Half-formed thought on Wikileaks & Global Action

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.

39 Responses to “Half-formed thought on Wikileaks & Global Action”

  1. Glückliches Arabien | Rhetorik-Blog Says:

    […] Half-formed thought on Wikileaks & Global Action « Clay Shirky […]

  2. koala Says:

    Would you be against a law that “saves” newspapers by subsidizing them? Obama was talking about a such law and under our current system, it is possible to make such laws. Say such a law was passed, then on one hand we would have legistation to save newspapers, on the other hand, we would have technology’s unstoppable direction.

    Which one should take precedence?

    Of course technology will dictate the general direction. So all your Wikileaks analysis based on the current law is pointless.

  3. Symposium – WikiLeaks and Internet Freedom « HEARTS at MINDS !? Says:

    […] Clay Shirky, noted author, NYU lecturer, social theorist and long-time friend of PdF, who has written some of the most widely-discussed and nuanced analyses of the WikiLeaks controversy (see „WikiLeaks and the Long Haul“ and „Half-formed Thought on WikiLeaks and Global Action“) […]

  4. profilo servisi Says:

    Newspapers, even if every single one of them acted in collusion, cannot establish a monopoly on news. The main source of value for newspapers is reporting on events in the real world, and since those events can’t be copyrighted

  5. Half-formed thought on Wikileaks & Global Action « Clay Shirky | Brent Sordyl's blog Says:

    […] Story: Half-formed thought on Wikileaks & Global Action « Clay Shirky) This entry was posted in web2.0 and tagged clayshirky, politics. Bookmark the permalink. […]

  6. Musingsfromlondon Says:

    I just re-read your great article in light of the Wikileaks Twitter subpoena. I believe this is exactly the kind of new ground you mention and it will be very interesting how this all plays out.
    It seems like the one big lever the US are using at the moment to “deal with” (or maybe better “come to terms with”) the Wikileaks phenomenon is the fact that many of the large corporations (PayPal, Visa, Mastercard etc) that might have possibly been put under pressure are indeed located in the US. The subpoena on Twitter (and possibly other unknown ones on Facebook, Google and others) are certainly now adding an actual “legal” dimension to the way all this is playing out.
    Definitely one to watch.

  7. Steve WItham Says:

    Clay and others, at least take a minute to read

    I think Auralee’s point is most important: “Leakers tend not to be motivated to undertake the risks and costs of leaking unless the injustices they’re privy to are substantial.” Wikileaks is not presently a mechanism for spilling everyone’s secrets. It’s naturally selectively biased towards leaks from organizations that outrage their own insiders. Maybe the threshold will continue to lower (it can stand to) but there’s a plausible case that self-restraint is built into the nature of leaking.

  8. Robert Johnson Says:

    It’s also relatively new ground that the US government can simply offshore activities that it is prohibited from engaging in under the limits of the constitution. I continue to be confused and dismayed by the apparent fact that agents of the federal government do not face constitutional restraints when operating outside of the States, or when dealing with foreign nationals. Secret (and not secret) prisons in Europe, the Middle East, and Cuba, and the monitoring of voice and data traffic into and out of the US are just a couple of examples.

    It seems to me that ‘multi-homed’ journals shining light on the activities of governments around the world is a necessary check on governments who don’t follow their own rules when they’re away from home, or when dealing with the citizens of other nations.

  9. Mike Says:

    @Kevin jones says:

    “To me the takeaway point is the analogy with the music industry. ”

    Any bets on when we move from Leakster to iLeaks or Leakify models? 🙂

  10. Henry Story Says:

    Very interesting article. A position similar to one I was taking myself. But it misses out on the bigger picture. The Patriot Act and the National Security Letters have given the FBI a tool to leak information from any company without supervision and unhindered. This is made clear in this excellent talk given at the 27c3


    (It starts at the 16th minute)

    One should think of wikileaks as a response to that liberty taken by the state to leak the state in return.

