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Megauploads, WikiLeaks and Independence Day

Wednesday is the Fourth of July, the day when we in the U.S. celebrate whatever we perceive to be the vision of our founding families. This would seem to be a good time to wonder what the framers of our constitution would think about the way we’ve been applying, or not applying, due process to the Internet.

There are two cases in the news these days that are quite disturbing. For starters, there’s Megaupload.


The only things that Kim Dotcom, aka Kim Schmitz, appears to have done wrong was to start Megaupload, a hugely successful file hosting service. The feds see it differently. They’re convinced, mainly by circumstantial evidence, that’s his website has made him the biggest pirate of movies and music online, an allegation he denies.

Federal authorities were evidently waiting for SOPA to pass before making their move against him and his site. On the same night that public opinion forced SOPA to fail, however, the feds decided to act anyway. They took down his website and had Dotcom taken into custody by the New Zealand authorities. They seized most of his assets, without proving anything in court, and are now attempting to have him extradited to the United States.

This would be disturbing enough, but there’s more.

Megaupload had many legitimate businesses as clients, who used the site to store important business records. Since the site was taken offline, these businesses have not been given any opportunity to access this much needed data. This seems to be strange behavior by our authorities. Since they claim they’re only after Megaupload for perpetrating illegal downloading of copyrighted material, why cause harm to the innocent business user who’s caught in the middle? What possible reason could they have for keeping Joe’s Barber Shop or Mary’s Manufacturing from accessing their tax records?

Then there’s the government’s actions against WikiLeaks.

The feds are in hot pursuit of Julian Assange, the Australian founder of the not-for-profit site, WikiLeaks. In this case there’s no mystery as to why they’re after him – he’s a thorn in their side. It’s also clear they want him to fry. Although many think his actions are protected by the first amendment, our leaders see him as nothing more than a spy and troublemaker.

From the beginning, from it’s first postings of classified U.S. documents, it was clear that WikiLeaks would evoke the ire of at least the State Department and the military. Everybody from Hillary Clinton to the Joint Chiefs of Staff sees him as a loose cannon, impossible to contain. They’ve branded him as a criminal, and deny his assertion that he’s a journalist and that WikiLeaks is a type of news site.

Of what crime is Assange guilty? Certainly he’s caused our government a lot of diplomatic problems in sensitive areas, but his motive’s don’t appear to be suspect. He’s just an activist, dedicated to the idea of transparency, convinced that people have a right to know what their governments are doing. True, he’s stirred up a couple of hornets’ nests Western governments would rather have left alone. The so called “Arab spring” and the Occupy movements were partially spawned because of information released by his site, and Secretary of State Clinton was put in an awkward position when some of her unflattering private remarks about world leaders were made public by him.

None of that should matter; Wikilinks should be protected under the First Amendment. If the New York Times had published the same information, the courts would undoubtedly rule in the paper’s favor if government tried to silence it. In this case, the government makes a big deal of denying Assange’s claims that he’s a journalist, as if that matters. Free speech is free speech, no matter whether it’s being exercised by a news gathering organization or a private person.

Even folks like Senator Diane Feinstein, usually supportive of our First Amendment rights, want to see him locked up. Feinstein told the Wall Street Journal in 2010, “Mr Assange claims to be a journalist and would no doubt rely on the First Amendment to defend his actions. But he is no journalist. He is an agitator intent on damaging our government.”

If they manage to get him to our shores they won’t let him go. His best hope at this time is for Ecuador to approve his application for political asylum or for him to find a way back to his native Australia, where any extradition request from the U.S. would probably be denied. Otherwise, the Brits are going to give him to the Swedes who will promptly turn him over to the U.S. When that happens, our government is going to crucify him, no matter who’s living in the White House come January.

Megaupload, on the other hand, just might see the case against it dropped. New Zealand has started to question our case, as well as the process by which Dotcom’s assets were confiscated. If the case is dropped, it’ll be a victory for Internet freedom. However, if the U.S. manages to get him to court and prevail, a dangerous precedent will be set. The WikiLeaks case is even more chilling, and there is little doubt that the Justice Department or the military, whichever eventually tries him, will prevail.

