We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

If Assange can be convicted of a crime for publishing information, that he did not steal, what does this say about the future of the First Amendment and the independence of the internet?

Ron Paul

Tweet about this on TwitterShare on FacebookShare on TumblrShare on RedditShare on Google+Share on VKEmail this to someone

45 comments to Samizdata quote of the day

  • Cosair

    Arguably, he has been handling stolen goods – although heaven knows in which jurisdiction!

  • Then so has the New York Times, Corsair.

  • Arguably indeed, Consair. It can also be argued that the governments in question stole the information from their citizens, and that Assange is simply returning it to its rightful owners. I get the impression that it is a little bit of both with Assange – that is why I am not a fan, but tend to agree with Perry that he is useful, at least to a degree.

  • Dom

    “It can also be argued that the governments in question stole the information from their citizens…”

    That formulation can’t really be true. When the Saudi diplomat expressed concern about Iran — something that he would not have done without the presumption of secrecy — that information was intended for the American government and no one else. It was not “stolen”.

  • Jackthesmilingblack

    See a certain Biblical echo here.
    -Julian as JC
    -Wikileaks as the disciples
    -Brit judiciary as Pontius Pilate
    -Sweden Criminal Justice as Jewish religious establishment
    -US as the Romans
    And those two jail-bait honey trap Jezebells …
    The UK media won’t name and shame… Oh, you mean
    Anna Ardin (aka Anna Bernardin) and Sofia Wilen?

    But then again, perhaps it’s more Monty Python.
    “Welease Bawabas.” Welese Wodney

  • Jacob

    The basic question is: is there such a thing as “state secret” ? Are governments right in keeping some things secret and protecting such secrets by law – like laws against espionage ?
    Or is the concept of “state secret” invalid, and in need of being destroyed, and everything needs to be made public ?
    If we agree that states are needed, and that they are required to perform some legitimate tasks – such as defense – then they must have the tools to perform their job – secrecy is one of them.
    Unless you are an anarchist, denying that governments are needed, you cannot deny the need for keeping state secrets.

    He who divulges secrets that may impair the ability of a state to defend it’s citizens, or may lead to harm soldiers – needs to be prosecuted.
    People can also be prosecuted for divulging private or commercial information.
    Ron Paul’s claim that everything is protected by the free speech clause is simplistic, wrong, populist, and silly.
    What we mean usually by “free speech” is protection for dissemination of ideas, not of stolen information.

  • I agree Jacob. The question is, did Assange disseminate any information that really harmed anyone other than politicians and diplomats? If he did, he indeed should be prosecuted for that. Ron Paul is no hero of mine.

    Dom, just to clarify: by ‘stealing’ I meant concealing – as keeping an information form those who should be entitled to it is a form of stealth. Now, as with Jacob’s argument, your point applies to some instances and not to others. I’m not sure that the Saudi example does apply in this case, but I could be wrong.

  • Ian F4

    I’d like to see this played out a bit more.

    Currently, the various idiots supporting Assange are not lending themselves to a very libertarian ideology, and Wikileaks associations with far right elements is already coming to the fore.

    Companies like Paypal and Mastercard have the right to associate themselves with whoever they see fit and for whatever reason, forcing such companies to do business with Assange et al by cyber-bullying is the mark of a fascist not an anarchist.

    Speculating whether Assange can be convicted for simply publishing information is neither here nor there, whereas rape and electronic terrorism is another matter.

    If the information he released does lead to deaths then presumably he may find himself complicit, but for those deaths, not the actions alone.

  • Person of Choler

    Would Alisa feel differently if wikileaks had published a quarter-million files of people’s NHS health records along with their names and addresses?

  • Ian F4:

    Wikileaks associations with far right elements is already coming to the fore

    . Can you elaborate? I am not following the news nearly as closely as I maybe should. The same about your credit-card companies points.

    Person of Choler: did he? Maybe I just should shut up, since I seem to be totally out of the loop on this?