  11. links for 2011-01-03 « Onlinejournalismtest's Blog Says:

    […] Half-formed thought on Wikileaks & Global Action « Clay Shirky 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. (tags: wikileaks clayshirky globalisation) […]

  12. Weekly Wiki « Glittering in the Gutter Says:

    […] Shirky has a thoughtful post up about comparisons between Wikileaks and the Pentagon Papers case, drawing on both Jay […]

  13. MightyCasey Says:

    I’ve thought about the similarities (and differences) btwn this and Pentagon Papers case since Bradley Manning was thrown in the brig back in June (http://mightycasey.com/afghan-papers/).

    I particularly like the distinction you draw between international and global actors (the LSD/coca-leaves example cracked me up) – and that’s at the heart of why Manning will probably be in the clink until he’s 40, and Assange will just be in and out of court for the same length of time.

    Manning is under UCMJ rules (international, but tied to a specific flag); Assange – as long as he can hold on to a passport – can keep maneuvering. Wikileaks, which doesn’t have to worry about passports and borders, can carry on carrying on, as long as its servers can keep carrying on, and continue to be housed all over ever’where.

    The web has made us the “global village” that television thought it had – television is by definition international, not global. YouTube, however, IS global.

    Manning is screwed. Assange might be screwed. Wikileaks is the future, right now.

    Are there any Iranian or NKorean wikileaks yet? Those should be fun.

    I can haz chezburger now?

  14. auralee Says:

    Re- contexts that, at least imperfectly, tend to result in self-restraint, (1) when the powerful don’t fear exposure, they tend to be less self-restrained from committing abuses; (2) leakers tend not to be motivated to undertake the risks and costs of leaking unless the injustices they’re privy to are substantial; and (3) I’m not entirely sure that having publishers feel pressured to reflect “local mainstream views” is such a good thing, but assuming it is, the same argument should have applied when so much of our once-local media were gobbled up by giant multi-national corporations which, if you ask me, do not appear to feel restrained from promoting their own agendas rather than responding to local concerns.

  15. Jon Cox Says:

    “International versus global” is an interesting distinction, but as soon as
    LSD and cocaine were used as examples, I began to wonder whether a
    a deliberate attempt was being made to create a preconditioned association
    between Wikileaks and criminal activity. Was it? Regardless of intent, I think
    this is the net effect. It really detracts from the genuine-sounding appeal
    being made to intellectual analysis.

    Daniel Ellsberg asked recently: “If @wikileaks is a ‘cyberwar,’ then what were
    the Pentagon Papers, a wood pulp war?” The very question exposes an
    absurdity: you can always cast events that transpire on “The Internet” as
    being more sinister and mysterious than their non-electronic counterparts.
    It’s dumb, but it’s true. Be warned: if you’re going to transform Assange into
    a Crypto Bogeyman lurking unaccountably in the dank recesses of the information-ghostie-ghoulie-long-leggedity-beastie-super-highway,
    I’m going to expect some toasted marshmallows served up with that, Clay! 🙂

    The truth of it is that all parties are subject to powerful constraints because
    of the need to be taken seriously, and to seem just in the eyes of their
    target audience. Everything else having to do with technology and/or
    geography is a side-note.

    Think about it: governments haven’t been able to suppress material
    effectively for a very long time now. Back in 1517, Martin Luther’s work
    spread across Europe in a matter of months. Of course, you’re completely
    free to question the truth of Luther’s work, but the ability of a determined
    international group of protesters to disseminate it is beyond doubt.
    That was nearly 500 years ago.

    Has the balance of power shifted in some unprecedented way?
    No, not really. Compared to the might of the United States,
    Wikileaks is nothing more than a buzzing fly. However, as the
    saying goes, the fly does not kill, but it does spoil.

    Happy New Year!

  16. Quick Links | A Blog Around The Clock Says:

    […] Clay Shirky: Half-formed thought on Wikileaks & Global Action […]

  17. GregB Says:

    The legal analysis is an unimportant distraction, one might as well use a Ouija Board. If anyone here thinks otherwise let me ask, “Would you bet your wealth on any current legal opinion regarding Wikileaks?”.

