Free speech victory

Journalist Declan McCullagh uses the Internet to stand up to censorship

By nessie

Regular readers of this column have become accustomed by now to my ceaseless jeremiads against the menace of malevolent technology, the ceaseless depredations of the corporate-government complex, and unending cover-ups that conceal them. Frankly, it gets kind of depressing sometimes. So it gives me great pleasure to be able today to relay a bit of good news for a change. Cheer up, people. Sometimes we win one. Eventually we will win enough of them that the tide will turn.

In the meantime, alas, we must be content with small victories. The good news is that we just had one. In part it resulted from the nature of Internet technology. In part it resulted from the personal heroism of Wired News Washington, D.C. bureau chief Declan McCullagh. The heroes of journalism are all too often are recognized only posthumously. Don Bolles, Danny Casolaro, Alan Berg, et al, made their names immortal the hard way. But Declan McCullagh did something just as brave and, as it turned out, a whole lot smarter. We all owe him a debt of thanks for what he did. You, gentle reader, should write this man a personal thank you note, and Wired News should give him a well-deserved raise. He could have gone to jail for what he did to defend our right to the whole truth.

Jail is not a pleasant place. Jail sucks. You don't want to go there. Declan McCullagh knows this. Nevertheless he stood his ground. Fortunately for all of us, the government blinked first.

Declan McCullagh was threatened with "all appropriate legal remedies, including (without limitation) any legally allowable contempt of court sanctions" if he failed to promptly remove from a message he posted on his Web site, certain information which the city of Kirkland, Washington did not want you to see. This threat was delivered in a letter from attorney Stephen Smith of the law firm Preston Gates Ellis, representing the City of Kirkland, Washington. Preston Gates Ellis, incidentally, is Bill Gates' father's firm. Stephen Smith also represents the Seattle Post Intelligencer. It was the Seattle Post Intelligencer, you may recall, who published the initial disinformation about the FBI's visit and gag order to Seattle's Independent Media Center during the FTAA demos. It's a small world. The further up the pyramid you go, the smaller it gets. The people at the top want nothing more than to limit your access to the facts, it is primarily upon your ignorance that their power lies.

Contempt of court can land you in jail. Americans don't like it when that happens to a journalist. Freedom of the press, such as it is, is thought of quite highly here. For the government of Kirkland, for government in general, jailing Declan McCullagh would have resulted in negative publicity. What facts did the city of Kirkland consider worth that kind of blowback? Was it where certain bodies were buried, some bribe money banked, or some politico's love nest located? Not even. It was the Social Security numbers of some city of Kirkland cops.

The issue would never have arisen had not SSNs become a de facto national identification number. A lot of you are too young to remember it, but when I was a kid, all you had to do to get a Social Security number was to go into the Social Security office and ask for one. You didn't have to present identification or in any way prove who you were. This is because SSNs had not yet become identification. According to the act that created Social Security, they would never be used for identification. In fact, it used to say, right on the card, "Not for purposes of identification." Then it didn't say that anymore. We'd been lied to yet again.

There is something deeply and fundamentally wrong with a society in which it is not the norm for ordinary people to be taken at their word for something as basic as their own names. You shouldn't have to present a piece of paper to be accepted for who you are. But you do. In America paper is far more important than people. In America paper sleeps in a palace while people sleep in the street. That piece of paper in your wallet, and the number on it, are more widely considered to be your identity than is your identity itself. We are no longer persons. We are numbers. What some people call the Mark of the Beast is already upon us. I prefer to think of it as the mark of Big Brother, but whatever you call it, it's oppressive and dehumanizing. So for the most part, are the police.

