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WikiLeaks: A Critical Catalyst, But for What End?
Posted On December 23, 2010
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Launched in October 2006 with the byline of “we open governments,” WikiLeaks has positioned itself in the eye of more than one media storm in the past 4 years. The site presents itself as a “non-profit media organization dedicated to bringing important news and information to the public. We provide an innovative, secure, and anonymous way for independent sources around the world to leak information to our journalists. We publish material of ethical, political and historical significance while keeping the identity of our sources anonymous, thus providing a universal way for the revealing of suppressed and censored injustices.”

“The Internet allows the production and distribution of information to occur more rapidly and at less cost than with a brick-and-mortar publication,” notes Information Today columnist George H. Pike.

As ReadWriteWeb notes: “WikiLeaks, the site and the group behind it, could not have happened until the social web did. Leaks have happened for decades but the penetration and the mass of documents only became possible recently. Websites, email, wikis, blogs, microblogs, and social networks created a network of avenues for leaks to come in and to spread out again.”

The traditional media have both lavished the site with as much praise—Time magazine, for example, calling WikiLeaks “as important a journalistic tool as the Freedom of Information Act”—as well as leveling some criticism or discomfort with the site, the swagger of its director, Julian Assange, and what they feel is a lack of editorial discretion. As “the world’s leading whistle-blower site,” cautions Information Today’s Mick O'Leary, “much of WikiLeaks’ history and operations remain in the shadow.”

The Developing String of Revelations

Begun in 2006, WikiLeaks’ website claimed to have already amassed more than 1.2 million documents from whistle-blowers and other anonymous sources in its first year. Its first major media splash came with the release in December 2007 of U.S. Army manuals detailing how the government was treating detainees at Guantanamo Bay.

In September 2008, Sarah Palin’s emails revealed a potential intent to avoid public record laws by using personal accounts for official state business. The next year, WikiLeaks published an Excel file comprising the membership of the right-wing British National Party—which included many surprising members in the 10,000+ list.

Earlier this year WikiLeaks posted a 2007 video from a U.S. military action in Iraq in which civilians and a journalist were among the victims.. In November 2009, WikiLeaks—in an effort to present “one more building block to getting a full picture of what happened” on 9/11 in New York, published more than a half million pager messages sent from victims of the attack.

The latest series of more than 250,000 cables from the U.S. State Department was released in November 2010.

Efforts by governments and businesses to cut the website off from sources of funding and other support have gone on for years, heightened in the last month. PayPal vice president Osama Bedier explained their decision to cut off any services to the site in this way to the Guardian: “What happened is that on November 27th (the day before WikiLeaks began releasing cables) the State Department, the U.S. government basically, wrote a letter saying that the WikiLeaks activities were deemed illegal in the United States. And so our policy group had to take a decision to suspend the account... It was straightforward from our point of view.” In early December, French officials warned their internet community of “consequences” for any companies or organizations helping keep the website active in France.

In the U.S., Joe Lieberman, chair of the Senate’s Homeland Security and Governmental Affairs Committee, called on companies or groups “hosting WikiLeaks to immediately terminate its relationship with them. WikiLeaks’ illegal, outrageous, and reckless acts have compromised our national security and put lives at risk around the world. No responsible company—whether American or foreign—should assist WikiLeaks in its efforts to disseminate these stolen materials.”

How It Works

In October 2008, Assange explained that “at the moment, for example, we are sitting on 5GB from Bank of America, one of the executive’s hard drives. Now how do we present that? It’s a difficult problem. We could just dump it all into one giant Zip file, but we know for a fact that has limited impact. To have impact, it needs to be easy for people to dive in and search it and get something out of it."

Contrary to many published assertions, WikiLeaks doesn’t operate alone in studying and reporting on these documents and they do adhere to a set of principles in their operation. In October 2009, in order to keep up with the tidal wave of submissions, WikiLeaks announced a partnership with traditional news organizations, human rights groups, criminal investigators, and others. “The group will give publishers the opportunity to embed a WikiLeaks submission form on their websites. The idea is that users will be able to anonymously upload material, and WikiLeaks will verify it. In return for embedding the form, the publisher will receive the verified documents under embargo and will be the first to publish the story.”

Annenberg School for Communication & Journalism’s Mary Slosson sees WikiLeaks’ method as an innovative form of crowd-sourcing as a way to sift through the mountains of documents and data that it has amassed. “A team of ten reporters working for two months straight would have to read just over 400 cables each per day—without breaks for the weekends—in order for the entire database to have been read and analyzed for importance.”

Today, WikiLeaks collaborates with some of the most mainstream of news sources—including the London Guardian and, The New York Times—giving them full access to their documents. “WikiLeaks quite simply doesn’t have the staff to sort through the massive datasets being leaked to them now.” Slosson quotes New York Times reporter Scott Shane as saying that the WikiLeaks’ journalistic process is far more traditional and careful than detractors (including the Obama administration) are describing. “The difference between the nightmare scenario the administration painted and what’s really happening is stark,” he notes. WikiLeaks is far less a rogue band of villains they have been painted as, Shane explains, “in this particular project, they’re doing almost literally the exact same thing as us.”