    What is important is that this article and many others I’ve read suggest that these leaks are a bad thing. I would disagree, for the simple reason that where there’s transparency there’s hope, real hope for billions who have never before had a champion with Wikileak’s capacity for good.

    Wikileaks is a seeing-eye dog for democracy.

    A win for Wikileaks is a win for Democracy, especially in South East Asian countries like Burma, China, and North Korea, and also in much of the Middle East and a large part of Africa as it shows the people of these non-democratic nations that WHILE DEMOCRACIES ARE NOT ALWAYS PERFECT AT LEAST THEY ARE ACCOUNTABLE. And further, it provides a mechanism to ease attaining their own democracy; a result that would never be achieved by external pressure or aggression. The people must lead.

    The corrective actions strong democracies will take due to Wikileaks exposing information provides proof for dissidents in non-democratic nations, like Aung San Su Chi in Burma and Liu Xiaobo in China, that democracies audit their leaders sometimes against significant resistance, BUT WITH RELENTLESS DETERMINATION, and with possible stern consequences. This gives the dissidents and everyone they speak with a stronger argument as to how they will benefit by having their own democracy.

    The public will see leaks on the polluters, the child labour abusers, the religious zealots who abuse women’s rights, the mad, the bad, and the socially ugly especially if they’re getting rich from it.

    These leaks will come, the Wikileaks model cannot be disappeared!

    And this is good. The U.S. diplomatic cables leak is good.

    It provides the U.S. with an opportunity to demonstrate a renewal of democratic principles to which the rest of the World will aspire for many generations.

    I suggest we all take up the challenge as never before – the people must lead.

  18. The Black Says:

    For all it’s bluster, the real fear of the Yankee Imperialist, and its stooges, masquerading as governments around the world, and also their enemies, by the way, who have the same problem, is that technology, has created a monstrous genie, that is impossible to put back in the bottle, with out destroying the massive and ever increasing value of the bottle itself. The issues are these; Those who build and study the tools of this new environment, are infinitely more capable and creative, and swifter in its use, then the governments that try to regulate and control it. The environment was built with the ability to work around road blocks at its core, and there for, control over its world while reach becomes impossible. In a since, like a cancer, it metastases when attacked, and spades itself massively. Sometimes doing nothing, is a better plan then doing something, as we have seen from this episode.

    Anonymousness, and Post State Actors or Global Actors:
    First, the phenomena of Post State or Global Actors, These groups still operate to a great extent, in a Western State Law construct, either English common law based, or EU based, in other places around the World, these Actors are Murdered all to often, by State and State sponsored Actors operating, until now, with so called impunity, this we hope may change, with the light that leaks shine on these Actors and their Controllers.
    So they still operate in the constraints of these States to some extent, what is different is that, they are increasingly beholding to no one State, can not be effectively pressured by any one State or group of States, may be Citizens of many different States, and have world wide funding sources, based on their support amongst the populations of the world, who support their aims, and political world view. This too is a moving target in a lot of ways, they are the manifestation of the Global Guerrilla, a distributively funded Globe Actor that can not be stopped by normal State, or State sponsored actions, as they don’t exist anywhere enough, for one state or group of states, to control them. Money is and shall always remain fungible and movable, and these Global actors get by on very little of it. If one compared, if findable, Wikileaks operating budget, as compared to it’s reach, output, and the budgets of those arrayed against it, you can see it’s massive throw weight to dollar spent. Its Power exist solely in the telling of the Truth, the disclosure of the Truths that those in Power would not want told, because they come from as it where, “The Horses Mouth”, that of the Powerful themselves.

    The Powerful have always in the past controlled the truth, and in an intrastate circumstance, could suppress it, which may be telling, why who ever leaked this material, sent it to Wikileaks instead of the so-called main stream American press.

