Freedom Of Expression Is Priceless… For Everything Else, There's Mastercard

from the plug-pulled dept

The title of this post is from Rinze, who perfectly sums up the ridiculousness of MasterCard blocking any payment systems that are working with Wikileaks from allowing people to use its card. MasterCard’s excuse is even more ridiculous than Paypal, Amazon and others. Rather than drudging up some sort of “terms of service violation,” MasterCard is now just making stuff up:

MasterCard said it was cutting off payments because WikiLeaks is engaging in illegal activity. “MasterCard rules prohibit customers from directly or indirectly engaging in or facilitating any action that is illegal,” spokesman Chris Monteiro said.

That’s nice, but last we checked, for something to be found guilty of illegal activity, first they have to be charged and tried, and only after a court decides it’s illegal, is it actually considered illegal. To date, Wikileaks hasn’t been even charged with anything, let alone found guilty. Apparently MasterCard isn’t a big believer in due process either. It’s actually very unlikely that Wikileaks actually has done anything illegal. It is against the law to leak such documents but publishing those documents is still protected activity. Except to MasterCard.

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Companies: mastercard, wikileaks

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Comments on “Freedom Of Expression Is Priceless… For Everything Else, There's Mastercard”

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83 Comments
Anonymous Coward says:

As a private business MC is free to do whatever it darn well pleases consistent with the contract it has in place with its subscribers. To start throwing around terms like “due process” ignores the simple fact that due process, if it even applies in the case of WikiLeaks at this point in time, is to conflate the distinction between constitutional limitations on private versus public actors.

Marcus Carab (profile) says:

Re: Re: Re:

I don’t think that confusion was ever made. This post doesn’t point to the “illegality” of Mastercard’s decision, only to its “ridiculousness”. This isn’t about saying they shouldn’t be allowed to do what they did, but it doesn’t mean we have to say it was a good ethical decision or even a good business decision.

If anything Mastercard is the one trying to blur those lines. They are saying they dropped Wikileaks for “legal” reasons, which is clearly not true.

ignorant_s (profile) says:

Re: Re: Private business

Maybe not. Libel is defaming or falsely attacking a person or organization (depending on the state) in a permanent medium (like writing) for mass viewership. The truth, opinions or criticism based on how a person who is a voluntary public figure, or privilege (like court testimony or legislative speeches) are all defenses to libel.

If Assange is charged and convicted of a crime, even subsequent to the statement, well then the truth could be MCs defense. Also, it is hard to argue that Assange/Wikileaks would not be considered a person/organization that has voluntarily put themselves out to the public. Could such a statement as “engaging in illegal activity” be considered an opinion? A legal conclusion? A fair criticism by a non-attorney?

The fact that MC failed to name the crime does not matter. It could still not be a libelous statement. Non-lawyers who speak critically about organizations that put themselves voluntarily out there, need not have accurately named the crime before any charging documents have been filed to have a defense against libel for a statement that after the fact turns out to be true. I am sure MC has many lawyers reviewing any public statements regarding this issue.

Many countries, not just the US are talking of charging Assange with a crime, not to mention, he is awaiting extradition to Sweden for a (likely bogus) crime. MC is considering Assange and Wikileaks as one in the same.

I don’t believe this is a due process issue, as MC as a private business has the right to engage in business activity with whomever or whichever entity they please.

Free speech and freedom of the press have their limitations when it comes to the “protection of vital national security interests”. I suppose the US may charge Mr. Assange under the Espionage Act which makes it a crime for an “unauthorized person” to possess or transmit “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”

I hate to say it but Assange has an uphill battle. He’s screwed. He has pissed off one to many foreign governments for them to let this one go. Ugh.

At least the debate will continue, because it is an important one.

Marcus Carab (profile) says:

Re: Re:

Nobody is saying Mastercard is beholden to due process. You are absolutely right that they are free to do this.

This issue is with their given reason that wikilieaks is engaged in “illegal activity”. This is a flat out lie. Wikilieaks has not even been charged with anything “illegal”, let alone convicted. The government can’t even figure out which law they could be charged under.

Does Mastercard know better? Can they point to a law on the books to back up their assertion that Wikileaks is illegal? No. So hiding behind that is a blatantly dishonest PR move. If they want to drop Wikileaks, it’s well within their rights, but we don’t have to sit here and accept them passing the buck and pretending its about “law” when in fact it is about them voluntarily and arbitrarily discontinuing a client’s service.

Richard Kulawiec says:

Re: Re:

Yes, yes, we get the difference between contract law and Constitutional guarantees.

