Governance in the age of Wikileaks — Part 1

If wikileaks broke the law, charges should be filed. If not, Visa, Mastercard, and others may have to explain their actions.

It’s now been a bit over a week since the Wikileaks situation has gone nuclear. Over the next few posts, I am going to break down how opponents of wikileaks are breaking the law, how some wikilieaks supporters are too, and what kind of tests we might want to see for the future.

The world we live in has drastically changed over the past 10 days, moving discussions around the future of the internet and the present state of democracy to the front burner for many people.

Along the way, we have moved into a state where embarrassment has been followed by lawlessness on both sides of the issue and I worry that too much focus may currently be placed on the wrong issues.

Breaking the law: Wikileaks Opponents

To date, the oddest thing I have noticed is that Wikileaks, the organization, has yet to be charged with any crime yet many actors unrelated to it have taken its cause to perform criminal acts. First and foremost has been the response from opponents of wikileaks. To assume that Amazon, Visa, Mastercard, PostFinance, and DynDNS did not receive some level of external pressure is to be fairly naive: while each company has found, in its own way a justification for its behavior but the combined action seems to point to pressures being applied outside of legal channels.

Let’s dissect the message and see what ought to be done about it. First is Mastercard, which said:

MasterCard rules prohibit customers from directly or indirectly engaging in or facilitating any action that is illegal

It is a fair criteria and I fully support it. There’s only one thing I’d ask Mastercard to explain: which action did Wikileaks engage in or facilitate that was illegal? Was it the publishing of stolen goods (the leaks)? If that is the case, I’m assuming that Mastercard will soon enforce this policy in a consistent fashion and keep its customers from using Mastercard branded products to buy any newspaper and news magazine as organizations like the New York Times, the Washington Post, Newsweek, Time Magazine, and the New York have all, at some point published stories based on government leaks. I’m also assuming that Mastercard will stop offering its products from being used to purchase anything because the purchase of a good often funds companies of groups that have engaged in illegal action. As such, customers who buy product from BP, for example, are indirectly engaging in behavior that has been found illegal.

Reading this, you start to realize how ridiculous the statement is as it presents an overly broad standard that doesn’t make any sense.

Visa, on the other hand, has suspended its customers’ right to use Visa branded products while it figures out “whether it contravenes Visa operating rules“. So there is a basic assumption here, once again, that Wikileaks is guilty until proven innocent so I would suggest that Visa Europe suspend Le Monde, El Pais in Spain, The Guardian in Britain, Der Spiegel in Germany, and The New York Times in the United States immediately as there probably ought to be some investigation as to whether their behavior contravenes Visa operating rules since they are working with Wikileaks. Once again, why the double standard?

But with all those justifications, there is a question as to why each of those companies is reacting now. Many are from highly regulated businesses and, as such, see it as a good thing to work with the government when possible so it is hard to not imagine that there is some more coordinated effort at hand in the background (note: if you happen to know of such coordinated effort, you might want to leak the proof to a news organization associated with Wikileaks instead of Wikileaks itself)

The extra-legal pressures, if they exist, are not something that we, as citizens have agreed to. In fact, they are not even part of the US stated policy when it comes to Internet freedom of information. In a seminal speech, earlier this year, US Secretary of State Hillary Clinton had the following to say:

On their own, new technologies do not take sides in the struggle for freedom and progress, but the United States does. We stand for a single internet where all of humanity has equal access to knowledge and ideas. And we recognize that the world’s information infrastructure will become what we and others make of it. Now, this challenge may be new, but our responsibility to help ensure the free exchange of ideas goes back to the birth of our republic. The words of the First Amendment to our Constitution are carved in 50 tons of Tennessee marble on the front of this building. And every generation of Americans has worked to protect the values etched in that stone.

Franklin Roosevelt built on these ideas when he delivered his Four Freedoms speech in 1941. Now, at the time, Americans faced a cavalcade of crises and a crisis of confidence. But the vision of a world in which all people enjoyed freedom of expression, freedom of worship, freedom from want, and freedom from fear transcended the troubles of his day. And years later, one of my heroes, Eleanor Roosevelt, worked to have these principles adopted as a cornerstone of the Universal Declaration of Human Rights. They have provided a lodestar to every succeeding generation, guiding us, galvanizing us, and enabling us to move forward in the face of uncertainty.

[...]

Those who disrupt the free flow of information in our society or any other pose a threat to our economy, our government, and our civil society. Countries or individuals that engage in cyber attacks should face consequences and international condemnation. In an internet-connected world, an attack on one nation’s networks can be an attack on all. And by reinforcing that message, we can create norms of behavior among states and encourage respect for the global networked commons.

The whole speech is worth reading as it was a bold statement extending the US foreign policy to include the protection of basic freedoms in the electronic realm. How could we possibly justify these nobles goals as part of our foreign policy if we are unwilling to support them at home.

The United States are a nation that was formed with the ideas that basic freedoms are protected and criminal actors are given due process. If Wikileaks did commit a crime, why not indict them right now? Why not give them a chance to defend themselves in a court of law? But if they have not, why is pressure applied to essentially freeze their assets?

John Adams once wrote:

Each individual of the society has a right to be protected by it in the enjoyment of his life, liberty, and property, according to standing laws. He is obliged, consequently, to contribute his share to the expense of this protection; and to give his personal service, or an equivalent, when necessary. But no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people. In fine, the people of this commonwealth are not controllable by any other laws than those to which their constitutional representative body have given their consent.

So if Wikileaks broke some laws, why not indict it in a court of law, allowing it the appropriate due process. And if it didn’t, why were pressures applied? The presumption of innocence is a cherished right in the United States and the United States supports the extension of such a right to the internet. So let’s let wikileak have its day in court or stop its persecution through non-legal means.

Note: This is the first of 3 back to back posts on the subjects. They were broken out because they each cover different aspects.

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About the Author

Tristan Louis

Writing and working on the internet since 1993, I've launched six companies, of which two went public and three were sold. This is my personal site and all opinions here are mine.