an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
[On March 23, 2011, I delivered the 20th annual Hugo L. Black lecture on freedom of expression at Wesleyan University. I'm publishing the prepared text of the lecture in installments this week on Balkinization. Part One and Part Two have already appeared.]
My second example concerns Wikileaks. I’m less interested in the individual personality of Julian Assange, and whether he is a nice fellow or not, than on the larger phenomenon that Wikileaks represents. Wikileaks symbolizes a new way of doing investigative journalism, which cooperates with traditional media organizations but is also independent of them.
Neither traditional media organizations nor nation states—including the United States—are particularly happy about these developments. Nation states don’t like Wikileaks because they can’t control or co-opt it as they have learned to do with more traditional forms of journalism, including, I am sad to say, American journalism. Traditional media organizations don’t like Wikileaks because it competes with their professional vision of how to do journalism. Equally important, it significantly undermines their carefully calibrated long-term relationships with (or less charitably, their co-optation by) powerful nation-states like the U.S. government and powerful business organizations.
The controversy over Wikileaks is mostly the product of the last year and a half. Wikileaks itself began in 2006, obtaining its domain name in October of that year, and releasing the first set of documents it received from anonymous sources that December. Wikileaks acted as a conduit or publisher for other leakers; it did not obtain the documents on its own. It did not pick targets based on what we in America think of as benefitting the left or the right; rather; it was an equal opportunity annoyer and provocateur. Its early releases included information about assassination plots by a Somali rebel leader, corrupt government and business practices in various countries, a manual describing operating procedures at Guantanamo Bay, Cuba, documents describing assassinations and disappearances in Kenya, an early draft of an international treaty on intellectual property issues, hacked e-mails from Sarah Palin’s Yahoo account, the membership list of the far right British National Party, and e-mails from climate scientists that encouraged right-wing critics of global warming.
By 2009 Wikileaks had a global reputation as a muckraking institution that exposed corruption or misconduct by governments and by powerful business organizations. Accordingly, it won an award from Amnesty International in 2009 and received the Freedom of Expression Award from Index of Censorship, a British Magazine.
Wikileaks’ reputation, at least in the United States, changed dramatically in 2010 when it released four sets of documents about American foreign policy.
It released a video clip of two American Apache attack helicopters firing on people in Iraq, killing twelve people, including a Reuters reporter and photographer. In July 2010, Wikileaks released war logs from Afghanistan; they showed, among other things, how the Afghan War looked on the ground and that the United States was targeting Taliban leaders for assassination. None of the information was unknown but it gave a much richer picture of the war.
Importantly, Wikileaks worked with traditional news organizations: The New York Times, the Guardian, and Der Spiegel. Each organization was provided the documents in advance, and given time to verify, analyze and prepare them for release. All of the documents were released by the four organizations on the same day. The first batch included about 77,000 documents; later Wikileaks released another 15,000 documents after redacting them to remove names of people who might be endangered. In October, Wikileaks followed up with 400,000 field reports from Iraq that were heavily censored and redacted, again working with media organizations. Then, at the end of November 2010, Wikileaks announced that it had a cache of 250,000 diplomatic cables that it would begin releasing in small amounts.
The first 220 documents were published on November 28th; Wikileaks worked with El País (Spain), Le Monde (France), Der Spiegel (Germany), The Guardian (United Kingdom) and The New York Times (United States) to decide which cables to release and what portions to redact. Each news organization published stories contemporaneous with important releases. Wikileaks estimates that some 130,000 of the 250,000 documents are unclassified, some 100,000 are labeled "confidential", about 15,000 are classified as “secret,” and none are classified as "top secret."
About 80 to 100 cables are released a day, and as of 11 January 2011 about 2,017 individual cables had been released. You can see the progress of the releases by going to the Wikileaks site.
There has been considerable media misinformation about the cables. Yochai Benkler at Harvard Law School did a study showing that media repeatedly reported that all 250,000 diplomatic cables were dumped onto the Internet at once and failed to mention the process of selection and redaction, or stated the facts in a way that the reader would assume that all the cables were released at once. Pundits and politicians naturally repeated these stories, often downplaying or ignoring the coordination between Wikileaks and major journalistic organizations.
Naturally, given the media presentation of the facts, much of the rhetoric has been hyperbolic. On December 19th, Vice-President Joe Biden called Julian Assange a “hi-tech terrorist.” Various politicians and pundits, striving to outdo each other, called for Assange to be assassinated or detained as an enemy combatant; some called for him to be tried for treason, even though he is not an American citizen.
The Justice Department began investigations into whether or not Assange and Wikileaks could be prosecuted under the 1917 Espionage Act. The Espionage Act, passed during the Wilson Adminstration, was used repeatedly to silence opposition to World War I, and was even used to imprison Eugene V. Debs, the Socialist Party candidate for President, who received almost a million votes while in prison during the 1920 elections. His sentence was later commuted by President Harding.
It’s worth noting that the Espionage Act has not been used to prosecute a media defendant since World War II. The very fact that the Justice Department is considering prosecution suggests that it does not think of Wikileaks as a media organization engaged in journalism, but rather is framing the situation as one of hacking or sabotage, which, of course raises the question of how one should characterize Wikileaks’ partners, the New York Times, the Guardian, Le Monde, and El Pais.
My major focus here, however, is on infrastructure.
One of the most interesting elements of the Wikileaks story is how private power was used to hinder Wikileaks, and how governments encouraged the private parties who control important features of the digital infrastructure to assist in censoring Wikileaks. In other words, this is a story about the subtle and not-so-subtle relationships between public and private power in the digital age.
After a series of cyberattacks on its site, Wikileaks moved its operations to Amazon.com’s hosting services. Senator Joseph Leiberman of the Senate’s Homeland Security Committee, criticized Amazon for hosting Wikileaks. The State Department, without explicitly stating that Wikileaks itself had violated the law, suggested that it was in possession of unlawful information. Amazon then booted Wikileaks off its site on December 1st. On 4 December, Paypal cut off the account that WikiLeaks uses to collect donations, On December 6, Mastercard stooped making payments to Wikileaks, followed by Visa on December 7th. In each case, Wikileaks scrambled to find new facilities for hosting, domain name access, and financial payment systems. It had to: these online facilities are crucial parts of the infrastructure that make Wikileaks’ model of journalism possible.
The Obama administration ordered that Wikileaks be blocked on federal computers and that government employees not be permitted to access the site, leading to the interesting result that people who dealt with the government were more informed about the site and what it had disclosed than government officials themselves. The Washington Post, no doubt reflecting the views of government officials, wrote a story suggesting that even accessing the site or sites that discussed the cables could be hazardous for a security clearance or for the possibility of future government employment.
All of this played out just before Secretary of State Hillary Clinton gave a well-publicized lecture in January celebrating Internet freedom, the freedom to connect, and the importance of digital technologies in making information available in countries that had blocked their citizens’ access to vital information about the way that their governments worked. “[D]espite an intense campaign of government intimidation,” Clinton noted, without a hint of irony, “brave citizen journalists in Iran continue using technology to show the world and their fellow citizens what is happening inside their country. In speaking out on behalf of their own human rights, the Iranian people have inspired the world. And their courage is redefining how technology is used to spread truth and expose injustice.” When it came to Wikileaks exposing embarrassing facts about the American government, however, Secretary Clinton was far less enthusiastic about Internet freedom; indeed she argued in November that the disclosure of the diplomatic cables “is not just an attack on America — it's an attack on the international community.”