Wikileaks and the Long Haul

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.

228 Responses to “Wikileaks and the Long Haul”

  1. clay Says:

    @Graham,

    My assumption is emphatically not that everyone should be subject to US law. My assumption is that the US should abide by the law in pursuing Wikileaks.

    As I said, I am not a lawyer, so I don’t know if there is a legal argument for extraditing Julian, but if there is, we should follow it, and and if there isn’t, that’s that.

  2. Alberto Cottica Says:

    Clay, another excellent post. The one thing I am not completely convinced of is “change [of opinion] is, almost universally, seen as weakness”. Keynes famously replied to a British member of parliament who accused him of just that: “When facts change, I change my mind. What do you do, sir?”. And Stewart Brand, in Whole Earth Discipline, is ranting on about hedgehogs (who never change their mind) and foxes (who do it all the time), and how flexibility and adaptability of mind is coming to be seen as a modern virtue.

    Here’s a hypothesis: in the long haul, human systems will be able to withstand more transparency than they do now (though not complete). This is actually based on your own thinking: you predicted that we’d need to rethink, among other things, privacy, and guess what? We are doing just that. Maybe governments will, too; they will adjust to an increasingly transparent world, just as we are learning to be more careful of how we voice our opinion on Facebook. What do you think?

  3. George Mokray Says:

    People shouldn’t fear their governments. Governments should fear their people. (Thank you, Alan Moore.)

    I fear that the present Wikileaks reaction by government will lead to the more than gradual fencing in of the Internet. Power does not like to be contradicted.

  4. chris Says:

    Thanks for your comment, Graham… I feel the very same way.

    It saddens me – a person who is a proud defender of free opinion (be it left or right) – that I am actually fearful of linking to Wikileaks or following certain twitter users.

    And I’m in Australia for Christsake.

    WTF is up with that?!

  5. Graham Says:

    Clay, I really don’t understand this assumption that the rest of the world should be subject to US law. You are one of the last people I thought would have this casual assumption of empire.

    Personally, I have lived with the idea that the US is a country which tortures, murders, and breaks international law for a long time (so does my own country). I have always thought ‘well, it’s the CIA’, or ‘it’s Bush and the crazy christian right’.. the American people itself is not all like that. Well, I still know the American people as a whole is not like that, but now for the first time I have begun to feel that the US is my personal enemy, that what I can say or do in public is limited by what your (not just my) government may do to me; and the assumption made by both you and your government that your laws apply to the whole world is a big part of that. Your ‘democratically imposed restrictions’ are my ‘restrictions imposed on my life by a foreign power’, and anything but democratic.

    After that rant I guess I’m committed to setting up my own links to the wikileaks material. I hope I don’t need to feel as scared by that as I do.

  6. Thoughts on Wikileaks 3 « FoundOnWeb Says:

    […] Go read Clay Shirkey’s post. It says everything far better than I can. In particular, the part about your position on the leaks […]

  7. john Says:

    I’m a little sympathetic to this POV, however, it needs to be remembered that at heart democracy is government by the informed consent of the governed, and there will be no such thing if the government insists on hiding every scrap of paper under the rug of “security” because its too cowardly to face up to it’s blunders and general contempt for morals, good manners and taste.

    In that sense I’m also sympathetic with Assange’s goals and actions. This is especially so in this instance since most, if not all, of the leaked information threatens no one’s life or property. Its embarrassing to the writers and the government. Nothing critical to national interests or the interests of citizens (outside of government) is lost by the information being leaked.

    The simplest and cheapest solution would be for the government to stop doing stupid and wicked things and then, when they do, just blush and apologise if caught at it.

    If anyone is to be punished it should be the people who commit the stupid, nasty or illegal acts in the country’s name, not people who report them.

  8. Stephen Hendrickson Says:

    I don’t see change as a weakness. I see it as a natural property of the universe–and human existence.

    “The test of a first rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.”

