CENSORSHIP ALERT! California Court Wipes Wikileaks.org Out of Existence

These offshores are allowed access to U.S. markets with little intervention thanks to friendly U.S. legislation that allows these tax and legal shelters.

It's a total ruse, corporatism with little or no accountability in U.S. courts.

Josh:

Any foreign entity is able to utilize the Courts of the USA to address what it may believe is a violation of its rights by a US citizen (corporate or otherwise). It is a jurisdictional issue. From what I have seen, Dynadot is located in California, thus the Carribean entity had no choice but to sue it in a California court.

Nothing odd about that. I have no idea what Partisan is talking about, has no applicability to your question whatsoever.

Any foreign entity is able to utilize the Courts of the USA to address what it may believe is a violation of its rights by a US citizen (corporate or otherwise). It is a jurisdictional issue. Nothing odd about that. I have no idea what Partisan is talking about, has no applicability to your question whatsoever.

Spoken like a true lawyer.

What you're saying is that "foreign" corporations, generally in this instance U.S or European entities who use offshore Caribbean island nations as corporate headquarters to avoid legal and tax controls placed on U.S. and EU corporations, should have more say about freedom of speech issues in the U.S. than the U.S. itself.

Rather reminiscent of the Amistad case, in which it took a while for the U.S. courts to accept that perhaps the rights of a human being taking refuge in the U.S. had more importance than the supposed "property" of a foreign entity.

There comes a time when those practicing law need to take a look at whether they are more interested in defending the interests of their clients as long as their money is the right color or more interested in preserving and defending the Constitution of the United States of America. As with the Amistad case you may be perfectly right about juridictional issues - until you take your moral blinders off.

From that perspective I am very glad that we have a Constitutional law expert running for President. May the sanity and sanctity of the U.S. Constitution prevail.

In fact, it is the Constitution which grants foreign access to U.S. Courts.

It's not even an amendment.

The judicial Power shall extend to all Cases...between a State, or the Citizens thereof, and foreign States, Citizens or Subjects

Article III, Section 2.

I find the result in this instance unjust, but not because a foreigner brought suit.
If you think about it, it goes against our higher principles to not allow ourselves to be held accountable for wrongs we have committed to others from outside our borders.

In fact, it is the Constitution which grants foreign access to U.S. Courts.

Yes, and this is the exact same power under which the Amistad case was prosecuted.

Either we defend the First Amendment on our own soil or we don't.

Partisan:

You are mixing and matching issues.

Do you not wish to give foreign entities/people access to our courts?

I take it, then, you don't agree that any foreigner should be able to enter our Country and take advantage of any governmental program?

Again, you don't seem capable of discerning the differences here. But, hey, that's your issue not mine.

wmolaw,

As I have said now twice and I will say a third time for those with earwax in their egos, I do understand that foreign entities are allowed access to our courts.

And for the third time I will say that such access does not mean that the courts have to roll over for them and ignore the U.S. Constitution.

Either Americans have a right to free speech on American soil or they don't. We accept that Germans may censor Web sites in their nation based on their own particular interpretation of privacy rights: why should not foreign entities such as Bank Julius Baer, The People's Republic of China and others upset about this Web site who would rather have our courts care more about the rights of foreign corporations and governments than the Constitutionally guaranteed rights of U.S. citizens, honor the rights to free speech guaranteed to American citizens in our own nation under our Constitution?

I take it, then, you don't agree that any foreigner should be able to enter our Country and take advantage of any governmental program?

If you would care to explain this red herring I might respond to it but in the meantime I think that this article in the San Jose Mercury News entitled Misguided judge pulls plug on Wikileaks highlights the substance of the case that you are ignoring utterly:

Judge White's breathtaking order is the same, legally speaking, as enjoining all future editions of a daily newspaper because of a corporation's complaint about one article that appeared in the paper last month. In the hierarchy of offenses to the First Amendment, such "prior restraint" is the worst there is. What the government of China could not do, despite building its "great fire wall" of censorship, a federal judge accomplished with the stroke of a pen.

Your witness.

The Mercury-News is misinterpreting what happened.

