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. der Says:

    Change obama cannot imagine

    We NEED proper steering mechanism to survive the global society we created with technology. Transparency/involvement is needed. It’s urgent, at this moment our society has an obsolete 200 years old steering mechanism. How can a few wise leaders understand these complex global issues pending ?

    Would we have gone to Iraq over Weapons of mass destruction is we were part of the diplomatic cable discussion ?
    Better of with more transparency ? Credit Crises / Cable gate shows governments are not so much in control of the global society. Wasn’t it work of the press to tell us the truth ?

    Can the government be specific what is so threatening, because NO ONE DIED by the cables released. People did die because the same amount of money did go to Foreign Affair as to public health care.

    At least the cork out of the bottle. Fact is that secrets are harder to keep anno 2010. Shutting down is naive. Discuss it is the only option.. If democracy fails, the only solution is MORE democracy!. Fill the streets and discuss where the press fails.

  2. Democracy Says:

    “However, as a citizen of a democracy, I’m willing to be voted down”

    Democracy is a system wich allows itself to be terminated, given enough votes. That’s why fundamental rights are locked in the groundlaw / first amendments. It is very difficult (but not impossible) to have them changes. The right for free press is one of them. It is very good to have body’s like wikileaks to keep everybody awake. In my country, the press has a right to demand insight into goverment documents. I think this is a very good thing.

  3. WikiLeaks – Two Wrongs Don’t Make a Right « Philip Trippenbach Says:

    […] it might damage WikiLeaks’ ability to do good in the long run. Clay Shirky has written an astute analysis on this […]

  4. Is the Cloud Too Weak to Support What Paper Can? « The Scholarly Kitchen Says:

    […] Clay Shirky, writing about the long-term balance of transparency and opacity necessary in a civil so…, notes that pressuring Amazon and PayPal to invoke their terms of service is essentially a craven act on behalf of the government: 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. […]

  5. Ergun Says:

    >> 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.

    Well maybe this is what precisely the problem is. Perhaps we should go back to the drawing board of democracy and like in ancient Athens we demand transparency and scrutiny of public at all times without compromise. Only then people may gradually learn opinion change not as a sign of weakness. Perhaps people should have the right to know when opinions change and why. WikiLeaks thins the line between what governments want to hide and what people want to know, is that a bad thing?

  6. der Says:

    We NEED proper steering mechanism to survive the global society we created with technology. Transparancy/involvism is needed. It’s urgend, at this moment our society has an obsolete 200 years old steering mechanism. How can a few wise leaders understand these complex global issues pending ?

    Would we have gone to Iraq over Weapons of mass destruction is we were part of the diplomatic cable discussion ?
    Better of with more transparency ? Credit Crises / Cable gate shows governments are not so much in control of the global society. Wasn’t it work of the press to tell us the truth ?

    Can the government be specific what is so threatening, because NO ONE DIED by the cables released. People did die because the same amount of money did go to Foreign Affair as to public health care.

    At least the cork out of the bottle. Fact is that secrets are harder to keep anno 2010. Shutting down is naive. Discuss it is the only option.. If democracy fails, the only solution is MORE democracy!. Fill the streets and discuss where the press fails.

  7. Catherine Fitzpatrick Says:

    Lieberman has done nothing illegal. This elected official — elected like WikiLeaks isn’t elected — has called up Amazon and asked them why they are hosting stolen documents whose release threatens national security. To their credit, Amazon found this to be a violation of their TOS, not just a business reputation liability, but a TOS violation. And that’s ok. That’s what Congress does. That’s why we’d rather have Congress whom we’ve elected as watchdogs rather than unelected anonymous revolutionary movements.

    Bady’s point is in fact the one you must start with — Assange is not for transparency, that’s a temporary expediency in his Leninist “the worse, the better” to destroy the state. His diagnosis — like yours — is wrong, as the U.S. isn’t the authoritarian security state he imagines, but its enemies are. He serves U.S. enemies, not the just cause of ending unjust wars. He has no plan to WikiLeakify the Taliban.