  9. comments_image COMMENT NOW! Why Is the Government Waging a Doomed (and Illegal) War Against WikiLeaks? « Bear Market News Says:

    […] But he’s not conflicted about how the United States ought to respond. If we pass a law criminalizing what WikiLeaks does, that’s one thing — even if he doesn’t like the law. But ignoring the law is quite another: […]

  10. Fredrik Carlsson Says:

    One of the main problems with transparency in government — besides that there is too little of it — might be that we build systems that thrive on it. Secrets become currency to the point where even common knowledge is reported as such. Breaking that deadlock seems like an impossible feat even with a president who told the world his government was to become the most open.

  11. chris Says:

    I agree with Anne McCrossan on this: her keyword being ‘Integrity’.

    The issue is not with denying governments (that represent the people) the right to negotiate in good faith and in confidence. The issue lies with the documented underhand dealings – subterfuge in the name of diplomatic endeavour – and the distasteful manipulation of governence for fiscal or sovereign gain, or worse, loss of life.

  12. Whip_Lash Says:

    IIn the US, however, the government has a “heavy burden” 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.

    The prior in prior restraint means prior. As Wikileaks has now published the U.S. would be applying posteriror restraint, if you’ll excuse the term. There is nothing to prevent Wikileaks or any of the news agencies that published its material from being prosecuted under the Espionage Act except politics. Lieberman’s new law isn’t needed.

  13. Raphael Derosso Pereira Says:

    I think the problem resides on extreme power concentration or extreme power dilution (they both occur together). The release of such an information and the impact it is causing is directly related to the act of doing it, but at MOST to the act of continuing doing it. It created a reaction! The consequences we will see, but the important is how that will affect power distribution and concentration or if that will ultimally just diverge

  14. Alex Lightman Says:

    “If you can’t measure something, you cannot manage it.” I think all discussions of Wikileaks should include a reference to a few critical numbers, numbers that the US government could give without compromising a single agent in the field, and yet would give us the picture of the size of the forest.

    These numbers are:
    1. How many pages of classified documents are held by the US government?
    2. How many new pages of documents are classified this year?
    3. How many pages of documents, from which years, are declassified this year?
    4. How many people can see each category of documentation?
    5. What ratio of documents, reviewed after declassification, are objectively deemed worthy of having been classified in the first place?
    6. What “automatic classification” categories are there? Is an allegation of conflict of interest or corruption automatically classified, for instance?

    Without these numbers, an objective assessment of Wikileaks is as logical as saying whether a mobile company is doing a good job if it doesn’t tell you how many calls it dropped or minutes you were on what call to what number.

    I used to work for a US Senator (Paul E. Tsongas), and I opened all of his mail. I can tell you that there are things that come in the mail all the time that can and should be known by the American public, but as a loyal staffer, I did not and have not spoken or published it, though I have published over 1 million words.

    I will say, though, that I do have a good sense of what the first number is. I believe that there are over 100 billion pages of classified documents. I also believe that there are documents that show how over $1,000,000,000,000 was stolen from the US Dept. of Defense, the real preparation for the first Gulf War (long before Saddam Hussein invaded Kuwait), etc.

    It’s very likely that more documents are classified, adding to this 100 billion page Mount Everest of classification, than are released by Wikileaks, if we look at things from an annual basis. Thus, we just get more secretive and mysterious and farther from transparency.

    I have not given one single kilobyte of information to Wikileaks. However, I am numerate, and so I would say that, in absence of comparative ratios as with these six numbers above, I would say that 100% of criticism of Wikileaks is too harsh, and uninformed.

  15. gor Says:

    @clay:

    “This may not happen this time, of course. We could lose the ability to work through the process to a negotiated settlement, but I do not believe we have to lose.”

    Yeah. I guess my fear is that the existing media/corp/govt structures have got so darn good at comms/PR/media etc over the last 100 years that they’ve actually managed to manoeuvre the situation to a point where we can’t win any more. I don’t think that’s particularly cynical, either – rather, it’s realistic, if nonetheless tragic.

  16. Koala Says:

    It is also interesting how starting with leaks, you jumped to law, then to the Catholic Church. Psychologically this reveals a form of thinking — the Catholic Church is a remnant of the Roman Empire which was another highly centralized system, and they used law as a means to subjugate peoples (the emperor cannot be everywhere but his law can). We added democracy later on, but the *machine* is only turned on at specified intervals.

