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Wikileaks
October 24, 2011 10:43 AM   Subscribe

Citing "an arbitrary and unlawful financial blockade" that "has destroyed 95 percent of our revenue," WikiLeaks has announced that it is suspending publishing operations and may have to close.
posted by to sir with millipedes (262 comments total) 7 users marked this as a favorite

 
Because publishing things on the internet is expensive.
posted by tylerkaraszewski at 10:47 AM on October 24, 2011 [2 favorites]


I pay like $0.10/word to comment on this site.
posted by Theta States at 10:50 AM on October 24, 2011 [2 favorites]


Publishing things on the internet is probably expensive when you have to have 14 layers of bodyguards to do it.
posted by DU at 10:50 AM on October 24, 2011 [18 favorites]


Paying lawyers is expensive. Paying for a robust, secure filesharing system is expensive.
posted by KokuRyu at 10:51 AM on October 24, 2011 [21 favorites]


Possibly relevant in this context is this article by Yochai Benkler that I came across today: WikiLeaks and the PROTECT-IP Act: A new public-private threat to the internet commons (PDF, via).
posted by rjs at 10:52 AM on October 24, 2011 [4 favorites]


Jimmy Whales Needs Your Money

They should try that.
posted by cjorgensen at 10:53 AM on October 24, 2011


Is it wrong that I hope they have a few parting shots that they can release in totally un-redacted form?
posted by codacorolla at 10:53 AM on October 24, 2011 [3 favorites]


Because publishing things on the internet is expensive.

If you think that doing what Wikileaks do is free, you've never tried anything even vaguely like it.
posted by mhoye at 10:54 AM on October 24, 2011 [18 favorites]


Also, organizational expenses. When you go through 92,000 documents, even when you crowd-source that, its quite an undertaking, and big undertaking are never free.

But who needs to consider these details when what's really free on the web is unthinking snark.
posted by Bunny Ultramod at 10:54 AM on October 24, 2011 [30 favorites]


They should try that.

Isn't their point that they can't do that because banks won't let them anymore?

But the decision by some U.S.-based financial institutions, including Visa, MasterCard, Western Union and PayPal, to block would-be donors from using their networks to give WikiLeaks money has dramatically reduced its ability to raise funds.

Uh, yeah, apparently it is. The banks won't let them accept donations anymore, is the whole basis of the problem.
posted by saulgoodman at 10:55 AM on October 24, 2011 [15 favorites]


Why don't we stop being glib and consider what is actually behind this statement?
posted by Turtles all the way down at 10:55 AM on October 24, 2011 [24 favorites]


Many of the lawyers have worked pro bono. In 2010, Wikileaks netted €635,772.73 before fees (pdf) -- I guess that's all gone. Assange is also selling things on ebay, like signed photos of himself and some cables.
posted by Houstonian at 10:56 AM on October 24, 2011


Related : Catching the next wikileaker.
posted by jeffburdges at 10:56 AM on October 24, 2011


[posted before I read saulgoodman's comment]
posted by Turtles all the way down at 10:57 AM on October 24, 2011


Because publishing things on the internet is expensive.

Being ambivalent about WikiLeaks in general, this comment (its sarcasm) is somewhat ignorant.
posted by victors at 10:57 AM on October 24, 2011


Are banks allowed to coordinate their activities to just shut particular people or organizations out of the banking system for political reasons without some lawful authority? Doesn't that start to enter illegal cartel behavior territory?
posted by saulgoodman at 10:57 AM on October 24, 2011 [21 favorites]


It's only illegal if the government doesn't want you to do it.
posted by seanmpuckett at 10:58 AM on October 24, 2011 [32 favorites]


Julian Assange needs your attention money.
posted by R. Schlock at 10:58 AM on October 24, 2011


It's only illegal if the government doesn't want you to do it.

also if you've announced that corporations are you next target
posted by victors at 10:59 AM on October 24, 2011 [2 favorites]


The conversation is being predictably derailed - which is a shame, because you'd think it discussing banks colluding to blacklist an organization for no legal reason would be worthy of discussion.
posted by odinsdream at 10:59 AM on October 24, 2011 [68 favorites]


Is it wrong that I hope they have a few parting shots that they can release in totally un-redacted form?

Yeah. Its wrong to let them close even though you benefit from their work.
posted by hal_c_on at 11:00 AM on October 24, 2011


bitcoin donations?

bitcoin donations.
posted by LogicalDash at 11:00 AM on October 24, 2011 [4 favorites]


I mean, honestly, I have my doubts about Assange, his motives and his methods, etc., same as anybody, but... Well... This seems like a textbook example of illegal monopolistic practices, taken at face value.
posted by saulgoodman at 11:00 AM on October 24, 2011 [4 favorites]


Accept donations in bitcoins and release to bittorrent.

Shutter the website and Take that shit underground, like the warez scene. IRC channels, USENET, people publish shit that really is illegal all the time. Make announcements on the chans and Twitter.
posted by Ad hominem at 11:00 AM on October 24, 2011 [2 favorites]


The conversation is being predictably derailed - which is a shame, because you'd think it discussing banks colluding to blacklist an organization for no legal reason would be worthy of discussion.

Be the change you want to see.
posted by cjorgensen at 11:01 AM on October 24, 2011 [1 favorite]


also if you've announced that corporations are you next target

Worse than that, wasn't it even more specifically the banks?
posted by saulgoodman at 11:01 AM on October 24, 2011


There are guys doing base64 encoded dumps to reddit. Let someone else pick up the tab.
posted by Ad hominem at 11:01 AM on October 24, 2011 [1 favorite]


Are banks allowed to coordinate their activities to just shut particular people or organizations out of the banking system for political reasons without some lawful authority?

The law will ALWAYS be slower than the commercial entities who manipulate it for their own financial gain.
posted by hal_c_on at 11:02 AM on October 24, 2011 [1 favorite]




The conversation is being predictably derailed - which is a shame, because you'd think it discussing banks colluding to blacklist an organization for no legal reason would be worthy of discussion.

It's inevitable. It's how every WL thread goes. It's always the same people derailing the thread, and always in the same way.
posted by Blazecock Pileon at 11:05 AM on October 24, 2011 [8 favorites]


The law will ALWAYS be slower than the commercial entities who manipulate it for their own financial gain.

No, that's only true when you have a weak unresponsive government whose law-making process has been captured by privateers.

The law has worked and it can work again.
posted by saulgoodman at 11:06 AM on October 24, 2011 [9 favorites]


You have to forgive the banks for thinking they can do whatever they want because, well, they can do whatever they want. Besides, considering everything that's happened, blocking Wikileaks is way down there on the scale of illegal (but unpunished) bank activities.
posted by tommasz at 11:07 AM on October 24, 2011 [4 favorites]


CNN: A current Status of Force Agreement called for U.S. forces to leave Iraq by the end of 2011 but lengthy negotiations had given rise to the expectation that an American presence would continue beyond that date.

But the talks broke down over the prickly issue of legal immunity for U.S. troops in Iraq, a senior U.S. military official with direct knowledge of the discussions told CNN this month.

Secretary of Defense Leon Panetta and other top brass have repeatedly said that any deal to keep U.S. troops in Iraq beyond the withdrawal deadline would require a guarantee of legal protection for American soldiers.

But the Iraqis refused to agree to that, opening up the prospect of Americans being tried in Iraqi courts and subjected to Iraqi punishment.

The negotiations were strained following WikiLeaks' release of a diplomatic cable that alleged Iraqi civilians, including children, were killed in a 2006 raid by American troops rather than in an airstrike as initially reported by the U.S. military.


I am going to send them more money. You guys can send your cash to Obama I guess.
posted by furiousxgeorge at 11:09 AM on October 24, 2011 [33 favorites]


I'm no fan of Prof or cypherpunks in general, but he needs to go back to his roots. Like the Rocky movie where Rocky goes back to chase chickens In the back Streets of Philly.

Team up with lulzsec and Anon. Drop all your shit in dropbox and share everything out. Get someone to donate a bonnet and host that shit on TOR nodes on zombie boxes.
posted by Ad hominem at 11:10 AM on October 24, 2011 [3 favorites]


w/o saying anything what so ever about the morality of it...Banks are not legally compelled to service someone. So no, what the online payment people have done is not illegal.

There are certain types of customers banks in the US can legally be compelled by their regulators to accept, but those are usually personal accounts for low-income benefits recipients.
posted by JPD at 11:10 AM on October 24, 2011


Shutter the website and Take that shit underground, like the warez scene.

Fuck that. Make it the new new demoscene. 128kb EXEs that have complete bank ledgers, cycling colors and floating around a cube to a 15-second MIDI sample of Paul Oakenfold.
posted by griphus at 11:11 AM on October 24, 2011 [21 favorites]


Shutter the website and Take that shit underground, like the warez scene. IRC channels, USENET, people publish shit that really is illegal all the time. Make announcements on the chans and Twitter.

I can't imagine there wasn't any consideration for things like this before deciding on the route Wikileaks has taken. People like to point at Assange's ego as reason behind a lot of the whys and wherefores, but that can't be all there is to it, can it?

Part of the reason to go the above-water route has to be the authority that being perfectly visible brings with it. How can a recipient verify the origin of a released document if they're just downloading it from x5kinz80085x on Kick Ass torrents? I suppose you could do that and then publish a public key somewhere halfway visible, like Blogger or Reddit or Twitter, but it seems like that system is as easily sabotaged as it is implemented.

Anyway, being reliant on another system to get your stuff out is to be as weak as that system. As shown by their funding shortfall. And there's no control at all in the face of the Ts&Cs those internet publishing services operate behind. So you roll your own, and that's not cheap.

So, yeah, rolling your own seems to be a tough sell too when it comes to money, but bitcoin might just be the answer if it doesn't completely implode.
posted by carsonb at 11:12 AM on October 24, 2011 [2 favorites]


I would really easily cheer the 'bankruptcy' of Wikileaks and never hearing Jullian Assuange's name again if that would mean that someone else would pick up the mantle and do the work what has been done by Wikileaks so far.

Since I can't guarantee that happening, I don't get to be a smug asshole* and instead remain the same conflicted supporter of Wikileaks that I've been.

* Offer valid only in this thread
posted by MCMikeNamara at 11:13 AM on October 24, 2011 [9 favorites]


As I understand it, the full unredacted cable gate archive has been available online for almost two months, certainly googling "wikileak cable torrent" finds several pirate bay links claiming that.

There is no question that wikileaks can distribute anything they want even without funding, the question is whether they have the resources to protect sources and redact stuff.
posted by jeffburdges at 11:14 AM on October 24, 2011


I suppose this was inevitable; organization that exposes information about the government requires money to function, the large financial entities would prefer things to be status quo as far as the government is concerned, and the government would prefer their information not be exposed. Frankly, I'm surprised this didn't happen sooner.

It certainly does highlight the problem: those with money and power do whatever it takes to maintain that money and power, in their best interests, and who has more money and power than banks and the government?

So that's the kind of thing WikiLeaks (presumably) exists to subvert, yet they have to function within the constraints of our society, so they are susceptable to the kind of leverage that banks and the government can apply.

and if WikiLeaks is important enough for the banks to collude in this fashion, I find myself thinking that the various scandals and such that have cropped up around WikiLeaks may actually be less than sincerely pursued.
posted by davejay at 11:15 AM on October 24, 2011


How can a recipient verify the origin of a released document if they're just downloading it from x5kinz80085x on Kick Ass torrents

Sign it with GPG and release an MD5 checksum on the official Twitter.
posted by Ad hominem at 11:17 AM on October 24, 2011 [1 favorite]


[early threadshitting by people who haven't read the article and are grinding their same old axe or making their same old lulz considered harmful. If you want MeFi to be able to discuss things like Wikileaks, help out or keep walking. Thank you.]
posted by jessamyn at 11:17 AM on October 24, 2011 [6 favorites]


First they came for the pornographers, and I said nothing because I pirate all my porn anyway.

Then they came for the whistleblowers, and I said nothing because Julian Assange is a douche.

Then one day all my money disappeared from my online accounts and I remembered how The Handmaid's Tale started.

SRSLY, this is an extremely bad thing. The government started it off by leaning on the credit card processors to refuse service to Insex (on the molecule-thick pretext that they were "funding terrorism"), and we should have howled then. Now the banks get the great idea to do it on their own, and not only is there nothing to stop them there's precedent that it's OK.

So what happens when it's your money that you can't use because nobody will process a transaction for you?
posted by localroger at 11:18 AM on October 24, 2011 [94 favorites]


There is no question that wikileaks can distribute anything they want even without funding, the question is whether they have the resources to protect sources and redact stuff.

That's the marketing angle. "We can put this stuff out there wholesale. We prefer to do it responsibly, by redacting personal information. Doing it responsibly is what costs money."

Also, "The banks are scared of us, and are acting in a particularly Mr.-Burns-ish way about it."
posted by gauche at 11:18 AM on October 24, 2011 [1 favorite]


By "marketing angle", I mean how they should frame their appeal. Not "false thing that's hiding the truth."
posted by gauche at 11:20 AM on October 24, 2011 [1 favorite]


w/o saying anything what so ever about the morality of it...Banks are not legally compelled to service someone. So no, what the online payment people have done is not illegal.

JPD how is this any different than a restaurant refusing to seat a black customer?
posted by newdaddy at 11:26 AM on October 24, 2011


I agree with Ad hominem that Assange and WikiLeaks must "go back to their roots", which probably means finding an inexpensive way to protect their sources, like convincing academic security researchers to defeat watermarking schemes, and just saying screw redaction unless we get paid.

Nice recall about the Sons of Jacob using electronic banking in the The Handmaid's Tale, localroger!
posted by jeffburdges at 11:30 AM on October 24, 2011


Banks colluding to single out and persecute specific individuals for their political beliefs/activities would need to be pretty damn high up on the scale of illegal banking activities in order to maintain a functioning democratic system though, I would think.

w/o saying anything what so ever about the morality of it...Banks are not legally compelled to service someone.

Sure, but if they don't want to operate as an illegal cartel in blatant disregard of the spirit and probably even the letter of US and international anti-trust laws, they can't all collude on an extra-legal basis specifically for the purposes of not providing service to someone who has threatened to expose their industry's illegal activities either.
posted by saulgoodman at 11:31 AM on October 24, 2011 [4 favorites]


JPD how is this any different than a restaurant refusing to seat a black customer?

The list of illegal discrimination is exclusionary, which is to say that you can discriminate on anything you damn well please except for a few protected classes in specific situations.
posted by Tell Me No Lies at 11:32 AM on October 24, 2011 [3 favorites]


a restaurant can legally refuse to serve anyone as long as it isn't because of a narrow range or reasons. Race happens to be one of those protected reasons. Because I don't like you is not.
posted by JPD at 11:32 AM on October 24, 2011


Is it really so surprising that the financial sector - y'know, the one with an immeasurable amount of influence on a range of governments - would do something like this?
posted by pyrex at 11:34 AM on October 24, 2011 [1 favorite]


(legal discrimination is a very good thing, as I very much would like the people hiring airline pilots to discriminate based on education and talent)
posted by Tell Me No Lies at 11:34 AM on October 24, 2011


Sure, but if they don't want to operate as an illegal cartel in blatant disregard of the spirit and probably even the letter of US and international anti-trust laws, they can't all collude on an extra-legal basis specifically for the purposes of not providing service to someone who has threatened to expose their industry's illegal activities either.


No choosing whom you choose to serve would not violate anti-trust laws even if you colluded to arrive at that decision.
posted by JPD at 11:34 AM on October 24, 2011


The negotiations were strained following WikiLeaks' release of a diplomatic cable that alleged Iraqi civilians, including children, were killed in a 2006 raid by American troops rather than in an airstrike as initially reported by the U.S. military.

As noted by Glenn Greenwald, this is a rosy interpretation of what the cable actually alleges:
the cable ... “provides evidence that U.S. troops executed at least 10 Iraqi civilians, including a woman in her 70s and a 5-month-old infant, then called in an airstrike to destroy the evidence, during a controversial 2006 incident in the central Iraqi town of Ishaqi.”

According to Alston's version of events, American troops approached a house in Ishaqi, which Alston refers to as "Al-Iss Haqi," that belonged to Faiz Harrat Al-Majma'ee, whom Alston identified as a farmer. The U.S. troops were met with gunfire, Alston said, that lasted about 25 minutes.

After the firefight ended, Alston wrote, the "troops entered the house, handcuffed all residents and executed all of them. After the initial MNF intervention, a U.S. air raid ensued that destroyed the house." The initials refer to the official name of the military coalition, the Multi-National Force.

Alston said "Iraqi TV stations broadcast from the scene and showed bodies of the victims (i.e. five children and four women) in the morgue of Tikrit. Autopsies carries (sic) out at the Tikrit Hospital's morgue revealed that all corpses were shot in the head and handcuffed."

The cable makes no mention any of the alleged shooting suspects being found or arrested at or near the house.
- source
posted by odinsdream at 11:38 AM on October 24, 2011 [6 favorites]


But all restaurants are not allowed to collude with each other to set their industries practices up to target specific individuals for some competitive benefit; this isn't about discrimination. It's about banks all working together to protect their common financial interests because Assange threatened to leak information that would hurt the banking industry.

This is text book illegal trust behavior on the part of the banks.
posted by saulgoodman at 11:38 AM on October 24, 2011 [6 favorites]


Shutter the website and Take that shit underground, like the warez scene. IRC channels, USENET, people publish shit that really is illegal all the time. Make announcements on the chans and Twitter.

This is the sort of thing I mean when I say, sarcastically, that publishing things on the internet is expensive. If they *really* want to make this information public, they can do it for very little cost in the same way that other questionable material is published online.

You could easily argue that they're putting themselves at more risk by doing something like that, because it's probably true. But that's always been the case for the people actually leaking the information. See Bradley Manning. I can see why Assange wouldn't want to end up in Manning's position, but it also seems disingenuous to accept the info that was gained at Manning's (great) expense but refuse to publish it on financial grounds.