    The real fear and gnashing of teeth of the Powerful, is over the other part of this phenomena, Anonymousness; In order to keep a secret your minions must, one believe in what they are doing, or, fill hopeless in their ability to be a change agent, and there for not expose the secret, for fear of retribution, and because who do you expose it to, when the fix is in, in the so called free press. This is what makes the Wikileaks construct such a game changer, it in one stroke exposes that which the Powerful would prefer to remain hidden, the Fascist Cabal of Business Actors colluding with the State in Extra Judicial Actions to Destroy it, and the Lie of the American Free Press, which is why you hear their howls.

    The next Wiki to truly change the system will be WikiMoney an international money moving system that can not be controlled by government forces or their banking partners. As we have seen these groups believe they control your money and where you can spend it, or who you can give it to, no free people can tolerate this.

  19. Malagodi Says:

    excellent piece.

    But what are the social and legal implications of Wikileaks vs BOA?

    The U.S. government may claim some sovereign rights as a nation, but can Bank of America claim some kind of ‘corporate right to secrecy’? Could release of BOA internal data somehow be construed as a theft of ‘trade secrets’? That will be interesting. It’s not like Napster, where intellectual property is being stolen.

    We expect a degree of openness and transparency for ‘democracy’ to function. We have no such expectation about corporations.

    Corporations like BOA are both international and global. They are not based on physical territory and resources like nations, they’re based on capital and global liquidity. Bigger than a city-state and a nation-state, they are a corporate-state, organized and autonomous. They can claim no ‘divine right’ of a sovereign, nor any moral obligations that might be implied by such a dispensation, nor I think do they want or need any. The instruments of nation-state power are there for the hire should they require them.

    But quite clearly what this does show is the weakness and subservience of nation-states, which got their sovereignty through a historical process that evolved from the dubious ‘divine right of kings’, down through the social-contracts of Locke and Rousseau. This ‘contract’ does not exist in the real world, ~ this is why we’re still debating ‘the role of government’ ~ and amounts to little more than collegiate or Supreme Court niceties about democratic principles. What is important is to establish a surface legitimacy based on electoral processes, no matter how flawed, so that there is a clear channel of business communication (liquidity).

    But I digress. I think the coming BOA releases are going to be much more interesting.

  20. The Mad Hatter Says:

    The implications of what is currently happening are definitely interesting, especially the focus on Assange instead of Manning, the person that charges might stick against (note that Lamo has no way to prove that Manning is actually the person he talked to via IM, and most of us know how easy it is to get an account in another name…)

    It should be interesting seeing the adjustments needed by governments, as hundreds of Wikileaks inspired groups start up all over the world.

  21. annie Says:

    Extradition? Of a non-US citizen or resident, who hasn’t committed a crime under US law while being on US soil? If the US can extradite assange for a crime (when and if they can find one that might fit), do you honestly think any civilized society should allow extradition?

    The US seems to be engaging in banana-republic thinking here.

  22. Dan Evans Says:

    Wonderful analysis– even if you think it is only half-formed. But one issue missed here and everywhere else I’ve seen is the culpability of the NY Times, The Guardian, Der Speigel, etc. in the whole Wikileaks issue. Are we just accepting that the traditional mass media are exempt from espionage or other criminal charges due to the history of the Pentagon Papers? But are they really any less responsible because they only repeated something that someone else had already “published”? It would seem to me that if Wikileaks is somehow held criminally responsible, the mass media outlets should be too.

    The other issue that no one seems to address is the nature of the entity that is “publishing” the leaked documents. The focus seems to be on the misbehavior of Julian Assange rather than on the corporate-like entity of Wikileaks. In the Pentagon Papers, the parties were not Neil Sheehan and Arthur Ochs Sulzberger but instead The New York Times.

