WikiLeaks take us into a legal – and moral – maze

first_imgCablegate has some way to run. It is far too soon to know the final consequences for all those involved, though few may find that the affair ends well for them. We may, however, be able to glimpse the wider implications of this episode. We could, after all, be in at the birth of the internet’s Gutenberg bible – the moment of dramatic change in the form of political communication, even if the final distribution of forces remains, as yet, unclear. One of the best accounts of Julian Assange comes from Raffi Khatchadourian in the New Yorker (7 June). He went to Reykjavik to interview Assange in ‘the Bunker’, a secluded house. Assange and WikiLeaks volunteers were preparing to release the video from the US Apache helicopter of the killing of 18 people. Assange had a rootless childhood. His mother was constantly on the move; he allegedly attended 37 schools. He became fascinated by computers; got a conviction for hacking and a compulsion for information. Some of Assange’s writings are pretty impenetrable but his recent op-ed piece in The Australian (8 December) is coherent enough. He argues that there is no proof that anyone has yet been hurt by the disclosures and that WikiLeaks has uncovered a number of ‘startling facts’, ranging from the State Department’s attempt to get its diplomats to spy on senior UN officials, to the fixing of our Iraq inquiry to protect ‘US interests’. In his article, Assange refers to the US Supreme Court’s comment in the Pentagon Papers case that ‘only a free and unrestrained press can effectively expose deception in government’. A video on the web shows Assange comparing notes with a remarkably well-preserved Daniel Ellsberg, the leaker of the Pentagon Papers 30 years ago. The difference is size and focus. Ellsberg was hand-copying his papers through a Xerox machine; he was pushed to process 7,000 pages and would not have had a chance with WikiLeaks’ 250,000 documents. Ellsberg was also leaking a document specifically put together for a purpose with which he disagreed; Assange is leaking information bundled up simply because technology allowed it to be put together. There are themes in the content but they are more indiscriminate. The prime responsibility for Cablegate lies with the US State Department. Create a database of fascinating information that is accessible to over three million people and the only issue is how long you wait for the first leak. This was the pragmatic argument against identity cards which Justice pressed time and time again. The identity database, now cancelled, would potentially have contained a major source on every significant transaction you made. Yet there would have been wide access – an enquiring journalist’s dream. The cables reveal little with which to reproach its working diplomats – save for the odd incentive to spy on the UN. They seem to be making a pretty good fist of reporting what is going on. It is the idiots who couldn’t set up a system to keep it quiet that should take the heat. The key issue is what duties does WikiLeaks have? Legal responsibilities seem, to the US administration at least, distressingly few. The US has been scouring its espionage legislation, but this requires obtaining information ‘with intent to be used to the injury of the United States’. Assange’s line is that: ‘Democratic societies need a strong media and WikiLeaks is part of that media.’ He would argue that US democracy benefits from his work. But should he accept any measure of moral restraint? In September, Article 19, which styles itself the ‘global campaign for free expression’, published a statement on WikiLeaks. It is generally supportive but it does argue that ‘WikiLeaks and similar sites should follow good ethical practices to ensure that the information made available is accurate, fairly presented and does not substantially harm other persons’. This gets close to the heart of the moral darkness that is the web. In the absence of legal control, the web is self-regulating in two senses. Content is controlled by the individual moral decisions of those posting it, like Assange. In another sense, the whole thing regulates itself in the crudest way possible – the balance at any one moment of the conflicting interests of governments, commercial and assorted hackers, leakers and freedom insurrectionists. In such circumstances, the comparison between publication on the internet and in print screams for further attention. Newspaper editors, notably Paul Dacre of the Mail, rage against the privacy restrictions that face the tabloid press in performing their sacred public duty of exposing celebrities’ sexual peccadilloes. Cablegate just underlines the triviality of most of the cases in which this has been fought out in our courts. But how long can we justify tight rules for printed media when these manifestly do not apply, and cannot be enforced, against publication on the internet? At the very least, are we not going to have to construe the public interest a little more in favour of print publication? Bear in mind that one of WikiLeaks’ earlier successes was the Trafigura case, where it broke the story of facts which were clearly in the public interest but which were then being suppressed. The genie is out of the bottle. There will be plenty of disaffected citizens attracted by WikiLeaks’ offer of ‘a high security anonymous drop box fortified by cutting-edge cryptographic information technologies’. More hitherto confidential information is undoubtedly coming our way. We, as readers, will have to use our own judgement more to appraise its value rather than have it processed for us. On balance, I’m for it, but you could easily take a different view. It doesn’t really matter – it is going to happen anyway. Roger Smith is director of the law reform and human rights organisation Justicelast_img

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