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Wikileaks Under Fire For Publication of Court-Protected Information

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Wikileaks, a whistle blower website, encourages and advertises anonymous tipsters to upload confidential documents to its site. But what if that document, or a portion of that document, were privileged by a court order?

Such a scenario could be heading for a disaster with Wikileaks at the helm. Wikileaks is widely known for its fancy San Francisco lawyers working pro bono for its First Amendment rights. Certainly, there is no First Amendment right to violate a court order.

Recently in the news, Wikileaks was credited with leaking a corruption report initiated from an investigation of the Turks and Caicos Islands' former government. Before the report was to be published, a judge in the islands ordered the corruption report redacted (edited) to protect the names of certain individuals who were named therein.

According to the Turks and Caicos governor, the report was hacked from the Turks and Caicos government website, which had published the redacted version. Evidently, some vulnerabilities in the document's format allowed a hacker to uncover the protected text. Subsequently, Shaun Malcolm, a controversial blogger on the islands, uploaded the unredacted document to the Wikileaks website.  What makes this even more noteworthy is that Wikileaks published the unredacted document providing a summary of its origin and with a link to the court order enjoining publication of this document.

Recently, Wikileaks described the publisher of this document as "the most influential journal covering the Turks & Caicos Islands" and characterizes its website as exposing corruption that brought "a dramatic UK governance takeover of the Islands on August 14." Both statements are patently false:

On August 14, 2009, Great Britain suspended Turks and Caicos Islands' constitution, basing their decision on corruption charges against former Premier Michael Misick. UK's position regarding its takeover is globally published as: “clear signs of political amorality and immaturity and general administrative incompetence.”  Suspension of direct rule in Turks and Caicos is documented in a lengthy Crown investigation report, the document that was published on the Wikileaks site. The corruption investigation clearly was performed and executed by Great Britain.

Furthermore, Wikileaks misinterprets the facts of the order. It represented that their actions were excused because, "A High Court case ensued which initially enjoined all media in the Islands from reporting the redacted findings, however within a few days this restriction was overturned." This is a false statement. The judge in the case ruled to deny the continuing protective order, citing it impossible to prevent or control the leak from spreading by virtue of its publicity from the Wikileaks exposure.  In fact, Wikileaks' summary for the publication states, "WikiLeaks has obtained the full report and unredacted the missing text."

When the governor of Turks and Caicos discovered the leak of the unredacted report, he made a public announcement apologizing for the document's vulnerability. In a press statement, the governor said, "I am sorry that [protection was] not achieved and repeat my apology to the court. As I have said, I shall write separately to Dr Cem Kinay, Mr Hoffmann and Mr Civre,” (the names of the developers who were legally ensured that their names would not be published by the redaction order).

A previous Wikileaks controversy, which involved the publication of bank financial documents by an anonymous source in the case of Julius Baer Bank and Trust Company, was adjudicated.  Though Baer brought suit against Wikileaks, causing a short closure of the Wikileak's site, a further hearing found its actions to be protected by the First Amendment. However, the difference in the case of Baer is that a court order to protect those documents was not in place, as in the case from Turks and Caicos.  Redaction orders are orders by a court to strike and conceal "sensitive, privileged or protected information, including state secrets."

In a similar case, involving Lilly Pharmaceuticals, the press discovered and published a court ordered private report from a legal expert hired in the litigation. Upon discovering this illegal leak, the judge in the case called a separate hearing and found the leak source to have "conspired to obtain and publish documents in knowing violation of a court order not to do so". The judge called this incident, "a crime."

History will forever remember the case of the illegal leak of the identity of a CIA operative, Valerie Plame, by the Bush administration. This was said to have been done by the Bush Administration as retaliation for her husband's damning op-ed piece on uranium in Africa.

Another high profile illegal leak case came from the world of sports. A grand jury heard testimony from track star, Tim Montgomery, alleging that he took banned substances provided by BALCO owner, Victor Conte, in an investigation concluded in the summer of 2001. The judge had ordered all participants in the case to keep the transcripts confidential. However, the testimony was illegally leaked and the judge turned the case over to the Justice Department, which convened a Grand Jury to investigate the leak.

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About CBurke

  • Guardian Coup TCI

    so tell me burke, how is suspending the nation’s constitution, the right to trial by jury, and directly ruling from Westminster, not “a dramatic UK governance takeover”?
    I would really like to hear how what wikileaks said is, ‘patently false’, because you provide no evidence in your article and in the very next paragraph you confirm the takeover.
    Maybe in the UK your readers forget what they read the sentence before but it’s not 1984 here.

  • Smitty

    No the article says that the “Journal” was not instrumental for the take over, no? It says that UK did the take over and investigation with a lengthy Crown report. Did I read that wrong?

