Archive for December, 2010

Half-formed thought on Wikileaks & Global Action

December 31, 2010

This is a coda to my earlier post, Wikileaks and the Long Haul. It’s an attempt to express a partially formed thought about the Pentagon Papers case and the global media environment.

A bit of potted history first: The Pentagon Papers were a secret history of US involvement in Vietnam, produced by the Department of Defense and leaked in 1971 by Daniel Ellsberg to the NY Times, who published excerpts and analysis from them. The government attempted to prosecute the Times under the Espionage Act; the Times, with Floyd Abrams as their lead attorney, argued the case before the Supreme Court. The Times won, and the decision, New York Times Co. v. United States (403 U.S. 713), established the principle that it was illegal to leak secrets, but not to publish leaks. Justice Hugo Black, writing for the majority, said “Only a free and unrestrained press can effectively expose deception in government.”

I was thinking about Black’s opinion, and particularly his emphasis on an “unrestrained press”, in light of two things I’ve read on Wikileaks. The first, and more recent, is Floyd Abrams tortured attempt to deny that his winning arguments in the Pentagon Papers case set the operative precedent for Wikileaks.

His essay is an attempt to square two things he clearly believes deeply — Wikileaks is bad and must be stopped, and that its actions may not be illegal. He doesn’t want to believe that second thing, but as one of the pre-eminent litigators of 1st Amendment law, he also understands what the precedents say, and glumly comes to this conclusion:

[I]f Mr. Assange were viewed as simply following his deeply held view that the secrets of government should be bared, notwithstanding the consequences, he might escape legal punishment.

Abrams is upset enough about Wikileaks (and Assange) that he can’t bring himself to describe the clear meaning of this conclusion: under the Pentagon Papers precedent, Assange might “escape legal punishment” the ordinary way, by being innocent of having committed a crime.

This in turn brought to mind my NYU colleague Jay Rosen’s observation last summer, during the Afghan War logs leak, that Wikileaks is the first stateless news organization:

Appealing to national traditions of fair play in the conduct of news reporting misunderstands what Wikileaks is about: the release of information without regard for national interest. In media history up to now, the press is free to report on what the powerful wish to keep secret because the laws of a given nation protect it. But Wikileaks is able to report on what the powerful wish to keep secret because the logic of the Internet permits it.

So here’s the half-formed thought: Abrams is wrong that the Pentagon Papers case isn’t the obvious precedent, but he’s right that Wikileaks is so different that the meaning of that case isn’t clear in the present situation.

* * *

To draw a distinction between the Pentagon Papers precedent and what Wikileaks means, I’m going to use slightly different language than Rosen’s notion of statelessness. (I think Wikileaks is less stateless than it is multi-homed, allowing it some freedom from traditional ‘single point of censorship’ problems that plague other international media).)

Let me propose, for the sake of argument, two labels for action that spans more than one country: international, and global. International actors are actors rooted in a nation, even when they are able to participate in activities all over the world, while global actors are unrooted; global actors have, as their home environment, the globe.

The closer an activity comes to attaining the condition of pure information, the more global it can be. By way of analogy, the LSD business is more global than the cocaine business, because coca leaves only grow in certain climates, but lysergic acid can be synthesized anywhere. Media is like this as well: The internet is more global than the telephone network, even though both systems can send data between any two points in the world. Similarly, Wikileaks is more global than the BBC or Al Jazeera; those organizations are very large, but they are international, with a home base as rooted in a particular place as a coca farmer is.

The most dramatic of Wikileaks’ breaks with previous journalism is the global nature Rosen identified. The biggest difference between the Pentagon Papers case and Wikileaks is not the legal precedent, but the fact that the Pentagon Papers case was an entirely national affair.

Though some of the most impassioned and vocal participants in the Vietnam war protest movement genuinely cared about the fate of the Vietnamese, the bulk of the participants were animated by a much more proximate goal: ending the draft in the US. The publication of the Pentagon Papers did not seem to have helped end the war, but exposure of the military’s frank internal assessment of the compromised nature of the conflict made it harder to ask middle-class parents to sacrifice their children to that kind of action. (It also helped feed into the collapse of trust in the government and of authority figures generally.)

All this was in the US context, as was every actor involved: Ellsberg, Abrams, the NY Times, the Pentagon, the Supreme Court, the protesting citizens, and so on. No one was out of the reach of the Federal Government, and the effect of the Papers’ publication, in a US new outlet, was a family affair.

Wikileaks has been global from the beginning, and the additional complexity of both jurisdiction and extradition make this particular problem much much more complex than any issues, legal or practical, triggered by the Pentagon Papers. Wikileaks has been operating since 2006, the military has regarded it as a significant threat since at least 2008, and the US Attorney General still has difficulty framing charges he thinks he can win.