Exposing Data, Truths, and Innocents?

Official governmental statements from across the globe have criticized WikiLeaks for exposing state secrets that harm those nations’ security and defense, making it vulnerable to physical or political attack and impacting international relations and diplomacy. Amnesty International and others have asserted that by not redacting the identities of innocent individuals in their releases, they may have put these people in harm’s way.

Supporters, on the other hand, see WikiLeaks as nothing more than other historic efforts of whistle-blowing—only faster and more widespread than anything possible in the past.

Daniel Ellsberg, famous for leaking the Pentagon Papers notes that: “This is the first really large-scale, unauthorized disclosure leak since the Pentagon papers. There has been nothing like it in the 40 years in between. So, I’m glad to see that new technology being exploited here. I couldn’t have released on this scale 40 years ago. In fact, I couldn’t have done what I did do without Xerox at that time. Ten years earlier I couldn’t have put out the Pentagon Papers. But this is much larger in volume and it’s more current....”

But Is It Legal?

WikiLeaks may seem extreme, but appears to be only the first, cutting edge of new wave participatory news-making and journalism. “In order to find either WikiLeaks, Julian Assange, or The New York Times liable, the government would need to prove two things, “ notes Washington University (St. Louis) law professor Neil Richards, “first that a law had been broken, and second that enforcement of the law was constitutional under the First Amendment. Our tradition of free press makes it hard to punish people for publishing the truth.”

University of Minnesota law professor Heidi Kitrosser notes that “the fact that information is classified does not automatically make its disclosure dangerous. Administrations have long selectively leaked classified information that puts them in a favorable light while guarding less favorable information.”

Government pressure to prosecute WikiLeak’s Assange prompted the faculty of the Columbia University Graduate School of Journalism to write an open letter to President Obama warning him that “government overreaction to publication of leaked material in the press has always been more damaging to American democracy than the leaks themselves.” Human Rights Watch sent a similar letter of support—as have other organizations and academics.

“Although the question whether WikiLeaks is engaged in journalism is interesting as a political, philosophical, and perhaps metaphysical matter, it’s largely irrelevant as a legal matter, explains Stephen Vladeck, professor of law at American University Washington College of Law. “Federal law doesn’t distinguish between journalists and private citizens, and the Supreme Court has held that the First Amendment, despite referring to the freedom of the press, doesn’t protect the media in any different way than it protects private individuals.”

“The trickier issue here is that most of what WikiLeaks is accused of doing took place outside the United States, led by non-U.S. citizens,” Vladeck continues. “Technically, federal law still appears to allow for prosecution under the Espionage Act in such a scenario, but it’s not hard to see how such a case could set a dangerous precedent for foreign prosecutions of U.S. investigative journalists. That’s why I suspect that any prosecution of Assange and/or WikiLeaks in the U.S. will focus on conduct that took place (or documents that were stored on servers) here.”

Opening Doors to Researchers

Instead of unwelcomed surprises, Fareed Zakaria, Time magazine columnist, noted that WikiLeaks’ disclosures “show Washington pursuing privately pretty much the policies it has articulated publicly. Whether on Iran, Afghanistan, Pakistan, or North Korea, the cables confirm what we know to be U.S. foreign policy,” he notes. “The cables also show an American diplomatic establishment that is pretty good at analysis.”

“The Pentagon papers revealed that the U.S. engaged in a systematic campaign to deceive the world and the American people and that its private actions were often the opposite of its stated public policy,” Zakaria explains. “The WikiLeaks documents, by contrast, show Washington pursuing privately pretty much the policies it has articulated publicly.”

Researchers from the University of Colorado recently published a peer-reviewed study on Afghan civilian war deaths based on WikiLeaks data which gave them “uncensored accounts of the daily nitty-gritty of war and do not contradict the official version of the origins of the conflict, as did the Pentagon Papers,” they note. “In the broader sense, the July 25, 2010 WikiLeaks files, though classified as “Secret,” simply provide a soldier’s eye view of the escalating Afghanistan conflict and hold relatively few diplomatic or intelligence reports.”

Researchers certainly see value in many of these reports, however many cannot get permission to use WikiLeaks data. Harvard researchers, for example, have hoped to be able to use information on civilian deaths in the Afghan war in their work, but have been denied institutional permission.

 “The Future of the Internet is in Balance”

Supporters of Assange and WikiLeaks believe that the very future of the internet is at stake. Groups and individuals, now called “hacktivists” are taking down websites (with denial of service attacks) of businesses that they see as working to take WikiLeaks down. WikiLeaks now relies on a global web of ‘mirror’ sites in order to keep the website available.

Hacktivist targets have included Bank of America, the Swiss bank PostFinance, PayPal, MasterCard—and surely others will follow. These cyberwars—breaking out during the busiest shopping season of the year—are another clear sign of the seriousness of the issues and the clear lack of common understanding or a clearly defined legal basis for this newest type of internet-based journalism.