  • Smitty

    Guardian Coup TCI, here is the operative language: “characterizes its website as exposing corruption that brought “a dramatic UK governance takeover of the Islands on August 14.”

  • Too good to blog

    This news is confusing to me. I like whistle blowers in a sense because many corporate secrets hurt the little guy. But I also hate the Bush administration’s “annonymous” leaks to retaliate. Scooter Libby and Dick Cheney should be behind bars for what they did in the Valerie Plame case. I sorely dislike retaliation whistle blowing especially with regard illegal leaks that put innocent people at risk. Wikileaks should have a limit and standard on that.

  • Ted

    Wikileaks could be an invaluable resource for justice, but just like a news org they need to weigh whether or not certain info could be damaging to those involved, re: exposing the names of people who could then be in danger.

  • biolizard89

    Seems the author of this article is unaware that yes, if release of the court-suppressed document is in the public interest, then freedom of the press does indeed protect that disclosure, court order or not. This applies especially when the court order was used to suppress corruption allegations. The government works for the people, not the other way around. WikiLeaks is doing a service by exposing corruption, and your confused attempt to compare them to the people who leaked Valerie Wilson’s identity is not fooling anyone.

  • Dirty Games

    I have often wondered about wikileaks and the concept of “public interest”.
    It is one thing to blow the whistle on something but another thing completely if the leak causes harm or damage to a person without proper investigation or proof. And seen within the full context of a specific case.

    Does wikileaks thoroughly weigh what is in the public interest and when it borders on defamation or libel?
    Are the staff at wikileaks all qualified judges to make such a decision?
    Do they consider the consequences to a person’s good name, future and livelihood when they publish certain documents and especially documents that are protected by a court?

    So one has wikileaks apparently trying to uphold ethical standards, yet, is the publication of certain protected documents ethical in itself? Is this not maybe a contradiction?
    And can they forever hide behind the First Amendment? – Meaning that if the jurisdiction of a particular case falls in the TCI – would the US laws necessarily protect wikileaks and/or their sources there?

    In my own country corruption is rife and structures are in place to blow the whistle on corrupt activities. But one still does not have the right to go against clear court orders or maliciously try and destroy a person’s good name. Clear proof and evidence must be provided for allegations before it goes public.

    And just between us – the issue of a “hacker” getting hold of a court protected unredacted document that was then made public, smells a bit fishy to me .. Who gave this “hacker” instructions? And why would some “hacker” suddenly have such enormous personal interest in a country with a population of less than 37 000?
    Just wondering.

  • http://thingsalongtheway.blogspot.com/ Cindy

    DG,

    No hackers live in Turks and Caicos?

  • DG

    Dear Cindy
    My point being – I cant see a private hacker going out of his way for this. Maybe somebody asked him/her? I.e. gave the hacker instructions?
    Again – just wondering.

  • Clavos

    No hackers live in Turks and Caicos?

    It’s unlikely…

  • Too good to blog

    Somebody must have hacked the documents and given them to the one who posted it. It’s in the news — a hacker broke into the government website document.

  • RPool

    Sorry to intrude from a legal geek. But there is no defense for illegal leaks, whether it be for public interest or “corruption”. The case of Lilly Pharm. spells out this exact scenario quite neatly. The leakers defense was public interest and corruption- they lost that argument and the judge said that there is no First Amendment rights afforded to violating a legal order. The case law is clear that illegal leaks are not protected by the constitution. The offenders were charged with a crime. There are dozens of other similar cases. The Lilly case specifically addresses a “do gooder” defense.

  • Jimmy

    “According to the Turks and Caicos governor, the report was hacked”

    The Governor said nothing of the sort. Nothing was hacked, it was simply published in an insecure format due to negligence and was therefore legible on the official site to anyone with a modicum of computer knowledge. The hacking allegation is a smear. Mr. Burke (whose “investigative reporting” on any other subject appears nowhere on the internet) I suspect is working for Dr. Cinay. Am I right?

  • Thor

    I am no computer genius but isn’t hacked and “using computer knowledge” to find unpublished data, the same thing? This is the problem with the internet, it’s the tool for the most unscrupulous, now this author is being attacked in a comment site from someone annonymous — yet again we see this. The internet world is screwed up and lack of personal sensorship has gone awry. “Jimmy” sounds a bit paranoid.

  • Jimmy

    “it’s the tool for the most unscrupulous”

    Apparently

  • Thor

    Just thought of something, Cindy+Clavos+Jimmy=The Hacker? Err…. meant to say one with a modicum of internet skills, rather.

  • http://thingsalongtheway.blogspot.com/ Cindy

    Thor,

    I like hackers*. Hackers have power without bombs–some are techno activists. They are needed to counteract the control exerted by govts and Capitalists. I have connected with some very admirable hackers. Hacktivists for a better world.

