A big issue in the Wikileaks controversy has to do with restrictions on freedom of speech in a democratic society, and the use of pressure tactics and of corporate policy to curb speech that is not shown to be illegal. That tendency is very troubling, and recalls the strong arm tactics of the House of Representatives, the FBI, and major corporations during the McCarthy era.
See former National Security Council official Gary Sick’s important essay, “Am I a Criminal?”
Wikileaks continues to be under political pressure (I say political rather than legal because as far as I can tell, the organization has not been indicted or formally charged with wrongdoing), and I found it impossible to get through to their new Swiss site this morning. But there are now lots of mirror sites up all over Europe. The documents are also being made available via torrents that can be picked up through peer to peer (p2p) networks. Presumably the more important cables are in the “insurance” file available at the various wikileaks mirror sites and also via torrents, and which founder Julian Assange says has been downloaded 100,000 times. An encryption key will be disseminated if anything happens to the organization.
The mirror sites were made necessary when Amazon.com removed Wikileaks from its servers, and when Wikileaks’ domain name system provider, Everydns, stopped servicing their registered web address. The reason given was that the site was the object of concerted denial of service attacks by hackers, which was inconveniencing the other customers of the service. (Hackers can set up internet robots to bombard a site with so many hits per minute that it overloads the servers and makes the site inaccessible to others trying to reach it).
But if that is the reasoning, then the victim is being punished, since denial of service attacks are illegal in the US. And they are, to boot, a form of thuggery and bullying. It surely is just wrong for Everydns to have dumped a customer simply because that customer had been targeted.
The reasons for which Amazon.com gave for booting Wikileaks off their servers, likewise, do not hold water.
‘ for example, our terms of service state that “you represent and warrant that you own or otherwise control all of the rights to the content… that use of the content you supply does not violate this policy and will not cause injury to any person or entity.” It’s clear that WikiLeaks doesn’t own or otherwise control all the rights to this classified content.’
But the US Government does not hold copyright in government-generated documents. They are paid for by the public and are in the public domain. The US government has the right to withhold the documents it generates from the public, according to US law and court decisions. But once a document has become public, no matter how, the government cannot sue for copyright infringement or demand its return on those grounds, at least in the United States. It could demand the documents’ return on grounds that they are classified, but it is not in fact clear that it is illegal to be in possession of classified US government documents, assuming the possessor was not the one who absconded with them in the first place.
Amazon’s wording implied that they thought that Wikileaks had no rights to the State Department cables. But Wikileaks was not claiming a right to them, only sharing public-domain, uncopyrighted texts with others, which they probably have a legal right to do.
Amazon’s language is especially worrisome, since they purvey books to the public. Some of those books reprint classified documents. Is Amazon going to boot those books off its site, as well?
In fact, in some instances, the Clinton administration declassified thousands and thousands of government documents. Then scholars reprinted these texts in their books. Then the bureaucrats under late Clinton, as well as throughout the Bush administration, fought back and actually reclassified thousands of those memos, some going back to WW II or the Korean War. This step meant that there were books on the shelves of libraries and in Amazon warehouses that now contained classified documents even though the documents hadn’t been classified when they were published.
Amazon.com could decline to carry all kinds of books on modern American foreign policy and history on the grounds that the authors and publishers do not “own or otherwise control all the rights to this classified content” (or in thousands of cases, “this
reclassified content.)
The call by Amazon was a very bad one, and some observers are rightly wondering if it will hurt “cloud computing,” where you put your documents up at a server instead of on your firm’s or university’s desktops. It seems to me that Amazon’s terms of service would continually bring into question how secure your documents were, especially if they might dump you as a customer even though you had broken no known law.
The Obama administration, perhaps realizing that it has no legal case with regard to the general public, has apparently decided to use a politics of reputation and threats of government reprisals to convince people not to read, discuss or reprint the Wikileaks cables.
The State Department seems to be trying to scare young people in international relations fields off from reposting wikileaks cables at their Facebook pages, warning them it could harm their future job prospects with the government. That policy is just plain petty, and I certainly wouldn’t want to see someone become a young foreign service officer who did not have the initiative and curiosity to get into this trove of documents on US foreign policy.
The Obama administration is forbidding government employees to call up the wikileaks documents on government computers, including those at the Library of Congress and on military bases. That policy is just plain stupid, and unworthy of Obama’s renowned intellect. I don’t want my intelligence analysts not knowing about the fall-out from the wikileaks cables!
Corporations such as IBM have established web sites for employee suggestions and criticisms, risking that potentially embarrassing things might be said and made public. But such open communication also benefits innovative firms, making sure that the intelligence and experience of each employee is available to it. It may well be that the whole secretive model of government that was adopted under the impact of the two world wars and the Cold War is not only dysfunctional but doomed, and that State should move to a new system of open cables. After all, it is only very occasionally that there is anything in these communications that would come as a surprise to a knowledgeable observer, and in those few cases where secrecy was desirable, then the message could be sent over secure and encrypted channels on a need to know basis.
I should add that I disapprove of what Wikileaks is doing in releasing hundreds of thousands of pages of US government documents. I think leaking can be an ethically heroic act if one is leaking a covered-up crime. The leaking of documents from the tobacco industry showing they covered up their own knowledge that cigarettes cause lung cancer was such a noble deed. But relatively few covered-up crimes are coming to light in these Wikileaks documents unless one is an anarchist and considers government in general to be a crime. In many instances, the documents are little more than gossip, producing hurt feelings, without having obvious policy implications. Scattershot massive infodump is not the same thing as leaking for purposes of securing justice in some particular instance.
On the other hand, I don’t see the leaks as the end of the world. Most of the authors of the cables have been rotated to another embassy by now, and leaders come and go. There is no evidence of anyone being killed because of the leaks, though one German spy for the US has been summarily fired. I saw Robert M. Gates on Aljazeera reacting to the leaks in Realist fashion. He said that countries interact with the US for three reasons. Some are friendly and interact on that basis. Others are enemies and seek engagement for that very reason. Still others think they need the US. Gates said he didn’t see in what way the leaked cables would change any of those three sorts of relationship. And he is right.
I suppose that as a contemporary historian, I feel about Wikileaks the way I feel about Ben & Jerry’s ice cream as a perpetual dieter. I wish they wouldn’t make it, but when I have a bowl, I have to say I really enjoy it.
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