  • Dom

    Is Assange guilty of more than just publishing information? Well, this is what Assange himself wrote not very long ago:

    “1,300 people were eventually killed [in Kenya], and 350,000 were displaced. That was a result of our leak.”

    Notice how thoughtlessly he brags about his complicity in the murder of 1300 innocent people, and the displacement of hundreds of thousands more. He was not talking about the current leaks, of course, but remember that the purpose of the leaks is to exact this type of cost.

  • lucklucky

    Can anyone explain to me how Assange is under 1st Amendment? is Assange an American citizen and i don’t know?

  • Dom

    “Wikileaks associations with far right elements is already coming to the fore”

    Harry’s Place has the scoop on this. Pretty scary stuff. HP also pointed out the the supposed connection between the acusers and the CIA started from an article by a neo-nazi, and ended up on Keith Olbermann’s show.

  • John B

    If ex soldier, Bradley Manning, is the person who leaked it all out of the US information sieve then he is the person who should be prosecuted.
    Mr Assagne has ventured into that global wasteland of international politics and strategy and just has to take his chances whichever way they come. It goes with the territory.
    He has exposed some very good stuff, but that is mainly not being picked up very much by the media because it embarrasses the Left and/or anti-westerners. And that’s very uncool.
    The damage he has done is no doubt considerable and will be taken into account. Perhaps.
    I imagine he is a very tedious and painful ego maniac, but I have never met him so can’t really say.
    Ron Paul is no doubt correct from a purist perspective.
    Dom, Nazi = left, not right, by the way. Although I agree the left/right labels are inaccurate and just wrong, and the best division is between those who prefer collectivism and coercion, and those who prefer freedom/liberty.

  • Ian F4

    The same about your credit-card companies points.

    Mastercard and Paypal withdrew financial operations with Wikileaks and a group of hackers from 4chan tried to DDoS their sites.

    Ultimately, an act that will only punish online Christmas shoppers rather than the company profit, but nevertheless, a rather fascist method of forcing a point.

  • Thanks for bearing with me, Dom and Ian F4.

  • Companies like Paypal and Mastercard have the right to associate themselves with whoever they see fit and for whatever reason, forcing such companies to do business with Assange et al by cyber-bullying is the mark of a fascist not an anarchist.

    Yes and no. Paypal and Mastercard are in the money business, and currency is a state monopoly; they trade because the government awards them the means to do so. The small cartel of money changers on the internet is in fact a real problem; if you lose their patronage, you are dead in the water.

    They thus retain their special status by currying favour with government. In a free money system, that would not occur, but it does in a nationalised system. There has already been considerable incidents of credit card companies colluding with States to deny funding, or make business awkward, for businesses unpopular with Governments (would require a long essay, but the adult industry has had considerable problem with credit card companies, and Paypal refuse outright to trade with adult businesses, and that is all a direct consequence of keeping in the good books of Governments).

    So it’s not so simple really.

  • Manning stole the information, and Assagne received it and distributed it, presumably to his own benefit. In most places, even disregarding what exactly was stolen, this would land both of them in jail as thief and accessory.

    The information included intelligence sources and methods, which results in sources drying up, frequently in pools of blood. Definitions vary, but in several states, actions that result in a murder render the participants accessories to murder, significantly elevating the seriousness of the charges.

    My observation is that 90% of the information is stuff that anyone could reasonably conclude, which suggests that our State department, in spite of fancy trappings, isn’t half as clever as they’d like us to think.

    That Assagne is still alive and well tells me that nothing was revealed about the Russians that everybody didn’t already know, and that the CIA is in the same league as the State department.

  • lucklucky said

    Can anyone explain to me how Assange is under 1st Amendment? is Assange an American citizen and i don’t know?

    The text of the First Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

    No mention of citizenship there – Assange doesn’t need to be a US citizen for the First Amendment to protect him.

  • Congress shall make no law

    Edward, US Congress, by definition, can only make laws that pertain to US citizens, which means that this Amendment only applies to US citizens. Which further means that any violation of this Amendment also applies only to US citizens.