* * *

For many of our most important social systems, we resolve clashing principles by providing an escape valve, in the form of a set of actors who are less rule-bound than the rest of the system. The most famous and ancient is the jury, a collection of amateurs who can, in the face of clear laws and evidence, simply not return the verdict a judge would have returned.

So with secrecy. Though I am not a lawyer, the Supreme Court’s 1971 ruling seems to say that there is no law-like way to balance the State’s need for secrets with the threats secrets pose to democracies, so it simply said that the 1st Amendment provides immunity to publishers in most circumstances; the presence of publishers as “unrestrained actors” provides one of the many limits on government power that make democracies work.

This immunity sets up publishers as self-regulating checks to government power, albeit in a system that can never be made intellectually coherent — neither total success nor total failure of the government to keep secrets would protect the United States as well as a regime of mostly success with periodic, unpredictable failures.

The Pentagon Papers decision says the government faces a “high bar” to proving that a publisher’s actions are illegal. What’s legal for publishers is thus whatever keeps them under this high bar, but no one knows where this bar is at any given moment, except that it is high enough that no publisher has ever been successfully prosecuted for espionage.

But here’s where Black was wrong, or at least only partly right: the press in the US isn’t unrestrained, just because of this high bar. Instead, the US press is self-restrained. Our curious system of outlawing certain kinds of speech — libel, release of trade secrets, and so on — while also largely forbidding the government from prevention of publication (prior restraint) or creating a climate of fear and doubt for publishers (chilling effects) would seem impossible to balance within a legal system, but that’s because the balance is produced by extra-legal constraints.

A publisher is (or was, in 1971) a commercial, nationally-rooted media firm subject to significant tradeoffs between scale and partisanship. Large publishers had to be deeply embedded in the culture they operated in, and they had to reflect local mainstream views on most matters most of the time, to find and retain both revenue and audience. Fans of game theory will recognize these conditions as those required for an iterated game of the Prisoner’s Dilemma, where the press exhibits self-restraint from short term defection against the US’s interests, in order to benefit from an amicable relationship with the government over the long haul.

This is why the difference between the Times, as an international actor, and Wikileaks, as a global one, matters so much. Wikileaks does not have to play an iterated game of Prisoner’s Dilemma with the US. Not only is Wikileaks not housed in the US, it isn’t housed in any single other nation the US could complain to. They can defect at will. (You can always burn a partner in Prisoner’s Dilemma if they can’t get back at you.) Wikileaks hasn’t defected all the way, of course, releasing only ~2000 of the ~250,000 cables they have; the point is that this restraint is not forced on them by the US.

The legal bargain from 1971 simply does not and cannot produce the outcome it used to. This is one of the things freaking people in the US government out about the long-term change in the media environment — not that the law has changed, but that the world has. Industrial era law, applied to internet-era publishing, might allow for media outlets which exhibit no self-restraint around national sensitivities, because they are run by people without any loyalty to — or, more importantly, need of — national affiliation to do their jobs.

* * *

There is, in much of the commentary about Wikileaks online, a kind of echo of Black’s 1971 opinion, a fantasy of unrestrained action. This comes in two flavors: one group believes that since Julian Assange is not a US citizen and not operating on US soil, the US could never charge him with anything. These people seem not to have heard of extradition agreements; the legal system is at least international enough to allow charges to be brought against foreign nationals and have them tried in the US. Whether that will happen to Julian I don’t know, but it’s certainly not out of the realm of the possible.

The other ‘unrestrained action’ group believes that, as Assange is not a US citizen, there is nothing to stop us from simply finding him and having him killed. This group seems not to recognize that political murders are regarded as something of a no-no by our allies, and that such a move would not exactly be a net win for the US, as well as potentially getting the agents of such an illegal approach arrested and tried.

Neither of these fantasies is going to come true. The US cannot simply remove Assange with no consequences, nor is he automatically cleared from another government’s decision to extradite him to the US, if the Attorney General charges him. This is going to take time and effort to work itself out.

Society is made up of competing goods that can’t be resolved in any perfect way — freedom vs. liberty, state secrets vs. citizen oversight — but the solutions to those tensions always take place in a particular context. Sometimes a bargain is so robust it lasts for centuries, as with trial by jury, but sometimes it is so much a product of its time that it does not survive the passing of its era.

I think that this latter fate has befallen our old balance between secrets and leaks. This does not mean that the Pentagon Papers precedent shouldn’t free Wikileaks from prosecution, but it does mean the old rules will not produce the old outcomes. In another difference with the Pentagon Papers case, Bradley Manning (or the person who copied the cables from SIPRnet) has gotten very little attention compared to Wikileaks, even though, in both law and practice, he is clearly the person most culpable. Like the music industry, the government is witnessing the million-fold expansion of edge points capable of acting on their own, without needing to ask anyone for help or permission, and, like the music industry, they are looking at various strategies for adding control at intermediary points that were left alone under the old model.

