Well, this is getting interesting. Anonymous has now leaked some NSA documents about PRISM and related programs. You can see the documents over here and a slightly hyperbolic, but not unexpected, statement about the leak. The documents don't appear to have anything that surprising or revealing beyond what people expected -- and many appear to be fairly old. However, just the fact that such documents are being leaked is interesting, as it's almost certain that more will be coming (and perhaps quite soon) about all of this government surveillance. And it's no longer a case where people are just sitting around and accepting what the government is doing.

We've talked about the problem in which classified documents that are leaked and widely available to the public are still considered classified by the government, even though the concept is ludicrous. It leads to absolutely ridiculous situations, such as government employees not being able to look at documents available on Wikileaks, even as everyone else in the world can easily log in and see them. Or the case (linked above) in which lawyers representing Guantanamo detainees weren't allowed to look at these documents -- which anyone else in the world can see -- which relate to their clients. Even the NY Times called this situation "absurd." And it is. In the business world, people commonly sign "non-disclosure agreements," but they're always considered null and void if that same information becomes public by other means. It's bizarre that the government doesn't recognize the same policy.

However, in a lawsuit we first discussed last year, where the ACLU sued the State Department for failing to declassify (under a FOIA request) documents that were already widely available on Wikileaks, a judge has ruled against the ACLU, and said that the documents remain classified. Once again, this is absurd. It's as if everyone is actively denying reality.

The ACLU relied on the part of the test that questions whether the disclosure of the information "reasonably could be expected to result in damage to national security." Seeing as anyone seeking to "damage" our national security can just surf over to Wikileaks, and has been able to do that for quite some time, you'd think that the ACLU's argument was pretty rock solid. Not according to the court (pdf and embedded below). The court seems to tapdance around the issue. It argues that the Court should "defer" to the judgment of the administration on this question, and that it's possible that the official release of these documents could impact national security. I don't buy it. Any official release is unlikely to have any different impact than the unofficial release. To argue that making those releases official has some sort of new "threat" involved just doesn't pass the laugh test.

What's most distressing about this is that it shows a government that is not dealing in reality, but is dealing in a fantasy land, where it pretends that if it sticks its fingers in its ears, and hands over its eyes, it can pretend that the documents, which are very, very public, are not at all public. I want a government that deals in reality and not fantasy. Unfortunately, with this situation, we have the reverse -- and, bizarrely, the courts are saying that an executive branch that lives in fantasyland is just fine.

The era of government anti-transparency continues. Reports have come out about a proposal from the Justice Department to allow federal agencies to flat-out lie in response to Freedom of Information Act (FOIA) requests. No, we're not joking. Under current law, documents that don't need to be revealed -- for national security reasons, for example -- lead to a response saying that the government "can neither confirm nor deny the existence of records." That, at least, leads to the possibility of an appeal and potential court case to make sure the government is legally allowed to withhold such documents.

However, the new DOJ proposal would let federal agencies go even further, and flat-out deny the existence of documents it doesn't believe are subject to release -- even if they exist. And while it's true that people could still appeal, most people are much less likely to do so if they believe that the documents don't exist, rather than being told that they may be there, but the government just doesn't want to reveal them.

This seems like a stunning move by the government that goes beyond even its general opacity on FOIA requests. To seek permission to flat out lie to the public just seems ethically and legally dubious.

Earlier this year, we all had a good laugh over the demand from the Pentagon that Wikileaks "return" the leaked documents it held. Lots of people pointed out that they were digital copies. You don't "return" stuff that's digital. All this demand did was make the Pentagon look totally clueless about how digital information works. It looks like the PR geniuses at the State Department have decided to do the same thing. They've put out a demand that Wikileaks "return" the remaining diplomatic cables in its possession.

Once again, this just makes the State Department look clueless, out of date and confused about the internet. First of all, you don't "return" digital documents. But, more importantly, Wikileaks has already shown that it has no intention of doing any such thing -- and making such a request just looks silly by the State Department. It's foot stamping rather than doing anything productive. Given the State Department's ridiculous PR over this whole Wikileaks thing, is it really any wonder why those old attempts by the US government to hire PR people to convince the people we were invading that it was for their own good turned out so disastrously bad?

In case you haven't been paying attention, there's yet to be a good reason put forth for using DRM that I can remember. We've seen over and over again how DRM seems to interfere with legitimate actions, but does nothing at all to slow down "pirates." Slashdot points to a rather scary situations for those who used Microsoft Office 2003 to DRM certain documents for their own use. Apparently, a screwup on the part of Microsoft (oops) means that many people got locked out of their own documents. Basically, Microsoft let a certificate expire, and that's made life difficult for lots and lots of people. So what good is DRM again?

A couple months ago, in discussing The Streisand Effect with a reporter, the reporter asked if I thought lawyers would one day be accused of malpractice for not informing their clients of the potential implications of demanding some content be pulled off the internet. While I doubt it will reach the point of malpractice, it certainly does make you wonder what some lawyers are thinking when there are such clear examples of what happens when you try to suppress material online. Earlier this year, the lawsuit that brought plenty of new attention to the concept of The Streisand Effect was when a Swiss bank, Julius Baer, convinced a judge to shut down the site Wikileaks for hosting some documents related to a lawsuit Julius Baer was involved in. Of course, not surprisingly, the attempt to shut down Wikileaks got those documents much more attention (and did the same for Wikileaks as well). Eventually, the judge reversed the order and Julius Baer dropped the lawsuit. But the end result showed how badly the strategy backfired on Julius Baer. Before it demanded the documents be taken down, almost no one saw the documents or even knew that the bank was involved in a case that accused of it laundering money. Afterwards, a lot more people knew about the lawsuit and had seen the documents -- and they were still online.

That situation got so much publicity, you would think that anyone would think twice about going down the same path. No such luck. Last month, Scientology threatened Wikileaks for hosting Scientology documents, and this morning (as a whole bunch of folks have sent in) news is coming out that the Mormon Church is threatening Wikileaks as well, for hosting church documents. In this case, the Mormon Church isn't just going after Wikileaks, but also threatened the WikiMedia foundation and document hosting site Scribd. It went after WikiMedia because WikiNews ran an article about the document and linked to them (which is hardly copyright infringement). Scribd was apparently hosting a copy of the documents as well (since taken down). Wikileaks, however, true to its charter, is refusing to take down the documents.

While you can understand why the Church might not like it's documents being made public, it does seem ridiculous that whoever decided to start threatening everyone didn't do the most basic research to recognize what would happen as soon as they threatened sites. Given what happened with Julius Baer, it should have been abundantly clear that threatening Wikileaks would almost guarantee that the documents were both more widely seen than before and copied widely across the internet.