this is a force for good or not, that I am proudly standing up for my son and WikiLeaks as a force for good in the world," she added.

Bradley Manning hearing set for December 16
(The Associated Press, November 21, 2011)

The U.S. Army intelligence analyst suspected of illegally passing government secrets to the WikiLeaks website will have a military hearing next month to determine whether he will stand trial.

Civilian defence attorney David E. Coombs wrote in a blog post that Pfc. Bradley Manning's Article 32 hearing will begin Dec. 16 near Baltimore. Shaunteh Kelly, a spokeswoman for Army, confirmed the hearing Monday.

An Article 32 hearing is the military equivalent of a preliminary hearing. A presiding officer will evaluate the strengths and weaknesses of the government's case and make a recommendation on which charges should be forwarded to a general court-martial.

Manning is suspected of obtaining hundreds of thousands of classified and sensitive documents while serving in Iraq and providing them to the anti-secrecy website.

Ludlam to back Assange at London appeal
(Australian Associated Press, November 24, 2011)

A Greens senator will travel to London to attend the appeal of WikiLeaks founder Julian Assange to the High Court.

West Australian Greens senator Scott Ludlam said he was concerned Prime Minister Julia Gillard and Attorney-General Robert McClelland had gone completely silent on the issue after initially pronouncing him guilty when he was first arrested.

"I think that's the most dangerous thing," Senator Ludlam told AAP on Thursday.

Mr Assange will face court in London on December 5 when his appeal on his extradition to Sweden to face questioning over claims of sexual assault against two women will be heard.

Senator Ludlam said he planned to attend the hearing in support of Mr Assange.

He questioned whether the federal government had failed to fully protect Mr Assange.

Foreign Minister Kevin Rudd appeared to be doing his job by activating the consular network available to Australian citizens for Mr Assange, but had deferred questions relating to the WikiLeaks founder's extradition to Sweden to Mr McClelland.

Senator Ludlam took his questions to Prime Minister Julia Gillard's office on Thursday, calling on her to clarify if the matter was raised with President Barack Obama or his delegation during the presidential visit to Australia.

He also asked if the Attorney-General's Department had used its powers to spy on WikiLeaks or its people.

"Will the Australian Government prevent Mr Assange being further extradited from Sweden to the United States for doing what the media have always done, which is bring to light material that governments would prefer to keep secret?"

Internet has become 'surveillance machine': Julian Assange
(Agence France-Presse, November 28, 2011)

WikiLeaks founder Julian Assange blasted the mainstream media, Washington, banks and the Internet itself as he addressed journalists in Hong Kong on Monday via videolink from house arrest in England.

Fresh from accepting a top award for journalism from the prestigious Walkley Foundation in his native Australia on Sunday, Assange spoke to the News World Summit in Hong Kong before keeping a regular appointment with the police.

He defended his right to call himself a journalist and said WikiLeaks' next "battle" would be to ensure that the Internet does not turn into a vast surveillance tool for governments and corporations.

"Of course I'm a goddamn journalist," he responded with affected frustration when a moderator of the conference asked if he was a member of the profession.

He said his written record spoke for itself and argued that the only reason people kept asking him if he was a journalist was because the United States' government wanted to silence him.

"The United States government does not want legal protection for us," he said, referring to a US Justice Department investigation into his whistle-blower website for releasing secret diplomatic and military documents.

The former hacker criticised journalists and the mainstream media for becoming too cosy with the powerful and secretive organisations they were supposed to be holding to account.

In a 40-minute address, he also accused credit card companies such as Visa and Mastercard of illegally cutting WikiLeaks off from funding under a secret deal with the White House.

"Issues that should be decided in open court are being decided in back rooms in Washington," he said.

The Internet itself had become "the most significant surveillance machine that we have ever seen," Assange said in reference to the amount of information people give about themselves online.

"It's not an age of transparency at all ... the amount of secret information is more than ever before," he said, adding that information flows in but is not flowing out of governments and other powerful organisations.

"I see that really is our big battle. The technology gives and the technology takes away," he added.

The anti-secrecy activist then held up a handwritten sign from an aide telling him to "stop" talking or he would be late for a mandatory appointment with police.

Assange, 40, is under house arrest in England pending the outcome of a Swedish extradition request over claims of rape and sexual assault made by two women. He says he is the victim of a smear campaign.

New WikiLeaks 'spy files' show global surveillance industry
(Alice Ritchie, Agence France Press, December 01, 2011)

WikiLeaks founder Julian Assange launched the website's new project Thursday, the publication of files it claims shows a global industry that gives dictatorships tools to spy on their citizens.

In parallel to Assange's announcement, Wikileaks' partner Owni.fr released evidence that a French firm helped Moamer Kadhafi's former Libyan regime spy on opposition figures living in exile in Britain.

It had already been revealed that the electronics firm, Amesys, had worked with the Libyan regime -- and French rights groups are attempting to take the group to court -- but Owni's files will prove embarrassing.

