Slashdot Mirror
Bank That Suppressed WikiLeaks Gives It Up
Is It Obvious writes "Bank Julius Baer has moved to withdraw suit against Wikileaks. We've discussed this story a few times, most recently when the judge lifted his injunction against WikiLeaks' registrar. The Baer story reflects an issue that will only grow worse over time: the gap between technology and the legal system's understanding of said technologies and their application to established legal principle. Given the rapid rate of technological change, is there a more practical way to interface emergent technology with our legal system while retaining civil rights over corporate rights?"
Can Wikileaks recover any legal expenses?
If you want news from today, you have to come back tomorrow.
is there a more practical way to interface emergent technology with our legal system while retaining civil rights over corporate rights?"
No.
Longer answer: We don't need more knowlegable judges, we need more intelligent ones.
mcgrew's razor: Never attribute to stupidity that which can be explained by greedy self-interest
I'd say a more practical interface is to plug the lawyers into something electrical and then turn it on.
No Nyarlathotep, No Chaos
Know Nyarlathotep, Know Chaos
Its not an issue of making laws for every single new techonology. Its about making laws that cover our basic rights and are upheld purely on those basis. So this means company's cannot take our information and share it whoever they want, because we have a law against it. Its fundamental issues that are in need of clarification, not little laws for every application.
So basically, -1 troll/offtopic is really slashdots way of saying "I hate that you thought of something before me."
There are these mystical people called "Consultants." I know that that's a dirty word in most people's minds, but seriously.
We should have an independent group of people who ACTUALLY know what they're talking about that can be called upon by judges who don't understand what's going on. Judges can't be expected to have a grasp of every field of knowledge that may come up in their cases.
I don't see it actually happening, but that's life.
Comment removed based on user account deletion
Mr. Levy said that the judge's decision to withdraw his order would offer a powerful message in future cases in which plaintiffs might try to shut down Web sites because of the content they display. "A judge who's confronted with a request like the bank's in the future is going to be much more reluctant to give this order," Mr. Levy said. "The lesson of the case is going to be taken very seriously."
While I hope this will be the case, the various courts handling RIAA cases haven't seemed to know anything about each other, or learn from previous findings, so I remain skeptical.
The internet is quite a disruptive technology, and it necessitates a complete realignment of parts of the law to address the way things are. Unfortunately the ones who should spearhead that effort are the paid lackeys who gave us the DMCA...
I...I'm attacking the darkness!
I don't know if anyone else has thought about this, or if it's even practical, but why not establish a court system for High-Tech cases? They could hear things like the **AA cases and examples such as this one, and would have judges that are actually paid to keep up with the changes in technology. In fact, I'm sure you would have no problem finding volunteers among the existing pool of judges that are actually aware of legal issues. So you take a pool of existing judges with knowledge of tech issues, ask them to keep their knowledge current (I'm sure they have aides to help them with this), and have any cases dealing with computer crime and/or civil cases involving the Internet go through this 'special' court system. It would not be any more lenient than the existing courts, however the parties involved would have a basic understanding of the issues that face high tech companies and individuals. Of course, the hard part would be to determine which cases go before this court. For this, I propose that all cases have to be heard before the regular system, and if one or more of the parties involved wants to have it moved to the high tech court, both parties should have to make an argument as to why / why not. Thoughts, anyone?
.sig
Yes, corporations are not people; that is where your statement stops being correct. Any corporation has the same rights as an individual. About the only thing a corporation cannot do that an individual do is to get married. Although they can bypass that limitation by merging.
The answer to the question is simple. Use a BFG to kill all the lawyers. Apply technology at what it does best to solve this problem. Eliminate the parasites that have ruined so many people , companies and projects.
A corporation is a person.
From wikipedia: "A corporationis legally a citizen of the state (or other jurisdiction) in which it is incorporated (except when circumstances direct the corporation be classified as a citizen of the state in which it has its head office, or the state in which it does the majority of its business)."
Corporations are protected under the Bill of Rights in the U.S., the same bill of rights that protects U.S. citizens.
Problems with the way this is being reported here: Such a mishmash of terminology. It is far from obvious that the legal system will inevitable find its understanding of technology becoming less over time. This is an example of the law catching on pretty quick. Also civil rights do not automatically trump corporate rights, whatever is meant by that, nor should they.