Wikileaks is not constrained from reporting anything it wants. It just can't use the Wikileaks.org namespace to say it. While I think the judge reached the wrong result in this instance, courts have always held that free speech may be restricted to protect a compelling public interest. This is why the first amendment does not protect a Pro-Lifer who tries to distribute pamphlets at Planned Parenthood clinic, or the proverbial yeller of "Fire!" in the crowded theater.

This more like the horrible policy choice, but not unconstitutional, restriction of protests to "free speech zones."

Mr. five,

courts have always held that free speech may be restricted to protect a compelling public interest.

What do you see as the "compelling public interest" here?

I don't think this is a first amendment issue at all. Wikileaks, for better or worse, gave Dynadot the power to act unilaterally, and so they did. The government, acting for itself, has in no way curtailed wikileaks right to free expression. The government has merely given force to the stipulated desires of private parties exercising their rights.

I also disagree with your assessment of internet access as "indispensable" and "essential." It's true for certain kinds of business, but many people's lives are independent of the internet and none of us require it to live.

I do agree, however, that there is an issue with unequal bargaining power, and a kind of unfair monopoly effect, where end users have little choice but accept any provider term/price, or forego service altogether.

This will have to be addressed by Congress, there is rarely enough money involved to warrant pursuit in court, and I'm not sure court's could fashion any kind of useful solution anyway.

This ties in to some degree to our discussion regarding rights and privileges, which I am still waiting for your answer to my query below.

Mr. five,

Thank you very much for the elaboration.

I also disagree with your assessment of internet access as "indispensable" and "essential." It's true for certain kinds of business, but many people's lives are independent of the internet and none of us require it to live.

My characterization of the internet as "indispensable" was not intended to imply that a person could not live independent of it. Rather, I contend that when certain developments of media convergence reach fruition, the capacity of the internet to affect communications, journalism, education and even the function of participatory democracy will become increasingly apparent.

I do agree, however, that there is an issue with unequal bargaining power, and a kind of unfair monopoly effect, where end users have little choice but accept any provider term/price, or forego service altogether.

I don't disagree with your characterization of the legal agreement between Dynabot and Wikileaks. But why did Dynabot "act unilaterally?" That's the question. While I'm not a lawyer, the answer seems clearly to have something to do with Wikileaks content. "Unequal bargaining power," at least in this case, seems to have provided a means for the Cayman Islands bank in question to remove evidence of illegal and/or embarrassing practices.

The argument you present is exactly the kind of argument companies that create "unilateral" contracts want produced in their defense. It would be more applicable, in my opinion, if we were talking about a genuinely free market where the terms of contracts might be negotiated on a level playing field. Rather, the United States is among the most centrally controlled economies on Earth, except that that central control is slated in favor of corporations. In this case - and in defense of my argument that the internet is an indispensable medium, Wikileaks simply doesn't function without a stable internet presence. Their right to free expression has been curtailed, although it has been done via a back door.

You seem to be saying that Dynabot's motivation for removing Wikileaks isn't relevant according to the terms of their contract. But Dynabot's motivation, period, is relevant to the question of whether or not this is censorship, whether that censorship is legally allowed or not.

We oughtn't think 'can't', cause it could. We have to think 'shouldn't' so that we keep fighting to make sure neither the US nor any one else ever does

Note that the BBC article did not inform their readers that it was a consensual order entiered into by the two parties to the litigation.

No it ain't.

When I've seeded recently and it says there may already be a seed the link takes me to something totally unrelated. I've also seen seeds that were done 10 to 15 hours apart. Did the doppelganger show up? Wonder what's going on?

Hetep and Respect erictive, American courts, especially under the Bush and the forty thieves destruction of Justice system, has not been known for administering Justice on the side of people.

This is like that pea bargaining crap, when the "judge" asked the poor dependent if anyone coerced him/her into making this agreement. And everyone standing before the bench knows exactly what happened and supports the lie.

This is the same unjust arm twisting. In this case, it is deep pockets arm twisting.

Stated differently, the question is whether internet access by content providers is a right or a privilege, and if a privilege, should it nevertheless act like a right in most circumstances. I come down with this last. We have no right to access roads, telephones or even TV, however, as a matter of policy, individuals' access should be denied only under exceptional circumstances.

@wmolaw. Thanks for that. A tempest in a teapot, perhaps.