They appear to show that a manual provided to Libya to operate a "massive Internet surveillance" set-up known as the Eagle system included the email addresses and pseudonyms of opposition leaders.

One of them, 74-year-old writer Mahmud Al-Naku, campaigned against Kadhafi in exile and has now been named his country's ambassador to London by the victorious new former rebel government.

Another figure on the surveillance list was Atia Lawgali, 60, who has since been named Libya's new minister of culture. Several more Libyan and western figures are on the list, contained in a leaked screenshot.

Kadhafi's regime has been accused of sending agents to harass and even kill opposition figures in exile.

Owni also published the user manual provided to the Libyans to operate their Internet spying system, which it boasts can intercept emails and webmail, VOIP calls, instant messages and search engine requests.

Contacted by AFP, Amesys said that Libya had been under no trade embargo after 2003, and that a number of French and international companies had done business with Kadhafi's government.

"Amesys delivered the Libyan authorities equipment and had no control over the use to which it was put," said the firm, which was bought by the French electronic group Bull in 2010.

The International Federation for Human Rights (FIDH) has lodged a legal complaint over Amesys' contract with Libya in a French court, alleging complicity in rights abuses.

The Wikileaks files reveal the activities of about 160 companies in 25 countries which develop technologies to allow the tracking and monitoring of individuals by their mobile phones, email and Internet browsing histories.

"Today we release over 287 files documenting the reality of the international mass surveillance industry -- an industry which now sells equipment to dictators and democracies alike in order to intercept entire populations," Assange told reporters in London.

He said that in the last 10 years it had grown from a covert industry which primarily supplied government intelligence agencies such as the NSA in the United States and Britain's GCHQ, to a huge transnational business.

Assange has been in Britain for the past year fighting extradition to Sweden for questioning on allegations of rape and sexual assault, living under tight bail conditions. His case is due to come up again on Monday.

They have come to light in part from offices ransacked during uprisings in countries such as Egypt and Libya earlier this year, as well as investigative work by WikiLeaks and its media and campaigning partners.

"These systems that are revealed in these documents show exactly the kind of systems that the Stasi (East Germany's secret police) wished they could have built," said Jacob Appelbaum, a former WikiLeaks spokesman and computer expert at the University of Washington.

"These systems have been sold by Western companies to places for example like Syria, and Libya and Tunisia and Egypt. These systems are used to hunt people down and to murder."

Experts who worked on the release warned that at present the industry was completely unregulated.

"Western governments cannot stand idly by while this technology is still being sold," said Eric King, from the Privacy International campaign group.

It is the first time WikiLeaks has released documents since it announced on October 24 that it had been forced to suspend publishing classified files due to a funding blockade that saw its revenues plunge by 95 percent.

Thursday's announcement had been trailed as the launch of a new secure system to submit documents to the site, but Assange said WikiLeaks was still working on this, saying the threat of surveillance made it extremely difficult.

Wikileaks 'Blocked' After Release of Spy Files
(By Alistair Charlton, International Business Times, December 2, 2011)

Wikileaks was apparently 'blocked' on Friday afternoon according to the whistleblowing website's Twitter account, after the site released 287 files exposing what it claims to be widespread surveillance of civilians.

Website founder Julian Assange held a press conference at City University, London on Thursday where he announced that the files were available to download, but at around 14:20 GMT on Friday the Wikileaks site crashed.

The website said on Twitter: "Wikileaks.org is blocked following #SpyFiles release. We are investigating cause, but it isn't a capacity issue."

Not being a capacity issue rules out that the site has crashed due to high levels of traffic, and suggests that something else is to blame; it is not yet clear if the outage is due to an attack or not.

On Thursday December 1, Julian Assange addressed the media and some university students, saying that smartphones such as the iPhone and BlackBerry devices are not safe and that anyone using them is "screwed".

"It may sound like something out of Hollywood, but as of today, mass interception systems, built by Western intelligence contractors, including for 'political opponents' are a reality," Wikileaks says on its website," Wikileaks said in a statement on Thursday.

Assange said the perceived problem of governments bugging and tracking people is nothing new. "9/11 has provided license for European countries, for the U.S., Canada, Australia, South America and others to develop spying systems that affect all of us."

Asked if the public can resume submitting information to Wikileaks, Assange said: "At the moment we take things in a number of ways, but there is not a walk-in obvious process for the public [to submit]. Basic internet security has been severely compromised and we have had to re-engineer the basic security structure of the internet."

Assange believes that this global problem of surveillance needs to be fought: "We will win this war not only by legislation but we have to provide counter-surveillance tech that is open and easy for everyone to use to stop this global, totalitarian surveillance state."

The whistleblowing site says: "Intelligence companies such as VASTech secretly sell equipment to permanently record the phone calls of entire nations. Others record the location of every mobile phone in a city, down to 50 meters. Systems to infect every Facebook user, or smartphone owner of an entire population group are on the intelligence market."