Which brings us back to the Fourth of July and our founding families.

The government is trying to apply constitutionally guaranteed rights differently to the Internet than to print. However, the men who framed the constitution would have made no legal distinction between the “information superhighway” and other form of communication. They would be appalled at our government’s attempts to remove due process as a right to be enjoyed by web publishers on an equal footing with newspapers and magazines.

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Christine Hall has been a journalist since 1971. In 2001, she began writing a weekly consumer computer column and started covering Linux and FOSS in 2002 after making the switch to GNU/Linux.

12 comments to Megauploads, WikiLeaks and Independence Day

  • Bob Robertson

    “behavior by our authorities”

    “Our”? They’re certainly not mine.

  • I see your point, Bob. My point is that its “our” government whether we like it or not. You can’t fight a case in court on the grounds that you don’t respect the government. That defense will get you nowhere.

  • Russ

    You’re wrong Chris. It is most definitely not our government. The United States government is run by a corrupt coalition of privileged identity groups whose motives and desires are hostile and alien to the American people. This has been true for a long, long time. Perhaps a century, maybe longer.

  • I have no argument with you there Russ. Even so, this is the government that has given itself jurisdiction over us and the government with which we have to deal on a day by day basis. Try telling a judge that the government he represents isn’t your government. You’ll still be going to jail. For better or worse, whether you like it or not, it’s your government. Work to change it.

  • [...] Megauploads, WikiLeaks and Independence Day Wednesday is the Fourth of July, the day when we in the U.S. celebrate whatever we perceive to be the vision of our founding families. This would seem to be a good time to wonder what the framers of our constitution would think about the way we’ve been applying, or not applying, due process to the Internet. [...]

  • [...] with newspapers and magazines. A slightly different version of this article was published Monday on FOSS Force. Link to this post!No related posts. July 4th, 2012 | Tags: assange, kim dotcom, megaupload, Obama [...]

  • Backstrom

    Chris Hall states it as a fact that Sweden will turn Assange over to the U.S. However, it is most unlikely. The U.S. first has to make an official demand which Sweden must accept, which is far from certain. But because Sweden has made the requst to the UK in the first place, it is the UK who has the last call if such a requist is made by the U.S.

    Therefore you could say, Assange is just a person who don’t respect the court of law. Sweden is by the way one of the least corrupt countries in the world, so he would most probably get a fair trial for the suspected sex crime.

  • I have blogged on The Guardian (UK) and elsewhere that Assange should be given refuge by the AUSTRALIAN government (‘my government’) as he is validly in fear for his safety. A senior US government elected representative has made public threats of violence against him.

    And after the ‘proof’ of the US threat to his safety, in the intervening two years, Sweden has not come forward with any clear guarantees against further extradition from their shores. All Sweden needed to do if they wanted their case run was to issue an iron-clad guarantee that he would be returned to Britain or Australia (per Assange’s choice at the time) after the Stockholm case and any prison time ensuing, and that Sweden would provide an appropriate military escort to ensure against any ‘rogue state’ (USA) sought to order-down his flight. Sweden has done nothing to allay those fears.

    Alternatively, the US administration COULD have issued a binding commitment to the UK, Sweden and Australia that the US would NOT seek his extradition (ever) in respect of any actions of Assange up to the present date. That would have allowed the UK and/or Ecuador to fairly decide that he was not subject to valid fear of rendition or torture by a country not signatory to the international conventions on such issues nor the International Criminal Court (ie the USA).

    But the crime alleged is that he did have consent for sex, but not for a subsequent penetration whilst still in bed together… That is not actually a recognised crime in any country outside Sweden, so it’s hard to enforce as a matter of extradition for visitors to your country. Sweden has done itself a lot of harm to its image over this whole affair.

    But given where Assange now is, the vast majority of Australians would prefer to see his own country stand up for his rights. Australia can remain in a defence alliance with the USA while still providing guarantees of freedom-from-torture to one of its journalists.