What we have here, in this Slashdot story, is a misunderstanding of the legal issues much more serious that the judge's initial screw up, forced on him by procedural issues. I think the law does a fairly good job of catching up with technology.
Paul Beardsell
Do it yourself, because no one else will do it yourself. [beta blockade 10-17 Feb]
It's not -really- a person, though. It is an -entity-, yes, but not an actual -person-.
Unless corporations have gained the right to vote and to hold public office while I wasn't looking?
In Xanadu did Kubla Khan
A stately pleasure dome decree
Corporations are people! They're a collection of people working together as a single entity with group ownership of assets, and abstraction of responsibility. As such, they have freedom of speech, because the people who represent the corporation have freedom of speech.
It also makes some degree of sense to allow them legal entity status (although "personhood" is a bad word). It would be hopelessly inconvenient if the entire board of directors of a telephone company had to countersign every service agreement, or in the case of tort law, if a company was owed money for each shareholder to have to sue for their share.
what we, the people, already know -- that an INDIVIDUAL'S rights should always trump a Corporation's wants/desires/wishes. As another poster pointed out, Corporations do not have rights as they are not human beings. So, when a Corporation tries to suppress an Individual (or group of people) the rights of the human beings will trump the rights of a "corporate entity".
What about slandering a company? Or libel against a company? Simple -- the company must prove the individual wrong beyond a shadow of a doubt. If they can't or are unwilling to, the individual's right to free speech (or freedom of the press) is considered inalienable and inviolate. Corporations should NEVER have more legal power than an individual. Sadly, this seems to not be the case around the world these days, but we can hope.
Dream as if you'll live forever.
Live as if you'll die tomorrow.
~Anonymous~
After the court reversed its decision, and wikileaks got its domain back, everyone lost interest. It seems nobody actually cares about Julius Baer.
The legal system worked. As soon as Wikileaks got involved in the case, the judge reversed himself almost immediately.
The real problem here is with Dynadot, the domain registrar. Like most domain registrars, Dynadot tries to wriggle out of the concept that domains are the property of the registrant, substituting one-sided terms of service which give them discretionary power over the domain. That's the problem.
They made a deal with Bank Julius Baer to shut down the site, and got the court to sign off on the deal, without even notifying the registrant. That was Dynadot's doing. That's where the problem started.
Interestingly, Dynadot has one of those indemnification clauses in their agreement that everyone ignores. This time, it matters. It reads: You agree to release, indemnify, defend, and hold harmless Dynadot ... against any losses, liabilities, claims, damages or costs, ... relating to or arising out of Your registration, application, transaction request, resale, or use of services provided by Dynadot and Your account with Dynadot ....
Should Dynadot be threatened with a lawsuit or receive notice of a filed or pending lawsuit by a third party, Dynadot may seek written assurances from You concerning Your promise to indemnify Dynadot. Your failure to provide such written assurances may be considered a material breach of this Agreement.
One could argue that Dynadot's insertion of such a clause created an obligation on Dynadot to promptly notify the registrant of any threatened litigation. Dynadot has claimed in their contract that the registrant has responsibility for claims against Dynadot by third parties. Yet Dynadot did not properly notify the registrant of such a claim. Instead, they apparently went to court before notifying the registrant. That's usually considered negligence or worse.
Given the rapid rate of technological change, is there a more practical way to interface emergent technology with our legal system while retaining civil rights over corporate rights?
Yes. Make sure the troublemakers get Focused. Oh wait, civil rights?
"Given the rapid rate of technological change, is there a more practical way to interface emergent technology with our legal system while retaining civil rights over corporate rights?"
Corporations have no rights over civilians rights. In fact, corporations have no rights except as defined by their corporate charter in the city, state, nation that holds their articles of incorporation. In fact, I'd even suggest that corporations are ONLY legal entities, artificially constructed, that serve the members of that corporation. And as public legal constructs normal rights usually assigned to individuals (aka PEOPLE) do not apply.
Technology has no bearing upon rights, they exist apart from technology.
As for this case (and the whole general Barbara Streisand effect), once the cat is out of the bag, there's no putting it back in. The proper recourse is to prosecute criminal charges (when applicable) and civil claims (when possible) against those that are publishing the info. Sometimes this isn't possible, and you're out of luck. Oh well, get over it.
