Some thoughts on Cablegate

by on December 6, 2010 · 8 comments

It’s been surprising to me that none of my TLF colleagues has yet ventured a post about this latest WikiLeaks controversy. But perhaps it shouldn’t be so surprising because the Cablegate case presents some very hard questions to which there are no easy answers. I’m not sure that I know myself exactly how I feel about every issue related to leaks. But to try to get some conversation going, and to try to pin down my own feelings, I thought I’d take a stab at writing down some thoughts.

Is it legitimate for states to keep secrets from their citizens? It’s a good question, but not one I’m interested in addressing here. The fact is that they do keep secrets.

Should the disclosure of classified information be a criminal offense? Given state secrets, this is a bit of a moot question because a state’s ability to keep a secret depends on it’s ability to punish disclosure by anyone entrusted with secrets. If nothing else, someone so entrusted has likely made a promise not to disclose. (There should, of course, be whistleblower protections in place that make exceptions to the rule.)

Therefore, the interesting question is this: Should there be liability for third parties who publish disclosed information?

Something that I think is easily overlooked in the present controversy, thanks in part to the fixation on Julian Assange, is that Wikileaks is simply a publisher. It did not steal the documents it is now releasing.

Making publishers liable for the distribution of information is nothing new. For example, it is illegal to publish child pornography, even if the publisher was not involved in its creation. One justification for such a rule is the further harm visited upon victims by the continued publication of images of their abuse. So we can conceive of a scenario in which the publication of classified information by a third party could cause real harm to persons.

What would constitute sufficient harm to merit third-party liability for the publication of classified information? Well, one would certainly imagine that the threat of physical harm to operatives, informants or other persons would qualify. Short of that, it’s difficult to imagine the type of information that would not be protected by the freedoms of speech and the press upheld in cases like _Near v. Minnesota_ and _New York Times Co. v U.S._ Certainly political embarrassment or the uncovering of corruption should not apply. To [quote President Obama](http://www.whitehouse.gov/the_press_office/Freedom_of_Information_Act/):

>The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.

Now, to the extent that there is some sort of third party liability for the publication of classified information, we must ensure that it is accompanied by due process. Several online intermediaries that provide WikiLeaks the tools it uses to publish, including Amazon, have booted Wikileaks off their platforms. [Amazon acted after a call from Sen. Lieberman's office.](http://www.nytimes.com/2010/12/04/world/europe/04domain.html) The threats implicit in political pressure has no place in a free society.

Despite the foregoing discussion of the legalities of leaks and third-party publication, the practical effect is that it is nearly impossible to completely eliminating any particular bit of information from the Internet. Peer-to-peer distribution, [mass-mirroring](http://slashdot.org/story/10/12/04/229233/WikiLeaks-Starts-Mass-Mirroring-Effort), and even the possible [forking of the DNS root](http://slashdot.org/story/10/11/29/2352225/Peter-Sunde-Wants-To-Create-Alternative-To-ICANN) stand in the way of censorship. That is a reality that transcends any normative questions about the WikiLeaks case.

If it can’t censor after the fact, what can government do? First, it can reevaluate how much information it is classifying as secret. The more classified information there is, the more there is available to leak; the more loosely one applies the “secret” stamp, the less meaning it has. Again, that is a positive statement, not a normative one. Second, government can shore up it’s security protocols. If we are to believe the reports in the papers, nearly 3 million persons with clearance had access to the leaked cables. Tightening security will no doubt have an effect on information-sharing, but that’s an inevitable trade-off that my first recommendation will make easier to asses.

Finally, to the extent that the U.S. government’s policy is to attempt to censor embarrassing disclosures about its operations, it would be contradicting its own [foreign policy of internet freedom](http://www.state.gov/secretary/rm/2010/01/135519.htm). And if in fact information can only be marginally suppressed, then I hope the U.S. recognizes that relative to other nations, especially authoritarian ones, it might have more to gain than lose from internet freedom.

  • http://srynas.blogspot.com/ Steve R.

