Tuesday, April 12, 2005

Not That I Can Discuss That

I remain astonished at the level of confusion surrounding publication bans at the Gomery inquiry.

A quick reset to start: CTV, the Globe & Mail, and thereafter every other media outlet in Canada began mentioning Captain's Quarters on Sunday night, April the 3rd. I think you can infer from that that it was/is not illegal to do so. As such, bloggers who did so were not "defying" the publication ban in any way whatsoever.

The only way you can draw a distinction here is if you consider a hyperlink to be a form of publication, which is ridiculous. It rests on the notion that, essentially, vague instructions on how to view Brault's testimony are fine, but specific instructions are not fine. Bah!

It's not like there's no relevant common law here, either: I believe it's well understood that if I republish the contents of the Calgary Herald on my website, I'm breaking the law by publishing material for which I do not have the copyrights. If I link to the Calgary Herald, I'm doing no such bloody thing, because I'm not publishing it. Occasionally some thin-skinned newspaper attempts to claim that it is, and their claim is rightly and quickly dismissed.

So let's get that straight, at least: unless they were excerpting portions of Brault's testimony, bloggers were not defying the ban, or violating the ban, or shitting all over the ban, or any such thing.

Secondly, despite disagreeing with Tart Cider's premises, I share Selley's bewilderment at the level of rhetoric and triumphalism seen in a few places. I happen to agree with Kate that "Canada's Watergate" is not a silly meme; however, Canadian bloggers were not playing the Woodward & Bernstein role. They (we?) were more comparable to a guy in Maryland telling all his neighbours to go buy the Washington Post, because they're reportin' on some cra-zee stuff in there!

Every Canadian blogger, whether intentional or not, experienced a noticeable spike in traffic originating from Google. These people were looking for Captain Ed and the real stuff, not cryptic commentary. I'm sure that bloggers provided some benefit by giving directions to the Captain, but that is the full extent of the service performed for these Googlers.

The other service performed by bloggers not named Ed Morrissey was simply to underline the reduced effectiveness of this type of publication ban in the age of TEH INTARWEB. I think this did have some worthwhile meta-effect, but like Damian here, I'm willing to accept Gomery at his word--that the implication and partial lifting of the ban was entirely related to the contents of Jean Brault's testimony.

Thirdly, why don't we continue with this premise that Justice Gomery has integrity, and is a non-idiot. Let's assume that when he installed a publication ban, he understood what the law meant: that the testimony was not secret, but that it was not allowed (for the time being) to be published or broadcast.

That is: he installed it with the intent of restricting the speed and ease with which knowledge of the testimony could spread. Regardless of whether you think he underestimated the power of the web and Google, it was a success. There were millions of Canadians who had no knowledge of the substance of the Brault testimony until the ban was lifted.

Lastly, what I really want to get to here is this notion of "undermining" the ban, because this is where just about every commentary I've read misses the boat. If I understand English correctly (no given), the definition in this context is roughly "engaging in permissible conduct which produces a similar result as would engaging in prohibited conduct."

If you stipulate that Justice Gomery did not foresee that details of the testimony would be published in another jurisdiction, and that it would be available and highly sought-after online, and that he might have ruled differently with more accurate foreknowledge, then yes: Canadian bloggers absolutely were undermining the ban, in that it would have been even more successful had they sat on their thumbs.

But I'd like everyone to consider this concept(Þ): freedom-loving people have a positive moral duty to undermine laws restricting freedom. Governments should have to be explicit about how they are restricting our freedoms, principally because it limits the number and the scope of restrictions they can get away with.

There was a lot of this sentiment last week: "Gomery installed a publication ban, and I'm not clear exactly what speech the ban allows and disallows. What I am clear on is that the intent is to keep the information relatively secret, so I'm going to use that as a guideline."

Again, I'm not trying to get in anyone's face, but this attitude amounts to a voluntary surrender of freedom. Aren't we as Canadians already plenty languid about having our liberties withdrawn, without lining up to hand them in?