Agent K: A *person* is smart. People are dumb, stupid, panicky animals, and you know it.
But in law, no right is inalienable really. I mean, look at killing, for example. It's off the statue books in many countries (death penalty), but they don't have any problem with their armies killing people, and the law upholds this. So much for inalienable! Is a right infringed upon every time a person dies? That's the point I'm making. Rights are used for law, where you have to describe what a legal entity is entitled to and what it can and can't do. It's no big deal if a person or a company or a family or a business or a nation have rights in law. It doesn't have any reflection on the inherent status of a human life. It's when insurance companies, airliners, PR companies etc. set a dollar value on a human life that my stomach begins to churn.
Do it yourself, because no one else will do it yourself. [beta blockade 10-17 Feb]
I think the opposite is true. Legal understand of technology will get better. As people who use the Internet on a daily basis (not IT pros but normal people) get out into other fields basic network understanding will be common.
In 50 years everyone will know HTML and BBCode (or the equivalent popular format of the day) because it will be used daily.
You can't take the sky from me...
i fear that what you say may in fact be close to the practical truth.
http://www.xkcd.com/354/
> Now, laws can be passed to protect corporations to limit what they can and can not do
If, as you say, corporations are not people, how can we pass laws about what a corporation can do? Only people can do things.
(People can make objects do things, but legally the person did it...)
Or are you saying that sometimes it is convenient to think of corporations as being similar to people?
It's always interesting to come across somebody confidently asserting as fact something that I'm confident is completely wrong. (Thanks, Slashdot.) Morally, your only obligation is to respect other people's rights. Rights are not an arbitrary human construct, but a recognition of human nature and how society functions. Because rights derive from the nature of humanity, does not mean that they are constructs of humanity.
True, they aren't religious in nature. But they correspond to some degree with many religious principles, because religions that fly in the face of human nature rarely flourish.
The issue of corporations having rights is really a legal fiction, done mainly as a legal matter of convenience, not out of moral or ethical principles. Morally, corporations should have no rights other than that possessed by the conglomeration of its stockholders.
Actually, an organization can have the same legal standing as a person. They have to apply for these and be granted them. This enables them to have bank accounts, be party to a contract etc.
NO. obviously the legal system is obsolete and should be retired. If we don't Microsoft will develop legacy compatibility for it, and then we'll have a legal system with as many security holes as it has loopholes for the ultra-wealthy.
As far as the IRS is concerned, a corporation is a person. That is the whole reason for incorporating - so when someone wants to sue, they sue the corporation instead of you personally. You can only sue other "people", and not intangible things.
"But this one goes to 11!"
I don't mean to come off as a troll, but I think the answer is: "Stop fucking with us."
The things that we citizens of the Internet (if there is such a thing), nearly universally, seem to agree on is that we want to be left alone from the "powerful". Spammers? Leave us alone. Advertisers? By and large, leave us alone. Eavesdropping, corporate or governmental, leave us alone.
We reserve the right to poke, prod, and change the world around us by using the Internet, but we do not appreciate, nor do we seem to stand for, the reverse to hold true.
And now please list the BENEFITS to The People for providing the mechanism for Incorporating Artificial Legal Entities.
Technology -- No Place For Wimps! Grateful Dead and Jerry Garcia Chatroom -- http://www.wemissjerry.org
I think I just did. As a personal example, when I ran an apartment rental business, I incorporated. That way my own personal assets were protected, and I could only be sued for what the business had in assets. If that isn't a huge protection for "The People" I don't know what is. You see, corporations are made up of "The People", and most corporations in the US are small businesses and not huge conglomerates.
"But this one goes to 11!"
This means that corporations often have "headquarters" (a shack holding a person who may or may not be alive at the time) in a State that has little or no corporate tax, even if they do business in areas with gigantic tax rates. Which means the corporations pay next to nothing to work there. The taxes therefore end up coming out of the pockets of employees in those areas, since the money will be raised somehow.
It's a small world and it smells funny; I'd buy another if it wasn't for the money; Take back what I paid (SoM)
Morality depends on which religion you follow and most religions impose more than just one moral obligation and again they don't refer to people's rights (although it's easy to describe them beceause they are implicit). Legally one could say your only obligation is to respect other people's rights, oh and that of plants, animals, rocks, parking spaces and, as it happens, corporations. Morality and law are different, but of course anyone with morals would hope they were the same.