Josh:

You purchase a domain name, and to do so you must agree to the contract of the name provider. You just don't pick a name, and it's yours. It must be registered.

So, the DNS "owner" is not John Shipton but the entity from which he has been allowed to rent the name. You cannot "own" a name unless you contract for it and rent it.

And, again, such acts require a contractual agreement with the domain name provider.

#15.1 Stated differently, the question is whether internet access by content providers is a right or a privilege, and if a privilege, should it nevertheless act like a right in most circumstances. I come down with this last. We have no right to access roads, telephones or even TV, however, as a matter of policy, individuals' access should be denied only under exceptional circumstances.

On the contrary, "individuals' access" should be denied only under due process of law, and not as an exceptional circumstance within what is assumed to be the absolute power of government to restrict infrastructure owned by and paid for by the people.

As for the notion of privileges as opposed to rights, I'd posit the opinion that rights precede law. Rights exist simply because they are extensions of civilized human behavior, and laws are created to protect and sometimes restrict rights that exist independent of nations and the laws they create.

Privileges, conversely, follow the law, and apply not only to citizens but also to corporations and to governments. The real question here, and the reason I suspect Mr. of Arc seeded this link to begin with, is whether secrecy and censorship by content providers, and corporations and governments in general, are rights or privileges? In this respect I come down with the latter. Governments and corporations have no inherent right to secrecy, and award themselves the privilege to keep secrets with the public's tacit apathy in the face of mountainous legal restraints composed by and in the interest of the public's defrauders, who treat the citizenry as if it should feel privileged to have any legal recourse in the use of infrastructure that is largely public property.

You make a compelling populist argument.

The reason I think access to infrastructure should be a privilege, that is, an individual privilege to intrude on a collective asset, is because of the enormous amount of harm that can potentially be wrought by individuals with unrestricted access.

This is one reason our environmental problems are so numerous, we assume individuals have a right to pollute as much as they want, s/t restriction (often with compensation).

Another example would be drunk or otherwise reckless drivers, or folks who drive a tank on the roads, who endanger other drivers and take more than their fair share of road wear. (What a poet am I! Ha!)

Mr. five,

I agree with you on the notion that access to some public infrastructure should be a privilege. By no means am I an advocate of "unrestricted" access. Rather, I think the entire form of "legal privilege" needs to be completely restructured so that the due process of law functions to enforce the corresponding duties that are implicit with any right or privilege, in effect making it exceedingly difficult for people to use limited resources in excess.

I love that word, "populist," the way it can imply so many things beyond the parameters of its definition. It fits nicely on a shelf, amid the clutter of other "trigger words" that have seized control of public dialog in the United States, all of which sound powerful on their face, but are often useless in application.

Well, your highlighting of my diction was very poetic, but I used the word in the dictionary sense, that is, "a person who holds, or who is concerned with, the views of ordinary people." But perhaps I was mistaken as to your views, and you are rather concerned with individual rights, not whether ordinary people may exercise them.

In any event, I'm curious which access you might consider a right and which a privilege, and how you would make the determination?

Atticus:

I am also interested. If you prevent (or over regulate) private commercial enterprise, then private commercial enterprise will not invest.

The internet is what it is today because of private commercial enterprise.

I believe that it is not the private sector that is going to destroy the internet, but the governmental sector through regulation, taxation, and censorship of what the "majority" (read pressure groups) thinks is or is not appropriate.

Mr. five

These are some big questions. Please pardon the consequent length of my response...

But perhaps I was mistaken as to your views, and you are rather concerned with individual rights, not whether ordinary people may exercise them.

I'm not certain as to how these two are irreconcilable.

I used the word in the dictionary sense

But that's just the problem these days. Dictionaries may capture the popular essence of a word and all its variations, but these are often, by necessity, a subjective understanding of a word's meaning; the populist definition, if you like :) Specifically, I'm speaking of words like liberal and conservative, left and right. They have come to serve a whole range of meaningless functions: as epithets, as thought-stoppers, as adversarial phrases that imply "good and evil," depending on which side you might be on, and often as fetishes within which we imbue faith in our own righteousness. As a result, even people who attempt to use these words constructively cannot.

Perhaps I was too sensitive about your use of populist, and I regret it if I was. But I've heard that one hurled as an asymmetrical epithet as well.

