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Need Proof Crowd Sourcing Works? Check Out OpenLeaks

According to Tech Terms, “wiki” comes from the Hawaiian phrase “wiki wiki,” which means “super fast.” I guess if you have thousands of users launching denial of service attacks (see below) against targeted web sites – well ‘super fast’ spells super trouble. Which has prompted me to write this article “IMHO” (in my humble opinion) – IMHO being a social media nod to the kewl gnu SMS lingo.

So doesn’t it seem as if this WikiLeaks [http://en.wikipedia.org/wiki/WikiLeaks ] thing has gotten out of hand. Now in fairness, in my view there are intelligent points being made on both sides of the issues – national security is important; so is freedom of the press and speech. There are also rights and responsibilities on both sides of the issues – private censorship is not something that sits well with those of us who value the right to hear and voice differing opinions and thoughts, yet using a ‘free speech’ argument to allow someone to scream fire in a crowded theatre – even when none exists – can cause harm to innocent people and is, again in my view, irresponsible, if not illegal.

So if you have been following this Wikileaks issue, you already know about the leak of U.S. diplomatic cables by or through WikiLeaks and unless you have been living under a rock, you have also noticed the arrest of WikiLeaks founder, Julian Assange. All of this has resulted in a dramatic and well publicized series of ‘cyber attacks’ from ‘hacktivists’ primarily using a disruptive technique known as ‘denial of service attacks’.

Curiously, the arrest of Mr. Assange in London has nothing to do with the current controversy over confidential and sensitive material that is giving rise to the tensions across the Internet. Mr. Assange’s legal problems stem from an international warrant issued by Sweden, where he is accused of rape, molestation and unlawful coercion by two women in connection with sexual encounters he reportedly has had while he was in Sweden last summer. Mr. Assange apparently confirmed the encounters, he has denied the allegations of assault and he has not yet been formally charged in either of the women’s cases.

The disruptions on the Internet and outcry against his treatment (or the treatment of his company) are not about his personal problems, but rather have taken on a life of their own as a poster child for the principle of ‘information needs to be free.’ Somehow, WikiLeaks has become a symbol, a rallying cry, for the cause of free speech and information transparency, being championed by activists around the world, the activities of some of whom has allegedly already resulted in: The Swedish government website http://regeringsen.se, was offline for several hours and arms of the Swedish postal service, the websites of Swedish prosecutors and at least one lawyer were the targets of attacks.
Both MasterCard and Visa, whose banking and financial institution members stopped accepting payment transactions in support of either WikiLeaks or Mr. Assange’s defense, were subject to attack (e.g., reportedly Visa’s website and MasterCard’s ‘secure code’ system was affected – in the case of MasterCard, apparently preventing some online transactions from being processed for several hours.

Just today we read of allegations and reports that Sarah Palin’s credit card information and the website of her political action committee were hacked because she referred to Mr. Assange on ABC News yesterday as “an anti-American operative with blood on his hands” and U.S. Senator Lieberman’s website was impaired and anonymous SPAM faxes sent to the Senator’s office after he called for an investigation of The New York Times who had published articles with details of the diplomatic cables leaked by WikiLeaks.

As Mr. Spock, the iconic Star Trek character played by Leonard Nimoy, might have remarked well into the future: “Fascinating!” Well the future is now.
So what should you do. First you should read my partner, Douglas J. Wood’s recent opinion piece on Corporate Counsel, entitled “Say Hello to the World’s New Sovereign Nations: Facebook, Google and RIM”. When you finish, head straight to YouTube and watch the clip “There’s a War Out There” from the incredibly prescient motion picture “Sneakers,” with Ben Kingsley and Robert Redford. You might also grab a copy of An Army of Davids: How Markets and Technology Empower Ordinary People to Beat Big Media, Big Government, and Other Goliaths, by Glenn Reynolds. Oh, and in case anyone is thinking about my Legal Bytes post over a year ago, entitled FTC (Revised) Endorsement Guides Go Into Effect, rest assured I have no interest (other than intellectual) in either my partner’s publication, the motion picture production or the book or publishing company noted.
It is likely, some of the ‘attacks’ may lead to criminal prosecution or civil litigation or both. It is also likely companies and governments may rethink their security and dependence on digital technology, as well as their activities and responses to events such as these. Protests of this nature, irrespective of one’s view or one’s ‘side,’ are now occurring on a scale, orchestrated by individuals dispersed throughout the globe, in a manner that might make taking to the streets or the holding passive sit-ins or hunger strikes in the halls of legislative bodies passé. Further, the effects of such activities on innocent people, should not be underestimated. While the U.S. holds dear the Constitutional rights of free speech and freedom of the press, that does not include the right to create panic or harm or injury to others. There is a line between voicing one’s support and opinion, freely heard in the blogosphere and illegal conduct that damages persons and property.
So after reading this and the references cited, ask yourself the following question: Is this a technology problem? A political problem? A national security problem? A public relations problem? A legal problem? It is probably worth noting, since my partner Doug Wood mentioned it after reading a draft, that the freedoms of speech and the press (and assembly, etc.) that are embedded in the U.S. Constitution, are not the norm around the world. We often lose sight of the fact that these rights (and the passion and zealousness with which we cherish them and defend them) are not the global norm – yet. But, technology has enabled activities and communication unimaginable in the past. It can be a force for good or bad – sometimes both. Now comes the revolution? Fascinating! But that’s just my opinion.

Joseph I. Rosenbaum, We Expert

Joseph I. (“Joe”) Rosenbaum is a partner in the New York office of Reed Smith, global chair of its Advertising Technology & Media law group and the editor, publisher and often author of posts on his blog Legal Bytes, which he has authored and published, first in hard copy and then in blog form, since 1996.

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