I'm really not saying anything radical if you think about it. Just labouring the point of the original poster having a problem with corporations and people having rights before the court at the same time. I'm just pointing out the confusion people have between what is legal (go and campaign about it) and moral (for which we can be justifiably emotional).
Do it yourself, because no one else will do it yourself. [beta blockade 10-17 Feb]
I don't think you can blame the "legal system" here, so much as you can blame ignorant bank management and uninformed attorneys.
The higher the technology, the sharper that two-edged sword.
Yes there is a way. Abolish all lawyers! Got a problem with someone? Settle it the old fashioned way: Challenge them to a duel! You meet in a forest with witnesses from both sides. Each takes an ornamented gun from one of those ornamented wooden boxes that contains two guns that are made for this purpose. You stand back-to-back, walk ten paces, turn around, and shoot. Problem solved. No need for lengthy litigation and filing motion after motion for a hundred years.
Unless corporations have gained the right to vote and to hold public office while I wasn't looking?
:-)
:-)
So a foreigner living in your country isn't a person?
In french a company is "une personne morale" a "moral person". I always found that one so funny
As a human being you are a "private person", "une personne privée".
It has rights and properties, and these rights can even protect it from me its unique shareholder.
Various international treaties guarantee these rights abroad (for example: copyrights)
No. As far as the IRS is concerned, a corporation is an -entity- separate from any of the individual employees or shareholders of said corporation.
You may file suit against persons or entities--this is why you can sue various departments of the government or the government as a whole--they count as -entities-.
Unless you're going to try to make the argument that the Federal Government is a 'person'?
In Xanadu did Kubla Khan
A stately pleasure dome decree
And (Diebold jokes aside) presumably they can't vote either (although that doesn't mean they don't often heavily influence politics).
My other UID is three digits.
Clearly their rights have been violated up to now. This sounds like the beginning of a 14th amendment case for SCOTUS.
My 100,000 shell corporations have been lobbying hard for suffrage.
There are many technologists out there who have either found themselves displaced, replaced or burned out in their fields. Perhaps it would be a good time for some to change careers to law? The EFF might do well to offer scholarships to the best and brightest of those to become lawyers and then try to become judges.
Of course that may not work since very often the venue for many cases involving technology and patents are selected simply for its lack of expertise and knowledge perhaps to win through bullshit misconceptions. (Consider the pactice of jury selection where they always choose people who have the least understanding of law or legal procedure.)
I can do that in four words.
Peer review and publication.
Epic fail.
1. Quoting Wikipedia as a source on a legal question.
2. Ignoring Santa Clara County v. Southern Pacific Railroad Company, which happened about 100 years after the Bill of Rights was created.
It doesn't hurt to be nice.
.. everyone decides that something that shouold be private, isn't, and some poor individual, company, or country gets screwed by the same technologies that we have all grown to know and love.
It's not a lack of understanding on the part of these banks. They hire people like us all the time and are in many cases more versed with security and the realities of the Internet than 99% of us. It's a concern that, without adequate controls or cooperation from online presences and technologies, one day real damage will be done and there'll be nothing that can stop it.
They're not worried about injustices. Those are just their legal departments trying to build precedent for future legal actions. They're worried about real, actual damage when private, secret, or sensitive data is released through the same channels and nobody cooperates in removing it or halting its spread.
You idealistic types can gnash your teeth about the curtailing of your online freedoms, but what you're failing to grasp is the simple fact that Your Opinion Is Not Perfect. Your idea of what deserves to be free isn't the same as your neighbour's idea, and when pictures stolen from your webcam of you and your wife engaging in something that you think should be legal but isn't, are circulated to every major visitor-supported voyeur pornsite, you'll be sitting there thinking that maybe, just maybe, being forced to trust anonymous individuals on the Internet who are well beyond the reach of any punishment you can effect, isn't the utopia you thought it would be.
It's not -really- a person, though. It is an -entity-, yes, but not an actual -person-.
That's right, it's not really a person. It's all based on a pun, the fact that they used to be called "corporate persons", and since that's the same word used in the 14th Amendment (though not the same sense of the word), it was argued that corporations should have equal protection under the laws as actual persons. A really bad pun is what caused all this mess.