But what MC has done here is to allege a contractual violation without basis in fact. Wikileaks has not been convicted of a crime. It hasn’t been charged. And despite all the bluster from Joe “McCarthy” Lieberman et.al., nobody has yet been able to even put up a half-convincing argument they might have committed a crime.

But let’s suppose for a moment, just for the sake of argument, that they have. Then their newspaper partners, who have published the same material that Wikileaks has, have committed that same crime. Will MC be terminating its relationship with The New York Times? If not, why not?

Gabriel Tane (profile) says:

Re: Re:

“As a private business MC is free to do whatever it darn well pleases consistent with the contract it has in place with its subscribers.”

By giving the stated reason of “illegal activity” without there actually being illegal activity, they’re opening themselves up for a breach-of-contract suit by Wikileaks. Assuming, of course, you can sue a service provider in an adhesion-contract situation. I know you can sue the crap out of an insurance company for cancelling for the wrong reason (or a reason without proof). Sounds similar to me.

Yeah Right says:

Re: Re: Re:

Visa Europe and Mastercard both have a provision in their rulebooks which allows them to get away with practically anything:

Illegal or Brand-damaging Transactions
Any Transaction that is illegal, or in the sole discretion of the Corporation, may damage the goodwill of the Corporation or reflect negatively on the Marks.

So if I’m accepting payments through Visa or Mastercard and I tweet: “Visa and Mastercard are rubbish”, it is perfectly OK for them to terminate my account.

Anonymous Coward says:

Re: Re: Re:

As I noted in response to 8 above, there is nothing keeping Assange from appearing in a US court to press a lawsuit for breach of contract or any other civil complaint he believes he may have against MC.

Perhaps MC, PayPal, or any other private company currently being castigated should consider filing a Declaratory Judgment Action and force the issue.

Richard Kulawiec says:

Excellent article by Glenn Greenwald on this matter

http://www.salon.com/news/opinion/glenn_greenwald/2010/12/06/wikileaks/index.html

You can smell the stink of fear, can’t you? Those in power are frightened out of their minds by this — which is all the more reason that no matter what happens to Assange, no matter what happens to Wikileaks, this can’t be stopped…short of shutting down the Internet, and even that will only work temporarily.

I’m still waiting for the New York Times, Le Monde, the Chicago Tribune, Die Welt, et.al. to step up to their responsibilities as (supposedly) journalists and get into the fight. They have money and lawyers: they should be the first to mirror Wikileaks.

Richard Kulawiec says:

Re: Re:

If you smash up someone’s car in front of me, I’m perfectly free to decide you were doing something illegal and then refuse to do business with you.

In the absence of a valid contract, sure. In the presence of a valid contract, I’m not so sure. (Of course I’m not sure, I’m not an attorney. We need an opinion from someone who is and who is appropriately familiar with contract law.)

But in this case, it’s quite clear that MC is lying. Note that while they falsely alleged illegal activity, they failed to say what that illegal activity is.

Berenerd (profile) says:

I want to state for the record..

I do not agree nor disagree with what MC or Visa is doing. The know runner of Wikileaks is charged with “Surprise Sex”. he admitted he was avoiding Brittish police because he felt he was not guilty. Evading capture *IS* a crime and he has admitted it (I am looking for the transcript of an interview he had). Not to say this is the driving source behind MC and Visa, however technically they are right. Any money going to WikiLeaks is money going to him.

I personally don’t like the man. I feel he only does this to get attention. However, I will add, what he did I feel is morally right. I just don’t like his motivation.

Marcus Carab (profile) says:

Re: I want to state for the record..

Moreover, despite the ongoing misreporting (and your cutesy euphemism notwithstanding), as far as I can tell Julian Assange is not in fact suspected of rape. Yes, there are sexual crimes involved, but they relate to his refusal to get an STD test after two partners asked him to.

I’m not saying there isn’t still some pretty dubious stuff going on with Assange, but I’m a little tired of how the media has leapt on the “rape” bandwagon while offering almost no details.

The charges he faces and the Wikileaks question are two entirely separate issues. But the media is happy to tag every story about Wikilieaks with “founded by Julian Assange, who is wanted in connection with a rape allegation.” You can’t find his name more than 5 words away from the word “rape” anymore, and it’s unfairly colouring people’s perception of the much bigger and non-personal question of Wikileaks.