  • Bod

    Every day, in many countries, people are executed by order of the governments of those countries for actions which would be legal if perpetrated in the US, but represent capital offenses in those (in some cases, democratic) nations.

    So let’s be realistic here. The US First Amendment has no relevance whatsoever in this discussion except possibly as a defense for Bradley Manning as a US serviceman. If you follow the idea that Manning ‘stole’ the information and Wikileaks published said information, then under *US* law, a successful prosecution in the first case could plausibly lead to a successful prosecution of the second.

    However, Assange will never be prosecuted in the US (I believe that he’s effectively made himself inviolate to prosecution due to his quite savvy positioning of what WikiLeaks does, and how it does it).

    He’s a brave man, in the same way that some people have claimed that the 9-11 jihadists were brave men.

    If I were an insurance company, I’d not write Assange a life policy.

    Any action the US takes against him will not be undertaken under due process – indeed, the US has no need to act to eliminate Assange should there be any official will to do so. Other states have plenty of incentive to do so, including a willingness to keep America’s hands clean and curry favor with the US.

    I still can’t go so far as Perry in endorsing WikiLeaks’ methodology, but that’s possibly because I haven’t thought the whole matter through, or maybe because I’m a bit more of an idealist than he is, but I don’t think I’m far away from it.

    Exposing military (and to a lesser degree, diplomatic) personnel to danger is something I’d be reluctant to countenance, and Assange’s (quite bland) observation that WikiLeaks was pretty much responsible for the Kenyan deaths and displacements reveals a sociopathy that I am reluctant to want to associate with, even at a (long) arm’s length.

  • Sunfish

    In most places, even disregarding what exactly was stolen, this would land both of them in jail as thief and accessory.

    Not in the US.

    That was settled quite thoroughly in the Pentagon Papers case forty years ago. Aside from Assange’s citizenship the prior case is remarkably well on point.

    PFC Manning is looking at either a long stay in the far-out Kansas City suburbs or a rope. Assange, however, is untouchable under US law. None of his acts were committed in the US and he is not a US citizen or national or “person.”

    Aside:

    I dislike the use of the analogy of possession of some other government’s secrets to “possession of stolen property.” An essential element of the crime of theft[1] is that the accused intended to permanently deprive the property’s rightful owner of the property’s use and benefit. Let us assume, for argument’s sake, that the information is indeed property and that the USG[2] is the rightful owner. Does the G no longer have the use and benefit of the information? Was it either Manning’s or Assange’s intent that this be so?

    If the crime in question is “theft” or “possession of stolen property,” then that will be (part of) the question put to the trier of fact.

    BTW, Alisa: acts of Congress apply to non-citizens inside the US as well, although I don’t know how that would stretch to dragging Assange before a US court.

    [1] A legalistic statement, but then whether or not Assange can be prosecuted for a crime is a legal discussion and legal hair-splitting has a place.

    [2] rather than me, a US citizen and taxpayer

  • Sunfish: you are correct, of course, and what I really meant were persons who are physically present on US soil, rather than citizens.

    Does the G no longer have the use and benefit of the information?

    That is very much possible at least in some cases – depending on the nature of information in question.

    Was it either Manning’s or Assange’s intent that this be so?

    According to Assange’s “manifesto” (or at least as Perry understands it – I have not had the patience to read the whole thing), that was indeed his intent.

  • Laird

    I’m coming in a little late to this thread, but that’s probably just as well because Sunfish made several of the points I was going to make, and probably better than I would have. So I’ll just second his post.

    However, one more (slightly o/t) point: Ian F4 said (w/r/t the DDoS attacks on PayPal et al) “Ultimately, an act that will only punish online Christmas shoppers rather than the company profit, but nevertheless, a rather fascist method of forcing a point.”

    I’m getting really annoyed with people using “fascist” as an all-purpose derogative term for those with whom they disagree. 4chan isn’t associated with any government or its toadies, and its actions are the complete antithesis of “fascism”. Please choose your words more carefully.