    Governments are just too big. The way they horde, generate secrets is very much comparible to their size.

    We need to ask the right questions here — it’s not a matter of how to do this / that under the current system; the question is how we build a new system that’ll allow the natural progression of things using our current technological infrastructure.

  17. Wikileaks, zum Dritten « Internet und Politik Says:

    […] Winer, Rebooting the News #75. David Samuels, The Shameful Attacks on Julian Assange. Clay Shirky, Wikileaks and the Long Haul. Micah Sifry, Freedom of the Press is Guaranteed… Michael Stepper, Eine Ansage für Assange. […]

  18. Jon DiPietro Says:

    Clay – I’m also conflicted, for the same reasons you articulated (though I never would have so as artfully). However, don’t you think there needs to be differentiation between embarrassing information and leaks that constitute a clear and present danger? The issue of leverage you mentioned is one thing when talking about fixing elections, for example, and quite another when talking about the balance of nuclear power in the Middle East, for another example. This is not to mention that peoples’ lives could be on the line as well.

    The world is a dangerous place, where not everyone plays by the rules. Standing up as the moral beacon of democracy is a fine thing unless and until transparency leads to a loss in sovereignty that causes the beacon to go dim.

  19. Dom Says:

    Thanks for the thoughtful post. Indeed, some of the posturing on JA and Wikileaks is sickening.

    Wikileaks has become a simile for “the organization that published Collateral Murder / War Diaries / War Logs / Diplomatic Cables”. They have done much more than this, although they are certainly some of the most prominent publications. It would be a shame to see them closed down due to this, although I would suggest that other perhaps less (perhaps more!) diligent organizations would spring up in their place.

    When I hear the calls for suppression, I think about Mark Felt and his leaks to Woodward and Bernstein. Wikileaks are not Mark Felt, they are Woodward and Bernstein, in a different publishing age.

  20. J. Lee Says:

    @Boris:
    When have we ever not been at war with somebody? Or with objects and abstract concepts? (drugs, poverty, what have you)

  21. clay Says:

    @gor,

    Yes, I do believe it, and I think your brand of totalizing cynicism is wrong.

    There are cases, from the Pentagon Papers all the way back to Luther’s 95 Theses where significant institutional pressure was unable to prevent society from re-forming itself around enlarged possibilities of citizen participation, skepticism, and constraint of elites.

    This may not happen this time, of course. We could lose the ability to work through the process to a negotiated settlement, but I do not believe we have to lose.

  22. Karl Long Says:

    In Julian Assange’s words he’s out to dismantel or defang what he calls hidden government. In the end our democracy is tuned by a industrial-political-media complex that still has a tremendous influence in how the country is run. I for one think that Wikileaks is more anti-fascist than it is anti democratic: https://zunguzungu.wordpress.com/2010/11/29/julian-assange-and-the-computer-conspiracy-%E2%80%9Cto-destroy-this-invisible-government%E2%80%9D/#

  23. gor Says:

    “If that’s the way governments get to behave, we can live with that.”

    The point is, unfortunately, that this is precisely the way governments get to behave, whether overtly or covertly. The difference between them is ultimately in the degree to which they exercise their ability to behave in that manner, and exactly in the overtness or covertness of their style.

    That aside, is it not naïve for anyone at the end of 2010, after years of unimpeded RIAA/MPAA litgation against individuals, the UK government’s RIP bill & the various US equivalents, the abject collapse of net neutrality “discussions” into fiscal browbeating – and on, and on, ad nauseam – to think that an Internet owned and managed by government and large corporations is actually capable of “further democratizing the public sphere”? Distributed technology certainly might in principle be used in that manner, but hasn’t anyone noticed that all the big networks are owned by big corporates, governments have put monitoring and compulsory data-handover legislation in place, app-specific traffic-shaping is the norm, cooperation or otherwise in peering agreements are used as economic battering rams, and the end-users are absorbed as product by Facebook and Twitter, client companies by Amazon, and both by Google?

    There seems to be a similar starting-point expressed in articles such as http://www.guardian.co.uk/media/2010/dec/04/wikileaks-world-week-cables in which the current episode is described as “a curtain lifting to reveal the world leaders not as wizards but as all too human, [with] the private positions of those in power […] often diametrically opposed to what they said in public”. How is this revelatory? Are we really so easily fooled by the “covert” versions?