Saying "I'm getting out of here because I'm afraid I'm going to end up in jail" is one thing, and saying "I'm taking my ball and going home until someone gives me [back] a ton of cash" is another.
posted by tylerkaraszewski at 11:39 AM on October 24, 2011


No choosing whom you choose to serve would not violate anti-trust laws even if you colluded to arrive at that decision.

Then what, please, could ever meets your high standard for what constitutes illegal market collusion if not all the banks working together on a non-competitive basis to silence a critic that threatens to endanger the banks control of the market?
posted by saulgoodman at 11:40 AM on October 24, 2011 [3 favorites]


carsonb: "Shutter the website and Take that shit underground, like the warez scene. IRC channels, USENET, people publish shit that really is illegal all the time. Make announcements on the chans and Twitter.

I can't imagine there wasn't any consideration for things like this before deciding on the route Wikileaks has taken. People like to point at Assange's ego as reason behind a lot of the whys and wherefores, but that can't be all there is to it, can it?

Part of the reason to go the above-water route has to be the authority that being perfectly visible brings with it. How can a recipient verify the origin of a released document if they're just downloading it from x5kinz80085x on Kick Ass torrents? I suppose you could do that and then publish a public key somewhere halfway visible, like Blogger or Reddit or Twitter, but it seems like that system is as easily sabotaged as it is implemented.

Anyway, being reliant on another system to get your stuff out is to be as weak as that system. As shown by their funding shortfall. And there's no control at all in the face of the Ts&Cs those internet publishing services operate behind. So you roll your own, and that's not cheap.

So, yeah, rolling your own seems to be a tough sell too when it comes to money, but bitcoin might just be the answer if it doesn't completely implode.
"

Dunno. Seemed to work in the BBS days when some of us those evil hackers would spread the latest issues of Phrack and such to their users those evil hackers that would break into the BBS software.

And why not give Freenet a spin?
posted by Samizdata at 11:44 AM on October 24, 2011 [1 favorite]


This is exactly what I was talking about in the bitcoin thread. At this point access to banking/paypal/etc is explicitly political, contingent upon obeying not just the law, but corporate society's extra-legal hang-ups (examples of things you increasingly can't take money for online and elsewhere: legal porn, legal "drug" paraphenalia, legal donations to "bad" political groups, legal dispensary advertisements, anything enough people have complained about, etc.) Add in the government's highly-subjective laws against dealing in cash, and you're fucked coming and going -- there is essentially no right to run a controversial business or even non-profit, and in a capitalist society that severely limits the right to controversial speech.

We need an alternative: new forms of currency, citizen banking, a decentralized paypal-style system... something that gets around the use of bank and payment access as a political tool. Bitcoin wasn't it, but we absolutely need something, because I see little hope that the situation can be turned around within the existing system.
posted by vorfeed at 11:46 AM on October 24, 2011 [16 favorites]


Couldn't a Wikileaks supporter set up a trust fund at their bank (as people do, say, to help out a family or individual in hardship)? People pay to the trust fund, the trust fund pays to Wikileaks. I don't see how the bank could stop that.
posted by binturong at 11:47 AM on October 24, 2011


Then what, please, could ever meets your high standard for what constitutes illegal market collusion if not all the banks working together on a non-competitive basis to silence a critic that threatens to endanger the banks control of the market?


Christ - I went out of my way to say I didn't really think it was morally sound behavior, but that legally there was nothing wrong with it.

Collusion alone is not an anti-trust issue. That's the only point I'm making. You have to collude in someway that takes advantage of the cartels power - price fixing, production quotas, stuff like that. Secondly you don't know that they colluded. Their risk management guys very reasonably could have all arrived at a similar conculsion "The risk of pissing off powerful people has a far far greater potential cost to us then any revenue we could ever generate from serving this client. Let's cut him off"

Secondly the entities who are refusing the serve Wikileaks - Paypal, Mastercard, Visa, Western Union are not the same entities that he has been threatening to release information about. Wikileaks hasn't been threatening them directly. Certainly PayPal and Western Union don't really care all that much about damage to BAC.
posted by JPD at 11:49 AM on October 24, 2011


This is where a large, combative media organisation like The Guardian could help. Oops.
posted by Skeptic at 11:50 AM on October 24, 2011


Although this is horrible and a serious threat to freedom of information, I wonder whether this is necessarily the end of the story. Can't something else (openleaks?) pop up in it's place? These operations only really need to exist for one big story at a time.

I wonder if wikileak's (past) success has given mainstream media outlets the confidence and expertise to handle these kinds of things now. It's a shame the guardian and Assange seem to have fallen out in such a ridiculous way because some kind of financial relationship between something established and this new kind of data-journalism could really have it's merits - income from a variety of sources and the much larger scandal created by banks cutting off money to a large institution. Through the way they handled this and other leaks recently I have a lot of confidence in Rusbridger's integrity - but I'm not sure how or if the infrastructure of a national paper and a necessarily more covert, technical enterprise like wikileaks, which really benefits from its independence, could ever really mesh.
posted by pmcp at 11:50 AM on October 24, 2011


"Legal discrimination" might seem more acceptable to me if the banks playing keep-away with Wikileaks weren't more than happy to process payment for apparently any other organization, including ones which are predicated on absolute shitbag principles.

It's particularly maddening to see this behavior from organizations that are glorified commodities. Nobody gives a ratshit about using Visa over Mastercard; they just want to pay someone money via electronic transfer. Visa or Mastercard don't provide any of the capital outlay here; that's done by the card issuing banks.

So what value do they provide (that anyone cares about) beyond this generic ubiquitous processing? Yet they can engage in these shenanigans because nobody in government is going to pick up the antitrust tools and go to bat for Wikileaks.

If Visa or Mastercard decided to announce they'd stop taking payments directed at, say, legal aid organizations or a more traditional financial reporting institution then there'd be crowds with torches and an army of government lawyers at their door.
posted by phearlez at 11:51 AM on October 24, 2011 [3 favorites]


The issue is he can't really use freenet/usenet/tor and still appear to be a legit journalist. He has been trying to distance himself from his past for years and he is almost there. Can't go back to the dark side.
posted by Ad hominem at 11:52 AM on October 24, 2011 [1 favorite]


It's particularly maddening to see this behavior from organizations that are glorified commodities. Nobody gives a ratshit about using Visa over Mastercard; they just want to pay someone money via electronic transfer. Visa or Mastercard don't provide any of the capital outlay here; that's done by the card issuing banks.



oh absolutely you are correct, and they collude like crazy on fees, and every once in a while they get fined by the DOJ or the EC. But V and MC are anti-competitve, market abusers because of this, not because they refused a client. If the DOJ forced them to break up tomorrow I'd applaud their actions.
posted by JPD at 11:54 AM on October 24, 2011


We need an alternative:

Yeah--we need to stop backing away from our own government, and start taking control of it back and making it function better.
posted by saulgoodman at 11:55 AM on October 24, 2011 [5 favorites]


Yeah--we need to stop backing away from our own governments, and start taking control of it back and making it function better.
FTFY
posted by pmcp at 11:58 AM on October 24, 2011


Collusion alone is not an anti-trust issue. That's the only point I'm making. You have to collude in someway that takes advantage of the cartels power - price fixing, production quotas, stuff like that.

I'm sorry JPD, I'm really not trying to be hyperbolic here, but aren't the banks doing exactly that here?

If the banking industry exploiting its monopoly on the channels for moving money around on the internet doesn't count as them taking advantage of their power as a cartel what does? I mean, obviously, you'd still have to prove the case, but it sure looks very, very chilling, if what's been alleged is true.
posted by saulgoodman at 12:02 PM on October 24, 2011 [1 favorite]


This is why we cannot have things.
posted by TwelveTwo at 12:03 PM on October 24, 2011 [4 favorites]


It might be worth noting that Mastercard already refuses to service offshore pharmacies, presumably because they don't like the incidence of chargebacks.

So far the government has had no incentive to discourage this behavior because it's always been against industries they don't like (in fact, with Insex, the government leaned on the CC industry to freeze them out even though some banks wanted their business).

But make no mistake, this gives the banks (and any government large enough to lean on them) the arbitrary power to kill any online business it doesn't like. Whether what the banks are doing to Wikileaks is illegal is arguable. What is not arguable is that it should be illegal.

The reason Jim Crow laws were struck down is that with all businesses colluding and such a convenient ID mechanism as skin color, it became impossible for minorities to survive at all in some communities. If your only "freedom" is to live in a shack in the woods and shoot squirrels with homemade bullets because nobody will sell anything to you, you're not very free.

Suppose it was every grocery store in the country instead of the banking industry that decided not to do business with the makers of Food, Inc.. We're alarmingly close to such a thing actually becoming possible as more and more of our economy is conducted electronically.
posted by localroger at 12:05 PM on October 24, 2011 [3 favorites]


If you're going to play the passive-aggressive FTFY game, pmcp, would you at least not introduce pronoun errors? "control of them back" and "making them function, not "it."

Maybe we can use this evil to good aims and raise processing discount rates for organizations that run ads with bad grammar.
posted by phearlez at 12:07 PM on October 24, 2011 [1 favorite]


We should not permit oligopoly to discriminate against specific clients, well oligopolies shouldn't permit them to exist, but they certainly shouldn't be permitted to discriminate.

Imagine the board of directors for Visa and Mastercard all consolidates their personal phone company company holdings with AT&T and decides Verizon may no longer use credit cards.

Aside : A Personal Appeal From the Outlaw Josey Wales
posted by jeffburdges at 12:07 PM on October 24, 2011 [1 favorite]


Couldn't a Wikileaks supporter set up a trust fund at their bank (as people do, say, to help out a family or individual in hardship)? People pay to the trust fund, the trust fund pays to Wikileaks. I don't see how the bank could stop that.

Easily. The trust gets frozen by the bank - money goes in, doesn't go out. People contributing money may be subject to additional scrutiny and punitive action.
posted by odinsdream at 12:10 PM on October 24, 2011


Yeah--we need to stop backing away from our own government, and start taking control of it back and making it function better.

I don't see how this is likely given the current state of affairs. We voted for "change" and didn't get any... and the simple fact is that US elections are far more rigged than the economy is (hello, two-party system). Short of actual, widespread uprising and/or agitation I see no realistic way to "take control of it back" -- this story is a great example of what happens when you manage to effectively challenge the status quo via conventional channels.
posted by vorfeed at 12:12 PM on October 24, 2011 [2 favorites]


I'm sorry JPD, I'm really not trying to be hyperbolic here, but aren't the banks doing exactly that here?



I don't think you are being hyperbolic at all. Again - refusing to serve someone - even if you've colluded to do so, is not abusing market power unless your reasons for doing so are to perserve your market power. If you refused to serve someone because they were also using a new entrant competitor, then yes, that would be collusive. But in this case it isn't clear that any of wikileaks stated goals would do anything to weaken the payment oligopoly. Indeed - PayPal and Western Union would probably benefit from VC and M being damaged by what ever it is wikileaks has on BAC and what that would do to their huge US credit card business.

Jim Crow laws became illegal because race specifically became a protected class. If you want to create a universal service obligation for banks, that's fine - but there isn't one today.
posted by JPD at 12:13 PM on October 24, 2011 [1 favorite]


If Visa or Mastercard decided to announce they'd stop taking payments directed at, say, legal aid organizations or a more traditional financial reporting institution then there'd be crowds with torches and an army of government lawyers at their door.

No joke, I'd imagine that if this were to happen, you'd automatically have media literally making up reasons why the particular targeted organization was probably involved in some kind of bad activity to deserve the blackout. The response is almost automatic at this point.
posted by odinsdream at 12:15 PM on October 24, 2011 [5 favorites]


Actually, Wikileaks has a bitcoin address. They've received about 923 bitcoin, which is worth about $2,800 today. However, if they were selling it on the way down they might have made more money along the way. Interestingly it looks like they got about 130 bit coins today
I am going to send them more money. You guys can send your cash to Obama I guess. -- furiousxgeorge
Too bad you'll have to use bitcoin to do it.
Couldn't a Wikileaks supporter set up a trust fund at their bank (as people do, say, to help out a family or individual in hardship)? People pay to the trust fund, the trust fund pays to Wikileaks. I don't see how the bank could stop that.
No, it would be easy. Just freeze the account. If they don't have direct control of the account then they refuse to process the transactions.

All this stuff is just data on the bank's computers. If it goes through their machines, then they have the opportunity to stop it. The only way to get money to them is to go outside the bank's systems.
posted by delmoi at 12:17 PM on October 24, 2011


We voted for "change" and didn't get any.

We voted for change and that's basically all we did, until we showed up with guns at town hall meetings to let the world know we actually didn't want change so much. It's never going to be a one-shot deal: owning a republic means owning it everyday, not just on election day. But that's a total derail.

Bottom line: This seems bad in principle for the aims of democracy. And it's another example of how you don't necessarily create greater freedom just by having the state out of the way.

Banks, landlords, bosses, and any one else who has some lever they can use as an instrument of social/economic control won't hesitate to use it if it benefits them and they can get away with it (and often, in the absence of effective state governance, they can). Just "less government" isn't going to cut it as a solution, as appealing to our lazier impulses as it may be to think so.
posted by saulgoodman at 12:22 PM on October 24, 2011 [6 favorites]


Again - refusing to serve someone - even if you've colluded to do so, is not abusing market power unless your reasons for doing so are to perserve your market power.

But I'm arguing they are doing that. Maybe WikiLeaks hasn't targeted these specific banks yet, but it certainly has announced plans to target the banking industry in general.

It's not a stretch at all to view this as a self-defensive move on the part of bankers looking out for their industry. And if that's what it is--which only an actual investigation that looks at the interconnections among these various entities could determine--then it's exactly what anti-trust laws were designed to prevent.
posted by saulgoodman at 12:24 PM on October 24, 2011


price fixing
So "We're going to collude to all charge you twice the market rate" would be anti-trust-worthy, but "we're going to collude to all charge you infinity times the market rate" isn't?
posted by roystgnr at 12:26 PM on October 24, 2011 [2 favorites]


Imagine the board of directors for Visa and Mastercard all consolidates their personal phone company company holdings with AT&T and decides Verizon may no longer use credit cards.

Extremely unlikely, as that would be leaving a ton of profitable customers afloat. GE's credit division would be on them in a flash.

Collusion at the corporate level is a difficult game. If you all offer the same price then the only way a single company can increase its profits is by stealing customers from the others. On the other hand if you don't collude the prices drop below profitable levels. On the gripping hand there are constantly very wealthy wolves at the door, trying to steal your whole market from you.


(this example is also flawed by the fact that the directors of Visa and Mastercard have very little say over what the actual credit card companies do)
posted by Tell Me No Lies at 12:30 PM on October 24, 2011 [1 favorite]


If you're going to play the passive-aggressive FTFY game, pmcp, would you at least not introduce pronoun errors? "control of them back" and "making them function, not "it."

doh! and sorry.

I was going for cheeky, not passive aggressive - I also favourited the comment to compensate... if that helps. I just meant that I agree, but I live elsewhere and we all need to re-take the reins of our governments as corporations and banks are shadowy, stateless things that don't necessarily give a shit about one country's laws. No genuine snark intended.
posted by pmcp at 12:30 PM on October 24, 2011 [2 favorites]


i feel like the whole thing about the internet being a tool of freedom is being discredited

i want to believe it was true at some point, but ...

it seems now like it will merely become a more efficient system of control :(
i wonder has anyone else seen that cartoon with the voiceover and the live sketches of protesters as mice and oppressors as cats?
posted by This, of course, alludes to you at 12:36 PM on October 24, 2011 [2 favorites]


The bad guys won.
posted by dunkadunc at 12:36 PM on October 24, 2011


It's not a stretch at all to view this as a self-defensive move on the part of bankers looking out for their industry. And if that's what it is--which only an actual investigation that looks at the interconnections among these various entities could determine--then it's exactly what anti-trust laws were designed to prevent.

While this is certainly likely, I'm personally of the mind that this is not individual companies working out on their own who to blacklist.

I think it's much more likely to be the result of a nudge from the government through various unofficial channels.
posted by odinsdream at 12:40 PM on October 24, 2011


No joke, I'd imagine that if this were to happen, you'd automatically have media literally making up reasons why the particular targeted organization was probably involved in some kind of bad activity to deserve the blackout. The response is almost automatic at this point.

This is exactly what happened to the three largest Islamic charities in America after 9/11. It's also likely to happen to wikileaks and others once most people have been sufficiently convinced of the "connection" between internet activism and Terrar(tm).

Banks, landlords, bosses, and any one else who has some lever they can use as an instrument of social/economic control won't hesitate to use it if it benefits them and they can get away with it (and often, in the absence of effective state governance, they can).

Yes, well, that's the point. They're doing exactly this with US currency, right now. And the government isn't just letting them do it, it's colluding with them (see also: drug testing, union-busting, etc). I don't give two shits about "less government" as a general principle, at least not with respect to economics, but I fully support routing around the government when and where it is actually harmful to civil rights.

As far as I'm concerned the social contract here is dead-simple: if the government wants to regulate the economy then they must not abuse that power, otherwise faith in the mainstream economy will drop and the people will begin to look elsewhere. This has nothing to do with ideology of any sort; it is simply what happens when enough people decide that the risk of dealing with grey or black markets is preferable to exposing themselves to state control.
posted by vorfeed at 12:48 PM on October 24, 2011 [4 favorites]


Gibson was right. Orbital banking - beyond the reach of terrestrial governments. Someone is going to make an awesome amount of money on this, someday soon.
posted by newdaddy at 12:49 PM on October 24, 2011 [2 favorites]


But I'm arguing they are doing that. Maybe WikiLeaks hasn't targeted these specific banks yet, but it certainly has announced plans to target the banking industry in general.