Wikileaks founder Julian Assange has won the right to petition the UK Supreme Court in his fight against extradition to Sweden.

Australia did not object to US pursuit of Assange
Philip Dorling
December 3, 2011/the AGE

WIKILEAKS is the target of an ''unprecedented'' US government criminal investigation, Australian diplomatic cables obtained by The Saturday Age reveal.

The declassified cables also show the Australian government wants to be forewarned about any moves to extradite Julian Assange to the United States, but that Australian diplomats have raised no concerns about the Australian journalist being pursued by US prosecutors on charges of espionage and conspiracy.


The cables show Australian diplomats have raised no concerns about the Australian journalist being pursued by US prosecutors. Photo: Reuters

The cables, released under freedom of information to The Saturday Age this week, reveal that Australian diplomats have been talking to the US Justice Department for more than a year about US criminal investigations of WikiLeaks and Assange. While the Justice Department has been reluctant to disclose details of the WikiLeaks probe, the Australian embassy in Washington reported in December 2010 that the investigation was ''unprecedented both in its scale and nature'' and that media reports that a secret grand jury had been convened in Alexandria, Virginia, were ''likely true''.

Last week Foreign Minister Kevin Rudd told Federal Parliament that the Australian government is ''not aware of any current extradition request [for Assange] by US authorities'' and has ''no formal advice'' concerning a US grand jury investigation directed at WikiLeaks. ....

....The Foreign Minister avoided a direct answer to a question about whether Assange could be subject to a ''temporary surrender'' mechanism that could allow him to be extradited from Sweden to the United States. ....<cont>

Greens Senator Scott Ludlam is travelling to London for Mr Assange's extradition hearing.

He has lodged a Freedom of Information request for any documents relating to Mr Assange, such as letters, emails, file notes and records of phone conversations.

"It's essentially to try and work out what the Australian Government knows and who it has communicated with in the instance of that onward extradition to the US, whether there is any material documenting discussions with their counter parts in the US and what the Government's thinking is about his extradition to the US," he told Saturday AM.

Senator Ludlam says supporters of the WikiLeaks founder are operating in an information vacuum.

"The Australian Government may well be assisting the US government with its extradition process," he said.

"Of course we haven't heard anything from the Prime Minister or the Attorney-General since they both pronounced him a criminal last year [for] having committed illegal acts, which was later completely contradicted by the Federal Police.

"There has been nothing said by the Prime Minister or the Australian Government all year. ....

WikiLeaks Associates Seek Injunction on Twitter Data
(Julia Angwin, The Wall Street Journal, December 6, 2011)

Three WikiLeaks associates are appealing a court order that would force Twitter Inc. to hand over information from their accounts without a search warrant.

The WikiLeaks associates – Jacob Appelbaum, Rop Gonggrijp, and Birgitta Jonsdottir – have also applied for an injunction to prevent Twitter from being forced to turn over account data before the appeals court has ruled.

Without an injunction, the associates will “suffer irreparable harm from the production of their private information,” their attorneys argue in a filing to U.S. District Court for the Eastern District of Virginia. “By contrast, a stay will cause only minimal, temporary harm to the government.”

The government, however, says that it has waited long enough for the Twitter account information. “The district court has found the order to be lawful and valid, and it is our position that Twitter is under an obligation to comply with that lawful order,” said Peter Carr, a spokesperson for the U.S. Attorney’s Office for the Eastern District of Virginia.

Twitter did not immediately respond to a request for comment.

This skirmish is the latest round in a year-long battle over the records of the WikiLeaks associates, who have not been charged with wrongdoing. On Dec. 13, 2010, the U.S. Department of Justice obtained a court order for information from the Twitter accounts of the three individuals who had been publicly associated with WikiLeaks.

The order sought the “Internet protocol,” or IP, addresses of the devices from which people logged into their accounts. An IP address is a unique number assigned to a device connected to the Internet. The order was filed under seal, but Twitter successfully won from the court the right to notify the subscribers that their information was being sought.

The WikiLeaks associates filed a motion to vacate the court order, arguing that their data should be subject to the Fourth Amendment’s provisions against unreasonable searches – and that the government should have to show probable cause that a crime has been committed to obtain the information.

In November, U.S. District Court Judge Liam O’Grady turned down their request, ruling that they had no reasonable expectation of privacy when they used Twitter services, even if the information in question was known only to Twitter and not publicly disclosed. The associates filed a notice of their appeal to the U.S. Court of Appeals for the Fourth Circuit on Nov. 23.

Information from Twitter accounts is not the only data sought by the government as part of its investigation of WikiLeaks. The Wall Street Journal also reported earlier this year that the government also has made secret requests to Google Inc. and California Internet provider Sonic.net Inc. for information on Mr. Appelbaum, a computer developer for a nonprofit that provides free tools that help people maintain their anonymity online.

Who polices this scenario?