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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The flood of revelations from Wikileaks raises some difficult questions about data security and government secrecy. Some privacy activists might enjoy seeing technology "turn the tables" on a national surveillance state, exposing its secrets as indiscriminately as programs like warrantless wiretapping gathered up citizens' data. But retaliation is inevitable: just as the shoe-bomber provoked new TSA rituals, those who want more surveillance of the internet will point to the leaked cables. As Ross Douthat argues, "WikiLeaks is at best a temporary victory for transparency, and it’s likely to spur the further insulation of the permanent state from scrutiny, accountability or even self-knowledge." We can expect more security initiatives, more indiscriminate classification of documents, and perhaps even more undocumented communications about critical issues.
The discussion of Wikileaks tends to focus on either process (can government officials still communicate securely?) or substance (what do particular cables reveal about American policy?). Those two conversations ought to converge. As Felix Stalder notes, policy promoting an "Information Sharing Environment" may well have created the conditions for this breach:
There is an inherent paradox. Vast streams of classified records need to flow freely in order to sustain complex, distributed and time-sensitive operations. Yet, since the information is classified, it needs to flow within strict boundaries which cannot be clearly defined on a general level (after all, you never know what needs to get connected with what in advance), and it needs to flow through many, many hands. This creates the techno-organisational preconditions for massive amounts of information to leak out.
Stalder also reveals how a larger neoliberal policy framework saps the trust structures that are necessary to build solidarity and order in institutions:
[T]here is a second internal contradiction. People are asked to identify personally with organisations who . . . expressly regard their employees as nothing but expendable, short-term resources. This, I think, creates the cognitive dissonance that . . . [leads] the leaker to violate procedure and actively damage the organisation of which he, or she, has been at some point a well-acculturated member (this is the difference to the spy). . . . a similar lack of identification can be seen within corporations, as evidenced in the leaks from Swiss banks.
I am not saying (and I do not believe Stalder is saying) that any particular leak is justified (though the work of Global Financial Integrity suggests that illicit financial flows really deserve whistleblowing). I am suggesting certain affinities between US backing of neoliberalism generally and the peculiarly utopian aspirations of an Assange. For example, I was not surprised to see a blogger at The Economistsupporting Wikileaks:
[T]here is no scheme of government oversight that will not eventually come under the indirect control of the generals, spies, and foreign-service officers it is meant to oversee. Organisations such as WikiLeaks, which are philosophically opposed to state secrecy and which operate as much as is possible outside the global nation-state system, may be the best we can hope for in the way of promoting the climate of transparency and accountability necessary for authentically liberal democracy.
For Economist editors, it’s frequently axiomatic that the state is incompetent, corrupt, or useless. A magazine that reflexively demonizes industrial policy doesn't have to leap too far to applaud wholesale evasion of normal legal process for information disclosure. Tom Slee reminds us that, "while WikiLeaks is making more data available to more people it has no interest in making the US government work better." It's an ideal ally for others who've given up on government, too.
On the other hand, the U.S. state has been so sluggish in declassifying critical documents and opening foreign policy to outside scrutiny that vigilantes like Wikileaks are inevitably going to find a receptive audience among the disaffected. It’s becoming one more example of the “center cannot hold;” secrecy provokes wanton revelations, which in turn provoke harder secrecy protections, which provoke ever more energetic efforts to undermine them, ad nauseam. We face a future of “anarchy or perfect control,” with unstable jumps from one to the other extreme.
As the stakes are raised, the US will probably need to rely more on corporate experts to supply critical cybersecurity advice. What top computer scientist will want to work for "big guv'mint" in the midst of a pay freeze? But the contractors' money will be harder to come by, as the economic base of the country has been hollowed out, and our politics can't even deliver small increases in taxes on income above $1,000,000 per year. Nor can we take the small steps toward energy independence that would help us avoid crippling trade deficits and enriching authoritarian regimes abroad. As Alfred McCoy documents,
Between 1973 and 2007, oil imports have risen from 36 percent of energy consumed in the U.S. to 66 percent. . . .The World Economic Forum ranked the United States at a mediocre 52nd among 139 nations in the quality of its university math and science instruction in 2010. Nearly half of all graduate students in the sciences in the U.S. are now foreigners, most of whom will be heading home, not staying here as once would have happened.
By 2008, the United States had already fallen to number three in global merchandise exports, with just 11 percent of them compared to 12 percent for China and 16 percent for the European Union. There is no reason to believe that this trend will reverse itself. . . . in October China's Defense Ministry unveiled the world's fastest supercomputer, the Tianhe-1A, so powerful, said one U.S. expert, that it "blows away the existing No. 1 machine" in America.
In other words, even as the US plans for "cyberwar" and a high tech "revolution in military affairs," we are slowly losing the capacity to train the scientists necessary to implement that strategy---or to accumulate the funds necessary to recruit them from abroad. Is it any wonder, then, that we can't even seem to keep diplomatic cables secure?
We have politically committed ourselves to a permanent campaign against terrorism by "hyperempowered individuals," spending hundreds of billions of dollars on this national security strategy. We try to project power 8,000 miles away, while we can't even stop rampant copper thefts at home. The cables reveal a "superpower" repeatedly reduced to begging or cajoling world leaders to promote peace or order. Why should a country that can't even raise taxes on its richest citizens think it can keep its communications secure? Where's the commitment of resources?
Social Research's upcoming issue "Limiting Knowledge in a Democracy" will examine many facets of governmental secrecy, including Peter Galison's essay on the "three Acts [that] ground the modern world of national security secrecy." Some articles point to a larger trend of displacing surveillance from the state to corporate entities that can better profit from monitoring individuals. In a post-Wikileaks world, we're likely to see a similar displacement of information security responsibilities to corporate entities, and an ongoing redefinition of the US national interest to mirror the interests of those capable of providing that security. Diplomacy among states will decline in importance; corporate chieftains' communications will be the ones that matter, and they will be secure.
Social theorists discovered the issue of unintended consequences against the background of a modern understanding of society which emphasizes virtues such as individual and collective responsibility and the capacity of self-determination. Following Hirschman (1982), unintended consequences thus form an ironic twin to the expectation that social development is amenable to planning and control. . . .
[One can interpret] cybercrime as an unintended consequence of the utopian dreams that flourished during the early days of the Internet. In itself a highly innovative activity, cybercrime can be seen as an ironic counterpart to the expectations of an egalitarian cyberspace whose technical and social norms condemned discrimination against any type of applications and uses.
Neoliberal policy that always prioritizes freedom over security, liberty over equality, invites the kind of social disintegration of which Wikileaks is a symptom. The Wikileaks cables reveal the ugly bargains needed to sustain a global dream of "spontaneous order" generated by markets. Now a state that has promoted out-of-control information flows finds itself undermined by their reckless uses, and ever less capable of combatting the problem because of the unconstrained capital flows it has also championed. Both the process and the substance of the Wikileaks affair can be embedded in a larger tragic narrative of the unintended consequences of the neoliberal project for its chief exponent.