    You’re also cynically invoking revolutionary expediencies, like “keeping WikiLeaks alive” while you do this or that — you imagine — to improve the state. But the methods matter, and Assange’s coercive methods are not fair or just. The people of a democratically elected country should get to decide when their documents are released, through their elected representatives. If they are unhappy, they have democracy itself, and don’t need “counter democracy” which privileges “suspicion” over due process.

  8. gizmo Says:

    http://www.state.gov/r/pa/prs/ps/2010/12/152465.htm

    This was issued today by our State Department. Try to get through it without laughing.

  9. entire world of Warcraft – Pilgrim’s Bounty ahead of the Shattering- Says:

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  10. WikiLeaks: Making America Safer? « jeffreysallen Says:

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  11. John Bates Says:

    A couple of years ago I hear someone say that we are having an ‘intimacy’ revolution. I agree with the basic idea, but I’d call it an ‘accidental authenticity’ revolution. Intimacy takes commitment and work and intentionality. However, I think that authenticity is tremendously powerful. In some ways WikiLeaks is enforcing radical authenticity.
    I appreciate your thoughts on this, Clay. Like you I am quite conflicted. I think you are absolutely correct that the US is overreaching and, as we’ve been doing for a while, taking ‘shortcuts.’
    I know it’s somewhat overused, and maybe a bit radical for the America of today, but Thomas Jefferson and Benjamin Franklin both said a variant of “they who would trade liberty for security soon have none and deserve neither.”
    I interviewed Phil Zimmerman, the creator of PGP, back in the day and his most chilling quote to me was that ‘if we build the infrastructure for a dictator, he will come.”
    It’s weird to me that the time around WWII saw so many awful dictatorships and I wonder if the technology of the time contributed to that. I heard that Hitler’s rallies were like rock concerts, women would pass out and people just got wildly carried away. It has made me wonder what the variant of that we need to be on the lookout and inoculate ourselves against in this age.

  12. Ben Finney Says:

    For negotiation to work, people’s stated positions have to change

    Yes, and that’s healthy.

    but change is seen, almost universally, as weakness.

    Then that is another stupid idea that needs to be confronted, not accommodated.

  13. k28 Says:

    Wikileaks need to be supported as it reps freedom n truth and we desrve it more in long haul than in short one.

    See if you can

    http://impactofwikileaks.blogspot.com/

  14. M. Says:

    Your argument that other countries will point to our actions against Wikileaks to justify themselves is ludicrous. Do you really believe that Vladimir Putin will say to himself “wow, the Americans were really tolerant of Wikileaks, perhaps I should let up on the dissidents”? Myanmar, Belarus, Russia, and other thugocracies will do what they please, and will merely laugh at our moral preening.

  15. John Says:

    Enemy of the United States? This guy is doing you a favor. You are fighting two unwinnable wars that are costing you trillions of dollars, and if the leaks help you end these wars sooner rather than later (like the Pentagon Papers did with Vietnam) then you will have billions more to spend on health, education, tax cuts or whatever you decide is important.

  16. JaimeInTexas Says:

    If an uSA citizen goes to Holland and smokes dope there, returns to these uSA, can that citizen be tried for violating uSA (or a State’s) law? Of course not. Asange is not guilty of espionage. Asange is receiving documents in a foreign country, not under uSA legal jurisdiction.

    Those calling for Asange’s head, I bet that you would cry like a stuck pig if the European Union attempted to arrest an uSA citizen for doing something here that is illegal in Europe.

  17. Roger Zimmerman Says:

    I am mostly in agreement, if the subject is the leak of State Department memos. If we had a rational, self-interested foreign policy, we would not need nearly as much secrecy. Our public positions would be transparent, and this would benefit us (and the free world) in the long run. Perhaps these leaks will push us in the direction of adopting such a foreign policy.

    However, it is the previous leak for which Assange should be prosecuted. He directly endangered the lives of U.S. soldiers and pro-U.S informants in Afghanistan, and this is blatant espionage. It doesn’t matter that he was the recipient of the information and not the thief. His intent was to harm the U.S. military effort and that puts him on the other side.