I realize you are arguing that but the payment processors aren't even banks. There is like a legal definition of what market abuse is, and "we think this guy is an asshole, and he's trying to fuck with us and our friends, so we aren't going to let him use our service" doesn't meet that definition. You would need to argue they did it because the BACs of the world said "Either cut him off or we'll invest in new payment processors" - and even then you would have to prove the banks colluded - which would probably fail at first instance in the US because the banking industry on a national level isn't that consolidated. And then your anti-trust case would be against the banks, not the processors.
posted by JPD at 12:50 PM on October 24, 2011


The conversation is being predictably derailed - which is a shame, because you'd think it discussing banks colluding to blacklist an organization for no legal reason would be worthy of discussion.

Where is it illegal for a credit card company or other payments service to cut off service to a business? Hasn't anyone ever read a service agreement from the major credit card companies?

Think perhaps that after Anon attacked them for cutting off Wikileaks they sure as hell were never, ever going to restore any service to Wikileaks. This would let anyone else that they wanted to cut off know that they would buckle to a computer attack. That would be dumb.

Its called "you think you're helping Wikileaks" but you're really not.
posted by Ironmouth at 12:51 PM on October 24, 2011


It's not a stretch at all to view this as a self-defensive move on the part of bankers looking out for their industry. And if that's what it is--which only an actual investigation that looks at the interconnections among these various entities could determine--then it's exactly what anti-trust laws were designed to prevent.

huh? no no no. Anti-trust is about preventing the creation of monopoly. This has nothing to do with that. Cutting off one tiny party from processing is not creating a monopoly. Its actions designed to prevent others from entering the marketplace or to drive other competitors out of the market place. It isn't a catch all designed to let every damn merchant who is cut off for violating the terms of service to sue Visa. Its about restraint of trade, meaning of other competitors in the same business as the alleged violator of the anti-trust laws. Even if there is some sort of damage to a third party, the purpose of the alleged activity restraining trade must be to restrain trade of a company in the same line of business as the alleged violator.

There is zero anti-trust case here.
posted by Ironmouth at 1:00 PM on October 24, 2011 [3 favorites]


Where is it illegal for a credit card company or other payments service to cut off service to a business? Hasn't anyone ever read a service agreement from the major credit card companies?

As was said earlier, if it's not illegal it should be. There is a blatant political motivation to these activities.
posted by odinsdream at 1:02 PM on October 24, 2011 [1 favorite]


Previously.
posted by thescientificmethhead at 1:03 PM on October 24, 2011


Ok but the illegal part of it, to me really, seems to be the part about not returning WL's money. By nearly any definition that is outright theft. It would be one thing if the banks eachindividually said "hey this is too weird for us. Here's your money, we're closing your account. Never darken our door again.". But instead they just said "B'bye" and kept all the cash. See - not the same thing at all.
posted by newdaddy at 1:05 PM on October 24, 2011 [4 favorites]


On preview, EXACTLY what JPD said.

Where is it illegal for a credit card company or other payments service to cut off service to a business? Hasn't anyone ever read a service agreement from the major credit card companies?

As was said earlier, if it's not illegal it should be. There is a blatant political motivation to these activities.


St. Assange claimed it was illegal. Its not.

Blatant political motivation? You mean a private party may not act on a political basis? There goes your boycott of Koch Industries.

And it gets a little less political and a little more "self-preservation" when "well-meaning" friends of Wikileaks decide that the smart play is to launch a DOS attack against the payment processors. After that, they would be fools to assist Assange. It would encourage anyone cut off by the processors to just launch a intimidation attack against them to get them to reopen the account.
posted by Ironmouth at 1:06 PM on October 24, 2011 [1 favorite]


Because publishing things on the internet is expensive.

Running a non-profit organization, publishing, maintaing a website, etc. is, indeed, expensive.

Regarding WikiLeaks Annual Operating Budget:
Salaries/Staff Expenses -- $500,000

Publications/Research -- $500,000

Productions -- $400,000

Campaigns -- $300,000

Technical Information -- $500,000

Legal Costs -- $1,200,000

Security -- $300,000
BTW -- let's remember that WikiLeaks temporarily shut down this past February due to financial constraints.
posted by ericb at 1:06 PM on October 24, 2011


Gibson was right. Orbital banking - beyond the reach of terrestrial governments.

Assuming terrestrial governments don't establish any orbital jurisdiction themselves, I suppose this could potentially help mitigate the problem of government influence over banks.

I'm not sure it would help solve the problem of bank influence on government, or banks colluding to starve enterprises they oppose for political reasons.
posted by weston at 1:07 PM on October 24, 2011


Ok but the illegal part of it, to me really, seems to be the part about not returning WL's money. By nearly any definition that is outright theft. It would be one thing if the banks eachindividually said "hey this is too weird for us. Here's your money, we're closing your account. Never darken our door again.". But instead they just said "B'bye" and kept all the cash. See - not the same thing at all.

What do the terms of service say? Does this mean that the processors must turn over monies collected by the "Emperor's Club" for prostitution services? Its all in the terms of service.

And if it is being wrongly kept, then Assange needs to sue.
posted by Ironmouth at 1:07 PM on October 24, 2011


[Antitrust is] about restraint of trade, meaning of other competitors in the same business as the alleged violator of the anti-trust laws. Even if there is some sort of damage to a third party, the purpose of the alleged activity restraining trade must be to restrain trade of a company in the same line of business as the alleged violator.

It's been a while since my antitrust class, but I seem to recall that an agreement among competitors to engage, or refrain from engaging, in an activity could constitute a violation of U.S. law. Is this the case? Am I mis-remembering?

FWIW, I don't have evidence of such an agreement and don't know whether this is prima facie evidence of such an agreement.
posted by gauche at 1:14 PM on October 24, 2011


Does this mean that the processors must turn over monies collected by the "Emperor's Club" for prostitution services?

They have to turn those monies over to somebody. If they don't want to give it to the Emperor's Club, and the government doesn't step in and seize it, then they need to return it to the individuals who made the payments.
posted by localroger at 1:16 PM on October 24, 2011


The negotiations were strained following WikiLeaks' release of a diplomatic cable that alleged Iraqi civilians, including children, were killed in a 2006 raid by American troops rather than in an airstrike as initially reported by the U.S. military.

Glenn Greenwald:
In other words, whoever leaked that cable cast light on a heinous American war crime and, by doing so, likely played some significant role in thwarting an agreement between the Obama and Maliki governments to keep U.S. troops in Iraq and thus helped end this stage of the Iraq war (h/t Trevor Timm). Moreover, whoever leaked these cables — as even virulent WikiLeaks critic Bill Keller repeatedly acknowledged — likely played some significant in helping spark the Arab Spring protests by documenting just how deeply corrupt those U.S.-supported kleptocrats were. And in general, whoever leaked those cables has done more to publicize the corrupt, illegal and deceitful acts of the world’s most powerful factions — and to educate the world about how they behave — than all “watchdog” media outlets combined (indeed, the amount of news reports on a wide array of topics featuring WikiLeaks cables as the primary source is staggering). In sum, whoever leaked those cables is responsible for one of the most consequential, beneficial and noble acts of this generation.

And yet (or more accurately: therefore) the person accused of accomplishing all of this, Bradley Manning, has been imprisoned for more than a year without trial, and, if convicted, is almost certain to remain in prison for many more years (with the possibility, albeit unlikely, of death, and as the Obama administration continues to block an unmonitored visit by the U.N. official investigating what had been the inhumane conditions of his detention).
posted by homunculus at 1:20 PM on October 24, 2011 [10 favorites]


It's been a while since my antitrust class, but I seem to recall that an agreement among competitors to engage, or refrain from engaging, in an activity could constitute a violation of U.S. law. Is this the case? Am I mis-remembering?

FWIW, I don't have evidence of such an agreement and don't know whether this is prima facie evidence of such an agreement.


But the motive for such actions must be "restraint of trade." The first 28 or 29 sections of title 15 lay it out. Allegedly "colluding" to not service one tiny little operation isn't colluding for the purposes of restraining trade amongst the payment processors. Its to stop activities that the processors consider illegal or more likely in violation of the terms of service. Visa, MasterCard and PayPal are not trying to make it harder for other entrants or increase their market share at the expense of other processors. They are just stopping servicing someone they feel is violating the terms of service or the law.
posted by Ironmouth at 1:21 PM on October 24, 2011 [1 favorite]


But the motive for such actions must be "restraint of trade."

Right. Forgot that. Thanks!
posted by gauche at 1:23 PM on October 24, 2011




St. Assange claimed it was illegal. Its not.

Let's just be really clear. If this thread turns into another one person [or two] taking on and fighting with and insulting everyone, we'll make you go offsite or MetaTalk if you won't do it on your own. Please demonstrate through your own behavior that MetaFilter can deal with these sorts of topics.
posted by jessamyn at 1:26 PM on October 24, 2011 [3 favorites]


FWIW, I don't have evidence of such an agreement and don't know whether this is prima facie evidence of such an agreement.

We don't know that WikiLeaks wasn't planning to expose information that would be economically harmful to payment processors and the banks they serve. Don't the payment processors work for the banks Assange targeted? If so, it's not hard to imagine the banks putting pressure on the payment processors to take these steps. The point is: Assange apparently can't turn to any competitors because all of the competitors in the market are acting as a bloc to deny him service in order to protect their clients from potentially economically damaging revelations coming to light.

If that's not at least one of the kinds of outcomes anti-trust laws are meant to prevent then you can hang your anti-trust laws because apparently even those are now just another tool for big money interests seeking to use the legal system for their own competitive advantage.

I'm not saying there's proof of any of this. But it's possible, there are clear motives, and only a thorough investigation could really prove the reality of the situation one way or another.

But letting private interests exercise this kind of arbitrary power over individuals is not consistent with my understanding of how a free democratic society should operate. Even (and maybe even especially) if Assange is an asshole.
posted by saulgoodman at 1:30 PM on October 24, 2011


But the motive for such actions must be "restraint of trade."

Or are they protecting their control of the market from a whistle-blower? That's the question I'm arguing is a legitimate anti-trust one. The supply side is not the only side in trade law. Consumers have a right to engage in trade in a way that isn't restrained by market collusion, too, don't they? Where's the laws obligation to protect consumers from the effects of market collusion in your reading of anti-trust? Or is your view that such laws are only meant to be for the purpose of protecting interests on the supply side of the markets?
posted by saulgoodman at 1:36 PM on October 24, 2011


They are just stopping servicing someone they feel is violating the terms of service or the law.

I have sympathy with the concept here, I do. Like if Mr Pig decides he doesn't like how Alfalfa smells, and doesn't want to take his money in his bank.

Unfortunately, we live in a world where being denied transaction processing by a giant company like Visa doesn't mean you find another processor. It means you die economically.

I think the "fix" for this is treating transaction processing like a public utility, rather than a private business. I don't see this being too likely.
posted by odinsdream at 1:36 PM on October 24, 2011 [2 favorites]


Ohh come on, call the guy St. Assange doesn't make Ironmouth wrong, people should refute what he is saying not the fact that he is poking fun at Assange.

I don't think BoA should be obligated to do business with an organization that is plotting it's destruction.

So BoA cuts of credit card transactions with Wikipedia. They are not preventing people from handing Assange envelopes full of cash, they are not preventing people for mailing the guy bearer bonds or pouches full of diamonds.

It is a little ridiculous to architect an organization in such a way that you are so dependent on one of your enemies you cannot survive your own victory.

Let's say Wikileaks released the BoA memos, through some strange quirk of fate BoA and several other organizations are caught up in a whirlwind of outcry and are shut down. What would wikileaks do then?

They needed a plan B, something like 900 numbers people call to donate $20, money gets shunted to shell corporations and then passed to Wikileaks.
posted by Ad hominem at 1:38 PM on October 24, 2011 [3 favorites]


Or are they protecting their control of the market from a whistle-blower? That's the question I'm arguing is a legitimate anti-trust one. The supply side is not the only side in trade law. Consumers have a right to engage in trade in a way that isn't restrained by market collusion, too, don't they? Where's the laws obligation to protect consumers from the effects of market collusion in your reading of anti-trust? Or is your view that such laws are only meant to be for the purpose of protecting interests on the supply side of the markets?

Protecting one's current market position from a whistleblower is not a restraint of trade. A restraint of trade is when one tries to prevent another company in your line of business from also engaging in trade (preventing market entry), or tries to reduce the market share of others.

Second, Visa wasn't threatened by Assange.

Let's put this another way. Let's assume you own a hay factory, where you have an irate customer who yells and screams. You can exclude that customer. And if that customer or his best friend (Anon) comes back with a bunch of gas cans, he can't sue you for refusing to let him buy hay from you. The motive must be to increase your market share through restraint of trade.

Thousands of merchants are cut off every year by Visa. They can't sue for anti-trust violations just because they got cut off.
posted by Ironmouth at 1:54 PM on October 24, 2011


Seems a more appropriate metaphor would be: Let's assume you own all the hay, and all the hay factories.
posted by odinsdream at 1:56 PM on October 24, 2011


Seems a more appropriate metaphor would be: Let's assume you own all the hay, and all the hay factories.


yep, but it would only be illegal if the reason why I didn't sell you hay was because you need it to feed your horses so you could start a new hay farm (and your horses only ate hay)
posted by JPD at 2:01 PM on October 24, 2011


A restraint of trade is when one tries to prevent another company in your line of business from also engaging in trade (preventing market entry), or tries to reduce the market share of others.

You mean like all or most of the major banks colluding to put pressure on payment processors not to do business with somebody they consider a threat to their business interests? If that were proven the case here, you'd agree it was an anti-trust issue, right? That's what I've been suggesting this looks like.

I also think that something important has somehow been lost of the original spirit of anti-trust law, though. Those laws didn't come about and were not originally intended merely to protect business interests from the effects of unfair collusion on other business interests. They were intended to serve the broader public interest--protecting consumers rights in the markets as well as the rights of producers. I'm sure you know the recent case law better than I do, but if anti-trust is just another tool in the legal arsenal for businesses to use when doing business, I think we need some new rules to prevent them from acting like de facto private governments.
posted by saulgoodman at 2:05 PM on October 24, 2011 [1 favorite]


You mean like all or most of the major banks colluding to put pressure on payment processors not to do business with somebody they consider a threat to their business interests? If that were proven the case here, you'd agree it was an anti-trust issue, right?

No. Again, we are talking about restraint of trade. It isn't merely enough that they are acting together to protect their businesses. They must be attempting to engage in monopolistic behavior--to restrict other businesses from entering into the market place to compete with them, or to increase their own market share at the expense of others.

I also think that something important has somehow been lost of the original spirit of anti-trust law, though. Those laws didn't come about and were not originally intended merely to protect business interests from the effects of unfair collusion on other business interests. They were intended to serve the broader public interest--protecting consumers rights in the markets as well as the rights of producers.

This is simply a non-factual statement. Please refer to the laws before assuming you know what they are about. The first sentence of the first section of the Clayton Act (codified at 15 U.S.C. 12(a) says: “An Act to protect trade and commerce against unlawful restraints and monopolies,” Stopping monopoly has, from the beginning been the only purpose of anti-trust laws. In fact, the word "trust" in this sense means a combination designed to restrain trade and monopolize business.

Anti-trust laws explicit purpose has always been, since 1890 to stop monopoly behavior, nothing more nothing less. The very name of the class of laws means to stop monopolistic behavior.
posted by Ironmouth at 2:26 PM on October 24, 2011


Does this mean that the processors must turn over monies collected by the "Emperor's Club" for prostitution services?

Uhhh, yeah? If it's their money. This seems like a total lack of due process by which an arbitrarily large amount of money and resources can be taken from someone. Basically if you or I or JA sit down and try yo read the terms of service before signing them, we have no or very limited legal resources to really understand what we're signing, and no real viable method to push back if we could even identify something onerous. While the banks have effectively infinite resources by which to continue to refine the wording of these agreements to their own advantage. Geez, does that sound anything like some other arguments some groups of people have been making recently? OWS much?

At least I would have hoped that your own money would remain yours and accessible regardless of the whims of a corporation. What's to stop some bank from doing the math and deciding that it's in their interest to just "freeze" all their customers' accounts?

Also The Emporer's Club may be doing a wholly legitimate business. Or maybe not. I would have thought that would have been up to a court to decide - silly me!
posted by newdaddy at 2:36 PM on October 24, 2011 [1 favorite]


As wikileaks website says this is the privatization of censorship.

It is a very sinister development.

Whole industry sectors are controlled by only a few big players. Individually, they all have the right not to do business with a particular customer. Should they have the power, as a group, to completely block a customer from their services?

What if all phone companies and ISPs blacklist an organisation or a person from having access to bandwidth? What if all gas stations refuse to sell you gas? What if all food merchants decided to stop selling food to members of a political movement?

There are legitimate business reasons for not doing business with another party: they are cheating you, they don't pay their bills on time. There are also discriminatory reasons for not doing business with another party: race, religion, political opinion.

This is an extra-legal maneuver on the part of the payment processors and it is based purely on ideology. Allowing an entire industry to discriminate against a single party on ideological grounds is a dangerous road to go down.
posted by yoz420 at 2:44 PM on October 24, 2011 [5 favorites]


In related news:
Anonymous doxes Bank of America CEO

"The leak is part of an ongoing campaign by the group's 'CabinCr3w' cell to embarrass executives of financial institutions involved in the 2007 financial crisis, as well as those who Anonymous members see as acting on their behalf."
posted by ericb at 2:57 PM on October 24, 2011


Gibson was right. Orbital banking - beyond the reach of terrestrial governments. Someone is going to make an awesome amount of money on this, someday soon.

Until then, Stephenson is right. Anonymous internet banking using using digital currency backed up by Nazi gold hosted along with holocaust survival manuals on servers in nuke proof underground facilities in a small Southeast Asian sultanate.
posted by Winnemac at 3:10 PM on October 24, 2011 [2 favorites]


On the need for Plan B, let's hear from someone who knows what he is talking about:
And in the end, they won; the credit card companies won and one day Insex woke up and could not process credit card transactions. Now that's the killing stroke for a website because people are lazy; they don't want to take the extra step. If I told all my members tomorrow that they can't sign up with a credit card any more, they actually have to write me a check, and mail it to me, wait for it to get there, hope I get it, hope I process it right and then email you a password sometime in the next couple of weeks you'll get this, no one's gonna do that.
--Matt Williams, webmaster of hogtied.com, interviewed in Graphic Sexual Horror.
posted by localroger at 3:22 PM on October 24, 2011 [1 favorite]


I'd be happy to hook them up with a few gift copies of Orcs Must Die! on Steam (that game is hella fun).
posted by tumid dahlia at 3:22 PM on October 24, 2011 [1 favorite]


This seems like a total lack of due process by which an arbitrarily large amount of money and resources can be taken from someone. Basically if you or I or JA sit down and try yo read the terms of service before signing them, we have no or very limited legal resources to really understand what we're signing, and no real viable method to push back if we could even identify something onerous.