    Most importantly, does anyone still seriously believe that, the existence of distributed/”democratizing” technology notwithstanding, large corporates and their symbiote governments are going to take this sort of affront lying down, even if quashing it immediately means exposing their normally invisible hand? Does anyone really believe that they care about that exposure, given how quickly the vast majority will either ignore it in the first place, or have moved quickly and smoothly on by the time the next Superbowl comes round? Clay, do *you* really believe that?

  24. gizmo Says:

    I’d bet my right arm that the corruption and malfeasance that we learn about doesn’t represent .0001% of the bad stuff that actually goes on. We aren’t even seeing the tip of the iceberg. Bravo, Wikileaks !

  25. Stewart Says:

    “WikiLeaks is a company seeking to do business within the sovereign nation of The Unites States of America and is therefore subject to the laws of this nation and accountable for its actions.”

    It’s no such thing!

  26. george w bush Says:

    I thiink that Wikileaks, tho at the moment is doing sterling work will eventualy slip up ( i do hope i am wrong) it is only a matter of time before some information is released that opens up a whole can of worms,
    which in turn will lead to some unfortunate event and the circling wolves will pounce and the sheeple will forget.

    Until that day keep fighting the good fight just remember its no ones fault but are own and stop blaming god (you can blame for other things like …….. er wasps)

  27. Dan G Says:

    @Bryce I believe your absolutist view is relatively easy to challenge. Consider doctor-patient privilege for example. Proper medical care requires as full a disclosure to the physician as possible, but what if that information might affect family, or career, or insurance? If you knew a doctor would (not “might”) disclose that you had an STD, for instance, would you tell your symptoms to the doctor in the first place… Or simply risk infecting others?

    Similarly, there is attorney-client privilege. In an absolutist view, this should not exist. For instance, Mr. Assange would have to assume that anything he said to his attorneys regarding the current cases in Sweden would be disclosed. Surely you are not arguing that this would facilitate a just resolution to the charges?!

    I think the author’s point is that there need to be checks and balances. Absolute transparency must be balanced against other things of social import, just as free speech is balanced against the idea that libel is unfair. Further, the freedom of action… Of a State or an individual… Must be checked and balanced for the greater good. And as the author say, and I thoroughly agree, all of this needs to take place within a framework of law.

    And now we return to this century’s test of Gavrilo Princip’s Law that anarchy sounds good until you try it.

  28. Andreas T. Kristinsson Says:

    Wikileaks philosophy is not that there should be no secrets – as is obvious by how they are handling the redaction and publication of the documents – and notice that the founder of Wikileaks is using secrecy to protect his life.

    Wikileaks is a journalistic organization dedicated to exposing injustice.

    In 2009 Julian Assange founder of Wikileaks was awarded the Amnesty International Media Award awarded for its part in exposing extrajudicial assassinations in Kenya (The Cry of Blood- Extra Judicial Killings and Disappearances)

  29. Ken Fromm Says:

    Great point about extra-legal pressures on suppliers although it’s likely they violate terms of service provisions (AWS specifically), not necessarily Twitter or FB or Swiss Bank accounts or other services. Interesting and troubling precedents being formed here at a speed and breadth that may be difficult to reel back in.

  30. tayga Says:

    1.) i dont get why ur referring to us law since wikileaks is not a us based organization and assange is not a us citizen.
    2.) “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.”
    although i do believe that in the long run govts need confidentiality, i completely disagree w your above statement because, we know that wikileaks asked us govt to go over the cables to minimize harm and us declined. http://www.youtube.com/watch?v=QgtOtrFVGPg
    this doesnt seem like “operating as law unto itself” to me on wikileaks’ part but it does seem so in the us govt case. they refused to negotiate abt even partial transparency to protect the so called “vital information that could harm the troops” thus denying the basic human right of not only its citizens but also other people living around the world.
    UDHR Article 19.
    * Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. http://www.un.org/en/documents/udhr/index.shtml#atop
    so i do believe we need new cheks and balances indeed but not for transparency, rather to be able to controll what governments do on our behalf. In Obama’s words, “The more freely information flows, the stronger the society becomes, because then citizens of countries around the world can hold their own governments accountable. They can begin to think for themselves.” http://www.youtube.com/watch?v=J9zytXNgKMs
    to cut it short: as long as there are govts, like the us govt, that considers itself above the law and deliberately cover up atrocities like the torture in abu gharib,using of white phosphorus bomb on civilians or what we have seen in collateral murder video, we need organizations like wikileaks, no matter how harmful they may be.