  • Corsair

    Laird, perhaps the word Ian F4 should have used was ‘fascistic’. An attack on private businesses made by morally autistic goons on crude ideological grounds and justified by an appeal to a reified ‘people’ that the perpetrators affect to represent. If not ‘fascist’, it’s certainly fascistic.

  • Laird

    Not it’s not, Corsair. I don’t care what grammatical part of speech you convert it into. “Fascism” is government control of the means of production while retaining nominal private ownership. It generally includes an autocratic or dictatorial government and suppression of opposition. The key element is government. 4chan isn’t government. It isn’t advocating more government. You can complain that it’s anarchistic, or communist, or something like that, but not “fascistic”. You’re using the word just as Ian F4 did: as a generic term of opprobrium. It has a precise meaning, and its use should be restricted to that.

    Rant over.

  • Joe Hooker

    What a great idea! Give stolen goods to a third party and they’re not stolen any more. Now that’s libertarianism for you!

  • Ian

    Yet the UK Govt (and others) go after people who legally (or perhaps illegally) place their money offshore for tax avoidance (legal) reasons.

    The information comes to them care of a hacker (ie illegal source) yet still prosecute same said persons.

    Information obtained illegally is inadmissible in a uk court: yet here we are.

  • Laird

    “Illegally obtained” is not the same as “stolen”. See Sunfish’s post above. The Wikileaks disclosures aren’t even copyright infringement, as (to my knowledge) none of the leaked materials were copyrighted. (Cue the entry of the anti-intellectual-property-rights crowd; where are they when we need them?) That’s why no one is talking about prosecuting Assange for theft, but rather for espionage under the (seriously flawed, IMHO) Espionage Act of 1917 (another artifact of Woodrow Wilson’s abominable presidency, along with the unlamented Sedition Act of the following year). Whatever else it may be, it’s not “theft” and it’s not “stolen property”. Get off it.

  • Changing the perspective a little, I have been amused by the orgasms of waily-gnashy-teethy hand wringing from American liberals about the nasty things their government gets up to and the unkind things some Americans have said about foreigners.

    What would they think if Wikileaks published details of what some of the less fragrant African, Asian and South American governments get up to.

    The point people are missing is Assange and his supporters are not libertarians opposed to state secrecy, they are libertines who can see no reason why anyone would desire privacy.

  • Richard Thomas

    Edward, US Congress, by definition, can only make laws that pertain to US citizens, which means that this Amendment only applies to US citizens. Which further means that any violation of this Amendment also applies only to US citizens.

    A false premise and at least one logical disconnect there, Alisa.

    Firstly, as a Brit ex-pat, I can state unequivocally that Congress can most certainly make laws that pertain to non-US citizens.

    Secondly, even if it were the case that they couldn’t, the first amendment is a restriction on the actions of the members of congress, who most definitely are under the law, not on the people that they make laws about.

    That said, this really isn’t a free speech issue as such anyway. Or, at least, it would be a mistake to frame it as such.

  • Rich Rostrom

    Laird: That’s a good description of the economic program of fascism, but it is far from a complete description of fascism as a whole. “4chan isn’t government.” Neither were the Sturmabteilung Brownshirts, until after Hitler’s accession to power.

    Yet before that time, the Brownshirts systematically attacked their political opponents and other targets by criminal harassment: beatings, vandalism, arson. This activity has generally been held up as emblematically fascist.

    Operationally, the difference between the physical Brownshirts of the SA and the “digital Brownshirts” of 4chan is that the former attacked bodies and material property with boots and clubs, while the latter attack
    by “digital means”. Both threaten criminal damage to those they oppose.

    Is there any real functional difference between Brownshirts wrecking a newsvendor’s stand because he refused to carry the Volkische Beobachter, and 4chan’s attempted sabotage of Paypal because Paypal refuses to do business with Assange? If one is fascist, so is the other.

  • Richard:

    A false premise and at least one logical disconnect there, Alisa.