No due process is owed to another by a private entity. Persons have a right of due process against the government.

Having said that, the remedy for a private person, when another private entity commits an alleged harm is to sue the other person for it. Here, if it was somehow not allowed under the terms of service, the tort would probably be conversion.

Its a contract of adhesion. Take it or leave it. Its a good argument not to take credit cards and a lot of businesses don't.
posted by Ironmouth at 3:31 PM on October 24, 2011 [1 favorite]


Those laws didn't come about and were not originally intended merely to protect business interests from the effects of unfair collusion on other business interests. They were intended to serve the broader public interest--protecting consumers rights in the markets as well as the rights of producers.

This is simply a non-factual statement. Please refer to the laws before assuming you know what they are about. The first sentence of the first section of the Clayton Act (codified at 15 U.S.C. 12(a) says: “An Act to protect trade and commerce against unlawful restraints and monopolies,” Stopping monopoly has, from the beginning been the only purpose of anti-trust laws.


So your assertion here is that stopping monopoly was not something they desired to do in protection of the larger society's interest? I think you are missing the forest being alluded to here and focusing on the precise legal definition of a tree. Yes, anti-trust as it's written relates to preventing an organization from stopping competition from entering the marketplace. Yes, this behavior doesn't quality.

That doesn't make saulgoodman wrong that that there was a loftier, larger societal goal in mind behind the idea of preventing anti-competitive behavior. To attempt to prevent organizations from controlling a market space and preventing others from coming into that space is implicitly an acknowledgement of the idea that having a small number of organizations controlling that space exclusively and forever is itself a bad thing.

I don't think it's unreasonable to say "we have laws XYZ in pursuit of abstract goal PDQ and if they're not working for that anymore then maybe we need new/different/more laws."
posted by phearlez at 3:34 PM on October 24, 2011 [1 favorite]


@tumid dahlia: I wouldn't mind a copy - the demo was several metric tons of enjoyment :-D
posted by pyrex at 3:53 PM on October 24, 2011


The top rated comment on this story on Hacker News right now points out that NAMBLA, Stormfront, Westboro Baptist, and any number of despicable members of the citizenry have bank accounts and can process credit cards and paypals.

But Wikileaks must be stopped.

This is the type shit my Russian friends just laugh about when I tell them I read in the New York Times and in the Economist that Putin is a murderer and a thief and a whoremonger.
posted by bukvich at 4:25 PM on October 24, 2011 [5 favorites]


@tumid dahlia: I wouldn't mind a copy

And what have you done for me lately? :P
posted by tumid dahlia at 4:26 PM on October 24, 2011


If it's not illegal it should be illegal. Particularly since I think this was done at government instigation, explicitly or implicitly. If government got banks to refuse to process any checks for a political organization because of their views then the conflict with first amendment rights would be clear.

Wikileaks accomplished a great deal in the time it was in existence, that is positive at least.
posted by zipadee at 4:29 PM on October 24, 2011 [2 favorites]


I am going to send them more money. You guys can send your cash to Obama I guess. --

Too bad you'll have to use bitcoin to do it.


Actually I can just send them cash.
posted by furiousxgeorge at 4:38 PM on October 24, 2011 [1 favorite]


[this thread is already specifically in the "don't turn this into a thread on one person's opinions" so please take questions about personal character directly to email. Thank you.]
posted by jessamyn at 4:40 PM on October 24, 2011


That doesn't make saulgoodman wrong that that there was a loftier, larger societal goal in mind behind the idea of preventing anti-competitive behavior. To attempt to prevent organizations from controlling a market space and preventing others from coming into that space is implicitly an acknowledgement of the idea that having a small number of organizations controlling that space exclusively and forever is itself a bad thing.


I'm just saying that what Visa is doing by refusing to process the transactions of Wikileaks is not a violation of antitrust laws. I don't think what you are saying and what the antitrust laws are for are in conflict. I think you are in error though when you say that it is implicitly an acknowledgment that having a small number of organizations controlling a space. It is an explicit acknowledgement of that fact. I agree with those laws and their purpose.
All I'm saying is that Wikipedia has no antitrust case. They may very well have a case for conversion, depending on the facts.

Ironmouth: "What do the terms of service say? Does this mean that the processors must turn over monies collected by the "Emperor's Club" for prostitution services? Its all in the terms of service.

And if it is being wrongly kept, then Assange needs to sue."

Lawful neutral strikes again! Why is it that every time I see a comment by Ironmouth, I can hear Stewie Griffin singing, "Establishment, establishment, you always know what's best..."


This has nothing to do with Dungeons and Dragons or Family Guy. This is real life. Millions of cases are filed every year. There is no "alignment" in real life, nor does Stewie Griffin exist.

Listen, I've kept it down (for the most part) on my issues with Wikileaks. I'm just saying that Assange is wrong when he says that it is illegal for Visa to choose who to do business with. Visa is a private company. It can do what they want.

The top rated comment on this story on Hacker News right now points out that NAMBLA, Stormfront, Westboro Baptist, and any number of despicable members of the citizenry have bank accounts and can process credit cards and paypals.

Well, if they decided to publish huge amounts of top secret data on the internet, I suspect that Visa would decide not to process their payments on line.

I think I've found the basis for Visa's possession of the funds in question.

According to the International Visa regulations, there's an indeminfication clause in the contract. I suspect that Wikileaks, by signing on to use Visa, agreed to indemnify Visa for any damage they may have caused. Visa may be hanging on to the money due to to the DOS attack of Anon.
posted by Ironmouth at 5:18 PM on October 24, 2011


I think it's a real shame that people in the legal field seldom, if ever, contribute something along the lines of:

Well, ____ is actually legal. Based on my legal expertise, I'd say the way to ensure this doesn't happen is to do ____ and make sure that ____ is repealed.

Nope. It's always throw up your hands, "Them's the laws we got."
posted by odinsdream at 5:18 PM on October 24, 2011 [10 favorites]


huge amounts of top secret data

It was Secret, not Top Secret.
posted by odinsdream at 5:20 PM on October 24, 2011 [1 favorite]


I suspect that Wikileaks, by signing on to use Visa, agreed to indemnify Visa for any damage they may have caused. Visa may be hanging on to the money due to to the DOS attack of Anon.

Protip: Wikileaks isn't Anon, and I'm pretty sure they didn't solicit or encourage Anon's antics. If they keep the money they are stealing it.

Paypal used to pull shit like this all the time. Anybody remember them freezing the Minecraft guy's account with $700K+ and telling him coolly that if they decided he was doing anything fraudulent, they'd just keep it? That's a hell of an incentive for PayPal to decide your operation is fraudulent, and I think that had something to do with the Feds telling PayPal that if they were going to walk like a bank and quack like a bank, they were going to have to abide by the same regulations as banks. And banks are still somewhat regulated in that if you give them your money, they have to actually give it back to you when you ask for it, or to the person you asked them to forward it to.
posted by localroger at 5:27 PM on October 24, 2011 [2 favorites]


I think it's a real shame that people in the legal field seldom, if ever, contribute something along the lines of:

Well, ____ is actually legal. Based on my legal expertise, I'd say the way to ensure this doesn't happen is to do ____ and make sure that ____ is repealed.

Nope. It's always throw up your hands, "Them's the laws we got."


Based on my legal expertise, I'd say the way to ensure this doesn't happen is to not receive thousands of illegally distributed classified documents of the United States government and dump them on the internet without redacting them. If Wikileaks was my Client I would have told Mr. Assange to take it slow--to find a media partner from the beginning and to be extra secure about the documents and not rely on anyone else to ensure that they are safe. I would have also advised Mr. Assange strongly to not do media interviews or draw attention to himself, and to instead let any documents he found speak for themselves when he handed them over to newspapers. I would have also told him to ensure that he keeps his partners, employees and volunteers happy and not to act negatively towards his number one developer, who was an equal partner in the venture. I would also make 100% sure that he avoid personal celebrity so as to not make it about himself, as every person has weaknesses and issues and the more it becomes about the person, the more the project will take on the strengths and weaknesses of the individual and less the strengths and weaknesses of an organization, which is inherently stronger.

I would also advise him to tell anyone who might make attacks on credit card processors on his behalf not to do it, because those credit card donations would stop permanently the minute someone attacked the processors.

As for forcing Visa to take contributions? So the Mob and other illegal organizations can take kickbacks and other payments electronically and Visa cannot stop them? No, I am not in favor of this. Therefore I do not see how any law needs to be changed.
posted by Ironmouth at 5:30 PM on October 24, 2011


Protip: Wikileaks isn't Anon, and I'm pretty sure they didn't solicit or encourage Anon's antics. If they keep the money they are stealing it.

Protip: Indemnity clauses have nothing to do with whether or not one solicits or encourages anyone's antics. All that needs to happen is that your actions have to trigger the issue.

Take the attacks on Mastercard. If Assange had not distributed the documents and drawn attention to himself, then Anon would have had no reason to attack MasterCard.

Similarly, a second round of attacks on MasterCard occured after the Swedish Prosecutors Office decided to move against Assange: WARNING NYT link
Within 12 hours of a British judge’s decision on Tuesday to deny Mr. Assange bail in a Swedish extradition case, attacks on the Web sites of WikiLeaks’s “enemies,” as defined by the organization’s impassioned supporters around the world, caused several corporate Web sites to become inaccessible or slow down markedly.

Targets of the attacks, in which activists overwhelmed the sites with traffic, included the Web site of MasterCard, which had stopped processing donations for WikiLeaks; Amazon.com, which revoked the use of its computer servers; and PayPal, which stopped accepting donations for Mr. Assange’s group. Visa.com was also affected by the attacks, as were the Web sites of the Swedish prosecutor’s office and the lawyer representing the two women whose allegations of sexual misconduct are the basis of Sweden’s extradition bid.
An indemnification clause could spring into operation upon these facts. First, Assange caused the issue by allegedly having sexual relations against the will of two Swedish women. If he had not done so, the British Courts and the Swedish Prosecutors would not have gone against him, causing Anon to decide to attack.

This may be the reasoning that Visa's lawyers are using. I don't know. But these clauses are routine and their enforcement is routine.
posted by Ironmouth at 5:40 PM on October 24, 2011


Based on my legal expertise, I'd say the way to ensure this doesn't happen is to not receive thousands of illegally distributed classified documents of the United States government

I am baffled that any sane person could think this has anything to do with whether one can process credit transactions. In your vast legal expertise, assuming Wikileaks has the means to sue the industry players for the tort of colluding to use their monopoly control of the finance channel to destroy his organization, how would you even introduce the whole secrets being exposed thing into the procedure? It has no relevance. (Of course it might turn out that the courts don't consider this act a tort, but the secrets thing still has no relevance.)

But then, we had not only the Insex thing but also the crushing of the online poker industry, done with similar tactics and in contravention of numerous treaties, particularly GATT, and featuring attempted arrests of CEO's of foreign companies as their flights were simply laying over on US soil. We would of course howl to the moon if such a thing were done to a US CEO because of some Saudi Arabian law, but it seems in matters like this our government has been and still is in "fuck you" mode with regard to this sort of thing.
posted by localroger at 5:41 PM on October 24, 2011 [2 favorites]


I see we're back at "Them's the laws we got." Which is... not in any way surprising.
posted by odinsdream at 5:44 PM on October 24, 2011


So you're saying that if I do something innocuous such as publish a poster, and this "triggers" an unfortunate event such as a random whackjob shooting up my bank's office, this indemnification clause makes me liable?

That's fucking insane. You might be right about the legalities but if you are it's insane.
posted by localroger at 5:44 PM on October 24, 2011 [1 favorite]


What do the terms of service say? [and then later] the remedy for a private person, when another private entity commits an alleged harm is to sue the other person for it. Here, if it was somehow not allowed under the terms of service, the tort would probably be conversion.

There is a very powerful implied contract between a bank and a depositor. So, the thing you are "overlooking" is that not all terms in terms of service agreements are legal.
Anybody wondering could try googling terms of service unenforceable.
posted by Chuckles at 6:02 PM on October 24, 2011


Again. Not about banks. This isn't a bank refusing him access to monies in his account. This is a payment processor refusing to accept payments on his behalf. There is a big difference between the two
posted by JPD at 6:10 PM on October 24, 2011


Ironmouth:

In this case, Wikileaks is a nonprofit media outlet that depends on donations.

Are the banks and payment processors collaborating to deny Wikileaks payment processing services because they don't want Wikileaks to be able to bring its product (leaked information) to the market because that information might be competitively damaging to them?

If the answer to those questions is or even might be yes, then I still maintain this is exactly the kind of situation anti-trust laws exist to prevent.

They might be colluding to restrict Wikimedia's right to engage in trade in order to maintain control over their market share. If so, that would be anti-competitive collusion.
posted by saulgoodman at 6:17 PM on October 24, 2011


"Ultimately, our difficult decision was based on a belief that the WikiLeaks website was encouraging sources to release classified material, which is likely a violation of law by the source," Mr. Muller said. PayPal declined further comment.

So Paypal shut down WL account because somebody at Wikileaks said something to someone else. There you go - that's against Terms of Service right there.
posted by newdaddy at 7:26 PM on October 24, 2011


Whether or not it's bullshit (and I think it is bullshit), the payment processors are saying: "Fuck you, you fucking fuck". It is just like a guy who owns a bridge blockading another guy who wants to go on the bridge with a pack of dynamite they both know is going to be planted on the bridge to blow it the hell up. So the bridge guy says to the bomber, "fuck you, you fucking fuck."

Now maybe the bridge guy has no right to stop someone from crossing the bridge. But he's doing it anyway. Impasse. So now there has to be a third party to resolve the issue. But it's funny: third parties want to use the bridge too, so even if what is written down in the rule book is "anyone can cross the bridge" they are going to be quite slow in sorting this issue out. Quite slow indeed. Why, it might take years for discovery, and golly the court dockets are mighty, mighty full, and oops... typo on page 2093, that's going to need to be refiled.

I love Wikileaks all to pieces, but even if the law was 100% clear there's no fucking way they're going to get those payment gateways open again.

Is it just? Hell no. But the world doesn't run on justice. It runs largely on informed self-interest, which in many ways intersects just fine with justice, and in other ways boils down to fuck you, you fucking fuck.
posted by seanmpuckett at 7:38 PM on October 24, 2011


Fuck you, you fucking fuck. By Astro Zombie and his band The Ultramods.
posted by hippybear at 7:46 PM on October 24, 2011 [3 favorites]


Are the banks and payment processors collaborating to deny Wikileaks payment processing services because they don't want Wikileaks to be able to bring its product (leaked information) to the market because that information might be competitively damaging to them?

If the answer to those questions is or even might be yes, then I still maintain this is exactly the kind of situation anti-trust laws exist to prevent.

They might be colluding to restrict Wikimedia's right to engage in trade in order to maintain control over their market share. If so, that would be anti-competitive collusion.


I've only done a little antitrust work--but it was real world, for a state government and all about the Clayton Act. You're doing what's known as shoehorning--trying to fit a claim into a cause of action that doesn't fit.

For it to be an antitrust violation, Visa and PayPal's actions must be aimed at reducing the market share of another competitor or preventing another competitor to them from entering into the market. Merely acting to protect your own business doesn't count. You must be attacking a cometitor. You can't be just protecting your own business or even your own market share from a third party who is not a competitor. They were cutting off Wikileaks to protect themselves from Anon, from the government seizing their assets, whatever.

For example PayPal and Visa teaming up to wipe out Discover by cutting off anyone who takes the Discover card? Clayton Act violation. For which the merchant would have recourse. PayPal and Visa teaming up to cut off somone who, say was literally committing fraud and stealing from them? Perfectly allowed.

The same goes for violating the terms of service. They can cut you off. If they are informed that the authorities believe you were using credit cards to finance an attempt to encourage a US soldier to turn over classified info, whether you're a convicted Austrailan hacker or an agent of the Israeli Mossad. They will cut you off in a heartbeat.

This guy is reaping what he sowed.
posted by Ironmouth at 8:20 PM on October 24, 2011


This guy is reaping what he sowed.

Do you really find it so impossible to discuss this without your personal dislike of Assange coming through literally every comment you make?
posted by odinsdream at 8:29 PM on October 24, 2011 [6 favorites]


This guy is reaping what he sowed.

Do you really find it so impossible to discuss this without your personal dislike of Assange coming through literally every comment you make?


I'm making a point. By drawing so much attention to himself he made it about him. He was able to inspire loyalty amongst those who had not met him--but too much loyalty. They did dumb things. Like attack the companies that fed him funds. He might have been able to get the block lifted if he had appealed it through Visa's system or sued Visa. But Anon's attacks ensured it would never happen.

I do dislike the man. But I have not 'literally' attacked him in 'every' comment. I've said 3 things in like 15-20 comments. What I have said is that I don't see where he can say it was unlawful. As a lawyer I totally do not think its an antitrust violation. Its nowhere near one.
posted by Ironmouth at 8:43 PM on October 24, 2011


I like Assange because he got nice hair like Anderson Cooper and I like his accent
posted by This, of course, alludes to you at 9:08 PM on October 24, 2011


could someone send me a link to the evidence that Visa kept the money? it just dawned on me that it might not be true or that it may be a misstatement of a different situation. i sorta took it on faith without checking.
posted by Ironmouth at 9:22 PM on October 24, 2011


I think Assange is probably an asshole, but the banks shouldn't be permitted to collude to force a company like Wikileaks out of business just because it might leak documents to the public that reflect poorly on the banks or the banking system, and given the timing of this news (coming on the heels of those previous announcements that Wikileaks planned to leak damaging info about Bank of America and others) it's hard to view it in any other light than as a deliberate attempt to suppress information from the public.

