The WikiLeaks controversy continues to capture headlines and provoke vitriol from governments around the world. Most reactions, however, have been surprisingly unsophisticated. Commentators repeatedly conflate WIkiLeaks the platform with its spokesperson, Julian Assange (who is, whatever your opinion of the man, largely irrelevant), assume the platform’s actions are unlawful (probably not — and this is the very question to be determined), or believe that shutting down WikiLeaks will stop the leaks (it won’t).
US Senators have called for pressure to be placed on American companies to abandon WIkiLeaks, and for media outlets to be criminally investigated, while others have called for Assange’s prosecution and even assassination. France has called for the site to be banned from French servers (good luck). Assange has been detained on what will probably turn out to be trumped-up sex charges. Geoffrey Robertson QC and a specialist team from Doughty Chambers have stepped in to fight extradition.
That is, more or less, the story so far. What’s missing from this picture? First, a basic analysis of whether the publication of classified (but widely accessible) intelligence cables is a criminal or civil wrong. Probably the best analysis I’ve seen so far comes from a researcher in the US Congressional Research Service. Of criminal liability, she observes (at 7):
It seems likely that most of the information disclosed by WikiLeaks that was obtained from Department of Defense databases falls under the general rubric of information related to the national defense. The diplomatic cables obtained from State Department channels may also contain information relating to the national defense and thus be covered under the Espionage Act, but otherwise its disclosure by persons who are not government employees does not appear to be directly proscribed.
[While] there is ample statutory authority for prosecuting individuals who [intentionally] elicit or disseminate most of the documents at issue, … the statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.
The full memo is well worth a read. Later sections delve into some of the fascinating issues concerning extraterritoriality, acts of non-citizens and the constitutional dimension (on which more below). In summary, it is doubtful whether Assange, or WikiLeaks (as an entity) could be prosecuted under existing US legislation — even if they could, such a statute would probably be constitutionally invalid.
The constitutional questions are particularly interesting. The best analysis I’ve seen so far is by Nick Bravin, a former Supreme Court clerk, though he seems fairly pessimistic about WikiLeaks’ chances.
On the policy side of things, this article by Clay Shirky offers a strong case in favour of regulated disclosure:
As Tom Slee puts it, “Your answer to ‘what data should the government make public?’ depends not so much on what you think about data, but what you think about the government.”* My personal view is that there is too much secrecy in the current system, and that a corrective towards transparency is a good idea. I don’t, however, believe in total transparency, and even more importantly, I don’t think that independent actors who are subject to no checks or balances is a good idea in the long haul. …
We celebrate the printers of 16th century Amsterdam for making it impossible for the Catholic Church to constrain the output of the printing press to Church-approved books*, a challenge that helped usher in, among other things, the decentralization of scientific inquiry and the spread of politically seditious writings advocating democracy. … This intellectual and political victory didn’t, however, mean that the printing press was then free of all constraints. Over time, a set of legal limitations around printing rose up, including restrictions on libel, the publication of trade secrets, and sedition..
Of course, unless the revelations made public by WikiLeaks are actually reported and debated in mainstream media, their impact is likely to be minimal. This is the point made by Anne Appelbaum in this openly sceptical piece on Slate:
But human beings, not Web sites, ultimately carry out revolutions. Can this kind of information, released outside the context of a national media or domestic criminal investigation, actually affect either Putin or Berlusconi at home? Can documents published on an (ironically) secretive Internet server in Switzerland end Russian or Italian government as we know it?
In Italy, the stories have certainly been read. Corriere della Serra … printed and analyzed the cables, which were then debated even in that half of the Italian media that Berlusconi owns. But Berlusconi was in trouble anyway [and] Italians are “not really” shocked by the cables … In the absence of a political culture that abhors corruption … this is just another in a long series of sensational scandals. Berlusconi parties with Putin? So what, he parties with everyone. … In Russia, there is no national media that can discuss the allegations. … Putin parties with Berlusconi? Nobody knows anything about it.
The cunning of Julian Assange’s strategy is that he has made everyone complicit in his own private decision to try to sabotage US foreign policy. … [Y]ou will at the very least have indulged in a certain amount of guilty pleasure. … As for the public’s right to know and the accountability of our covert or confidential agencies, it is only a short time since the entire American liberal consensus was witlessly applauding a clumsy and fruitless prosecution, directed entirely at the hopelessly overdramatized exposure of a relatively minor CIA official, married to a monster of conceit who makes Assange look bashful. It then turned out that Valerie Plame’s job description had been made public by Robert Novak and Richard Armitage, who also had in common with Assange a rooted opposition to the administration’s Iraq policy. Elements of the left and the right appear to have switched positions on full disclosure since then.