    Cablegate is only one symptom of an apparent downhill slide in the US into a new form of McCarthyism in the name of fighting “wars” on Drugs, Piracy, Iraq, Afghanistan, Terrorism, etc. Possibly, my viewpoint may be biased based on an incomplete source of news, but it seems that third parties are increasingly being required to accept liability for the actions of others and to even spy on the actions of others.. For a blog that is ostensibly in favor of eliminating regulation there has been a surprising lack of exposure of concerning this issue. U.S. Tries to Make It Easier to Wiretap the Internet. Federal rules on campus file sharing kick in todayAnother major concern with third party is liability, is the slippery slope issue. Exactly when would a third party be deemed to be actually liable? If they are carrying documents labeled “SECRET” maybe, but if the documents contain nothing overt to identify them as secret???????

  • http://enigmafoundry.wordpress.com eee_eff

    “Amazon acted after a call from Sen. Lieberman’s office. The threats implicit in political pressure has no place in a free society.” I can finally say I really, really like a TLF post!

    “Despite the foregoing discussion of the legalities of leaks and third-party publication, the practical effect is that it is nearly impossible to completely eliminating any particular bit of information from the Internet. Peer-to-peer distribution, mass-mirroring, and even the possible forking of the DNS root stand in the way of censorship. That is a reality that transcends any normative questions about the WikiLeaks case.” Yes and no. Since it is impossible to erase something from the internet, it strongly suggests one should not try. In that sense this reality, should at least partially inform the Administrations reaction to cable gate.

    One issue that is not touched on here, but seems to be implicit in any discussion regarding wikileaks/cablecate in other forums is the issue of extraterritoriality. In other words, regarding the leaking of official secrets we should not press for precedents that would allow US law to operate in say Switzerland because, among the community of nations who nominally abide by the rule of law, we could eventually find ourselves extraditing to Libya someone who was investigating the Lockerbie bombing. Of course that is an extreme example, but for obvious reason extraterritoriality can’t work for official secrets laws.

    Transparency will always improve government by exposing wrongdoing. The process is not always linear and direct, but the forces are always there, and they where there in 1776, 1848, and 1968, and will gain be found to operate in 2010 and 2011.

    I have supported wikileaks since it’s inception, and although I am having a hard time doing so now will continue to do so.

    The readership on my blog is clicking the several donate to wikileaks links quite often. I suppose that may make me a criminal in someone’s perverted fantasy of American jurisprudence…however considering the risks that Bradley Manning and Julian Assange have taken, I cannot sit on the sidelines; it is time to take a side.

  • http://enigmafoundry.wordpress.com eee_eff

    I would rather use the word “especially” rather than “even with respect to Fox News, but it seems to me the administration has inherited so many wars that you list above. It is time they remembered the basis of the 2008 campaign was to stop some of these wars…

    The blog ‘Green is the New Red’ contains several examples of third parties being tried criminally for things they did not do, but allegedly ‘encouraged’ under the Animal Enterprise Terrorism Act. That law has established, essentially, thoughtcrime.

  • Anonymous

    Information leaks like these have been around forever. It’s just that the wikileak’s founder is finally putting them out there because he thought he could make a quick buck out of it. Ironic that now he’s had to run to the UK. Anyway, they should just free up all these “private” communications. They’re going to come out anyway, it’s the same reason why the TSA is a joke: http://lawblog.legalmatch.com/2010/11/29/dealing-with-tsa-airport-security-pat-down-search-procedures/

  • Rogwilsmith

    good one. nice and good site

  • Rogwilsmith

    good one.nice and good site
    http://shrtnews.blogspot.com

  • http://srynas.blogspot.com/ Steve R.

    Breaking news from TechDirt: “Homeland Security Gets Walmart To Tell You To Inform On Your Neighbors”.

    Underlying article:Walmart Partners with DHS on “If You See Something, Say Something” Campaign. Ann Longmore-Etheridge writes:“12/07/2010 -Janet Napolitano, secretary of the U.S. Department of Homeland Security (DHS) has announced that retailing giant Walmart has joined the agency’s “If You See Something, Say Something” campaign.

  • Pingback: What Cablegate tells us about cyber-conservatism

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