How much does WikiLeaks matter? Or does it?
That’s the question up for debate tonight at a Churchill Club program at the Marriott in Santa Clara, California. It’s quite an illustrious panel:
- Daniel Ellsberg, leaker of the Pentagon Papers to the New York Times in 1971.
- NYU Professor Clay Shirkey.
- ThoughtWorks Chairman Neville Roy Singham (ThoughtWorks is sponsoring the event.)
- PayPal founder and Facebook investor Peter Thiel.
- Jonathan Zittrain, co-founder of the Berkman Center for Internet & Society, and a professor of law and computer science at Harvard.
- Moderating the event, Paul Jay, CEO of the Real News Network.
Julian Assange is otherwise engaged, of course.
The event is being streamed live on Fora.TV, and will be YouTube sometime tomorrow.
Here are some key talking points from the discussion, which I’ll be updating live.
- Paul Jay is apparently a Canadian documentary producer. He says the issue here is rights. The right to privacy. The right to access to information. The right of private companies to put commercial interests first. The right of public discourse on a platform that is primarily privately owned – which is, the Internet. He says it is also an issue about whistle-blowers.
- Jay starts by introducing Ellsberg, who was prosecuted for releasing the Pentagon Papers, and asks about attempts to prosecute Assange. He says he was the first person in the U.S. to be prosecuted in the U.S. for a leak; he says he was prosecuted under the Espionage Act, which had only been used previously against spies. He says it was always understood that it was intended to cover spying. He says Congress had always rejected a U.K. style Official Secrets Act, and that it was the role of the press to disclose wrong-doing by government officials. He notes that President Clinton vetoed a U.S. version of the Official Secrets Acts, which would have criminalized what Assange did – and what he, Ellsberg, did. He said the act would basically have covered readers of the New York Times who read such information publisher in the newspaper. Only three prosecutions prior to Obama, including Ellsberg’s case. He says the Supreme Court has never ruled on the concept of putting millions of pages of classified documents in the public domain – and issuing criminal sanctions.
- Ellsberg notes that there have been five prosecutions on release of state secrets during the Obama Administration. He says it is part of a policy. Most of those were before WikiLeaks, and two were for acts during the Bush Administration – but which were not prosecuted while Bush was in office. He says there is a war on whistle-blowers. Ellsberg thinks Obama feels more vulnerable to whistle-blowers than his predecessors. He says Obama is a little more embarrassed by things torture and other acts that didn’t particularly bother Bush or previous presidents. His view: WikiLeaks matters.
- Next, the panel gets to question Ellsberg. Shirkey notes that WikiLeaks is an international organization, and that the situation changes things quite dramatically. He says people will leaks to nations other than the one where the information originated.
- Jay notes that Canada has a law that intelligence agencies can’t listen to conversations by Canadians, and that Australia has the same law; he says as a result Canada listens to Australians, and vice versa. (And I presume they trade information.)
- Thiel, an avowed libertarian, says transparency is an incredibly powerful weapon of sorts, and that we should distinguish between governments and individuals. One difference is that governments have the power of the state, they can use violence. He says there is more privacy and presumption of innocence for individuals. He says we have to ask hard questions about where the transparency is being increased, and how it changes the balance of power between governments and individuals.
- Singham asks whether this is a historic moment in terms of secrecy? Ellsberg says there has been some discussion that implies the Pentagon Papers leak was good but that WikiLeaks is bad. Jay notes that the State Department is touring a group of movies around the world that includes a documentary about Ellsberg and the Pentagon Papers. He also notes that his actions in some ways did contribute to the end of the Vietnam War, and the resignation of Richard Nixon, whose campaign broke into his analyst’s office to collect information about him. He notes that warrantless wire-tapping and the use of the CIA as secret police, which were issues in his case, were made legal during the Bush Administration. He says acts that were illegal and lead to Nixon’s resignation have been made legal. He also says he has a great affinity for Bradley Manning, who leaked the recent tranche of diplomatic cables to Assange. He says Manning could in theory be given the death penalty for his action; if that happened, he says, he would be the first American to be given the death penalty for giving information to Americans since Nathan Hale.
- Jay points out that Amazon removed WikiLeaks data from its servers, and that other companies (Visa, MasterCard, others) likewise terminated relationships with the site, due in part to requests from government officials, in particular Sen. Joe Lieberman. Shirkey says it highlights that the Internet is a private sphere, not a public sphere, that tolerates public speech. He says Lieberman is one of the few intellectually honest actors in this part of the debate. Lieberman says the Pentagon Papers case was wrongly decided, and that the New York Times should have been culpable.
- Jay asks Thiel: would PayPal have cut off WikiLeaks? Thiel says sometimes you have to do what is wrong, and not very courageous. He says he has not been running PayPal since 2002, and so doesn’t face the dilemma. He says in both cases companies will cave, saying they respect people’s privacy issues, but they cave. He says it is like the way say governments say they never deal with terrorists…except in every specific instance. He says in every specific case in this situation, companies always cave. He says we’d like to have heroic CEOs running these companies; he also says we should have more of a balance of power; he says it isn’t always clear how laws are applied. He says he just read a book that claimed the average person commits three felonies a day. The point, he says, is that there are a lot of gray zones in the law; the reality, he says, is that most CEOs are not like Ellsberg. And that we should reduce the power of the state to do violence against individuals and corporations.
- Thiel notes that most companies, certainly most larger companies, are entangled with the government in all sorts of different ways; he says there are lots of laws, and you don’t want them used against you in arbitrary ways. He says having a less powerful government would be helpful; and that supporting individuals like Assange also would be helpful.