WikiLeaks’ Kristinn Hrafnsson promises that the site and its work will continue, but that the current high-stakes wrangling may have dire consequences: “It is not derailing us in any way,” Hrafnsson notes, “this is a turning tide and starting a trend that you can’t really stop unless you want to shut down the internet.”

And WikiLeaks is now being joined by other independent internet-based investigative sites: Former WikiLeaks lieutenant, Daniel Domscheit-Berg, is reportedly part of a group that is planning to launch a similar website, OpenLeaks, in early 2011. Cryptome is another site that “welcomes documents for publication that are prohibited by governments worldwide, in particular material on freedom of expression, privacy, cryptology, dual-use technologies, national security, intelligence, and secret governance—open, secret and classified documents—but not limited to those,” and today includes more than 54,000 documents. Cryptome CN publishes information, documents, and opinions banned by the People’s Republic of China. This site includes fewer documents, but is useful for anyone wanting to focus on this specific area.

Building Walls and Opening Access

All governments need confidentiality in order to pursue their programs and initiatives. Democracies, however, also need transparency. Governments across the free world have noted their disgust at WikiLeaks’ actions and their intentions to consider legislation. Some politicians would prefer even more stringent controls than the 2001 PATRIOT Act, which has been described as “a problematic, fractured piece of post-9/11 legislation”.

In a strong statement, “the American Library Association (ALA) opposes any use of governmental power to suppress the free and open exchange of knowledge and information or to intimidate individuals exercising free inquiry…ALA considers that sections of the USA PATRIOT ACT are a present danger to the constitutional rights and privacy rights of library users.”

On Dec. 3, the Library of Congress “decided to block WikiLeaks because applicable law obligates federal agencies to protect classified information. Unauthorized disclosures of classified documents do not alter the documents’ classified status or automatically result in declassification of the documents.” This included “blocking access to the WikiLeaks site across its computer systems, including those for use by patrons in the reading rooms.”

Perhaps a more intelligent approach would be to fortify the digital borders surrounding governmental—and all sensitive—data. Boston-based Fidelis Security, a network security company, has announced that they have been “asked to set up a firewall against WikiLeaks document traffic, regardless of whether it flows from a website, email, or other source.” Establishing a good firewall and security procedures would seem a prudent choice.

“Much of the public outcry against WikiLeaks has simply assumed that the website has acted illegally because it disclosed classified information,” Kitrosser notes. “Yet it is very important for the public to understand that the fact that information is classified does not automatically make its disclosure dangerous. Indeed, there is wide agreement across the political spectrum that the government does, and long has, massively over-classified information.”

Privacy: Personal Versus Public?

Amnesty International continues to support the work of WikiLeaks: “Freedom of expression is an internationally-recognised human right that limits the power of the state to prohibit the receipt and publication of information. The burden is on the state to demonstrate that any restriction is both necessary and proportionate, and does not jeopardize the right to freedom of expression itself.”

Concern about privacy of personal information on the web has existed since the launch of the internet. The discussion about rights and limits has proliferated in civic discussions, legislatures, and the courts.

U.S. Supreme Court Justice Antonin Scalia, a vocal conservative on the Court, spoke at a law conference in early 2009. While agreeing that medical records and prescriptions were examples of information that should be off-limits for public consumption, he noted that: “The notion that everything is private is extraordinary,” and that a person’s internet searches shouldn’t carry the same level of privacy protection.

As an experiment, Fordham law professor Joel Reidenberg and his class decided to find out how much information on Scalia could be mined through browser searches and other legal means. They created a 15-page report, including such information as Scalia’s home address, home phone number, the property value of his house, his favorite movies and foods, his wife’s personal e-mail address, and “photos of his lovely grandchildren.”

They sent this on to Scalia, whose only response was: “It is not a rare phenomenon that what is legal may also be quite irresponsible. That appears in the First Amendment context all the time. What can be said often should not be said. Prof. Reidenberg’s exercise is an example of perfectly legal, abominably poor judgment. Since he was not teaching a course in judgment, I presume he felt no responsibility to display any.”

It will be interesting to see how Scalia and other members of the Court respond to cases such as WikiLeaks’ disclosures, when they inevitably reach the high court.

Vladeck doubts we will see a major backlash of legislation coming out of this case. “I might be overly optimistic, but it’s hard to see how new legislation could make things worse. Federal law is already distressingly vague on these issues, and new laws would at least have the benefit of clarity. In 1979, the then-General Counsel of the CIA told Congress that federal espionage laws presented ‘the worst of both worlds.’ As he put it, ‘On the one hand the laws stand idle and are not enforced at least in part because their meaning is so obscure, and on the other hand it is likely that the very obscurity of these laws serves to deter perfectly legitimate expression and debate by persons who must be as unsure of their liabilities as I am unsure of their obligations.’ I couldn’t agree more. Yes, new laws could raise their own constitutional concerns, but at least they’d be out in the open…”

Nancy K. Herther is a research consultant and writer who recently retired from a 30-year career in academic libraries.

Email Nancy K. Herther

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