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.