    BTW, I do not support the Afghanistan operation, not the way it is being fought presently. But I am not justified in acting in a way that directly endangers the military personnel involved in that war. My recourse is political argument, not the revealing of military secrets.

  18. Mike Says:

    Peter says: “Your ‘conflictedness’ indicates you have given up on the process of democracy and embraced some form of anarchy.”

    Democracy cannot exist if our political leaders are performing illegal activities totally out of the sight of citizens, such as spying on diplomats or kidnapping people and deporting them to countries where torture is practiced. How can we, as citizens, endorse or claim to be represented by leaders when the latter hide what they do from the citizens and break the laws they are committed to upholding? I would think that civilization and democracy are greatly enhanced, and not threatened, when citizens are made less ignorant of the actions of their leaders and their rulers are brought under the rule of law.

    The worry expressed by Peter about ‘anarchy’ is just another American affirmation for total submission to political authority, and it implies that we should all be ignorant about things that our government doesn’t want us to know about so that they can go about ruling over us with minimum oversight or accountability. Some democracy.

  19. amsterdam Says:

    “George says:

    It is no problem for American democracy to recognize him as an enemy of our country and deal with him in the same way we deal with other enemies. If that includes a bullet in the head in a dark alley sometime, so be it.”

    And is the end of democracy and common for a policestate; no freedom of speech and lock up or kill oponents. So much for America’s socalled democracy; Guantanamo, Invading Iraq and Afghanistan, torture and denying the Court in The Hague.
    Liberty is having people say what you don’t want to hear… And being able to do so.

  20. LJM Says:

    It is no problem for American democracy to recognize him as an enemy of our country and deal with him in the same way we deal with other enemies. If that includes a bullet in the head in a dark alley sometime, so be it.

    Spoken like a true authoritarian statist. Nice.

  21. George Says:

    Assange is not a citizen of the United States and I see utterly no reason for us to worry about protecting his freedom of speech in whatever European country he is currently in. It is no problem for American democracy to recognize him as an enemy of our country and deal with him in the same way we deal with other enemies. If that includes a bullet in the head in a dark alley sometime, so be it.

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  26. Lucia Says:

    great, thank you for your thoughts !

    my question though : how do “we” want to keep WL/JA alive – apart from activism, twitter, blogs etc. – when there is no way to donate money – since all the companies have cancelled/frozen the means of financial survival for WL/JA ?

  27. Fergus Says:

    I’m not conflicted. Age I think makes sitting on the fence uncomfortable 🙂

    Our knee-jerk [fundemental] reactions to this I’m sure come from our childhood. Luckily I was raised by an Irish republican so you can imagine which way my knee swung.

    If we don’t take a fundamental attitude and we accept the altogether greyness of living in our ‘capitalist democracies’, then as you rightly point out two key insights which needs discourse are:
    [a] the natural tensions/oppositions eating one another, privacy versus transparency
    [b] Its not about data. Its what we think about governments [from Tom Slee]

    What isn’t happening between governments and people is an open dialogue at the mo.

    On the one hand they’re [US gov and peer govs] just going round smacking and threatening everyone. An inherent “kneejerk” attitude/behaviour in a collection of people with the “power”.

    But others have power now. Across the internet, using secrecy, many folks can smack back e.g. the hacker team who took down Paypal after Paypal took away their payment system from Wikileaks. We all [still] have the means of productions and distribution. And on a massive scale.

    As the theatre has shifted dramatically to the internet in the last 10 years, we have the means to force a dialogue. And while certain parties attempt various slaps and counter-slaps, we need ‘digital gurus’ like you to step up and keep the dialogue going around the critical points here i.e. not Assange but getting the policy-makers to swing the yardarm to transparency.

    Actions for Clay: state the dialogue case, win the argument. Repeat.

    Good luck.

  28. Kevin P. Says:

    I generally agree with your post, but I ask for evidence for this:


    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.”

    Is there actually evidence that the US government is orchestrating these actions?