    *I like dogs. Not vicious guard dogs, though. So, hackers with bad intent (against people) are no friends of mine.

  • Jimmy

    Thor,

    I accept your point about my being “annonymous” [sic]. May I take it then that I am actually addressing the ancient Norse God of Thunder? It’s an honour.

    Give it up Cem.

  • Thor

    Hacking and annonymity? — Both lofty goals. “God of Thunder,” I get that joke attempt. Cem, does that mean something in your language? Why are you trying to insult me?

  • Clavos

    I get that joke attempt.

    Good, because it was rather more than an attempt; it was a well-aimed barb.

  • Jimmy

    Thor,

    The only thing being insulted here is our intelligence. Cem Kinay is obviously engaging in an astroturf operation to plant sympathetic articles all over the internet by previously unheard of bloggers and “investigative reporters” none of whom appear on any byline prior to August. It is laughably transparent.

  • Jesse

    I trust the journalistic integrity of this site. I can tell you thor and Kimmy or Cindy or whomever, that a lot of reporters have been following this case since the Wikileaks post — that’s where many reporters get their news and leads these days. It’s the only place where we can locate the truth in text – not from eye-witness or word-of-mouth. Sure, there are two sides of each story and explanations within many documents. But primary source is our main witness. Everyone has an agenda. When an investigative reporter sees that something doesn’t add up and that there’s something more behind it — they start snooping for the “whys”. That’s their job.

  • Jesse

    By the way, “Thor” I think you missed that this person (I assume using different psuedo names) is referring to you working for Dr. Cem Kinay, the Plaintiff in the case against TCI Journal. “Cem” is his first name not a slur.

  • Jimmy

    “I assume using different psuedo names”

    Why?

  • Tom

    I disagree that journalists should get their “news” from leak sites. I think that Wikileaks owes the same publishing integrity as professional news outlets. Investigating it is one thing, but simply a news story because it’s posted on Wikileaks? The journalistic greats of our country would not stoop so low. Wikileaks should use some discretion and check out the source and the source’s inspiration. There could be a corrupt reason for that person wanting to leak something. Wikileaks does not check their sources or the background of the poster.

  • Jimmy

    The source was an official government website. The Wikileaks aspect is a red herring. The government site blacked out small portions (all of which was already in the public domain anyway) but did so in such a way that it could still be read either by pasting in in a different format or by changing the font color. Anyone who wanted to read it had done so long before it appeared on Wikileaks.

    Kinay is not suing Wikileaks. He’s suing TCI Journal because they have written about his payment of $500,000 (admitted by him, but which he claims were entirely innocent) to government officials. More recently they have carried articles and correspondence suggesting that his development is in financial trouble (which he denies). Wikileaks really has nothing to do with any of this. He wishes to stop TCI Journal from writing about him.

  • Jesse

    Tom: no disrespect but I did say that it is important to investigate the “whys”, did I not? Why is this being posted? I did address the integrity of the background. The basis for the document, the basis for the publishing, the whys of intent.

  • Colin

    The internet “journalism” has gone too far. Nobody seems to be corroborating facts or revealing sources. It’s a free for all. Google now has a citizen journalism website starting. No wonder our newspapers are going under.

  • Shell of a man

    Colin has said the only real decent thing here and Ted too.

  • Shannon

    I came accross this website from a writer who leaked a document to Wikileaks and Wikileaks dramatically changed the description to make it more sensational. I just thought it was a relevant link.

  • http://thingsalongtheway.blogspot.com/ Cindy

    For all their ‘integrity’ regarding ‘the facts’ newspapers are very good at not telling the whole story and promoting a cultural/social bias.

    I’ll take my chances with citizen journalism. Non-professionals may not have the same skill at discovering them or even any concern about being squeaky clean on ‘the facts’. But in the end their story gets out. I want to see more stories out. More viewpoints at the ready, not hidden at the back of the closet like the missing sock you’d have to hunt to find. MSM tells a story only through one ‘acceptable’ lens (whether it has a right or left slant).

    There are always other stories that are being repressed. And how I see it, citizen journalism is the only way for those to come up into the light, by being made accessible in the mainstream.

    When the US was formed, the media told a story according ‘the facts’ as considered important by the colonists–and through their point of view. ‘The facts’ as considered important by the Indians didn’t get print among the culture of those in power.

    Imagine if their stories made front page news in the ‘Colonial Gazette’.

  • Shelly

    The tone and rhetoric of citizen-type media can be harmful because boundaries and decency are often traded for agendas.

    About the media site in TCI, the language used by TCI Journal is almost embarassing to read, like looking at a car accident. Calling the political parties “gangs” and other language meant to alarm, it is not ethical.

    It’s okay for amatuers to write, but not in that fashion.