  31. boris Says:

    Absolute BS. Complete disclosure is fatal in time of war. JA is an enemy combatant and should be treated as such.

  32. robble Says:

    I think Koala makes a good point. I was thinking the same thing when I was reading the article. It’s not just about deciding how transparent information should be. The idea of a centralised government making one-size-fits-all laws (on our behalf) feels out of date.

    Yes, shortcuts are nauseating – that’s down to panic.

    But the ‘proper process’ is out of date too.The people who make would ‘decisions about checks and balances for newly increased transparency’ will be the people already in power. They have vested interests in keeping things as they are.

    On Koala’s point of different ways to organise using the latest technology: the idea of a more participative democracy (WikiDemocracy?) where we all have more of a say in making laws and decisions feels more like where we’re heading than creating legislation that’ll be instantly out of date.

    In that scenario the idea of an elite (holding information from us) doesn’t make sense anymore.

  33. Ian Thomas Says:

    Thanks for penning such a thought-provoking post. I share the same sense of conflicting alarm over, on the one hand, the extent to which WikiLeaks behaviour may destabilise international diplomacy and, on the other, the response of governments to it.

    However, I do wonder if there is a more significant movement emerging here? After all, ‘statecraft’ presumes the sovereignty of nation states but – as you point out (along with Benedict Anderson in ‘Imagined Communities’) – moveable type not only helped cause the crumbling of the Catholic church’s influence in Europe, it also delivered a means by which fledgling nation states could successfully propagate ideas of their political and legal legitimacy using mechanised media.

    So do you think that there stark parallels between the effects of moveable type and of Wikileaks?

    I’m inclined to believe that, in a world where the ‘enemy’ of western democracies is not a singular entity but a network of unconnected, opportunistic and geographically-unaligned terrorist cells, and where banks are able to hold state economies to ransom over ideas like the Tobin Tax by threatening to shift operations to tax-favourable destinations, isn’t it possible that movements like WikiLeaks are simply the inevitable consequence of such a profound shift in communications technology?

    In other words, as the means of communication changes with such pace, and information is prone to such fluidity, isn’t it entirely possible that the boundaries of the nation states are being challenged in just the same way that the printing press challenged the hegemony of the Catholic church?

    Which tends to leave the question, in whose interests is it to challenge the free movement of information – the people’s or their governments? And are they one and the same thing these days?

  34. RobertinSeattle Says:

    I posted this to another story about the Amazon decision on Boing Boing the other day:

    There are some interesting aspects to all sides of the equation on this. On one hand, I’ve always had a problem with ISP’s and hosting/cloud services being threatened by the authorities for porn. My argument has always been to compare them to utility companies: Electricity (or water) flows through to each and every house on a block in a neighborhood. Just because the utility company happens to provide a resource to a house of ill-repute, does that mean the provider is guilty of being in the sex trade? Of course not – they’re simply the “messenger.”

    But then on the other hand, if someone received stolen goods from someone else – regardless of how it was obtained and from whom – does that give them the right or entitlement to do with it however they please? For example, someone steals the master digital files for an album and then decides to put it up on Amazon Web Services for free viewing and downloading, is the act itself legal? And wouldn’t that make Amazon legally – and morally – obligated to take that material down immediately?

    Taking it one step further by taking it to a personal level, what if it was personal information – YOUR personal information – that some troll had managed to find and download. Then they “handed” it over to someone else who then went ahead and distributed it all freely online to anyone and everyone who wanted to look at it. There are serious legal and moral issues that seem very clear to me anyway.