Fun Fact: The 14th Amendment language regarding "persons" was applied to corporations (not people) before it was applied to women (people) and homosexuals (people).
Wonderful world, eh?
The enemies of Democracy are
Sadly yes. Perhaps one of the worst, most far reaching and just plain legally wacky judgments the US Supreme court ever handed down.
What I wonder is why corporations, being as they are legal individuals who benefit from the protections of the constitution and federal law, are exempt from the prospect of being drafted. Perhaps Blackwater, et al, might show a bit more sense, if they realized they might not get paid an exhorbitant amount for the services they provide the US, if they could be drafted during a national emergency to provide those service for the good of the nation at a much more reasonable rate.
Those are just their legal departments trying to build precedent for future legal actions. They're worried about real, actual damage when private, secret, or sensitive data is released through the same channels and nobody cooperates in removing it or halting its spread.
I'd rather have real data spread around than silence someone because of what they might say.
You idealistic types can gnash your teeth about the curtailing of your online freedoms, but what you're failing to grasp is the simple fact that Your Opinion Is Not Perfect.
So what? I have the right to say what I feel.
when pictures stolen from your webcam of you and your wife engaging in something that you think should be legal but isn't, are circulated to every major visitor-supported voyeur pornsite, you'll be sitting there thinking that maybe, just maybe, being forced to trust anonymous individuals on the Internet who are well beyond the reach of any punishment you can effect, isn't the utopia you thought it would be.
heh, this is exactly like shutting someone down because you don't like what they say.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
be more like medicine were only a specialist familiar with the problem can actually advise or operate. Can you imagine a plastic surgeon doing brain surgery, no and it would have massive legal consequences if it did happen. So why can Judges with no technical understanding in regards to the subject matter he is dealing with advise or take any action ?
So what? I have the right to say what I feel.
Only if it's true.
Yup, there was a court case that established that corporations have the rights of personhood. Unfortunately I can't cite it off the top of my head, but it is cited in the documentary The Corporation. The documentary makers ask what kind of a person the corporation is, and, after going through some 'evidence', conclude that it is a psychopath.
Loose lips lose spit.
In this case, however, the injunction vanished, and the lawsuit was threatening to become a liability to the company. Making the lawsuit disappear minimizes the liability (but may not eliminate it).
(( IANAL. Wanna pay for my law school? ))
Free Software: Like love, it grows best when given away.
I have the right to lie too. If I do, you can sue me if it's defamatory.
"We returned the General to El Salvador, or maybe Guatemala, it's difficult to tell from 10,000 feet"
The courts are informed by precedence more than experts. Experts will alert a single judge -- who will be limited by his understanding of the material, the talent for communication in the expert, and the persuasive abilities of a the lawyers before the court. Judges prefer case law - nice simple black and white text that tells them what to do. Building case law takes appellate decisions. So... we have to take it on the chin and eat more appeals to establish the cyber-equivalents of our material rights.
WIthin the current structure of the system -- there really isn't a better way.
Straw men..
Or people shall start migrating from Dynadot?
Patents Drive Free Software as Hurricanes Drive Construction Industry
That's right, it's not really a person. It's all based on a pun, the fact that they used to be called "corporate persons", and since that's the same word used in the 14th Amendment (though not the same sense of the word), it was argued that corporations should have equal protection under the laws as actual persons. A really bad pun is what caused all this mess.
Fun Fact: The 14th Amendment language regarding "persons" was applied to corporations (not people) before it was applied to women (people) and homosexuals (people).
Interesting. Wrong, though. It was generally held that corporations should have broadly the same rights and responsibilities as people long before the 14th amendment was ratified. See (for example) Louisville, C. & C.R. Co. v. Letson, 2 How. 497, 558, 11 L.Ed. 353 (1844).
You're falling for the propaganda. While there are many small corporations, the majority of the assets are held by the huge ones.
"What is the benefit to The People of this arrangement?"
The answer is simple. In exchange for the benefits of incorporation, the ALE agrees to obey not just the Law, but Regulations promulgated by The People.
The Individual Rights of the owners, have been EXCHANGED for the privilege of Incorporation.
And if they don't like the Regulations, they don't have to Incorporate, do they?