Chris says:

Re: Re: Blackmail

“Blackmail is the act of threatening to reveal substantially true information about a person to the public, a family member, or associates unless a demand is met. This information is usually of an embarrassing, socially damaging, and/or incriminating nature. As the information is substantially true, the act of revealing the information may not be criminal in its own right nor amount to a civil law defamation; it is the making of demands in exchange for withholding the information that is often considered a crime.” ~ Wikipedia

The fact is Assange is withholding sensitive information in exchange for his demands.

Chris says:

Re: Re: Re:2 Blackmail

He is demanding the govt leave him alone, not shut down his site. He is in the wrong by withholding information and threating to release it if something happens. The govt is in the wrong by going after him. Two wrongs do not make a right. Just because the govt is after him and he has a right to stay in business does not give him the right to blackmail the govt.

Gabriel Tane (profile) says:

Re: Re: Re:3 Blackmail

I still don’t see it as blackmail. Blackmail is to coerce someone into action they otherwise would not be expected to take. I.E. “contribute to my campaign, Mr. Money, or I’ll release these photos”.

Is it blackmail to threaten your children to spank them (or otherwise punish) if they misbehave? No… you expect good behavior in the first place.

So is he threatening punishment? Yup. Is it blackmail? Don?t think so.

Richard Kulawiec says:

Compare and contrast

(quoted from http://wlcentral.org/ which in turn is quoting from http://www.guardian.co.uk/news/blog/2010/dec/07/wikileaks-us-embassy-cables-live-updates?CMP=twt_gu)

“Charles Arthur, the Guardian’s technology editor, points out that while MasterCard and Visa have cut WikiLeaks off you can still use those cards to donate to overtly racist organisations such as the Knights Party, which is supported by the Ku Klux Klan.

The Ku Klux Klan website directs users to a site called Christian Concepts. It takes Visa and MasterCard donations for users willing to state that they are ‘white and not of racially mixed descent. I am not married to a non-white. I do not date non-whites nor do I have non-white dependents. I believe in the ideals of western Christian civilisation and profess my belief in Jesus Christ as the son of God.'”

Now let’s compare:
Wikileaks has:
published documents for a few years

The Klan has:
beaten, murdered, lynched, burned, raped for a century and a half.

Yet Visa and MC are happy to do business with the latter.

Darryl says:

no company needs an excuse

Mastercard, paypal, you or me, can choose who they want to conduct business with and who they do not. They dont need a reason, and they dont need to justify it to anyone else.

Just the same as airlines can stop you from flying, if they think you have been drinking too much, or are acting in a way they do not like.

I run a business, I refuse clients all the time, I also have conditions of service, I will not provide my services unless they are willing to meet my requirements.

That might be they are required to pay me, or pay me in advance, or it might be that I just dont want to take on that person as a client..

It is not illegal for me to choose who I conduct by business with or why..

If I do not morally agree with something (like wikileaks) there is nothing stopping me from taking it upon myself, to make my company not have to deal with that thing I do not like.

Does that come as a surprise to you that companies can and do pick and choose who their clients are all the time, and that there is no legal requirement forcing a company from dealing with a specific client..

get over it. they can do what they like, and what you dont like..

Maybe you can tell wikileaks about it, and they can leak it as news..

Like the australian venom company that is supposed to be a critical facility for the US, but have not dealt with the US for well over 10 years, and makes anti-venom for Australian native snakes !!!.. (not many of them in the US BTW, in case you didn’t know).

So the validity and accuracy of the material of wikileaks has now be placed into question, just as Julian’s motives for leaking, and his reasons for not releasing all information, and censoring that information from us ?

Gabriel Tane (profile) says:

Re: no company needs an excuse

“get over it. they can do what they like, and what you dont like.. “

Except for breaking a contract they entered in with their customer. Ask an insurance company who says “You know, I don’t want to do business with you after all, so I’m not going to pay your claim”. See how far that one flies.

I get what you’re saying, and you’re right… but you didn’t factor in contractual obligations.

Marcus Carab (profile) says:

Re: no company needs an excuse

*sigh*
Yes. They can do what they like, and we might not like what they do.

WHICH IS WHY WE SPEAK UP ABOUT IT WHEN IT HAPPENS.

D’uh. A private company made a private decision that the public disagrees with, so the public takes to blogs and discussion boards and other media to question and criticize that decision.

It doesn’t have to change their mind to be valuable. It’s about getting the info and analysis out there. There are many people who, based on this news, need to question their relationship with Mastercard (or their plans for a future relationship) and so discussion is vital.