    The biggest problem I’ve seen on this particular situation seems to have been discussed very little anywhere so far: And that is the fact that Mr. Assange clearly and obviously displays classic narcissistic qualities of a sociopath, plain and simple. Sociopaths truly do not care whether they win or lose at the game but rather play for the sheer enjoyment of all the attention and suffering he/she can inflict on others. If Assange was truly in it to change the world, he would have also made sure to acquire equal parts of Russian and Chinese intelligence to release simultaneously. It would have shown more noble motivation and certainly would have created a new level playing field to all. As a narcissistic opportunist, Assange simply got lucky when the American files landed in his lap. Nothing more. I suspect that he would have probably done the same had he only had Russian files dumped into his lap. However, I might add that should he actually have Russian or Chinese files that he’s only recently talked about releasing, he’d likely already be “vanished” permanently. In fact, I’m quite surprised nothing worse hasn’t already happened to him.

    Indeed, I don’t believe that his actions can be compared to the Pentagon Papers; not even close. This was a malicious act perpetrated by one nasty excuse for a human being whose 3 minutes of fame should be expiring – right about… now.

    And a followup to some of the trolls who jumped on it right after my observations:

    Ah yes – the new enablement excuse. Simply because you can does not mean you should. For some I suppose it’s always permissible under any circumstances. Until it happens to you. Then the story changes.

    True power always seeks its own level and goes to where it belongs. There are always those who would pretend that it belongs to them or who seize it from others but in the fabric of history, it’s usually short-lived.

    Believing one has won or lost this discussion on this single site is ultimately inconsequential. We will need to re-visit this topic in 5 and 10 years to see the real consequences – intended or unintended – after everything has completely played itself out.

    BTW – A final argument on Amazon’s behalf is that they sell their web services to pretty much everyone who opens an account. And with the volume of users each day, they can’t check and monitor each and every new customer as they sign up. I see no difference from Google’s YouTube policy of taking a video down in a timely fashion if an original rights holder contacts them with sufficient evidence. I see absolutely no difference with Amazon’s process – regardless of who the violator happens to be.

  35. clay Says:

    @Bill (http://www.shirky.com/weblog/2010/12/wikileaks-and-the-long-haul/comment-page-1/#comment-3214),

    My judgment about Wikileaks being bad in the long haul is just a restatement of my saying “I don’t think that independent actors who are subject to no checks or balances is a good idea in the long haul.” Historically, any sort of unchecked power becomes abusive.

    @Koala (http://www.shirky.com/weblog/2010/12/wikileaks-and-the-long-haul/comment-page-1/#comment-3207)

    Yes, you are right, I am assuming that people in the 21st century need government.

    @John (http://www.shirky.com/weblog/2010/12/wikileaks-and-the-long-haul/comment-page-1/#comment-3208),

    Of course the US answers to other countries, through our behavior around treaties and our membership in things like the WTO. Believing that the US is unconstrained is a naive fantasy, and believing that it should be unconstrained is a dangerous one.

    As for Wikileaks, if by saying it is subject to our laws, you mean the US should take steps to try Julian if they think he has committed a crime, we agree, but if you mean that we should be able to treat him however we’d like to, then we disagree.

    @Greg (http://www.shirky.com/weblog/2010/12/wikileaks-and-the-long-haul/comment-page-1/#comment-3212),,

    Wikileaks does, by design, create a threat to current national controls, but I don’t much traffic in the language of “fundamental”, because I’m not sure we know what the fundamentals are in this case. The printing press was and is geographically distributed, and yet it was brought into that framework as well.

    I suspect the answer to the challenge Wikileaks presents will involve a further globalization of governance, but that doesn’t strike me as more fundamental than, say, the WTO as a response to global trade.

  36. Ed Says:

    I have a problem with the premise that you lay out in the second paragraph. Your argument seems to be “people think change is weak, so we have to be able to hide the fact that the government alters its position so that confidence in the government does not falter”.

    The fact that “change is seen, almost universally, as weakness.” is not something we should be proud of as a species, nor is the belief that change is weakness something that we should encourage. A truly evolved species would recognize that admitting that you are/were wrong and responding to arguments with flexibility rather than obstinance is the wiser course.

