Governance in the age of Wikileaks — Part 1

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 naïve: 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 coör­di­nated effort at hand in the back­ground (note: if you hap­pen to know of such coör­di­nated 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.