I guess that's why I'm taking my money out of the banking system next month on or before November 5th for Bank Transfer Day. But all the same, I think our legal system ought to be more empowered to actively protect our rights from the collusion of private business interests.

Forcing people to sue to defend their rights in civil court over every infringement of a natural right is only a good solution for attorneys and those who can afford them.
posted by saulgoodman at 9:29 PM on October 24, 2011


Forcing people to sue to defend their rights in civil court over every infringement of a natural right is only a good solution for attorneys and those who can afford them.

We should have more low cost lawyers--we have a glut now.

But you're over stating the case. Its not "the banks,"its Visa, MasterCard and PayPal. They aren't banks.

Anything on the alleged "keeping of money" by Visa?
posted by Ironmouth at 9:41 PM on October 24, 2011


saulgoodman: I think it would be more up-to-the-minute journalistic to refer to Assange as "mercurial." I wonder if that word was used in any of the leaked documents to describe any world leaders? (Maybe it only applies to Steve Jobs?)
posted by raysmj at 10:04 PM on October 24, 2011 [1 favorite]


I'm still amused by localroger's analogy with The Handmaid's Tale. I'm curious how far they'll push this "No banking for you!" trick. Anyone think they'd pursue an Occupy Wall Street like movement this way? Ain't nothing stopping em'.

Afaik, there isn't any immediate plan to leak the BoA stuff. Assange has said (a) it isn't as interesting as he'd hoped, which might be a lie, and (b) he's being blackmailed, which might mean they threatened to prosecute his source.

As an aside, I've often wondered if we should have a "lawyer tax" where all lawyers must charge 20% more, which gets held by the courts and paid to the opposition's lawyers, somehow accounting for retainers. It'd certainly make pro bono work more viable, given 20% of nothing is nothing. You'd need to forgo it for contingency work I suppose.

posted by jeffburdges at 10:05 PM on October 24, 2011


Look, guys, I'm sorry, but the blunt fact is that the banks/processors involved are legally acting like great big assholes. It's not an anti-trust violation (unless Wikileaks is going to start processing payments itself or acting as a bank), it's not an illegal collusion. It's one of the myriad ways that bankers have too much power under our legal system, but it is also right to say that it's very hard to imagine making a law against this that wouldn't also have worse collateral effects.

Ironmouth's answering a pretty specific question and the fact that people (here) don't like this decision by the banks (for good reason), and then are upset that they're getting a (right) answer they don't like.
posted by klangklangston at 10:12 PM on October 24, 2011 [5 favorites]


I've often wondered if we should have a "lawyer tax" where all lawyers must charge 20% more, which gets held by the courts and paid to the opposition's lawyers, somehow accounting for retainers. It'd certainly make pro bono work more viable, given 20% of nothing is nothing. You'd need to forgo it for contingency work I suppose.

There should be a lawyer tax (or however you want to implement the details), but the money should go to funding legal aid clinics and other Lawyering-geared-to-income causes.
posted by Chuckles at 10:14 PM on October 24, 2011


Please refer to the laws before assuming you know what they are about. The first sentence of the first section of the Clayton Act (codified at 15 U.S.C. 12(a) says...

I'm a little amused that you've been so snide and self-assured throughout this whole thread when you forgot about jurisdiction. The lawsuit is not being filed in the US. It's being filed in the EU under Articles 101 and 102, which seem to have much broader definitions of anti-competitive behavior. The duopoly of Visa and MasterCard represents 97% of credit card transactions in the EU, and if they had blacklisted any other organization under the pretense of reviewing contracts, I'm sure you'd agree that it's a clear case of abuse of their dominant market position.

Blatant political motivation? You mean a private party may not act on a political basis? There goes your boycott of Koch Industries.

No, a dominant market player may not act on a political basis when it comes to transactions. They are not allowed to place any trading partner above or below any others for any equivalent transaction for any reason, or to refuse to do business with someone if they are willing to pay the normal price.

Monopolies and dominant market players don't have the same rights as regular corporations. That's why we have laws written especially for them.
posted by deanklear at 11:03 PM on October 24, 2011 [4 favorites]


I like the term "alegally" as it captures the conscious and strategic intent of corporations engaging in disciplinary actions which are undeniably self-preserving and done after consultation with legal experts (and often authorities as well) to ensure that what they're doing is technically not illegal. Actions such as this "bank blockade" are very specifically calculated to be just legal enough for them to get away with, and probably done in active collusion with the White House, much like the MPAA ISP punishment deal discussed earlier this week. Because let's not kid ourselves, the one (hahaha, ok, grant me this) thing the White House and Bank of America can agree on is that Wikileaks must be stopped.
posted by mek at 11:59 PM on October 24, 2011 [2 favorites]


Very very late to this discussion.
It is going to take an age for wikileaks to get money processed through any formal banking system; so the establishment wins out as wikileaks dies from lack of funds. I would like to see some sort of hawala system (previously and wiki) be more conspicuous in the market. Of course that system is mainly run by terrorists ™ so it might be slow to take off.
posted by adamvasco at 12:37 AM on October 25, 2011 [1 favorite]


While I agree that financial institutions overuse their exccessive power, it's sad that 95% of WikiLeaks supporters don't know how to use bank transfers (or transfer the account to another bank).
posted by hat_eater at 3:18 AM on October 25, 2011


While I agree that financial institutions overuse their exccessive power, it's sad that 95% of WikiLeaks supporters don't know how to use bank transfers (or transfer the account to another bank).

Personally? I'm extremely wary of doing such a thing, even though I'm quite familiar with bank transfers, specifically because of the subject of this FPP.

If financial institutions are blacklisting Wikileaks and locking it out of its funds without legal repercussions, I'd be very concerned that initiating a transfer from my bank would result in punitive action against me, including locking out access to my funds. I'd also not be at all surprised if the multiple banks I do use colluded at that point and locked me from all of my funds.

Given the discussion above, I'm not even sure such actions would be considered illegal. And yet, as is being shown with Wikileaks, it would ruin me economically.
posted by odinsdream at 5:20 AM on October 25, 2011 [2 favorites]


No, a dominant market player may not act on a political basis when it comes to transactions. They are not allowed to place any trading partner above or below any others for any equivalent transaction for any reason, or to refuse to do business with someone if they are willing to pay the normal price.

Even an enterprise engaged in illegal actions? Must ETA/IRA etc get their donations? How about the Italian Mafia? Its certainly an arguable point (we don't have the facts) that Assange could have committed conspiracy to violate the Espionage Act in his conversations with Assange. Are you arguing that EU law requires that Visa and other payment processors to do business with persons suspected of crimes? That seems all wrong to me.

And ket's get real. Is the EU stepping up against big bad Visa to protect Wikileaks? No. Will they? No. They aren't attacking Visa's payment monopoly.

Let's turn directly to Article 101. Disclaimer, I'm not an attorney in EU courts. If there is one in the house, we'd love to hear from her or him.

Section 101(1) defines anticompetitive behavior prohibited to actors:
"All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the common market."
Competition. Exactly like the US antitrust laws (upon which it was based), the article is against anti-competitive actions. Here, the action by Visa is not to prevent another payments processor from entering the market nor is it about Visa and PayPal trying to increase their market share at the expense of a third competitor. Its about them stopping payments to an organization that they think is acting illegally. Again, this is shoehorning to fit a claim.

In the end it all boils down to special pleading. Wikileaks is great, so therefore others should be forced to use their payment processing to help them.

Its not like you can't send money to them. Bank transfers, straight cash, etc. You could send it all to them. If I were advising Manning, I'd set up a PO Box and have checks go there with a US person cashing the checks and putting them into a wikileaks US account.

Also, if we could get hard facts on "Visa is holding Wikileaks' money" that would be great.
posted by Ironmouth at 5:27 AM on October 25, 2011 [1 favorite]


If financial institutions are blacklisting Wikileaks and locking it out of its funds without legal repercussions, I'd be very concerned that initiating a transfer from my bank would result in punitive action against me, including locking out access to my funds. I'd also not be at all surprised if the multiple banks I do use colluded at that point and locked me from all of my funds.

Its only payment processing that would be illegal. These aren't banks. Its Visa. Its a competely different angle on the banking side. Its a much more regulated sector. More importantly, the regulations are a lot thicker.

It could be that what is being done by Visa and the rest violates some sort of regulation or law, although I doubt it. I'm just saying its likely not a violation of anyone's antitrust laws, anywhere because it isn't anti-competitive behavior.
posted by Ironmouth at 5:32 AM on October 25, 2011


Sorry--payment processors are likely legally stopping payments. Banking itself has not been forbidden to it.
posted by Ironmouth at 5:34 AM on October 25, 2011


Are we sure that if you untangle all the various business interests and financial relationships involved here we wouldn't find that all these companies (or their parent entities or stakeholders) also have a significant financial stake in other, competing media companies?

A good attorney might be able to make the case, though I'm guessing the standards of evidence are set pretty high. And it probably doesn't matter anyway since the FTC's such a laughingstock these days.

Because let's not kid ourselves, the one (hahaha, ok, grant me this) thing the White House and Bank of America can agree on is that Wikileaks must be stopped.

I'm not so sure. I think the Federal Reserve would probably agree with that, especially now, but if the White House strongly and uniformly agreed with that view at the very highest levels, it would take much more forceful steps. The political fallout would be minimal, given that most polls seem to show that most Americans want to see Assange behind bars. Also, a lot of the previously leaked stuff has had unexpected beneficial effects for the admin, so I'm not convinced their hearts are really fully into shutting Wikileaks down. I'm sure there's a contingent within the White House who see it as you characterize it, but I don't think the sentiments in that direction are as universal or as strong as you suggest. Bush, in contrast, probably wouldn't have wasted anytime declaring Assange an enemy combatant and Wikileaks a terrorist organization. Hell, he practically did as much to this school teacher just for daring to oppose his reelection bid in public.
posted by saulgoodman at 6:17 AM on October 25, 2011


In the end it all boils down to special pleading. Wikileaks is great, so therefore others should be forced to use their payment processing to help them.

Um, no, I don't know about anybody else but it is most definitely not a case of "Wikileaks is great" in my case. It's a case of a small group of businesses having the rather terrifying totally unregulated power to completely shut down another business with no due process or recourse.

It was an outrage when they did it to Insex, and they certainly weren't "great." It was an outrage when they did it to offshore poker sites which were operating legally in their own jurisdictions. It's an outrage that they are doing it to Wikileaks not because Wikileaks is great but because they shouldn't have that power, ever, against anybody. It will be an outrage if the other major providers join Mastercard in shutting down payments to offshore pharmacies. And it's all outrageous because by the time they get around to shutting down the ACLU or Planned Parenthood or World of Warcraft, it will all be business as usual and nobody will be in a position to complain.
posted by localroger at 6:17 AM on October 25, 2011 [4 favorites]


It's a case of a small group of businesses having the rather terrifying totally unregulated power to completely shut down another business with no due process or recourse.

They gave that power over to Visa when they signed the service agreement. They don't have to use Visa.

I agree that its a monopoly that should be broken up, but not because wikileaks should be protected. They have never gone after ACLU or Planned Parenthood. They engage in legal activities. Document dumping thousands of classified documents without regard for the law isn't a First Amendment activity. Under that definition, any espionage is protected speech. All the spies engaged in speech when they turned over documents to the USSR or the Mossad. Was that free speech? No. What Assange did in turning over documents to the Guardian was free speech. But dumping the documents? I'd throw the book at them. You're encouraging this as a method of espionage.

What's insex? I'm sure its as noble as planned parenthood or the aclu.
posted by Ironmouth at 6:28 AM on October 25, 2011 [2 favorites]


If we're going to allow trade to be shutdown in some way like this, even if there are good reasons, state authority should be used to do it, because at least then, the public could impose political costs for abuses of that authority. In this sort of ad hoc, private-sector-interests-acting-as-trade-regulators system we're essentially looking at here, there's no public accountability. What could we do if this were not Wikileaks, but some more obvious traditional press organization like Truth Out who started publishing all sorts of leaked docs? They could sue, but only if they could afford to. More likely, they'd just go under. The state doesn't have that kind of power. Why should a handful of private companies?
posted by saulgoodman at 6:30 AM on October 25, 2011 [2 favorites]


They engage in legal activities. Document dumping thousands of classified documents without regard for the law isn't a First Amendment activity.

I see you carefully worded this so that you're not actually claiming Wikileaks did anything illegal.

I'd be interested in whether you think there would be a legal issue with Visa blacklisting conventional newspapers that publish classified material - as they frequently do.
posted by odinsdream at 6:38 AM on October 25, 2011


I'd be interested in whether you think there would be a legal issue with Visa blacklisting conventional newspapers that publish classified material - as they frequently do.


clearly not illegal.

things can be legal and immoral.

Why should a handful of private companies?

Because consumers didn't see the damage in allowing the oligopoly to persist. Maybe that'll change. But unless the law changes the government can't intervene because nothing they are doing is illegal.

You should start a payment transfer business that promises to only cut customers off by court order. The bonus is that surely if you are even half way successful you'll catch the incumbents doing something that does meet the definition of anti-competitive behavior.
posted by JPD at 6:54 AM on October 25, 2011


I agree that its a monopoly that should be broken up, but not because wikileaks should be protected.

So anyone besides WikiLeaks would be justified with the lawsuit? Your bias is incredible.
posted by deanklear at 7:24 AM on October 25, 2011 [1 favorite]


I'd be interested in whether you think there would be a legal issue with Visa blacklisting conventional newspapers that publish classified material - as they frequently do.

Newspapers print stories based on documents. Wikileaks prints the whole document. Hence a document "dump."
I agree that its a monopoly that should be broken up, but not because wikileaks should be protected.

So anyone besides WikiLeaks would be justified with the lawsuit? Your bias is incredible.


No. That is not what I said. It depends on the motivation of the companies.

Let's try this again. Imagine Visa never cut off Wikileaks and Wikileaks also took American Express. Then, PayPal and Visa come up with a scheme to go after American Express. They cut off anyone who uses both Amex and Visa or PayPal in an effort to force merchants to drop Amex. Wikileaks is one of the merchants who gets cut off. Then they would have a suit. Got it? The purpose must be to wipe out a competitor.

Having said that, Visa is too big. It does control too much as a matter of economics. That's why it should be broken up, not because some pet thing which is under investigation for conspiracy to violate the Espionage Act got cut out by the processors.
posted by Ironmouth at 7:40 AM on October 25, 2011


Wikileaks and bitcoin are the two sides of last cent of freedom we have. Now you understand why bitcoin is not a joke, why it is important, why it is fundamental, goddam, why we are now desperately in need of it.

As for not liking Assange: Ungrateful children who mistake a cage for a cockpit
posted by CautionToTheWind at 7:45 AM on October 25, 2011


Newspapers print stories based on documents. Wikileaks prints the whole document. Hence a document "dump."

Newspapers also frequently include large portions of those documents in their reports. The Pentagon Papers being a classic example.

Splitting these hairs though indicates to me your concern isn't really about the procedures, but about Wikileaks as an organization.
posted by odinsdream at 8:45 AM on October 25, 2011 [1 favorite]


They gave that power over to Visa when they signed the service agreement. They don't have to use Visa.

Of course they do. If you want to do business online you pretty much have to use Visa, Mastercard, and PayPal or you won't get any business -- see my comment above quoting Matt Williams. They pretty much are the currency for online transactions. That gives them a statelike degree of power over the online business community (note that I am using that word "online" deliberately, as this is the reason you can't use cash, checks, or gold dust), but without the accountability we expect a state to show its citizens.

Your logic is the same logic used to justify Jim Crow. The laws that struck down Jim Crow do not address this situation because of the way they were framed but new laws are needed that do.

Public utilities can't refuse to do business with you just because they don't like you; their ability to freeze you out is the reason they are regulated differently than the donut shop around the corner. You are arguing that Visa is more like a donut shop than a utility.
posted by localroger at 8:50 AM on October 25, 2011 [1 favorite]


Sounds like someone never read the "three paragraphs only!" fine print on the 1st amendment!
posted by furiousxgeorge at 8:59 AM on October 25, 2011 [1 favorite]


Their risk management guys very reasonably could have all arrived at a similar conclusion.

"Now who's being naive, Kaye?"
posted by Trochanter at 9:05 AM on October 25, 2011


Of course they do. If you want to do business online you pretty much have to use Visa, Mastercard, and PayPal or you won't get any business -- see my comment above quoting Matt Williams. They pretty much are the currency for online transactions. That gives them a statelike degree of power over the online business community (note that I am using that word "online" deliberately, as this is the reason you can't use cash, checks, or gold dust), but without the accountability we expect a state to show its citizens.

This is why Visa should be broken up by antitrust regulators.

But it doesn't give Wikipedia a case. Imagine it was all broken up, and all the payment processors decided to do the same thing. Its still not an antitrust case.
posted by Ironmouth at 9:44 AM on October 25, 2011 [1 favorite]


Public utilities can't refuse to do business with you just because they don't like you; their ability to freeze you out is the reason they are regulated differently than the donut shop around the corner. You are arguing that Visa is more like a donut shop than a utility.

I'm not arguing it. I'm saying it. Public Utilities are so defined by law. There is no law saying Visa is a public utility. Therefore, it is not. Therefore there is no cause of action.

I'm thinking breaking Visa up is the best thing to do. But I also think they and the rest of them are completely justified in saying "no way" to Wikileaks, especially after Wikileaks "supporters" decided it was a good move to launch a computer attack against Visa. After that happened, why in God's name would anyone ever want to cooperate with Wikileaks. Its open invite on anyone who wants to hire a hacker to blackmail the companies into continuing to do business with them.
posted by Ironmouth at 9:46 AM on October 25, 2011


Newspapers print stories based on documents. Wikileaks prints the whole document. Hence a document "dump."