  23. Barton Gellman Says:

    Clay — terrific, penetrating analysis, persuasive in most of its preliminary assessments. I think it would benefit from a closer reading of NYT Co. v United States. The question presented there was more or less exclusively whether the government could *prevent* publication, not whether it could punish publication after the fact, and even then the 9 justices issued 9 opinions, none of which commanded a majority. For a variety of reasons, the justices said no to prior restraint, but at least one of them (White?) pointed out that the holding did not prevent the government from bringing charges after
    the fact. It was the context of the times, the political bargain you describe so well, that left the post-publication legal questions unresolved. They remain so to this day. That is among the reasons why the prospect of prosecution for Assange on charges of espionage, or conspiracy to steal government property, has such high stakes.

  24. Akonitum Says:

    The prisoner’s dilemma models two key actors with a relationship with one another: the prisoners. It’s a weak analogue even for mainstream publishers because each organization has competing loyalties (to their shareholders, holding companies, the government that sometimes feeds them, their readership, etc.). The global distinction you are assuming is not so clear.

    The distinction you make between traditional “self-restrained” media and the new model, supposedly “unrestrained,” also is not so clear as you imply. Rather, with only slightly different lenses, it looks like the difference between propaganda-and-misinformation versus truth revealed.

    Limiting factors to the prominence and importance of WikiLeaks-type organizations (the new model) on local, regional, national, or international scales will be rooted in organizations’ conduct and organizational sources — as ever. When organizations cheat, lie, and deceive, if sources can be protected — as they should be — there will be whistleblowers.

    Of course there is a role for secrets, and also there is a role for light. But morality, integrity, and evidence-based truth are the driving forces of the WikiLeaks phenomenon.

    Rather than spending so much effort trying to devise ways to re-write/re-interpret rules so as to be able to “get” Assange, people would do better figuring ways to dis-entangle and mitigate the corruption that significantly is a result of the increasingly incestuous relationship between big business and big government. That is as true of the US as it is of China and Russia even if not yet to the same extreme.

    I understand this isn’t likely to happen much. People love to believe their propaganda.

  25. Kevin jones Says:

    To me the takeaway point is the analogy with the music industry. Government has no clear way to protect itself from numberless edge attacks that Wikileaks represents. The instability could be protracted with no clear outcome in sight.

  26. PBCliberal Says:

    Yes, to the Constitution’s framers, the “press” was the community of people involved in mass communicating ideas. It was pamphleteers and tract-writers and the printers who were the nexus of them all. Newspapers were in their infancy when the colonies were considering revolution.

    The acquittal of John Peter Zenger, a printer who was arrested by the colonial government for seditious libel, established the concept that information could be free and independent of the tradesman who produced it. To me, this case has great relevance to how the founding fathers would view first amendment protection for wikileaks.

    The “press” at the time the first amendment was written was a bunch of people with ideas and access to machinery that helped promulgate it, anonymously if so desired.

    It was not a type of corporation with government-issued press passes and owned by holding companies with licenses for the exclusive use of electromagnetic spectrum.

  27. Karl Long Says:

    Great article, in particular a great description of the difference between an international actor and truly global one. There must be a tremendous number of communities on the internet that fit the definition of a global actor. I wonder if global actors need to start organizing because in the end they are an entity that is barely considered in legislation.

    The institutional prisoners dilemma is also very interesting point worth more thought. I also totally agree with Robin’s point that when the law was written “press” meant technology, not institution or discipline.

  28. clay Says:


    A fair cop — I didn’t say _why_ I wasn’t using Jay’s notion of statelessness, but it’s for the reasons you mention. I don’t think Wikileaks is stateless so much as multi-homed, allowing them considerable freedom from the traditional ‘single point of censorship’ problems that plague international media. (I’ve fixed this in the text as well.)


    Extradition looks like law enforcement, but it’s really statecraft, so we would never extradite anyone to Iran. All the countries where Assange has recently and publicly been, though, have extradition treaties with the US.

    Also, “double criminality”, as the its-a-crime-in-the-current-location test is known, is generally but now always uses. In the UK, the rules on state secrets are _stronger_ than in the US, so double criminality seems likely to be met in the UK. (Can’t say about Sweden.)