Julian claims that the history of these matters will be divided into “pre-” and “post-Cablegate” periods. This claim is grandiose and premature. However, it is not, on present evidence, visibly wrong.

It’s possible that the plain meaning of the Pentagon Papers case will clear Assange and Wikileaks, full stop, and the era of self-restraint of the press in response to extra-legal constraints is over, at least in the US context. It’s possible that the Pentagon Papers case will be re-adjudicated, and the press freedoms of the traditional press in the US will be dramatically constrained, relative to today. It’s possible that new laws will be written by Congress; it’s possible that those laws will be vetoed, or overturned, or amended. Whatever happens, though, this is new ground, and needs to be hashed out as an exemplar of the clash of basic principles that it is.

Wikileaks and the Long Haul

December 6, 2010

Like a lot of people, I am conflicted about Wikileaks.

Citizens of a functioning democracy must be able to know what the state is saying and doing in our name, to engage in what Pierre Rosanvallon calls “counter-democracy”*, the democracy of citizens distrusting rather than legitimizing the actions of the state. Wikileaks plainly improves those abilities.

On the other hand, human systems can’t stand pure transparency. For negotiation to work, people’s stated positions have to change, but change is seen, almost universally, as weakness. People trying to come to consensus must be able to privately voice opinions they would publicly abjure, and may later abandon. Wikileaks plainly damages those abilities. (If Aaron Bady’s analysis is correct, it is the damage and not the oversight that Wikileaks is designed to create.*)

And so we have a tension between two requirements for democratic statecraft, one that can’t be resolved, but can be brought to an acceptable equilibrium. Indeed, like the virtues of equality vs. liberty, or popular will vs. fundamental rights, it has to be brought into such an equilibrium for democratic statecraft not to be wrecked either by too much secrecy or too much transparency.

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.

If the long haul were all there was, Wikileaks would be an obviously bad thing. The practical history of politics, however, suggests that the periodic appearance of such unconstrained actors in the short haul is essential to increased democratization, not just of politics but of thought.

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. I don’t agree with all of these laws, but they were at least produced by some legal process.

Unlike the United States’ current pursuit of Wikileaks.*

I am conflicted about the right balance between the visibility required for counter-democracy and the need for private speech among international actors. Here’s what I’m not conflicted about: When authorities can’t get what they want by working within the law, the right answer is not to work outside the law. The right answer is that they can’t get what they want.

The Unites States is — or should be — subject to the rule of law, which makes the extra-judicial pursuit of Wikileaks especially nauseating. (Calls for Julian’s assassination are even more nauseating.) It may be that what Julian has done is a crime. (I know him casually, but not well enough to vouch for his motivations, nor am I a lawyer.) In that case, the right answer is to bring the case to a trial.

In the US, however, the government has a “heavy burden”, in the words of the Supreme Court, for engaging in prior restraint of even secret documents, an established principle since New York Times Co. vs. The United States*, when the Times published the Pentagon Papers. If we want a different answer for Wikileaks, we need a different legal framework first.

Though I don’t like Senator Joseph Lieberman’s proposed SHIELD law (Securing Human Intelligence and Enforcing Lawful Dissemination*), I do like the fact that it is a law, and not an extra-legal avenue (of which Senator Lieberman is also guilty.*) I also like the fact that the SHIELD Law makes it clear what’s at stake: the law proposes new restraints on publishers, and would apply to the New York Times and The Guardian as it well as to Wikileaks. (As Matthew Ingram points out, “Like it or not, Wikileaks is a media entity.”*) SHIELD amounts to an attempt to reverse parts of New York Times Co. vs. The United States.

I don’t think such a law should pass. I think the current laws, which criminalize the leaking of secrets but not the publishing of leaks, strike the right balance. However, as a citizen of a democracy, I’m willing to be voted down, and I’m willing to see other democratically proposed restrictions on Wikileaks put in place. It may even be that whatever checks and balances do get put in place by the democratic process make anything like Wikileaks impossible to sustain in the future.

The key, though, is that democracies have a process for creating such restrictions, and as a citizen it sickens me to see the US trying to take shortcuts. The leaders of Myanmar and Belarus, or Thailand and Russia, can now rightly say to us “You went after Wikileaks’ domain name, their hosting provider, and even denied your citizens the ability to register protest through donations, all without a warrant and all targeting overseas entities, simply because you decided you don’t like the site. If that’s the way governments get to behave, we can live with that.”

Over the long haul, we will need new checks and balances for newly increased transparency — Wikileaks shouldn’t be able to operate as a law unto itself anymore than the US should be able to. In the short haul, though, Wikileaks is our Amsterdam. Whatever restrictions we eventually end up enacting, we need to keep Wikileaks alive today, while we work through the process democracies always go through to react to change. If it’s OK for a democracy to just decide to run someone off the internet for doing something they wouldn’t prosecute a newspaper for doing, the idea of an internet that further democratizes the public sphere will have taken a mortal blow.