    Universally speaking, maybe – but not as it pertains to Edward’s point.

    Congress can most certainly make laws that pertain to non-US citizens.

    Of course they can, but not effective ones, not having jurisdiction over most territories outside the US.

    the first amendment is a restriction on the actions of the members of congress, who most definitely are under the law, not on the people that they make laws about.

    Actions which would deny the people the right to speak freely. IOW, ultimately, we as people are not really concerned with what some bozos in far-away DC can or cannot do, we are concerned with going about living our lives as we please, speaking freely. Etc.

  • If the worst crime Mr Assange can be accused of before the law is changed is “having sex with a woman without a condom,” I make it there´s at least three billion guilty men…

  • If the worst crime Mr Assange can be accused of before the law is changed is “having sex with a woman without a condom,” I make it there´s at least three billion guilty men…

  • The_Chef

    Laird, perhaps the word Ian F4 should have used was ‘fascistic’. An attack on private businesses made by morally autistic goons on crude ideological grounds and justified by an appeal to a reified ‘people’ that the perpetrators affect to represent. If not ‘fascist’, it’s certainly fascistic.
    Posted by Corsair at December 11, 2010 09:07 PM

    My dear Cosair .. clearly you don’t know much about 4chan. They do it for the lulz.

  • Richard Thomas

    Alisa, true, it pretty much comes down to jurisdiction of the law enforcement powers. However, even that is mostly a political and diplomatic barrier. It already has at least one exception in the form of extradition (though that itself has restrictions) and there’s really not much stopping the US from acting extra-territorially if it was so inclined (and it has been in the past).

    As to freedom of speech, well, we could argue exactly what is meant to be protected by the amendment but it’s clear that it has been established that it is not a blanket protection for all output. Shouting fire in a crowded theater is the most famous one but incitement to riot and conspiracy are also other examples.

    Potentially the only thing that is protecting Assange legally would be is if he hasn’t committed a crime already on the books. Retroactive laws being specifically prohibited by the constitution (I believe).

  • Richard Thomas

    Is there any real functional difference between Brownshirts wrecking a newsvendor’s stand because he refused to carry the Volkische Beobachter, and 4chan’s attempted sabotage of Paypal because Paypal refuses to do business with Assange? If one is fascist, so is the other.

    Functionally, perhaps not. Semantically, certainly. And words are what it’s about.

    How many legs does a dog have if you call a tail a leg?

  • Sunfish

    I don’t see how the label ‘fascist’ applies to 4chan, strictly speaking. They’re non-governmental in the same way that the fascist bastards who run children’s summer camps and condo associations in the US are non-governmental/

    As for prosecuting Assange…

    1) Is the Swedish prosecutor alleging that the sex was non-consensual?

    2) Has anybody (other than a grandstanding NY congressman named Peter King) seriously suggested a US law on point that would even apply to Assange? Apart from the ill-fitting thing crapped out by the evil clown Woodrow Wilson (speaking of fascists…) in 1917, that is.

    Richard R:
    An essential part of inciting riot is a resultant breach of the peace. Has any such occurred as a result of WL?

    (I hate to be misconstrued as a fan of Assange. The very most charitable interpretation of his words and actions IMHO make him out to be a most-unpleasant person. But IMHO virtually any cure to the Assange disease would be worse than the disease itself. I’m not inclined to support further bulls*** security theater for the sake of uncomplicated diplomatic relations. There are no “6-6-44 in Normandy” level secrets being released here, are there?)

  • Richard Thomas

    Sunfish, I wasn’t trying to suggest that Assange had incited a riot, just that it has been established that freedom of speech is not an absolute right. One can dispute whether what Wikileaks has done rises to the level where restrictions can legally come in to play but you can be sure that those pushing for any kind of action would argue that it does.

  • I imagine that most of the readership here would be in principle, sympathetic to whistle-blowers. However, Assange and his ilk are not equal-opportunity whistle-blowers.

    If the best my government can do is try to get someone else to throw a few rape charges at the guy, we’re not trying hard enough.