Newspapers also frequently include large portions of those documents in their reports. The Pentagon Papers being a classic example.

Splitting these hairs though indicates to me your concern isn't really about the procedures, but about Wikileaks as an organization.


Let us be clear here. It is unclear whether or not the New York Times had the right to publish the Pentagon Papers. It is also unclear if it was a violation of the Espionage Act.

Let's break down the details. The Pentagon Papers case was an attempt by the government to restrain the publication of the documents via injunction before they were published. This is called the doctrine of "Prior Restraint." Our law says it requires an incredible amount of justification to stop the publication of a document before it goes out. The government lost that case. It chose not to bring a later case to go after the New York Times or Ellsberg criminally. The question is most definitely not decided.

This is the text of the entire decision that had legal force: "The United States, which brought these actions to enjoin publication in the New York Times and in the Washington Post of certain classified material, has not met the "heavy burden of showing justification for the enforcement of such a [prior] restraint."

That's it. The concurring and dissenting opinions give the reasoning. But it was and remains a prior restraint case, nothing more, nothing less.
posted by Ironmouth at 9:53 AM on October 25, 2011


But I also think they and the rest of them are completely justified in saying "no way" to Wikileaks, especially after Wikileaks "supporters" decided it was a good move

If they are justified for this reason then they are justified in doing it to Planned Parenthood because some nut job might bomb them. Anonymous is not Wikileaks, and indemnity clause or no that does make a difference. There is a phrase for punishing one person because another did something you don't like. It's called hostage taking, and it's generally regarded as wrong too.
posted by localroger at 10:15 AM on October 25, 2011


I'm thinking breaking Visa up is the best thing to do. But I also think they and the rest of them are completely justified in saying "no way" to Wikileaks, especially after Wikileaks "supporters" decided it was a good move to launch a computer attack against Visa.

I'm going to go kick a dog now because I know Hitler liked them.

I am not actually going to kick a dog
posted by phearlez at 11:18 AM on October 25, 2011


"So anyone besides WikiLeaks would be justified with the lawsuit? Your bias is incredible."

Well, no, your bias is incredible.

Ironmouth's pretty clearly saying that Visa should be broken up because it's bad for consumers and the public to have so much market power concentrated in Visa, but that's a broad normative statement. It does not mean that anyone else — even the ACLU — would have cause if Visa stopped processing their payments. It's you that's projecting, not him.

"Your logic is the same logic used to justify Jim Crow. The laws that struck down Jim Crow do not address this situation because of the way they were framed but new laws are needed that do."

No, that's ad hominem nonsense. Private businesses are allowed to discriminate on the basis of political belief. Not only is political belief not a protected class, it's not even one that should be a protected class. Special pleading is right — if Visa had shut down processing for the Klan, no one would bat an eye. There's an argument for extending protected classes further — most notably to sexual orientation and presentation — but that's based on a fairly reasonable position that denial of service based on that class is deleterious and wrong. There is literally no coherent argument that taking POLITICAL BELIEF as a protected class would be legal or wise. It would simply trample on too many rights we appreciate — for instance, it would require newspapers to run ads for political beliefs they disagreed with — and provide too little benefit while being an administrative nightmare.

This is exactly the sort of idiocy that leads to people throwing away their rights because they don't like the fair application of the law.
posted by klangklangston at 11:29 AM on October 25, 2011


"If they are justified for this reason then they are justified in doing it to Planned Parenthood because some nut job might bomb them. Anonymous is not Wikileaks, and indemnity clause or no that does make a difference. There is a phrase for punishing one person because another did something you don't like. It's called hostage taking, and it's generally regarded as wrong too."

It's much more likely that someone in legal realized that Wikileaks is likely to be found to be breaking the law in revealing secrets, and that by processing their funding, the companies could be said to be aiding them. Even if that's unlikely, any of the companies simply has to decide that the risk doesn't outweigh the benefits, i.e. the little bit of vig that the companies take to process money. The expected value is negative, so the companies fold.
posted by klangklangston at 11:32 AM on October 25, 2011


It's much more likely that someone in legal realized that Wikileaks is likely to be found to be breaking the law in revealing secrets, and that by processing their funding, the companies could be said to be aiding them.

Except that is not what Ironmouth has been saying, and I think if that was likely Ironmouth would have been leaning on it, because he seems to know the law pretty well and he really fucking hates Wikileaks, and that would be a much better reason than retaliating against Wikileaks for something Anon did to them.
posted by localroger at 11:53 AM on October 25, 2011


There is literally no coherent argument that taking POLITICAL BELIEF as a protected class would be legal or wise. It would simply trample on too many rights we appreciate — for instance, it would require newspapers to run ads for political beliefs they disagreed with — and provide too little benefit while being an administrative nightmare.

This is a poor analogy. Newspapers do not have a stranglehold on communication the way V/MC do on payment processing. There was a time when they could be said to have a larger command of eyeballs than anyone else but still the infrastructure to distribute one is notably more duplicate-able than the credit processing system is and there was never just 4 newspapers handling 98% of the world.

A far better comparison would be the sort of restrictions we did have - and do still in certain forms - for providing access to the tv spectrum. Where we still meddle in how much political ads can be sold for (based on the lowest fee charged to others).

We meddled in the idea of governing internet coverage with a mechanism that said you couldn't selectively edit some access without taking responsibility for all of it, though the lone remaining bit of the communications decency act has now precluded that.

A better comparison for how I would like to see access preserved might be the way Title IX has some to be interpreted. You don't have to do payment processing but if you're gonna do it you have to provide it equitably for everyone.

I similarly don't fully buy the legality/hassle issue. V/MC manage to find it in their hearts to process payments that funnel porn money to providers, and that's a subject matter where local prosecutors with an axe to grind have shown willingness to take out the knives and go after folks who aren't even local.

All of which says, to me, all the more reason that there should be common carrier protections & mandates up till some actual finding of criminal behavior is proven.
posted by phearlez at 12:11 PM on October 25, 2011


I agree about breaking up visa being a good idea, but I'd also love seeing the various European transaction systems go independently global.
posted by jeffburdges at 2:35 PM on October 25, 2011


But I also think they and the rest of them are completely justified in saying "no way" to Wikileaks, especially after Wikileaks "supporters" decided it was a good move

If they are justified for this reason then they are justified in doing it to Planned Parenthood because some nut job might bomb them.


But some organized group of nut jobs attacked their computer system. It isn't a hypothetical. It really happened.

A better comparison for how I would like to see access preserved might be the way Title IX has some to be interpreted. You don't have to do payment processing but if you're gonna do it you have to provide it equitably for everyone.

Title IX does not control political or other issues. It only involves the protected class of gender.

This seriously is special pleading. You like Wikileaks. You don't like that it is in the position of having no money. So you want to limit the right of persons who created the entire system of payments processing to deny that right to others. So, do you want to be forced to have to sell crap to right wing nut jobs?

Its not a common carrier. Plenty of stores and bars and other places refuse to take credit cards. It isn't cheap. Why don't you all send money orders? I mean if it is so important, why not take the extra effort. In the Montgomery Bus Boycott, people sacrificed a ride to work on public transit in order to win the day. You guys won't even get money orders out (except for furiousxgeorge, who seems to have no problem figuring out that you can donate to wikileaks.) The damned donate page lists five different ways to donate.

Why can't you just do it?
posted by Ironmouth at 2:49 PM on October 25, 2011 [1 favorite]


Yes, their actions were totally justified by that thing that happened after their actions.
posted by furiousxgeorge at 2:52 PM on October 25, 2011


Yes, their actions were totally justified by that thing that happened after their actions.

As I said earlier, any chance that Visa or PayPal would have removed the blocks after its investigation was completely ended by the Anon attacks. You're giving in to blackmail if you do that.
posted by Ironmouth at 2:56 PM on October 25, 2011


I agree about breaking up visa being a good idea, but I'd also love seeing the various European transaction systems go independently global.

From an economic standpoint, there needs to be more competition. Fees need to go down for merchants. That gets passed on to consumers, for certain.
posted by Ironmouth at 2:57 PM on October 25, 2011


Agreed, that makes total sense. Wikileaks had to be cut off from money because of their journalistic practices or else blackmail would happen.
posted by furiousxgeorge at 2:57 PM on October 25, 2011


also, still have not seen any evidence cited showing that Visa "kept" money that wikileaks was supposed to have. Even Wikileaks own pages don't assert that.
posted by Ironmouth at 2:58 PM on October 25, 2011


Blackmail: It may be defined as coercion involving threats of physical harm, threat of criminal prosecution, or threats for the purposes of taking the person's money or property.
posted by furiousxgeorge at 2:59 PM on October 25, 2011


But some organized group of nut jobs

THAT WASN'T WIKILEAKS

attacked their computer system. It isn't a hypothetical. It really happened.

AND SO WHAT? The nut jobs didn't do it at Wikileaks instigation, nor did Wikileaks condone it, yet somehow they're responsible? The very idea is obscene, and any law or contract clause that supports the credit industry's response is a very broken law or contract clause if such a thing even exists.

Why can't you just do it?

THIS ISN'T ABOUT WIKILEAKS. This is about being sure we can conduct business with whoever we want without a four entity oligarchy having the power to shut us out. The thing is, they haven't given a reason, neither your stupid but legal one nor the smarter but probably illegal one offered by klangklangston. The fact is, as far as we know they have shut down a random business entity for no reason at all without any due process or means of recourse, and however little you like that entity the way they did it implies that they can do it to anybody.
posted by localroger at 3:15 PM on October 25, 2011 [2 favorites]


Meanwhile, of course, HBGary, a client of BoA, was planning cyberattacks against Wikileaks and...nothing happened! HBGary, still taking Visa today!

That's the funny thing about the law Ironmouth carries around like a security blanket, for some reason it only seems to apply to some of us!
posted by furiousxgeorge at 3:20 PM on October 25, 2011 [2 favorites]


This is about being sure we can conduct business with whoever we want without a four entity oligarchy having the power to shut us out.

So, let me get this straight. You demand the right to do business with anyone you want while denying that right to Visa?
posted by Ironmouth at 6:18 PM on October 25, 2011


Given that even Ironmouth agrees that Visa/MC have an unfair oligarchy which probably should be broken up, and everyone else generally agrees that they are acting within the law, albeit in an immoral manner, maybe we can all just stop rehashing the same two points over and over.
posted by mek at 6:42 PM on October 25, 2011 [1 favorite]


Meanwhile, of course, HBGary, a client of BoA, was planning cyberattacks against Wikileaks and...nothing happened! HBGary, still taking Visa today!

That's the funny thing about the law Ironmouth carries around like a security blanket, for some reason it only seems to apply to some of us!


Uh, what? First, HB Gary was trying to land BoA as a client, not the other way around. Second, if HB Gary broke any law, they should be prosecuted, no? Isn't that the way the law should work?
posted by Ironmouth at 6:42 PM on October 25, 2011


Second, if HB Gary broke any law, they should be prosecuted, no? Isn't that the way the law should work?

I'm surprised it needs to be said: HB Gary will never be prosecuted for computer hacking, but plenty of kids certainly will as "members" of anonymous.

The law does not work. It's consistently and transparently applied only when politically convenient.
posted by odinsdream at 6:54 PM on October 25, 2011


Well everyone knows hacking is only hacking when you're the little guy hacking a corporation/government, it certainly doesn't work the other way around. Otherwise the MPAA/RIAA/Sony/etc would be like, totally breaking the law, man. But they're not, so move along citizen.
posted by mek at 7:04 PM on October 25, 2011


Uh, what? First, HB Gary was trying to land BoA as a client, not the other way around.

I deeply apologize for the misunderstanding, it would be breathtakingly stupid of me to imply one organization should be looked down upon for what some other group of cyberattackers were trying to do for them without their approval.

As I recall, Bank of America had contacted the law firm of Hunton and Williams to handle their response to Wikileaks, which turned to HBGary and friends for the plan.

As I recall, this plan was still being considered when it was leaked. So one can, if they are an establishment worshiping douchebag, just assume they were actually not going to go through with this but there is no way to know for sure. For some reason, there was no investigations of Hunton and Williams. Maybe that had something to do with the fact that the DoJ recommended them. I don't know. I do know it will never be investigated.

Because your law doesn't apply to Bank of America and Hunton and Williams like it does to their enemies.
posted by furiousxgeorge at 7:08 PM on October 25, 2011 [1 favorite]


I'm surprised it needs to be said: HB Gary will never be prosecuted for computer hacking, but plenty of kids certainly will as "members" of anonymou.

I don't know what HB Gary did. According to furiousxgeorge's link, they wrote a proposal to BoA which Anon says included hacking into Wikileaks servers. Anon obtained the proposal through hacking. HB Gary claims some of the E-mails were faked.

So, does this constitute conspiracy to hack? I'm not sure. Generally, conspiracy requires an overt act on the part of the conspirator, such as buying an implement. Mere planning is not enough.

I don't know if forwarding a proposal counts as an overt act. I also don't know if the documents are faked. I do know that HB Gary's got a crappy rep if Anon can hack them.

I also do not know the state of any investigation into HB Gary.
posted by Ironmouth at 7:11 PM on October 25, 2011


For some reason, there was no investigations of Hunton and Williams.

What are you, a mind reader? Ever been involved in a federal criminal investigation? They don't tell anyone. They don't tell the press. You literally have zero knowledge of whether or not there was a criminal investigation or if there is one ongoing.
posted by Ironmouth at 7:15 PM on October 25, 2011


Bwaahahaha, yeah, any day now. It's totally happening. Federal law enforcement is going to take down one of the most connected law firms in D.C. because they were involved in trying to take down a vilified organization like Wikileaks at the request of the DoJ.

Don't pretend you are too much of an idiot to to understand the political reality here.
posted by furiousxgeorge at 7:20 PM on October 25, 2011


*not to
posted by furiousxgeorge at 7:21 PM on October 25, 2011


This has now passed into outright comedy.
posted by phearlez at 8:34 PM on October 25, 2011


It boils down to this: Ironmouth believes that WikiLeaks doesn't deserve the equal protection of the law because he thinks they are guilty of a crime they have yet to be charged with, as well as crimes others have committed without any evidence of collusion from WikiLeaks. Let's all save ourselves the trouble of arguing with that kind of mindset.
posted by deanklear at 9:52 PM on October 25, 2011 [2 favorites]


"It boils down to this: Ironmouth believes that WikiLeaks doesn't deserve the equal protection of the law because he thinks they are guilty of a crime they have yet to be charged with, as well as crimes others have committed without any evidence of collusion from WikiLeaks. Let's all save ourselves the trouble of arguing with that kind of mindset."

No, it really doesn't.

Now, I don't know if the problem is that you're going in predisposed to ignore what Ironmouth is saying because you've decided you don't like him and disagree with him, or whether you just don't understand what he's saying, but it's pretty clearly none of the things you allege, and honestly, I hope you apologize.

A brief catalog of ways in which you are wrong:

1) "Deserve." Ironmouth hasn't, as far as I can see, said anything about whether Wikileaks "deserves" this; that's a normative statement, and Ironmouth's (largely) been making descriptive statements. That's an important difference, and conflating them is like confusing someone saying that Perry is the governor of Texas with someone saying Perry should be the governor of Texas.

2) Equal protection of the law implies there is a law that requires credit card processors (or any business) to do business with anyone. That's not how the law works. This is not a moral statement about how the law should work, necessarily, though really, anyone who is willing to be honest should come up with about five problems with making that the law before they finish reading this sentence.

3) Ironmouth does believe, so far as I know, that Wikileaks likely illegally published secrets. Again, this is more a descriptive statement than a normative one — we won't know whether they illegally leaked anything until they're prosecuted, and reasonable people may differ on the likelyhood of both that prosecution and that prosecution being successful. But it's important to separate that from a moral statement about whether Wikileaks is a net good or ill. It's still entirely consistent to believe that Wikileaks broke the law and that they still did the right thing (the canonical example is that MLK jr. breaking the injunction against protesting in Birmingham).

But that's not the reason he doesn't think that Visa broke the law, unless you want to cop to thinking that some law requires Visa/MC to process Wikileaks — in absence of any actual citation of that law — because you like Wikileaks.

4) The bit about crimes committed by others is a total canard. What Ironmouth is saying is that after MC got hit by Anon, Visa and MC had an incentive not to relent; it's essentially the end of a negotiation. Whether that's fair or not is immaterial — Anon essentially vandalized MC, which pretty much anyone should concede will make MC and Visa less sympathetic to Wikileaks.

Look, you want to argue Ironmouth out of his position? The requirements for the argument are pretty simple: This is a legal question. Cite the law that requires businesses to do business with everyone and that denies them the ability to choose who they contract with. Everything else is insult and noise, and it's a bit galling that you think that's Ironmouth's fault.
posted by klangklangston at 10:49 PM on October 25, 2011


This is metafilter, not a legal question.

We should obviously be discussing this from a moral perspective.. or perhaps the legal perspective of one of the various jurisdictions where people have filed real legal complaints against Visa and Mastercard.. or all the pressure the State Dept. will apply to illegally obstruct those foreign investigations into Visa and Mastercard.

Instead, Ironmouth went on a tirade because he hates both Assange and WikiLeaks, and hate people promulgating wrong ideas about American law. In truth, we all know American law is irrelevant here because the DoJ ain't gonna prosecute Visa for doing highly immoral things the president asked them to do, i.e. Ironmouth and anyone egging him on is derailing the thread.
posted by jeffburdges at 11:14 PM on October 25, 2011 [1 favorite]


Metafilter is not a courtroom. Anyone can Google the legal arguments. Ironmouth of course skipped this step and spent half the thread talking about US law, but here we are.

He has his interpretation, other lawyers disagree. Untrained folk on Metafilter aren't going to be near as rigorous. The truth is, in my experience, we end up here because certain folks know they lose if they talk about this stuff in terms of right or wrong instead of in terms of a rigged legal system.
posted by furiousxgeorge at 11:17 PM on October 25, 2011


Was gonna jump in on the due process thing, but Klang nailed it.