The failings of this perspective are best demonstrated when taken to the extreme, so Evan Kirchhoff has done us a big semi-facetious favour:
...here is the category link to the American Website everybody was hinting around about all week:


That specific link filters solely for the Adscam stories (some of which are in French), in case you don't want to get any Republican on you. But here's the thing: there is more testimony coming from other witnesses (Chuck Guité and Paul Coffin) which may be placed under another ban. If that occurs, the above weblog will continue to publish whatever banned testimony it can obtain, but I will again be forbidden to link to it or mention its name, and I will then re-edit this post to remove the link. Also, this Washington Post column and this New York Times story will be verboten, since they both link to the Once and Future Secret Site.

On the Canadian side, the following might be "helpful" places to look should another ban be imposed (and, again, I will be removing these URLs in that case):

http://debbyestratigacos.mu.nu/ (and see further links here)

(Note to Canadian Attorney General web-sniffing minions: if you're pulling this out of a Google cache during a subsequent ban, go sue Google. On April 8, 2005, this post is legal.)

There you go (see parts 1, 2, & 3 for further object lessons and laffs). "There's a publication ban in another country I plan to visit? I'd better disable my blogroll!"

I'd like to offer props to Kate, Bruce, and everyone else who linked to Captain's Quarters as soon as it was known that Ed was posting some interesting stuff. I think they made a statement. I don't know what they meant by it, but this is what it meant to me:
If the state wants a way to prevent me from linking to a foreign website publishing Canadian political information, then let's see them have the balls to propose a law saying so. I don't respond to hints.

Epilogue: there are 2 things undercutting my general argument here.

1) 20/20 hindsight - it's easy for me to talk about guarding little freedoms jealously, when I didn't post a thing about Gomery or the Brault Testimony during the "hazy period".

2) The "semi-" on Kirchhoff's "semi-facetious favour" above was deliberate. In Kate's email to the Babbler here, she notes that "Irwin Cotler's office doesn't make law". True - Parliament makes law, the police enforce it, independent judges interpret it and rule based on it. You could look in up in any textbook on Canadian government.

Except when it doesn't work that way. The independence and integrity of our institutions are regrettably in question, with the biggest question mark these days being in front of the RCMP. The Prime Minister's Office couldn't use the RCMP to exact political revenge, could they? I'm sure that's what Francois Beaudoin thought.


At 8:12 a.m., Blogger Jay said...

I particularly liked Kirchhoff's reference to his 2005 "civil disobedience quota" - it made me consider some of the reasons I didn't get up on my high horse about the pub ban:
1) it was almost completely ineffective for those with basic intarweb knowledge
2) given 1), it was too much fun finding creative ways to get around the ban without technically being in contempt while at the same time making Gomery look quite foolish.
3) most importantly, there will come a time when government dictats are in irreconcilable conflict with the principles of a free society (see the upcoming McCain-Feingold Insurrection and the parallels with our odious election gag laws). At that point the moral high ground will be quite clearly defined and people across all ideological divisions should expend the effort to tell the govt to take their speech codes and shove 'em.

At 10:24 a.m., Blogger Matt said...

I concur with the sentiment that the actual publication ban, as installed by Gomery, was not something to get in a big snit over. What I reject is the idea that what Kate et al did resembles civil disobedience, or that it made Gomery look foolish.

These arguments rest on the assumption that Gomery is a fusty old dinosaur, who was utterly stunned by the speed and ease with which the "banned" testimony spread via the web. I don't think that's at all obvious.

He didn't close the hearings to the public, or reporters; he allowed the testimony to go on CCTV as well. Isn't it possible that he was crystal clear in his own mind that he wasn't trying to keep a secret per se, but just wanted to try to ensure that not every potential Brault juror and their chien knew every last detail of his self-incriminating statements?

I don't find this terribly insidious. What is insidious is Justice spokesmen implying that the ban meant more than what the law actually says. What is also rather insidious is our own citizens more worried about heeding these dark warnings rather than obeying the law.


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