  29. Mike Says:

    And in a brilliant stroke of irony, the US state department announces its hosting of World Press Freedom Day 2011:

    http://www.state.gov/r/pa/prs/ps/2010/12/152465.htm

    The theme for next year’s commemoration will be 21st Century Media: New Frontiers, New Barriers. The United States places technology and innovation at the forefront of its diplomatic and development efforts. New media has empowered citizens around the world to report on their circumstances, express opinions on world events, and exchange information in environments sometimes hostile to such exercises of individuals’ right to freedom of expression. At the same time, we are concerned about the determination of some governments to censor and silence individuals, and to restrict the free flow of information. We mark events such as World Press Freedom Day in the context of our enduring commitment to support and expand press freedom and the free flow of information in this digital age.

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  31. Chris Says:

    “an extra-legal avenue (of which Senator Lieberman is also guilty.*)”

    How, exactly is Senator Lieberman criticizing Amazon and other companies for providing services to Wikileaks “extra-legal”? Lieberman has a First Amendment right to make such statements and mere speech does not infringe on the rights of Wikileaks, Amazon, or anyone else. If he thinks something is deplorable, he is well within his rights to deplore it.

  32. Nathan Says:

    I was conflicted in my thoughts on Wikileaks as well until I read the following paragraph.

    http://www.salon.com/news/opinion/glenn_greenwald/2010/12/01/wikileaks

    “One could respond that it’s good that we know these specific things, but not other things WikiLeaks has released. That’s all well and good; as I’ve said several times, there are reasonable concerns about some specific disclosures here. But in the real world, this ideal, perfectly calibrated subversion of the secrecy regime doesn’t exist. WikiLeaks is it. We have occasional investigative probes of isolated government secrets coming from establishment media outlets (the illegal NSA program, the CIA black sites, the Pentagon propaganda program), along with transparency groups such as the ACLU, CCR, EPIC and EFF valiantly battling through protracted litigation to uncover secrets. But nothing comes close to the blows WikiLeaks has struck in undermining that regime.

    The real-world alternative to the current iteration of WikiLeaks is not The Perfect Wikileaks that makes perfect judgments about what should and should not be disclosed, but rather, the ongoing, essentially unchallenged hegemony of the permanent National Security State, for which secrecy is the first article of faith and prime weapon.”

  33. Tyson Says:

    Jullian’s previous writings makes his motivations clear. He seeks to bring down the current system of government and replace it with one that is totally transparent. That’s not a bad goal, but I’d appreciate it if he tried to reach that goal through legal and democratic means. It seems he can’t be bothered to do build things, which takes time. Instead, he’s just tearing down, which is quick and easy.

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  35. Rob McMillin Says:

    However, as a citizen of a democracy, I’m willing to be voted down

    “Fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”
    — Chief US District Judge Vaughn Walker

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  37. David Murakami Wood Says:

    John Naughton on the Guardian website begs to differ, and so do I: http://ubisurv.wordpress.com/2010/12/07/the-internet-must-de-defended/

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  40. Tom Kennedy Says:

    While there is an inherent conflict about the leaks themselves the historical context must be considered when assessing the moral or ethical implications. The US government in the recent (last week) words of a very conservative supreme court, is “torturing the language of the Freedom Of Information Act (FOIA)” in order to keep even trivial information from public viewing. Many requests for documents disappear in the black hole of “national security,” for years. The fact is we have an impenetrable and opaque government in part the result of the terrorist attacks of 2001, but the government’s love of secrecy is long standing. Against this the WikiLeaks have blown the lid off. I consider this a public service.

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  44. Pixel Says:

    Truly this sums up my opinions on the matter. Unlike anything else I have read. I fear for Mr Assange, should he find himself in the American legal system though. They shall burn him like a witch. I would rather be shot behind a chemical shed in Sudan than have to go through that trial process. But that’s just the ex patriot speaking I guess.

  45. Peter Says:

    Conflicted about Wikileaks??? Are you morally challenged??? Do you have any regard for laws and the rule of law???? Are you conflicted about anarchy???? Have a deep and introspective look inside your core and see where you stand. Assange is an avowed enemy of the United States and will stop at nothing to see to our demise as a civilized and democratic society. We may not have a perfect system. Your ‘conflictedness’ indicates you have given up on the process of democracy and embraced some form of anarchy. Good luck with that.

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