    Well said. Post-Watergate, the USG got very good at managing the press, which makes WL more credible as a stop for leakers than traditional US publications.

  29. Robin Says:

    another great effort, thx!

    you touch on the subject tangentially several times and i honestly believe it’s worthy of you and mr. rosen’s further research:

    in establishing “freedom of the press” our constitution’s writers were referring not to a craft or trade or institution or industry, but to the *then* latest technology for publishing, the printing press (the press), as the publishing corollary to freedom of speech.

    “…not that the law has changed, but that the world has…”

    “…the million-fold expansion of edge points capable of acting on their own, capable of acting on their own, without needing to ask anyone for help or permission…”

    each and every one of us now can publish, every speaker can be a publisher. and the sagacity regarding the universal human condition of our founding fathers is re-iterated, and wikileaks is published.

    i.e. some guy from lord knows where, desperately in need of a tanning booth, has almost the entire leadership of the u.s. government flailing about in a fog of confusion and acrimony (and it’s from this that i share your fear for our freedoms).

    (and +1 to steven davidson above for noting the change from a world of hierarchies to a world of networks)

  30. Brandel Zachernuk Says:

    What I find interesting about ‘Cablegate’ is not Assange or Wikileaks, but that the situation exposes the fact we have created a sphere of operation within which an agent can act and no authority has explicit agency to moderate it.

    In the other comments there appears to be some disagreement over what Assange’s exact words were in separating these events into pre- and post-something issues. I believe that word should simply be ‘internet’. The internet is such that any organization – the Falun Gong or even 4chan could easily play the role of the stateless agent provocateur.

    Wikileaks is only one such organization, and I believe that some state actors recognize this to an extent. The song and dance we see from commentators around the appropriate treatment of Assange stems from a legal impotence to effect real change, and is made more colorful in order to deter future potential Mannings and Assanges from going down a similar path.

    The most important outcome of the current scenario is not whether wikileaks can be made to go away or whether the United States gets what it wants. Next time it could be Russia, China or India and the organization could be anything from a file-swapping service to a parenting forum. What we must do is establish a resolution that is palatable to the general populace, as the outcome is almost certainly going to become a matter of public record.

  31. 2010: Cyberpunk World « Sutter’s Mill Says:

    […] Stateless ‘Net organizations operating outside national laws fight information battles with major governments, up to and […]

  32. Joseph Says:

    The clearer difference is between Bradley Manning and Daniel Ellsberg. The latter leaked into the same state. Manning leaked state secrets out-of-state.

    A distinction without a difference, considering that the New York Times presumably could be obtained abroad even in the 70s.

  33. Tristan Louis Says:

    The question I often ask opponents of wikileaks is whether they would feel the same way if the New York Times or Fox News had been responsible for the release of the cables. Most people look at those local actors as something that ought to be protected, while they look at the global ones as something that doesn’t deserve protection.

    My own view is that Hillary Clinton’s statement on internet freedom, made earlier this year, seems to have defined the US policy when it comes to such things. Watch it today, in the post cable leaks world and it seems that the position would be in support of wikileaks.

  34. Norbert Mayer-Wittmann Says:

    Very astute analysis.

    I have difficulty with one point in the argument, though:

    “This is what is freaking people in the US government out — not that the law has changed, but that the world has, and the 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.”

    Are you suggesting that there is any part of the Internet which could be considered (to use Professor Rosen’s term) “stateless”?

    My view is that while wikileaks.ch is not affiliated with the government of the United States, it is nonetheless affiliated with the government of Switzerland — so it is (IMO) *not* stateless. It could be imagined that wikileaks, if it indeed broke any laws, and if it moreover even broke laws in many countries, might be forced to relocate to one of a relatively few by and large lawless countries. Whether anyone would pay attention to publications from such countries is questionable — but would effectively remain open to the person using their computer as they feel is appropriate.