  37. Wikileaks and the Long Haul « Clay Shirky | mghicks Says:

    […] Clay Shirky’s post about Wikileaks and the U.S. response is a must-read. 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.” […]

  38. Anne McCrossan Says:

    I agree Clay. Transparency isn’t the answer, but blatant integrity is.

    Governments currently assume they are above public scrutiny and Wikileaks is addressing this, quite rightly, because of deterioration in perception and the questioning of integrity that has ensued.

    The flagrant abuse of rule of law that has ensued is frankly shocking and has only added fuel to those questions being asked in the first place.

    There’s no law against donating money to Wikileaks that I know of. Are those who’s funds have been seized going to get their money back or are we really living in a globally connected world where free will has been overridden?

  39. Bryce Rasmussen Says:

    At the heart of any political system, of any democratic system, or system of governance, are human beings. In contrast to your thoughts, one reality, within human relationships, of any kind and level, has stood out: that human relationships do not do well without transparency that approaches a near totality.
    Why? Because the main, if not sole purpose of secrecy is to guard motive and tactics/strategy from the inspection and observance of others. Secrecy, as a system, exists in conjunction with competitive survival strategies, and has highly limited abilities outside of that. Cooperation, which is our basic nature, requires vastly greater transparency.
    To put it this way, on a personal level: as a free human being, able to decide to serve another human being, by choice, I will only do so if I am able to observe, freely, why that person is doing what they do. How they govern themselves, the motives, all of it. Yes, total transparency. Because by allying myself with them, and in the spirit of cooperation, ‘under’ them, or following their lead, their decisions and moves affect directly. The same goes for all the way up the ladder to the big players.
    Even the argument that some secrecy is needed for protection from others, is unworkable, untrustable. Yes, someone might be attacking-however, with total transparency on both sides, that isn’t likely to happen. And said need for secrecy has, in it’s centre, an unhealthy premise-that the average citizen can’t be entrusted with state affairs, they might reveal too much. And what might they reveal? That the secrecy always surrounds acts of war, theft and related crimes (as well as the technology used therein.).
    That can be reduced to an even purer observation: acts of true cooperation do not need any secrecy whatever. The conclusion? Total transparency is required, if not a must, in any affairs. This means any and all business deals, any and all state or country affairs, all politics. An exception being the decision-making process by juror. However, transparency is required in the making of a law. And as for the argument that transparency will necessarily involve the general public, and then affairs will take forever to be completed, it’s a fairly ridiculous argument, that has been observed to not really exist in the field. In fact, a relaxing of rules tends to bring out human cooperation, and smooth the process.
    Only utter transparency, and nothing else.

  40. Bill Mill Says:

    “If the long haul were all there was, Wikileaks would be an obviously bad thing.”

    Could you explain that statement? It’s not at all obvious to me, and it strikes me as pretty remarkable that you would say that and not explain it.

  41. Crosbie Fitch Says:

    Human beings have privacy, naturally, by dint of the walls they can erect and secure between themselves and others.

    Artificial entities do not have privacy – neither states nor corporations.

    What a human being is privy to they are at liberty to disclose or leak (they cannot be bound by the state to silence).

    And liberty, by definition, is limited to acts that do not unnecessarily jeopardise the lives of others.

    Also don’t forget that we must have freedom of speech, which means that the state may not interfere in an individual’s communication – even on a pretext of security.

    The only question is, subsequent to leaks freely spoken without malicious intent, are more lives saved than lost as a result of leaks published by WikiLeaks? If if it is not clear, then there is no cause for remedial action.

    How many suspects are tortured, how many people disappear because the state can keep ignorant and impotent the only remaining power able to keep it in check, the people?

    Never grant the state secrecy. Diplomats have ample privacy as individuals.

    Wikileaks represents the last chink of hope before the door to the dungeon closes, and a police state descends.

  42. Greg Borenstein Says:

    Clay, I think you’re on solid moral ground to condemn the US government’s extra-legal persecution of wikileaks, but to play devil’s advocate, doesn’t the decentralized extra-national nature of wikileaks pose a fundamental threat to the national government-level democratic processes you’re advocating?

