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.