These ALEs are Second Class Citizens at best, but I think of them as Slaves who have forgotten their place at The People's Bitch.
Technology -- No Place For Wimps! Grateful Dead and Jerry Garcia Chatroom -- http://www.wemissjerry.org
Another aspect is that it creates a better regulated way of separating the owners economy from that of the business, beyond just limiting or removing liability. In a small business with a small number of owners it might not be such a big problem if the accounts etc. were in the owners names, but the larger the business the more security everyone involved will want that their interests are protected, and that requires at a minimum that personal income and expenses are clearly separated from that of the busines.
That said, personally I believe corporations have been granted too wide ranging rights, but there's little doubt that the ability to incorporate is useful for society.
If that became the case, most modern corporations would have to shut down or would collapse.
IBM (just to take an arbitrary name) as a corporation for example have a vast number of rights that are necessary for it to function as a business that NONE of it's shareholders have, or where their shareholders are not the right party to exercise that right. Just to give some examples:
If a corporation only have the rights of the individual shareholders what you have is a partnership without limited liability, which is certainly possible, but effectively prevent companies beyond a very small size from operating effectively or at all. Even in professions where partnerships are common (law firms etc.) most partnerships these days are limited liability partnerships, which are more or less corporations in terms of rights (in the UK for example, a limited liability partnership IS legally a "corporate body" just like corporations).
While it's certainly possible to make arguments for limiting the size of corporations or reducing their rights, without some level of rights beyond that of their shareholders a huge number of undertakings that corporations take on today would become next to impossible to manage.
I'm not disputing its usefulness as a tool. But we cannot lose sight of the essential nature of the transaction.
Under Incorporation, the primary effect is that The State gains Regulatory Control of the Artificial Legal Entity (ALE). Your own example points out the Business Continuity benefits to Employees provided by that Regulation.
In the traditional sense, "Rights" are given us by "Our Creator". In that context, an ALE has only the "Rights" which The State ( its creator ) decide to give it. If they can buy enough corrupt and unethical legislators ( redundant, innit? ) and endow enough memorials to Supreme Court Justices, we can see how they'd end up being considered EQUAL to Us Real People(TM).
They ain't. Those (lower-case) rights are not (upper case) Rights, like Us Real People(TM) have.
Everything gets fixed when that gets resolved. I'm not holding my breath.
Technology -- No Place For Wimps! Grateful Dead and Jerry Garcia Chatroom -- http://www.wemissjerry.org
Tell me, when exactly did our legal system retain civil rights over corporate rights? there's a good chance I'm just to young to remember.... griffman
What strikes me as amazing is the silence about this topic in Switzerland.
We are rather touchy about our banks and normally a leak of this magnitude would be considered top news. Yet, the topic was given no news coverage in Switzerland. After all, an internal document leaked which pointed towards illegal activities of the bank!
And before all the trolls have a party: no, this is not a normal business practice of a Swiss bank.
Disclaimer: Working for a Swiss bank, I am biased.
This case, and the one concerning the European travel agent I submitted earlier this week, both raise important questions about the policies for registering in the com/org/net TLDs. In both cases the offshore entities found their domains embargoed because their registrars were located in the United States even though the domains' owners and their operations were off-shore.
.com throughout the world makes that a non-starter for many businesses and leaves unresolved the question of what to do with all the existing registrations in the worldwide TLDs.)
This situation gives American courts jurisdiction over foreign entities who would otherwise be outside the American legal system. So, why hasn't someone in a place like Antigua set up a domain registration service for these TLDs? I realize that ultimately all roads lead back to Verisign (not a healthy thing either, in my opinion, but that's for another day). Still these cases have been directed against the registrars (eNom and Dynadot), not Verisign. I'm not up on all my ICANN politics and policies these days, so I'm asking for some help here. Is there some provision in how jurisdiction over com/net/org is set up so all the registrars must be in the US, or could there be off-shore registrars for these TLDs immune from American jurisprudence?
(Please don't reply just to say, "Let them register in their ISO domains." The visibility of
Okay, whatever. There's a difference between "generally held" to have "broadly the same rights", and "afforded the full protection of the Constitution as a person via court precedent with the full weight of law" (said precedent actually coming later than the linked case, but as a consequence of it).
The enemies of Democracy are