The SSNs in question had been obtained by legal means from public documents. The context in which they were presented advocated no violence against the cops in question. These are key elements, vital to your understanding what's going on with this case. Consider, for comparison, two related cases:

On March 28, 2001 three-judge panel of the Ninth Circuit Court of Appeals unanimously threw out a $109 million verdict against some antiabortion activists, holding that their Web site was protected by the First Amendment. The site featured wanted posters branding abortion doctors as baby butchers and criminals. It included lists of the doctors' names and home addresses. The appellate judges said that the defendants could only be held liable if they specifically authorized, ratified, or directly threatened violence. The court found it noteworthy that the statements and lists were made in the context of a public Web site, and thus in public discourse, rather than in a direct communication to anyone. Thinly veiled death threats, when made in public, are apparently protected by law.

On May 21, 2001, the Supreme Court said a radio host cannot be sued for airing an illegally taped telephone conversation. This ruling carries special implications for all news media. In a 6-3 vote the court said, in effect, that the First Amendment trumps wiretap laws in the case of the host who played a recording made by someone else. "A stranger's illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern," Justice John Paul Stevens wrote for the majority.

If media's distribution of information obtained by legal means is protected by law, and thinly veiled death threats are protected by law, then it only stands to reason that the distribution of information obtained by legal means and presented in a context that does not advocate violence ought also to be protected. But, alas, we are not ruled by laws, but by men. When they can use the law to rule us, they use the law. When they cannot use the law, they ignore it. This is particularly true in matters concerning law enforcement.

Every once in a long while, the powers that be put on a great show of slapping the cops' wrists in public, usually over some minor matter, in order to perpetuate the illusion in our minds that police are not above the law. However this does not seem to be what happened in the case of the city of Kirkland's dispute with Declan McCullagh. It is was not the legal system that effectively backed up Declan McCullagh's singular act of courage. It was the Internet itself.

The city of Kirkland has apparently given up trying to censor Declan McCullagh because the Internet is impossible for the government to censor. It would if it could, but it can't so it won't, and that's the sum of the story. The SSNs in question originally appeared on a site called the Justice Files. On May 10, 2001, Judge Robert H. Alsdorf ordered the site to remove them. They were removed. They were then reposted by another service provider called Hackers for Hire. On May 22nd, 2001, King County Superior Court in Seattle denied the city of Kirkland's attempt to hold the owners and service providers of the Justice Files in contempt. The reason is simple. Hackers for Hire are located up in Canada outside the territorial jurisdiction of the King County Court. On certain rare occasions, national borders work as much to our advantage as they do to the advantage of transnational capital. This is one of those occasions. Savor it, for they are few in number.

Declan McCullagh then posted some of the SSNs to his Politech mailing list, which instantly scattered them across the globe. He also archived them at his site and invited the city of Kirkland to respond. This it did in the form of the threatening letter from Preston Gates Ellis. It was an empty threat. Even if carried out, it couldn't possibly manage to censor the SSNs off of the Internet. McCullagh's archived post has since been mirrored at a number of sites, several outside the United States and thus beyond the jurisdiction of U.S. courts. Putting him in jail for contempt would be like locking the barn door after horse is gone. It also would be a great deal more trouble than it would be worth, because it would arouse righteous anger among freedom lovers everywhere, particularly in the United States. There is no denying that we Americans have our faults, but sitting quietly by while a journalist suffers for trying to tell us the truth is definitely not one of them. We would have raised bloody hell.

And this isn't the first time McCullagh has taken a stand. He has mirrored censored sites in the past. He has been involved in the battle over the Cyberpatrol Internet filtering software, the DeCSS case, and the Communications Decency Act. Keep an eye on his mailing list and his reporting.

Censorship is abhorrent. It is the ultimate atrocity, because it is the one that makes all other atrocities possible. The Internet has, once and for all, made censorship virtually impossible. Censor information in one place and it will merely pop up in another. The Internet was designed to survive a nuclear war. It can withstand a great deal of damage and still function. In the famous saying, "It perceives censorship as damage and routes around it." This is the best thing that has happened to the free distribution of information since the invention of movable type. If we have the courage and wisdom to use it right, a bright and glorious future awaits us. If not, the future is grim at best. It was best described by Orwell. "Imagine," he said, "a boot stomping on a human face forever."

The nessie files runs alternate Mondays.

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