    On one hand, it might be desirable for people to have such liberty to navigate to uncensored sources. However, there may very well also be a risk involved — perhaps such unregulated territories would attract not only “free thinkers” but also vigilantes attempting to escape the more regulated territories of the web.

    That said, I agree that the cost of sharing information from one side of the globe to the other is now essentially nil. While the wikileaks event was first beginning (around Thanksgiving), I noted that it seemed like the USA might in fact head down the path of censorship (like China — see http://news.linked.in/1608/thanksgiving-or-misgivings ).

    I agree that the present situation seems rather unclear — and it is in particular unclear whether the best way forward is more restrictive or more open than the present condition.

    My gut feeling is that the freedoms which we expect from free markets speaks for also maintaining such freedoms in the markets for information. That said, we have also recently seen — or at least gotten an impression of — what can happen if markets are permitted to be largely unregulated. I think this watershed moment may indeed separate the past naiveté of believing in fully unrestrained freedom versus a more civilized approach to the notion of freedom (e.g. the “Freedom is always and exclusively freedom for the one who thinks differently,” which Rosa Luxemburg advocated). I feel this loss of innocence may indeed be very good — not only for the United States of America, but indeed for the entire globe).

    🙂 nmw

  35. Maupassant Says:

    Sorry, I forgot to add usually you won’t be extradited from a country in which the actions for which you are charged are not a crime.

  36. Maupassant Says:

    Hang on a minute. Surely a person out of a country’s jurisdiction can be extradited from another, but doesn’t that require him to have committed the original offense within the charging country’s jurisdiction? Otherwise, why can’t, say, Iran simply extradite may of us in North America for blasphemy, or “insulting the prophet”? Ignoring for the moment the fact that our country of residence wouldn’t cooperate, it’s because we didn’t violate their laws within their jurisdiction. If Assange had published the cables in the US, then fled to the UK, or Sweden, I can see him being extraditable (though I would still consider it wrong.) But you’re talking about him doing something that might have been against US law if he had done it within US jurisdiction. I am very uncomfortable with the seemingly ubiquitous assumption of Americans that their laws all have global jurisdiction.

  37. Martin MacKerel Says:

    Very cogent distinction between global and international. A couple of quick points on the essay:

    Part of the reason for this radical break is that the Prisoner’s Dilemma game has worked *too* well. The mainstream mass media, never very independent, has become so connected to the state that its journalists unconsciously identify with it, as Greenwald and Rosen point out. Leakers go to Wikileaks because they don’t trust the traditional media.

    Assange actually said “I believe geopolitics will be divided between pre- and post-Cablegate”. (Although he may have used the word Wikileaks in place of Cablegate in some other article or interview, I have not come across it.) I strongly disagree that that judgment is premature.

    This episode shows how our world wasn’t previously global; an international world is one of nations that can successfully define what is legal within their own borders; most important is control of one’s own citizens and what they think and say.

    Previously, most US citizens learned from US media, controlled by the legal regime of the US. Now the US is in the position where a small outside actor can speak to its citizens without its approval. It will have trouble using the law or assassination to stop this communication. So instead it has turned to delegitimization of Assange and WIkileaks and extralegal pressure on corporate chokepoints.

  38. Johnny Says:

    If the cables were leaked to a state entity, there would be no difference between the Pentagon Papers and the Wikileaks debacle. Does being a non-state entity mean Assange is not “protected” by the former Supreme Court ruling, or is he no less guilty than the New York Times was?

    The clearer difference is between Bradley Manning and Daniel Ellsberg. The latter leaked into the same state. Manning leaked state secrets out-of-state.

    The politicians whose power may be injured by the leaks, and their loyalists in the media, use Assange as a scapegoat for their blustering ire because of his high profile. They could not wail so flagrantly against Manning.

  39. Steven Davidson Says:

    A wonderfully clear explication of how once again the networked world–and those who make use of its salient features–changes the rules faster than those who rely on the extant structures and rules understand.

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