    Even in the last week under the US government’s attempts to quash it, wikileaks has been able to move its domain around, spread its data via mirrors, etc. — use every resource of the global internet to frustrate the attempts to shut it down. It’s hard to imagine a formal legal process that could actually get any traction against wikileaks. Assange can operate perfectly effectively from a non-extradition country. Even if he was personally caught and arrested, his network could carry on the work collaboratively without him.

    While I think the government’s methods are deplorable, I do think that the existence of networked organizations like wikileaks with the ability to have such a powerful impact on the ability of any nation to govern itself without actually being subject to any particular government’s rule of law dramatically alters the balance of power for governments going forward. And hence we can expect to see them do quite irrational and out-of-character things to try to right that balance.

  43. tom matrullo Says:

    It’s probably too soon to judge either Assange or the full range of impact from Wikileaks operating through time. What is fully worth looking at now, in the midst of this muddle, are a set of things coming into view: 1) A new polarity between states (of whatever persuasion) on the one hand, and stateless communicative power on another. 2) A developing option facing those on the net, whether they are with the parochial interests of their state entirely, or whether there is a space for constructive civil action, critique and disobedience beyond the border of their established civic realm. 3) Whether the gain in signal versus the useless noise of bullshit corporate media warrants a new debate on how we want our governments and corporations to handle the need for discretion you talk about. I.e., How do we attempt to reconcile institutional opacity with justice?

  44. Should We Boycott Amazon for WikiLeaks decision? « (parenthetical) Says:

    […] I am not convinced that WikiLeaks deserves my actions on its behalf. As Clay Shirky has very recently noted there are reasons to suspect that WikiLeaks’ behavior is not focused on the sorts of oversight […]

  45. Wikileaks and the Long Haul « Clay Shirky « Netcrema – creme de la social news via digg + delicious + stumpleupon + reddit Says:

    […] Wikileaks and the Long Haul « Clay Shirkyshirky.com […]

  46. John Says:

    First, the opinions expressed in this post don’t take into account the lives that were put into danger because of some of the wikileak content. In addition, its ludicrous to compare the United States of America, as a law unto itself versus WikiLeaks, as a law unto itself. The United States of American is a sovereign nation, a republic that is part of a community of nations around the world, but does not answer to any of them. WikiLeaks is a company seeking to do business within the sovereign nation of The Unites States of America and is therefore subject to the laws of this nation and accountable for its actions.

  47. Koala Says:

    Your criticisms seem to make an apriori assumption, that people in 21st century need bunch of laws, government, some sort of management. Centralization, concentration, standardization are key tenets of a by-gone Industrial Age, and according to this viewpoint, a “centralized” government that issues “standard” laws to apply to everyone (one size fits all) and concentrates key responsibilities in key bureucracies, is simply not sustainable, and in fact, passe. Havent we seen enough proof of this already? 9/11, Katrina, 2000 election mishaps in Florida were all failures of this broken system. Iraq War is another, and actually was an event could be stopped if we had a system like Wikileaks back in 2000.

    A lawyer once told me (yes I know a few) that law is about applying the past to the future. What if that past is so distant now in terms of mentality that it cannot be applied to the present anymore? I’m not talking about anarchy here, but different ways to organize using the latest technology, not trying to extend a steam engine based smokestack system.

  48. Terence Eden Says:

    Some great thoughts.

    If the government had been more open originally, would there be such a clarion call for more transparency? Even if the most amount of data which could have been opened was open – would Wikileaks (or someone like them) need or want to release secrets?

    One other thing – your use of asterisks for hyperlinks is really annoying to those of us who use screen-readers or mobile devices. It makes it hard to access the links or understand what’s behind them.

    T

  49. jon Says:

    Ooops, hit return too soon … I’ve been blogging about this in Calls to Boycott Amazon over Wikileaks: #amazonfail 2.0?

  50. jon Says:

    Excellent point about about how leaders of repressive regimes can now point to us and say “we do it too”. Also, citizens of countries where the Wikileaks revelations have revealed quiestionable behavior by government officials with applause are likely to see the US as siding with their governments and against their citizens.

    What do you think the prospects are for the Amazon boycott that’s been launched after they took down Wikileaks’ site? I can see it getting a lot of momentum internationally …

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