Listen, we all have already disagreed on wikileaks. And I think we've done a great job not rehashing that battle. This thread has been about the refusal of Visa to service Wikileaks. For a while it included allegations that Visa was holding on to funds owed Wikileaks. Then I started to look around for confirmation of that fact and it turns out nowhere on their pages regarding this does Wikileaks itself assert this.

So we've stayed on topic--(1) is it illegal for Visa, PayPal and MasterCard to stop servicing WikiLeaks. From my analysis of American law, no. It also appears that under the EU charter it is also not illegal, but I'm less well-versed in that. However, I haven't seen an actual analysis of EU law as writted that counters my analysis. (2) Is what the credit card companies have done a moral wrong? I believe not, but I find the point far more arguable than the legal question of whether it is allowed.

There have been red herrings. I happen to think that Visa should be broken up for economic reasons--they cost too much because there is no competition. There was also discussion of a red herring in HB Gary a consulting firm that Anon hacked after hacking Visa and other processors. Anon claims their hack "proved" that HB Gary was going to hack Wikileaks (kind of like robbing a document safe to prove they were going to rob your document safe, I guess). But this is immaterial to the question of (1) is it legal for processors to not process WikiLeaks and (2) is it moral to do so.

I think we've found pretty much where we all agree and disagree here. I do think it was a great, on-topic discussion.
posted by Ironmouth at 7:12 AM on October 26, 2011


Cite the law that requires businesses to do business with everyone and that denies them the ability to choose who they contract with.

Well... It's not about just one business here, though... It's about all the businesses in a particular industry or service sector colluding. If they were doing that deliberately to give themselves an unfair competitive advantage against new competitors, then this just follows naturally from existing anti-trust. You don't always have to have a specific, word-for-word rule to justify a legal positions: many applications of law follow by implication from general legal principles.

My own position is that, far too often these days, in the interest of making the application of law more predictable for business interests, we ignore legal principle and focus only on the letter of the law because apparently no one has enough common sense anymore to figure out that any activity that involves making false representations for financial gain is still a form of illegal fraud even if the mechanisms by which the fraud is carried out are really complicated.

Ironmouth may have the analysis right as far as the specific legal requirements of anti-trust in this case, but those laws were intended to prevent all the traders of a particular kind getting together and then engaging in behaviors a properly competitive market wouldn't support for unfair competitive advantage.

It's one thing for one restaurant to say, I won't serve you (although that shouldn't be an unqualified right either, in my view), and another for all the restaurants in the state to get together in secret and agree as a bloc not to serve you because they don't like something you said. The idea is that a normally functioning competitive market wouldn't operate that way because, individually, any restaurant who refused to serve you would be economically punished by losing potential revenue to its less discriminatory competitors (who, seeing an opportunity to capture more revenue, wouldn't refuse to serve you).

In truth, we all know American law is irrelevant here because the DoJ ain't gonna prosecute Visa for doing highly immoral things the president asked them to do, i.e. Ironmouth and anyone egging him on is derailing the thread.


I'd be surprised if the president personally asked for this. This seems more like a Clinton maneuver, probably with some additional pressure from the Federal reserve. It's a classic laissez-faire-light Clinton-era private/public partnership approach to policy/diplomacy.
posted by saulgoodman at 7:13 AM on October 26, 2011


but those laws were intended to prevent all the traders of a particular kind getting together and then engaging in behaviors a properly competitive market wouldn't support for unfair competitive advantage.

No. They were not. I don't want to sound harsh, but that is simply made up out of whole cloth. I cited the legislative statement of purpose to the Clayton Act upthread. If you have some sort of cite that supports that expansive reading of that law, I'd like to see it. There is no law forcing people to do business with others they don't want to other than Title VII. All of the other laws requiring universal service are the result of licensing requirements or grant/federal funds requirements.

You grossly overstate the power of the United States to make its inhabitants do things.
posted by Ironmouth at 7:30 AM on October 26, 2011


No. They were not. I don't want to sound harsh, but that is simply made up out of whole cloth.

Maybe you aren't reading what I actually wrote closely, or as intended: But all I'm saying is a more general form of precisely what you argued the rules were designed for earlier: to prevent collusion within an industry for the purpose of protecting an existing competitive advantage in an anti-competitive way. One of the chief purposes of antitrust is to keep business within an industry from colluding to give themselves an unfair competitive advantage (a monopoly) in that market.

I'm not arguing for the more expansive view in this particular case--just stating the basic case you've already allowed above for context. If you don't even agree with that, then I'm not sure what you think anti-trust laws are for other than to give attorneys something to do and businesses a new reason to sue each other.
posted by saulgoodman at 7:41 AM on October 26, 2011


I see--I think it's the specific example of restaurants colluding to deny someone service I offered you're probably taking issue with. You're right: That example takes a more expansive interpretation of anti-trust than the very narrow one you're taking.

But I personally think that's still another example of the symptoms of the more general, harmful anti-competitive effects anti-trust laws should be and have at various times been used to address. The problem is the monopoly--the law itself is just meant to prevent them. But the reasons we need to prevent monopolies in the first place include examples like the one I offered above.
posted by saulgoodman at 7:48 AM on October 26, 2011


It seems to me that, in the view you're taking, laws don't have implicit purposes. They just are what they are and any attempt to understand what motivates them and to apply them in new ways consistent with that purpose is just "making it up out of whole cloth."

Strictly speaking, your right: the law itself relates only to the creation and abuse of monopolies (cartels that collude to lock out competitors in the same market). But here we are, and in reality, there are lots of de facto monopolies. We're not applying the laws as intended in the first place, in one sense.

But why did we ever want to limit monopolies in law at all? It was because we believed that fair competition and access to markets were goods in themselves. What I'm basically arguing here is that it's entirely consistent with the spirit of anti-trust laws to regulate in other ways meant to prevent the outcomes that result from anti-competitive monopolies.

Even you aren't arguing a monopoly doesn't exist here. You're just saying we can't use one of the negative outcomes of that monopoly's existence as a legal argument for prosecuting an anti-trust case. So what? You've already admitted the monopoly exists. Like it or not, the outcome in this Wikileaks situation is exactly the kind of outcome those laws were implicitly meant to prevent--you'd see that more clearly if the situation were different and this was an organization you supported on the short end of the stick.
posted by saulgoodman at 7:57 AM on October 26, 2011 [1 favorite]


Also, Ironmouth, of the Sherman Anti-Trust Act (the basis of anti-trust law) the supreme court in 1993 wrote:
The purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market. The law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself.[5] This focus of U.S. competition law, on protection of competition rather than competitors, is not necessarily the only possible focus or purpose of competition law. For example, it has also been said that competition law in the European Union (EU) tends to protect the competitors in the marketplace, even at the expense of market efficiencies and consumers.[6]
Did I make that up out of whole cloth, too?
posted by saulgoodman at 8:37 AM on October 26, 2011 [1 favorite]


Also, on the matter of the legislative intent of the act:
It was another and quite a different evil at which the Sherman Act was aimed. It was enacted in the era of "trusts" and of "combinations" of businesses and of capital organized and directed to control of the market by suppression of competition in the marketing of goods and services, the monopolistic tendency of which had become a matter of public concern. The goal was to prevent restraints of free competition in business and commercial transactions which tended to restrict production, raise prices, or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury.
posted by saulgoodman at 8:40 AM on October 26, 2011 [1 favorite]


I would argue that Wikileaks has a pretty damn good case for the claim that the payment processor monopoly is an example of a cartel "controlling the market to the detriment of purchasers of consumers of goods and services"--since Wikileaks is the affected consumer of goods and services who's being harmed.
posted by saulgoodman at 8:44 AM on October 26, 2011 [1 favorite]


or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury.


you need to know what the legal definition of "public injury" is in order for this to support your point.

I suspect, but am not sure, the definition is much narrower than you presume.
posted by JPD at 9:00 AM on October 26, 2011


Actually JPD the legal definition of an injury is quite broad, at least according to this:
A comprehensive term for any wrong or harm done by one individual to another individual's body, rights, reputation, or property. Any interference with an individual's legally protected interest.
I suspect having your business shut down by a blockade of some vital service would qualify.
posted by localroger at 9:17 AM on October 26, 2011 [1 favorite]


There is a deeper legal point here that oligopolies colluding to deny service represents a form of competition with the governmental monopoly on force, i.e. sovereignty.

We should expect that America permits it's own imperial agents, namely Visa and Mastercard, to impinge upon sovereignty because doing so transfers other nations' sovereignty to American hands.

We should also expect other nations to resist this lose of sovereignty however. Indeed, the European Union exists largely to prevent the America economic empire from impinging upon European sovereignty.


There may not be any reason for Europeans to stick up for Assange and WikiLeaks. Yet, I'd expect this episode hurts most future lobbying efforts by Visa and Mastercard inside the European Union.

In particular, I'd hope this draws attention to the fact that all major current credit card processors are based in the U.S., giving the U.S. undue influence upon European ecommerce.

Ideally, Europeans should create several independent credit card processing systems, complete with legislation requiring that any bank issuing a Visa or Mastercard based cards must offer one of the European alternatives too.


We conversely should permit protests and boycotts that non-violently impinge upon national sovereignty because those activities actually hold more legitimacy than any government legislation, well when successful.

In this light, we may forbid only those protests that represent force against against fairly powerless individuals, ala all the apartment building owners deciding nobody of a different race may move into town.

posted by jeffburdges at 9:26 AM on October 26, 2011


The purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market.

Since the Supreme Court's own statements on anti-trust directly contradict the position Ironmouth's been taking all along, we'll just have to wait for an attorney who isn't making stuff up out of whole cloth to chime in, before we can really hope for any definitive clarity on these issues. I'm content to leave the question unresolved myself, since as others have pointed out, there's no chance of any antitrust action in this case, regardless of whether the payment processors are acting illegally or not. That's just how our legal system works now--just as the capital holder side of most contracts now seems to hold more weight in contemporary American courts of law.
posted by saulgoodman at 9:27 AM on October 26, 2011


No -it's not a general definition of the term "injury" that matters - what matters is how the courts have determined what "injury" means wrt anti-trust legislation. AFAIK it has to be direct economic damage, not "lost monies because of refusal to service"

It almost has to be, given all of the precendent permitting discrimination.

it is to protect the public from the failure of the market.
not serving someone has not historically been considered a market failure. that's what we've been trying to tell you.
posted by JPD at 9:30 AM on October 26, 2011


not serving someone has not historically been considered a market failure. that's what we've been trying to tell you.

Maybe that's what you've been doing, but Ironmouth's pretty clearly been arguing all along that the sole purpose of the Sherman Anti-trust Act and subsequent case law is to prevent colluding entities from directly shutting competitors out of their particular market. That's not the case, regardless of how we define "failure of the market" or "public injury."
posted by saulgoodman at 9:39 AM on October 26, 2011


jeffburdges - Visa Europe is actually a seperate entity from Visa in the USA. They license the name. I'm not sure how closely entertwined their operations are (although it sounds like as of 2010 they aren't very), but they certainly have their own board and are economically 100% different. If the two parties in a transaction are both in Europe then Visa International has nothing to do with the exchange. Visa International only generates about 2% of their revenue from the fees Visa Europe pays them.

We have little ability to control Visa Europe's operations and limited recourse if it breaches its obligations to us.
Visa Europe has very broad rights to operate the Visa business in its region under the agreement that governs our relationship. If we
want to change a global rule or require Visa Europe to implement certain changes that would not have a positive return for Visa Europe
and its members, then Visa Europe is not required to implement that rule or change unless we agree to pay for the implementation
costs and expenses that Visa Europe and its members will incur as a consequence of the implementation.
If Visa Europe fails to meet its obligations, our remedies under this agreement are limited. We cannot terminate the agreement even
upon Visa Europe's material, uncured breach. Although we have a call right to acquire Visa Europe, we can exercise that right under
only extremely limited circumstances.

posted by JPD at 9:45 AM on October 26, 2011


. There was also discussion of a red herring in HB Gary a consulting firm that Anon hacked after hacking Visa and other processors. Anon claims their hack "proved" that HB Gary was going to hack Wikileaks (kind of like robbing a document safe to prove they were going to rob your document safe, I guess).

No, people who don't want to narrow the focus to wherever you want it to be are not using red herrings. The issue of the law is irrelevant to me. The issue is government and business acting together to crush a journalist who is criticizing them. The issue is that they pursue this mission with lawless tactics and then use the law to destroy their opponents.

Your law would never in a million years have discovered what HBGary was up to or investigated the attacks. We know this because Wikileaks has already faced cyber-attack with zero response from the law.

Wikileaks did not hack HBGary. Someone else did, so why do you keep harping on how the revelations came to light? Your bias makes it easy for you to blame Wikileaks but when it's Bank of America someone is planning to hack for you break out the excuses.
posted by furiousxgeorge at 9:46 AM on October 26, 2011


Did Visa Europe implement the financial blockade against WikiLeaks? If so, sounds like they aren't sufficiently independent for European interests. And they obviously collude with Visa International on transaction costs anyways.
posted by jeffburdges at 10:00 AM on October 26, 2011


Did Visa Europe implement the financial blockade against WikiLeaks? If so, sounds like they aren't sufficiently independent for European interests
come on man - I think you have a point about the morality of refusing to accept the payments, but why can't the europeans be assholes too? is that so hard to believe? don't you think quite a few conservative europeans are livid about wikileaks as well?

And they aren't colluding with Visa because they aren't competing with one another - they are (probably) colluding with MasterCard.
posted by JPD at 10:04 AM on October 26, 2011


I mean seriously - you make this big post about how Europe is abrogating sovereignty by allowing US owned processors to dominate the market, and when its pointed out to you that one of the processors isn't actually American you can't even bring yourself to back peddle.
posted by JPD at 10:06 AM on October 26, 2011


not serving someone has not historically been considered a market failure. that's what we've been trying to tell you.

JPD: Actually, on review, I think this claim is just flatly incorrect. Blacklisting is one of the most basic market failures anti-trust laws are meant to prevent, even according to industry trade groups like the National Grain and Feed Association, who in their list of anti-trust violations include:
NEVER DISCUSS:
....

(10) Blacklisting or boycotting certain customers or suppliers;
And (just for another random example), NACM Credit Services:
Do not boycott or blacklist certain customers
posted by saulgoodman at 10:08 AM on October 26, 2011 [1 favorite]


You are correct in that group boycotts could count as abuse of market power, but as long as the payment processors didn't sit down and collude to boycott someone, then it isn't abusive. If they seperately arrived at the decision that doing business with Assange was bad for them, then its legal. There are other areas of anti-trust law where collusion is not required for there to be a violation.
posted by JPD at 10:24 AM on October 26, 2011


Europeans have benefited greatly from WikiLeaks' publication of American diplomatic cables. There is still an enormous tendency for European politicians to behave like American lapdogs, but that's exactly why they need separate entities.

Also, your comment indicates that Visa can require Visa Europe to implement changes, so long as Visa pays the costs. Isn't that somewhat less than really independent?

As I said, we need multiple independent European credit card processing networks that function independently of Visa and Mastercard because America has started abusing it's effective monopoly upon credit card processing.

Asia actually has JCB, which is far larger than I realized, but they need more too, maybe one should start up in Singapore or Hong Kong.
posted by jeffburdges at 10:33 AM on October 26, 2011 [1 favorite]


also it is not always the case that collusive vertical agreements to refuse to deal are anti-competitive. They are only clearly illegal if they are intended to lock out a competitor.

jeff- read the rest of quote - if Visa Europe tells them no, they have no recourse.

(also I'm not sure "global rules" and "certain changes" would include things like which customers to take, but that doesn't really matter, as Visa Europe can ignore them anyway)
posted by JPD at 10:38 AM on October 26, 2011


We have little ability to control Visa Europe's operations and limited recourse if it breaches its obligations to us.


If Visa Europe fails to meet its obligations, our remedies under this agreement are limited. We cannot terminate the agreement even
upon Visa Europe's material, uncured breach.

posted by JPD at 10:40 AM on October 26, 2011


Fair enough, but Visa Europe could still be expected to behave lapdogish.

There are already independent bank card systems in all European countries, probably most countries in the world, but they usually depend upon either Visa Europe or Mastercard for cross border transactions. We must correct this situation by creating more.
posted by jeffburdges at 10:52 AM on October 26, 2011


Well card processing lends itself to oligolpolies because of its tremendous returns to scale. probably a better solution is more regulation rather than trying to force new competition.
posted by JPD at 10:55 AM on October 26, 2011


No -it's not a general definition of the term "injury" that matters - what matters is how the courts have determined what "injury" means wrt anti-trust legislation.

The link was to a legal dictionary, not a general dictionary. It's quite clear what the legal use of the word "injury" is (there are more detailed explanations I didn't quote) and it is broadly inclusive.
posted by localroger at 10:56 AM on October 26, 2011


Saul, nice work. I look forward to Ironmouth's response.
posted by deanklear at 11:02 AM on October 26, 2011


Since the Supreme Court's own statements on anti-trust directly contradict the position Ironmouth's been taking all along,

that's the thing. No quote. just a bald assertion. Why don't you look it up? why can't you find a single quote to support your position? Just saying its so doesn't make it so.
posted by Ironmouth at 11:45 AM on October 26, 2011


Another reason Europe should ditch Visa and MasterCard is their entrance into targeted advertising.
posted by jeffburdges at 11:53 AM on October 26, 2011


that's the thing. No quote. just a bald assertion. Why don't you look it up? why can't you find a single quote to support your position? Just saying its so doesn't make it so.

Careful what you wish for, Ironmouth...

Visa, MasterCard and PayPal are not trying to make it harder for other entrants or increase their market share at the expense of other processors.

Protecting one's current market position from a whistleblower is not a restraint of trade.

And finally:

The motive must be to increase your market share through restraint of trade.
posted by saulgoodman at 12:04 PM on October 26, 2011


that's the thing. No quote. just a bald assertion. Why don't you look it up? why can't you find a single quote to support your position? Just saying its so doesn't make it so.

Careful what you wish for, Ironmouth...