David says:

Re: no company needs an excuse

I quite agree that a company can pick and choose who to do business with. It’s their prerogative and they don’t have to give a reason. HOWEVER, it appears that Mastercard has publicly stated that Wikileaks is doing something illegal without benefit of charge, trial, verdict and punishment by the courts of the land. This, to me, should be the only criterion as to whether an act is illegal or not. It is not up to a company or an individual to make a unilateral decision or accusations of that nature and, as has been said elsewhere, surely this is good basis for a libel action?

Wolfy says:

As a former US Army Intel Officer, I feel Wikileaks is performing a vital social function. It’ll eventually be helping the Gov’t. to become more honest with it’s citizens. With those in power becoming more corrupt with the recent tsunami of Corporate cash in politics, entities like Wikileaks will be sorely needed. They will need robust legal defenses, though.

dullgeek (profile) says:

That seems to go a bit far...

While I agree w/you that WikiLeaks has not been convicted of anything, I’m not sure that’s the standard that MC has to follow. If conviction is the only way in which MC can cut off business with someone then how do they handle the case when they suspect credit card fraud? Can they cut the fraudulent transactions off before the aleged fraudster is convicted? What about if MC suspects someone is using their card for money laundering. Can they cut off transactions then, before the money launderer is convicted?

IMHO, as has been stated by other commenters, MC is a private company who can refuse, at any point, to cease doing business with any of its customers if it so chooses. The fact that my MC worked yesterday does not obligate MC to provide me service today nor tomorrow.

I don’t think MC made a smart move here. But I don’t see that they acted in any way outside of their rights.

dullgeek (profile) says:

Re: Re: That seems to go a bit far...

If MC says that they are going to terminate a vendor contract on those grounds, I’d say that makes it the standard that they have to follow.

I don’t think that’s true. I’m quite certain that MC doesn’t have to wait until a person is convicted of money laundering to cut off transactions on the card that’s involved in the money laundering. They need merely suspect it. In fact, I suspect they can cut me off if they simply think I’m committing a crime.

Now don’t get me wrong, I’m not saying that Wikileaks shouldn’t have access to credit. I’m just saying that it should be within the rights of every business to exercise whatever judgement it has on who it does business with. Businesses that are arbitrarily discriminatory will not last long in a competitive environment.

Gabriel Tane (profile) says:

Re: Re: Re: That seems to go a bit far...

If MC were to accuse me of illegal action and terminate my contract on those grounds, I could sue them for breach of contract if those grounds were untrue. Simple as that.

Will Wikileaks sue? I have no idea. Were I them, I’d just make a very public campaign about unfair business practices by these companies and hit them where it hurts: their reputation.

dullgeek (profile) says:

Re: Re: Re:2 That seems to go a bit far...

What contract do you think you have with MC? They have a terms of use. They don’t have a contract with you. They are not obliged to provide you credit. They agree to continue doing it as long as long as they feel like you’re a good risk.

In return for this, you get the right to stop using MC if they start doing things you don’t like. What contract are you talking about?

Gabriel Tane (profile) says:

Re: Re: Re:4 That seems to go a bit far...

“But AFAIK, credit card companies don’t operate under the terms of a fixed length contract but under terms that can be canceled by either party at any time.”

Those cancellation terms are usually included… either party can request a termination of the contract. But it usually has to be done with notice. The problem here is that MC is citing a reason. If they cite a reason, it binds them to the accuracy of that reason. Otherwise, it’s a breach.

Gabriel Tane (profile) says:

Re: Re: Re:3 That seems to go a bit far...

Unless I’m grossly misunderstanding, MC has revoked their vendor agreement with Wikileaks; the way in which people can donate money to them. If that’s the case, there’s a contract involved. And remember, a TOS is usually a contract as well. You don’t have to sign it for it to be a contract. I haven’t signed for my insurance in years (Florida doesn’t require a signature), but it’s still binding on both parties.

Daemon_ZOGG (profile) says:

"MasterCard blocking any payments working with Wikileaks"

I don’t use credit cards because of the “fine print” games they like to play with customers.. Though, my eventual “cash” donations to Wikileaks will work just fine. Even better.. Mastercard, Visa, or PayPal won’t make a dime from my Wikileaks donations. My gain, their loss.

moon batchelder (user link) says:

sue their censoring asses

think we should all donate…then, when they deny the payments from reaching wikileaks, join one another in a class action lawsuit against them both!…mastercard and visa…
visa allows donations to KKK without a blink…but has to investigate criminal wrongdoing before allowing us to support a whistle-blowing investigative news organisation…
DataCell, who transfers credit card payments to wikileaks has already filed suit against these two hypocrits

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