Meanwhile, Christopher Beam prefers to analyse the corpus of leaked cables as overlooked works of literature:
“President Nazarbayev, like many of his countrymen, has a strong affinity for horses.” Thus begins a cable by an American diplomat titled “Lifestyles of the Kazakhstani Leadership.” It goes on to introduce a cast of quirky characters, including Defense Minister Danial Akhmetov (“a self-proclaimed workaholic [who] appears to enjoy loosening up in the tried and true ‘homo sovieticus’ style—i.e., drinking oneself into a stupor”), the president’s son-in-law (Elton John played his 41st birthday), and oligarch Aleksandr Mashkevich (“it is not clear what Mashkevich is spending his billions on, but it is certainly not culinary talent”). The cable also contains a vignette about Prime Minister Karim Masimov partying late into the night at an upscale club called Chocolat: “His companions quickly tired but Masimov remained, dancing alone and animatedly on the stage”—the sad personification of decadent, post-Soviet nihilism.
Finally, it’s worth noting how WikiLeaks has been progressively abandoned by the other intermediaries upon which it relies. First EveryDNS pulled the plug on its DNS redirection services, citing violation of its terms of service, which prohibit members from ‘interfer[ing] with another Member’s use and enjoyment of the Service or another entity’s use and enjoyment of similar services.’ The ongoing DDoS attacks against WikiLeaks apparently threatened the ‘stability’ of the EveryDNS infrastructure, and along with it, the company’s 500 000 other clients. Fair enough. Then Amazon terminated its S3 cloud storage account, citing terms of service violations. The violations, although arguable, paint an unsympathetic picture of the American company and highlight some of the difficulties of widely-distributed cloud storage, as TechnoLlama’s extravagantly-titled but otherwise excellent analysis observes:
Certainly, it all begins to look a little suspect when it is recalled that Senator Lieberman’s office is reported to have telephoned Amazon on the afternoon the account was terminated. PayPal soon followed, permanently freezing WikiLeaks’ main account for donations. PayPal claimed that the action was taken ‘due to a violation of the PayPal acceptable use policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity’. Again, the reasoning, while arguable, prejudges the issue. Rob Beschizza has another good take:
Books about Wikileaks and these events will soon appear: will Amazon refuse to sell those which include text from the cables? Indeed, is it even the case that the government has the rights Amazon speaks of? According to the Copyright Act, Copyright protection under this title is not available for any work of the United States Government: there is no state copyright in documents made by government employees. They belong to you.
Visa, Mastercard, Twitter, a swiss bank, and various other intermediaries have each withdrawn services from WikiLeaks, mostly on grounds of not wanting to assist an ‘illegal act’ — despite not inquiring into whether the act is actually illegal in their jurisdiction, and, if it is, whether they would run any risk of liability (in the vast majority of cases, they wouldn’t face criminal liability, and civil liability — though not, it should be noted, for infringing Crown copyright — would really only apply to hosts of the material who fail to disable access after being notified). At least two things are interesting about this:
WikiLeaks is, of course, on the receiving end of DDoS attacks (possibly originating with governments) to as great an extent as (if not greater than) the actions taken by its Anonymous supporters. TechnoLlama has another excellent summary of some of the theories of internet regulation implicated by recent events:
Wikileaks exemplifies the very idea of the Internet as an unregulated space, a new country where self-organisation reigns supreme, the very essence of Barlowian theory . Similarly, code is being used as a tool by both camps as a regulatory tool, in a nod towards Lessig’s ideas. The Internet’s architecture favours distributed solutions, therefore making websites like Wikileaks very difficult to successfully shut down.
Nonetheless, Wu and Goldsmith’s regulation of the choke-points has also had its day, and the attacks against the very infrastructure that sustains Wikileaks has been mildly successful.
So far, it looks like WIkiLeaks’ primary host is sticking with the platform. The Stockholm-based host, which famously houses its servers in an old nuclear bunker (pictures here), has even installed a dedicated line for WikiLeaks traffic. In Australia, most reputable hosts — wisely — wouldn’t touch the WikiLeaks account with a ten-foot pole.
But any round-up of coverage would be incomplete without a reference to Assange’s strongly-argued defence of ‘scientific journalism’ in last week’s Australian — in spite of his irrelevance, the rhetoric is excellent:
In 1958 a young Rupert Murdoch, then owner and editor of Adelaide’s The News, wrote: “In the race between secrecy and truth, it seems inevitable that truth will always win.”
His observation perhaps reflected his father Keith Murdoch’s expose that Australian troops were being needlessly sacrificed by incompetent British commanders on the shores of Gallipoli. The British tried to shut him up but Keith Murdoch would not be silenced and his efforts led to the termination of the disastrous Gallipoli campaign. Nearly a century later, WikiLeaks is also fearlessly publishing facts that need to be made public.
I grew up in a Queensland country town where people spoke their minds bluntly. They distrusted big government as something that could be corrupted if not watched carefully. The dark days of corruption in the Queensland government before the Fitzgerald inquiry are testimony to what happens when the politicians gag the media from reporting the truth.
The article is definitely worth a read, but it’s a little light on substance when it comes to balancing secrecy and transparency.
The United Kingdom position on criminal liability is also far from clear. I’ll be posting some analysis of the position under the Official Secrets Act 1989 (UK) and related statutes later this week.
Ultimately though, all this analysis is moot: WikiLeaks is now mirrored in over 1000 places on the internet, making its excision from the public space (whether voluntary or mandated) all but impossible.