Visa, MasterCard and PayPal are not trying to make it harder for other entrants or increase their market share at the expense of other processors.

Protecting one's current market position from a whistleblower is not a restraint of trade.

And finally:

The motive must be to increase your market share through restraint of trade.


Everyone of those quotes supports my position and contradicts yours. Every one of them. Second, I am responding directly to your baldly asserted position that my definition of restraint of trade contradicts what the Supreme Court has to say about it.

So where's a single quote from a Supreme Court case that says that antitrust law is about more than attempting to use illegal business organizational techniques to prevent other comptetitors from engaging in your line of business?
posted by Ironmouth at 12:08 PM on October 26, 2011


How on earth do you read this very narrow standard you asserted upthread:

The motive must be to increase your market share through restraint of trade.

As consistent with this characterization of the legislative intent of the Sherman Anti-trust Act:

The goal was to prevent restraints of free competition in business and commercial transactions which tended to restrict production, raise prices, or otherwise control the market to the detriment of purchasers or consumers of goods and services, all of which had come to be regarded as a special form of public injury.

And how is that blacklisting customers has ever been considered to run afoul of anti-trust law if your narrow interpretation is correct?

Denying customers access to your services isn't a very sound method for "increasing market share."

So where's a single quote from a Supreme Court case that says that antitrust law is about more than attempting to use illegal business organizational techniques to prevent other comptetitors from engaging in your line of business?

Right here, again:
The purpose of the [Sherman] Act is not to protect businesses from the working of the market; it is to protect the public from the failure of the market.
posted by saulgoodman at 12:19 PM on October 26, 2011


A failure to serve one person does not constitute a failure of the market. Wikileaks isn't the "market." In fact, wikileaks is in a different line of business. So the failure to service Wikileaks doesn't affect the larger ability of others to obtain credit card processing services. At all.

Got it? You must be intending to mess up the market as a whole for a violation to occur. More in a moment.
posted by Ironmouth at 12:24 PM on October 26, 2011


Wikileaks is a customer. Therefore it is part of the consumer market for these goods and services. If a part of the consumer market is harmed by the practice, the market as a whole is harmed to that precise degree (there is no one harmed consumer in the market).

Besides: the knowledge that an individual can be blacklisted from services everyone else has access to for holding unpopular political views or engaging in unpopular political activities causes a clear public injury from my perspective.
posted by saulgoodman at 12:34 PM on October 26, 2011


there is now one more injured consumer in the consumer market as a result of this practice.

I'll admit this much though: you'd still have to find clear evidence of coordinated collusion--emails, memos, etc.--or there's no case.
posted by saulgoodman at 12:37 PM on October 26, 2011


Take the Sherman Act:

"The offense of monopoly under § 2 of the Sherman Act has two elements: (1) the possession of monopoly power in the relevant market and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident." United States v. Grinnell Corporation Grinnell Corporation v. United States American District Telegraph Co v. United States Holmes Electric Protective Co v. United States Automatic Fire Alarm Co v. United States 8212 77, 384 U.S. 563, 86 S.Ct. 1698, 16 L.Ed.2d 778 (1966)


The other possible violation under the Sherman Act is a Section 1 violation. Such a violation requires the following, according to Richter Concrete Corp. v. Hilltop Basic Resources, 547 F.Supp. 893, 903-904 (S.D. Ohio, 1981)

The gravamen of an attempt to monopolize is that a defendant must have

[547 F. Supp. 904]

both the power2 and the specific intent to monopolize.3 To prove an attempt to monopolize, plaintiff must show:
(1) That Hilltop had the specific intent to monopolize or to destroy competition within the relevant market;

(2) That Hilltop engaged in some predatory or anticompetitive conduct in furtherance of that intent;

(3) That Hilltop's conduct created a dangerous probability that monopolization could occur; and

(4) That Hilltop's conduct proximately caused plaintiff some antitrust injury. California Computer Products, Inc. v. International Business Machines Corp., 613 F.2d 727, 736 (9th Cir. 1979); see also Chillicothe Sand & Gravel v. Martin-Marietta Corp., 615 F.2d 427, 430 (7th Cir. 1980); Gough v. Rossmoor Corp., 585 F.2d 381, 390 (9th Cir.), cert. denied, 440 U.S. 936, 99 S.Ct. 1280, 59 L.Ed.2d 494.

Here, no such injury occurs, as Visa had no specific intent to monopolize or destroy competition via its cutting off of Wikipedia.

Finally, Let's turn to the Clayton Act, your final chance:

The Clayton Act's operative provision states the following: "It shall be unlawful for any person engaged in commerce, in the course of such commerce, to lease or make a sale or contract for sale of goods, wares, merchandise, machinery, supplies, or other commodities, whether patented or unpatented, for use, consumption, or resale within the United States or any Territory thereof or the District of Columbia or any insular possession or other place under the jurisdiction of the United States, or fix a price charged therefor, or discount from, or rebate upon, such price, on the condition, agreement, or understanding that the lessee or purchaser thereof shall not use or deal in the goods, wares, merchandise, machinery, supplies, or other commodities of a competitor or competitors of the lessor or seller, where the effect of such lease, sale, or contract for sale or such condition, agreement, or understanding may be to substantially lessen competition or tend to create a monopoly in any line of commerce." (emphasis added).

Do you see the key there? The effect of such sale, lease or contract for sale must be to substantially lessen competition in any line of commerce.

No such intent is here. None. Visa is not trying to take over any market or limit other market players. Visa is just enforcing its terms of service as it sees fit. Now, does this mean Wikileaks has no remedy? Of course not. Wikileaks' remedy is in contract. Their argument is that Visa is wrong in stating that Wikileaks violated the TOS. Of course, if Visa has any lawyers at all, the TOS says Visa can cut off service at any time.

This is basic law. You have no cites to support your position. Because antitrust has nothing to do with anything other than anti-competitive practices and monopoly. It is not a catch-statute designed to force businesses to do business with anyone and everyone.

Tell me which law (and I mean the actual law) and which section Visa has violated of the Antitrust laws. No more "gee this is what I think antitrust is about" show me the actual cause of action that Wikileaks has under the antitrust law.

You've consistently refused to acknowledge the doctrine of restraint of trade and the purpose of antitrust laws, which are to prevent anti-competitive behavior. Stopping processing services to a single entity is NOT covered by anti-trust.
posted by Ironmouth at 12:38 PM on October 26, 2011


I notice you don't seem to want to touch the specific quotes you asked me to provide you. So until you do, I'll assume you're having a side conversation with someone else.
posted by saulgoodman at 12:50 PM on October 26, 2011


saulgoodman

working on a tome.
posted by Ironmouth at 1:00 PM on October 26, 2011


Wikileaks is a customer. Therefore it is part of the consumer market for these goods and services. If a part of the consumer market is harmed by the practice, the market as a whole is harmed to that precise degree (there is no one harmed consumer in the market).

That's not the legal definition of market in antitrust. Such a definition would allow any business to sue if they were cut off, even for non-payment.

In fact, single entities are never a market:

"The administrative efficiency interests in antitrust regulation are unusually compelling. The per se rules avoid "the necessity for an incredibly complicated and prolonged economic investigation into the entire history of the industry involved, as well as related industries, in an effort to determine at large whether a particular restraint has been unreasonable." Northern Pacific R. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 518, 2 L.Ed.2d 545 (1958). If small parties "were allowed to prove lack of market power, all parties would have that right, thus introducing the enormous complexities of market definition" Federal Trade Commission v. Superior Court Trial Lawyers' Association v. Federal Trade Commission, 493 U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990)

Market definition is highly complex. Usually an antitrust case turns on these definitions.

See, for example: ""In considering what is the relevant market for determining the control of price and competition, no more definite rule can be declared than that commodities reasonably interchangeable by consumers for the same purposes make up that `part of the trade or commerce', monopolization of which may be illegal." United States v. E.I. du Pont de Nemours & Co., 351 U.S. 377, 395, 76 S.Ct. 994, 100 L.Ed. 1264 (1956). The "relevant market encompasses notions of geography as well as product use, quality, and description." Nat'l Hockey League, 325 F.3d at 719 (quoting Tanaka v. Univ. of S. Cal., 252 F.3d 1059, 1063 (9th Cir.2001) (internal quotation marks omitted)). Relying on du Pont, this court has found the "reasonable interchangeability" standard to be the essential test for ascertaining the relevant product market test. White & White, Inc., 723 F.2d at 500. Reasonable interchangeability "may be gauged by (1) the product uses, i.e., whether the substitute products or services can perform the same function, and/or (2) consumer response (cross-elasticity); that is, consumer sensitivity to price levels at which they elect substitutes for the defendant's product or service." Id. (citation omitted). Worldwide Basketball & Sport Tours v. Ncaa, 388 F.3d 955 (6th Cir., 2004)
posted by Ironmouth at 1:04 PM on October 26, 2011


Put another way, Wikileaks lacks antitrust standing, the ability to sue under the antitrust laws:

"We now turn to the legal underpinnings of antitrust standing. In a private antitrust action, a plaintiff must go beyond a showing that it meets the Article III standing requirements of injury, causation, and redressability; it must also demonstrate "antitrust standing." Section 4 of the Clayton Act, 15 U.S.C. § 15, provides:

[A]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue . . . and shall recover threefold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee.

Although a literal reading of § 4 is "broad enough to encompass every harm that can be attributed directly or indirectly to the consequences of an antitrust violation," the Supreme Court has interpreted the provision more restrictively. See Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters ("AGC"), 459 U.S. 519, 529-30, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). "Congress did not intend the antitrust laws to provide a remedy in damages for all injuries that might conceivably be traced to an antitrust violation." Hawaii v. Standard Oil Co., 405 U.S. 251, 262 n. 14, 92 S.Ct. 885, 31 L.Ed.2d 184 (1972). "An antitrust violation may be expected to cause ripples of harm to flow through the Nation's economy; but despite the broad wording of § 4 there is a point beyond which the wrongdoer should not be held liable." AGC, 459 U.S. at 534, 103 S.Ct. 897 (internal quotation omitted).

A plaintiff sufficiently connected to the violation propagating these "ripples of harm" is said to have "antitrust standing."16 Id. at 535 n. 31, 103 S.Ct. 897. The Supreme Court has held that a multi-factor analysis is required to determine

[505 F.3d 311]

whether a private plaintiff has antitrust standing. See id. at 536-38, 103 S.Ct. 897. These factors "circumscribe and guide" courts' judgments on whether plaintiffs have antitrust standing. Id. at 537, 103 S.Ct. 897. The Courts of Appeals have since relied on the AGC factors to determine antitrust standing. See Bodie-Rickett & Assocs. v. Mars, Inc., 957 F.2d 287, 291 (6th Cir.1992); Reazin v. Blue Cross & Blue Shield of Kan., Inc., 899 F.2d 951, 962-63 (10th Cir.1990);Crimpers Promotions, Inc. v. Home Box Office, Inc., 724 F.2d 290, 294-95 (2d Cir.1983). This court recently had the occasion to apply the AGC factors, distilling them to five:

(1) the causal connection between an antitrust violation and harm to the plaintiffs, and whether that harm was intended; (2) whether the harm was of a type that Congress sought to redress in providing a private remedy for violations of the antitrust laws; (3) the directness of the alleged injury; (4) the existence of more direct victims of the alleged antitrust injury; and (5) problems of identifying damages and apportioning them among those directly and indirectly harmed.

Kloth v. Microsoft, 444 F.3d 312, 324 (4th Cir.2006) (internal quotations and citations omitted). [Emphasis Added] Novell, Inc. v. Microsoft Corp., 505 F.3d 302 (4th Cir., 2007)

In other words, the action must affect the course of business dealings within the relevant market, which here is Credit card payment processing. Cutting off Wikipedia does not do so.

These are facts, actual quotes from the law. Your cites above are correct. The purpose of the anti trust laws is to address large scale issues affecting consumers. But the motivation must be to control overall competition in the relevant market, as I've shown above. And the relevant market cannot be one tiny individual entity. The process must send ripples through the national market.

Wikileaks has no standing and is not the victim of an anti-trust violation. If you can demonstrate how it is, have at it. But you cannot. You haven't done so so far.
posted by Ironmouth at 1:11 PM on October 26, 2011


But any market is just an aggregate of the individual members of the market.

Suppose the cellphone providers blacklisted 50% of the cellphone users in the market for donating money to Wikileaks using their smart phones.

In such a scenario, it would be clear and uncontroversial that the cellphone consumer market as a whole has been injured. In this case, if you don't accept the claim that Wikileaks violated its TOS agreement by making illegal use of those services (which should be up to the legal system, not to private parties to judge), it would be perfectly clear and obvious to most anyone that these monopolistic actions are causing harm to the cellphone consumer market. The specific proportion of the market injured, though, shouldn't and as far as I know doesn't matter under the law. One consumer harmed is still one consumer harmed.

You seem to keep intentionally blurring the line between case law and legislative intent (and then stubbornly sticking to the narrowest technical readings of the case law) to make your case. I'm operating from the assumption here that the case law and even established precedent can be incorrect or only partially correct. Since one of my central claims all along here has been that the original public service aims of anti-trust law has been lost in more recent case law and legal application, I don't see how citing recent case law puts you any closer to refuting my argument.
posted by saulgoodman at 1:43 PM on October 26, 2011


Ironmouth, why do you continue to reference US cases as if they had any relevance? The legal complaint is being filed in the EU. If you think they don't have a case in the EU, you should probably reference EU case law.

Saul, most lawyers exist not to provide justice, but to monetize both sides of any argument. They don't care about what is right, they just care about what is technically legal. It's not necessarily a bad thing, but if you're looking for a solid philosophical conversation, I'd look somewhere else, especially given the naked bias Ironmouth has against WikiLeaks. He's not considering the facts, or even the jurisdiction. He's assuming they aren't protected, and believes they don't deserve to be protected, and then basing his arguments on that.
posted by deanklear at 1:56 PM on October 26, 2011 [2 favorites]


But any market is just an aggregate of the individual members of the market.

Let's look at how its handled in the Datacell complaint--the cite to the relevant market and the relative geographic market. If you'll see, even under EU law, the market can't be one provider.

First, this is not a complaint by WikiLeaks. It is a complaint by Datacell, who has been suspended from credit card processing for allowing third-party donations and


Second, I'm very confused about Datacell's point here. They are essentially arguing that they must be allowed to service this one tiny customer to conduct their entire business. I don't see how that's true. I'm no expert on EU law but I don't see how the complaint goes forward. Because DataCell could just exclude WikiLeaks and be up running quickly.

The complaint also demonstrates that there must be an anti-competitive basis for the complaint in EU law too, just as I argued above:
As touched upon above under “objective justifications” the complainant notes that the card companies have not put forward any efficiency or other arguments related to the economics of their operations. That does however not mean that the aim of their actions is not to protect their market position in the acquiring market. It is clear that the development of payment gateway services which has been brought about by advance in computer, IT and digital technology will mean that the card companies will have fewer acquires and thereby lose revenue. In its member rules MasterCard under clause 7.2.2.2 defines a so called Type II third party processor as “any TPP that the Corporation does not deem to be a Type I TPP. A II TPP must comply with the applicable Standards, including these MSP Rules.” With a definition like that it is clear that the card companies can totally control and dictate who can participate on the acquiring market and on markets downstream thereof. The complainant submits that if a provision of this kind does not as such violate the competition rules, then its application in the case of the complainant under the circumstances of this case, must be deemed to be restrictive of competition in the meaning of Art 101(1) TFEU and, when applied by dominant undertakings, an abuse in the meaning of Art. 102 TFEU.


They are trying to shoehorn the case into a competitive argument by requiring that they deal with this one entity, WikiLeaks. However, I don't see how this flies, because what they are saying is that they must have this entity or else it is anti-competitive. Not so. They could still block this one entity and it would still not affect the market.

The problem for DataCell is that their complaint is based on what appears to be a false premise, that if they provide service to everyone but Wikileaks, they will lose market share.

I don't see that as true. Wikileaks is small and DataCell's attachment to them seems to be based upon personal affinity, not some sort of economic need.
posted by Ironmouth at 2:29 PM on October 26, 2011


DataCell is unable to do business with WikiLeaks because Visa and MasterCard denied them service, despite having no legal reason to do so, despite not being compelled to do so by any governmental agency (except for the private threats that are almost assuredly happening), and having had plenty of time to investigate WikiLeak's transactions for illegal activity. DataCell has virtually no other options in the credit card space. I don't see what is so hard to understand.
posted by deanklear at 5:05 PM on October 26, 2011 [3 favorites]


If Wikileaks is a major client of company X then the decision to blacklist Wikileaks by V/MC could bankrupt company X, seems pretty simple to me.
posted by mek at 7:24 PM on October 26, 2011 [1 favorite]


Ironmouth, something to note from the text of the complaint is that they have concluded an audit by Teller (their direct provider) and found compliant, and that not servicing Wikileaks wouldn't get them reinstated: "[The threat to sue] has been to no avail, and according to Teller’s explanations acquiring firms in Europe are not about to be allowed by MC and Visa to open merchant agreements with DataCell, irrespective of whether the company would service Sunshine press/Wikileaks as a payment facilitator or not."
posted by klangklangston at 10:52 PM on October 26, 2011 [2 favorites]


Possibly relevant in this context is this article by Yochai Benkler that I came across today: WikiLeaks and the PROTECT-IP Act: A new public-private threat to the internet commons (PDF, via).

Feds to Blacklist Piracy Sites Under House Proposal
posted by homunculus at 10:38 AM on October 27, 2011




Assange appeal articles from EWeekEurope and the Guardian.

And soon we'll watch the Swedish justice system make Sweden look ridiculous. :)
posted by jeffburdges at 9:05 AM on November 2, 2011


If WikiLeaks is dying, then the NYT is partly to blame

Mathew Ingram calls foul on the NYT for not standing up for a fellow journalistic establishment and excluding mention of the role Paypal/Visa/MC have played in their fate.
posted by phearlez at 3:20 PM on November 7, 2011 [1 favorite]




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