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:
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. 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, 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.
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. 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.