- On Amazon he says there is question about the company’s real motive: whether they are shutting them down out of their own beliefs, or because of government pressure, that “government power was lurking in the background.”
- Ellsberg adds that there is no U.S. law that would criminalize what Assange did that would not also apply to the New York Times. He notes that they basically decided which cables would be published.
- Nice quote from Shirkey: “Assange could drown cats in his basement but it wouldn’t change one face contained in those cables.” He made the comment after noting that the Times did a “tremendously unflattering” profile of Assange on the front page.
- Zittrain finally gets to weigh in. He says the easy answer of what to do if you were running PayPal, would be to say you wouldn’t co-operate. But Zittrain says that if someone is running a company, they are under extreme pressure, and if you are designing a system from the top, you want to design the system recognizing that people have to play their roles. He says you want to set up the roles so that they are in healthy conflict, the classic idea of the separation of powers, and the role of the media – he says so far what’s he’s heard from Ellsberg, that he decided with few official options, decided to leak. He says Peter’s view as a libertarian is going to be naturally that government should be smaller.
- Zittrain says Ellsberg said he is against a state secrets act, but does not say that there is no information that should be secret. He says the question is how to set up the pieces on the board in a world when you can capture millions of secrets on a thumb drive labeled Lady Gaga. (Which is what Manning did.) He also notes that the difference between a leaker and a spy is who you leak to – if you leak only to Russia, then you’re a spy. Leak to everyone, and you are a leaker. He says we need to think through ways to “leak responsibly.” Could you come up with a system where there is leaking, but with redactions of some information.
- Zittrain points to a case called Marsh v. Alabama in which the court ruled that companies that rule a public space have to come under the rules that apply to governments – and that the case conceivably could be applied to the Internet.
- Singham describes a story involving four librarians who received a national security letter, who received a request for information, and received a gag order that doesn’t even allow to speak about their gag order. He says btween 2003 and 2006 there were 100s of 1000s of letters of this variety. Sigham then reads the “search and seizure” clause in the Fourth Amendment. He says gag orders are Orwellian; he says they eventually became the first four Americans to admit they received a national security letter. His question is where are the librarians in the tech industry; he says two companies maintained their relationships with WikiLeaks, ZipWire, which forwarded the company cash, and Canadian company called EasyDNS, the DNS provider
- Singham says freedom of the press has to include WikiLeaks; he also says criticism of the government is the core of the Fourth Amendment, and that the government is embarrassed by some of what happened in Afghanistan. He says what Amazon has done has totally set back the cloud movement, since some non-U.S. countries now won’t want to host their data in the U.S. He says we are at an inflection point on the abridgment of freedom of information.
- Thiel chimes in to say that all these things come down to a lot of details; he says Harvard was not able to start Facebook as a public service. And he says they did better than if you had the U.S government create it. He says media are not just public services, you have to run them as businesses that are quire functional. He says it comes back to government versus corporate power, and that you don’t solve this by regulating corporations even more.
- Zittrain says you can try to say corporations are the safe haven, but then their might be something the corporations are doing that isn’t so savory. He’s getting into it with Thiel, who contends that governments kill more people than corporations. Zittrain says he believes in joint and several liability.
- Basically Zittrain and Thiel are having a debate over libertarianism.
- Zittrain says if your view is that the system is basically corrupt, if that is your view, then you may have a set of conclusions on how history will vindicate the indiscriminate leaking of documents. He says in many ways, there has been too much of a push toward a national security state.
- During Q&A, someone asks if Visa can’t discriminate against any kind of charity, why can they discriminate against Wikileaks. Zittrain says certain things are specifically prohibited in federal law, but that if Visa decides not to process any payments from Republicans, or people with names that start with W, they can do that as a business decision. He says one would hope that there aren’t just a few points of control; he says you don’t want to shut down speech by preventing the movement of bits.
- Another questioner asks if WikiLeaks committed an act of journalism – or is it fundamentally different. Shirkey says the reason he always thought there would never be a shield law for journalists is that the definition is not so clear thanks to the Internet. He says there is this idea that WikiLeaks is a recent surprising event – and he says the concept contains three ideas, it isn’t recent, it isn’t surprising and it isn’t event. Shirkey says the tension between a shield law and what the network makes possible has been there for decades. He says there is no definition of journalism that Congress can enact that will hold up; they were going to be based on 20th century assumptions. Whether WikiLeaks is an act of journalism is indeterminate; but he says what is clear is that it is a media outlet, as much as any other actor in the system.
- Ellsberg says one difference between the Pentagon Papers and WikiLeaks is that the Pentagon Papers did not disclose illegal acts – but that WikiLeaks has done so. On corporate/government cooperation, Ellberg says that is sometime necessary. He says government wants total transparency on their citizens. (He notes that the Stasi in East Germany took that approach…to know everything.) The other thing he says the government wants is total opacity of their own operations. He says we’re seeing private corporations helping to maintain that opacity. Ellsberg says even Assange does not believe in total transparency; he’s released less than 1% of what he has. Ellsberg notes that Assange, like Facebook’s Mark Zuckerberg, both talk about transparency; he says Zuckerberg is in favor of voluntary transparency. Ellsberg’s point seems to be that the debate between Zittrain and Thiel is flawed – that the risk is government and corporations working together.
And that’s about it. I’ve tried to capture a lot of this; I’d encouraged you to watch the video; I’ll add a link when it becomes available.