I'm curious which access you might consider a right and which a privilege, and how you would make the determination?

The U.S. Constitution insinuates that rights are preexistent, that free societies recognize qualities of civilized (there's another loaded word) human behavior that must be recognized and protected if one is to govern as opposed to rule. This is further substantiated by the Declaration of Independence, which although not a source of law, speaks of self-evident - and thus preexistent- "truths," and further insinuates that rights are not delivered to us by the whim of God-ordained monarchs or self-satisfied Yale graduates masquerading as Presidents. But I digress...

We have come to assume, in this day and age, that rights are given us by the government. This is absurd. A right cannot be given or given up, although scoundrels and demagogues may be given popular approval to abuse them.

If I had to define what a right is, I'd say that rights are those aspects of civilized human behavior that keep us free from undue harm to our person and/or our identity, and that facilitate the self-actualization of all individuals. Freedom of speech and press and conscience; freedom from physical attacks in the form of assault or attempted murder; free access, both physically and financially, to the legal system an equal protections of a nation's laws...you get the idea.

Privileges...that's a bit more vague. I'd say that most privileges extend from an individual's pursuit of happiness, a statement which is paraphrased from the earlier pursuit of profit. Privileges are not the basis around which we form governments, but follow government, and include things like driving, which we've already mentioned, but also the capacity to start a business, the incorporation of a business, the holding of a bank account or line of credit, the ability to vote or run for office...you get the idea.

Accompanying both of these, and implicit in the idea of citizenship, are duties. One has freedom of speech and press, but one must be respectful and avoid slanderous or libelous speech. One may start a business, but that business must respect the public sphere in its pursuit of profit.

I don't have anything further to add. I expect we have similar ideas about the way the world ought to look, but different ideas about what's going on today and how to get from here to better.

I also want to acknowledge that your ideas are very well thought out and respectable, and your expressive style is impeccable. I look forward to meeting you again in another topic.

Same here, Mr. five. You're a gent, and it's been a pleasure conversing with you.

Mr. wmolaw, in response to #15.9

Again, I apologize for the length of my reply, as your statements compelled me.

If you prevent (or over regulate) private commercial enterprise, then private commercial enterprise will not invest.

In my Who is John Galt days I might have agreed with you.

First of all, I am not, as you seem to have presumed, an opponent of free markets. The problem is that the United States does not have free markets. It is, as I have said before, among the most centrally controlled on Earth, except that that central control is slated immorally at a small group of oligarchs who have not earned most of what they have received, and who seem to forget the fact that they invest on the backs of thousands of other people.

I live in the European Union, in the Netherlands, where there is a great deal of regulation, and yet the EU's GDP is now rivalling that of the United States. Everyone has health care, one or two months of vacation a year (not including holidays), affordable colleges, pensions, profound public investments in the environment, in the arts, in the restoration of ancient sites and city-beautification. There's no deficit or national debts. And this is all because businesses are kept rigorously in check, taxes are high for the rich and higher for the super-rich (who still enjoy an irreproachable standard of living), and the only place European companies are able to abuse their employees American-style is in America.

The internet is what it is today because of private commercial enterprise.

I believe that it is not the private sector that is going to destroy the internet, but the governmental sector through regulation, taxation, and censorship of what the "majority" (read pressure groups) thinks is or is not appropriate.

If you'll pardon me, sir, what I'm reading here is a cultic belief in a laissez-faire model of unhindered capitalism that has never worked, and in fact brought the United States to near ruination in the wake of the stock-market crash in the late 1920's that set off the Great Depression.

But you're speaking specifically of the internet. The internet is not a commercial venture. It is a massive, public forum on which commercial ventures can be launched, along with a host of other applications, and many people have done very well at it and good for them. But the whole thing, again, was invented as a scientific/military venture that went public. If anything, the internet is a glaring success story demonstrating a government-sponsored project paid for with public funds that worked to the benefit of both business and consumers.

That's why so many media companies are in so much trouble, and why net neutrality is such an issue, because the easily accessible, highly democratic internet has displaced the need for vast tracts of media formerly provided by traditional media companies that obeyed old models of production. We're not simply seeing media converging on the internet, but media demonetizing on the internet.