    And the world is not a worse place for the ‘openness’ of the facts that Manning shed light upon. Wikileaks simply organised with The UK Guardian, the leading German newspaper and the NY Times to publish it. Manning may have committed a crime (for which he is now paying heavily), but Assange did not.

    Graeme Harrison, Sydney Australia
    Former Harvard Consultant to The White House

  • And before I get too much ‘hate mail’, let me state that I am not anti-American. I lived in the US for many years. And I think it is with good intent that the US has gone into some foreign wars.

    But I also sympathise with Private Manning, seeing thinks like the classified video footage of the attack helicopter ‘taking out’ the Reuters reporter and his entourage, simply because they were carrying rifles (for their own protection in a country where carrying a riffle is not a crime). It was the disdain with which people die if they are not wearing a US military uniform, along the Bush’ guidelines of “If you’re not with us, you’re against us.”

    But ‘bombs for peace’ doesn’t work. And the US needs to return to ‘one man one vote’ before it can export its form of democracy. With US politics fully ‘sold out’ to the highest bidder, people outside the US see it as corrupt as most other forms of government. If political donations were outlawed in all OECD countries, and politicians were decided by vote counts, not media budgets, then perhaps the West could seek to influence the governments of the Middle East. In ther interim, we just need to let such peoples decide for themselves how they will organise.

  • Joe Barry

    There is no conjecture about what would happen if the NY Times published this material, history shows that nothing would happen. From the Pentagon Papers affair during the late 1960′s to the leaks of classified projects and operations during the Bush administration critical data was leaked and the Times was applauded by the very people objecting now. So the hypocrisy is clear and bright. Other media outlets did the same.

    The major difference between Wikileaks and the mainstream media is in whose ox was gored. Wikileaks made liberal Idols like Obama and Hillary uncomfortable, so it was off with there heads. The earlier leaks embarrassed Republicans like Nixon and Bush as well as the US (which is politically incorrect), so applause all around.

    Thus the real issue is political correctness and not nationalism or principles.

  • Tonio

    Wikileaks is providing the very services that the fourth estate was intended. The argument that it isn’t press is an embarrassingly obvious lie.
    Benjamin Franklin commented that sacrificing freedom for security gives us neither security nor peace. History and current events provides evidence of the truth in his observation.
    This wouldn’t be an issue if the major papers and media outlets all called it what it is, censorship. The fourth estate is supposed to go after the government no matter who is in office. It would seem our “press” are just propaganda purveyors, cowards and more a source of eye candy than any real use.
    Its the hegemony of corporate statism that has made “treason” and criminal what is supposed to be a constitutional right. As Jefferson said, “I prefer dangerous freedom to peaceful slavery.”
    If the government was really so keen on proving their case why not just have the trial in absentia? Lets face it, any trial would be an embarrassment to the US because it would then be in open court that our Constitutional Rights were being abrogated for what is essentially political agenda and poorly conceived foreign policy. Exactly the type of things that the fourth estate is expected to be on watch for and reporting.
    In this country the military and the government is supposed to be subject to the civil and not the other way around.
    Our military has demonstrated they will do whatever they are asked, and do it damned well. The issue then is why do we make them fight just to gut the very rights they are fighting for?

  • Dee

    Why the concentration here in the comments on Assange and Wikileaks ? The lead in this article was Kim Dotcom’s NZ operations and arrest, with subsequent sequestering of all data. What right does “your” Government (USA) have to seize and sequester legitimate data of citizens of other sovereign countries ?
    USA is NOT the “world cop” and many people in many nations are becoming very angry about the USA acting in this manner. I recall a very revealing documentary – I think produced by the BBC – with Imran Khan, the well-known Pakistani cricketer, travelling in Pakistan and gathering the opinions of common Pakistanis regarding the USA and its international operations. I know from my business travels that similar opinions are widely held in many Asian countries although those of us exposed only to USA-influenced media rarely see this broadcast.