  • Sunfish

    I imagine that most of the readership here would be in principle, sympathetic to whistle-blowers. However, Assange and his ilk are not equal-opportunity whistle-blowers.

    Even if, so what?

    Few if any whistle-blowers are.

    Have you ever called police for anything?

    You’d call for an intruder in your house, right?

    Would you call for someone smoking marijuana at a Phish concert?

    What about for someone who didn’t signal a lane change?

  • Sunfish

    To expand a little, if I might..

    There’s a group in the US called “copwatch.” Most of the participants are self-aggrandizing douchebags with bad hygiene. What they do is, they point cameras at cops, usually completely misunderstand what they saw[1], and then post it on Youtube.

    Occasionally, they overstep. Filming me from across the street while I arrest a drunk driver, fine, whatever. I wasn’t planning on using improper force anyway, but a free society doesn’t need to take me at my word about that. Hell, I’m pretty sure that’s rolled up into the definition of ‘free society.’ And sometimes they come in a little too close: shoving an object into my personal space during a fight is not a good idea and easily misinterpreted.

    Sometimes the videos are edited to show the officer spraying/hitting/tasing someone, but leaving out the ten seconds or ten hours leading up to that. Meaning that the viewing audience sees me point a gun at someone but doesn’t see them threatening someone else with a roofing hammer fifteen minutes prior.

    So, why aren’t the “Copwatch” people so excited about filming the underlying crime and letting us see the video?[2] Why do they give the impression that the street crime or drunk driving event is less worthy of public condemnation than the police action in response to same?

    I don’t know. And it doesn’t matter anyway.

    And then, there are department policies and laws that govern when police reports can and can’t and should and shouldn’t be released to the public.[3]. However, stuff that shouldn’t be released sometimes is, which blows a case: witnesses stop talking because they didn’t want their “business out on the street.”

    In most cases, leakers are subject to administrative penalties[4] but rarely or never criminal prosecution. A press outlet that publishes leaked materials is basically immune, both by law and as a practical matter.

    “But who cares? You’re just a local cop, not the CIA.”

    Al-qaeda is not an existential threat to the United States. We kill more of ourselves in two months by having a few extra beers before driving home, than AQ has killed of us in its entire existence. We haven’t repealed any of the Constitution over drunk drivers. Why would we do so for AQ?

    “But they would if they could! They’d use stolen nuclear weapons and Ebola on us if they could!”

    And I’d have vigorous repeated sexual activity with Halle Berry and Jessica Alba and Jessica Biel until dying of a heart attack if I could. Now, shall we be real about what’s actually likely to happen in any of our lifetimes?

    [1] Misunderstanding is easy to understand. Very few people sit through 500-1000 hours of academy training, the same in field training, and a few years of experience and continuing education, and as a result are simply lacking in information. That doesn’t make them bad people, just people who have actual lives to live.

    [2] I didn’t say ‘take,’ I said ‘see.’ With photos and video/audio recording, a copy authenticated by the person who recorded it is generally perfectly good as evidence. As long as I can produce the original photographer/observer for court and he will truthfully testify that the video is an accurate and truthful representation is what he saw/heard, six of one/half-dozen of the other. But then, with plenty of them, telling the truth in open court is the same as ‘selling out to the Man.’

    [2] In my state, the default assumption is that they’re open to press or public inspection, with some exceptions like victim information, juvenile information, and ongoing investigations. And defendants have a right to basically everything that relates to the case against them, both inculpatory and exculpatory.

    [3] Firing is common. We’ll look at the possibility that the leaker was an accessory to a crime facilitated by the leak, but it takes damning evidence to convince the DA that the appearance of a witch-hunt or cover-up is worth it.

  • 'Nuke' Gray

    If Congress gives someone an honourary U.S. citizenship, then that solves the problem- Congress can then make laws for them! I’ll bet his citizenship papers are in the mail even as we speak!

  • Yeah Nuke, it would be the ultimate gift that keeps giving…