The US's Reaction To Wikileaks Is Doing A Lot More Harm Than The Leaks Themselves

from the destroying-any-moral-high-ground dept

It's becoming clear as the weeks go on, that the US government's massive overreaction to the latest Wikileaks releases is doing much more harm to the US's standings abroad than anything in the documents themselves. So far, most of the reaction from various politicians and diplomats concerning the actual content of the documents was that some of it might be slightly embarrassing, but there's been nothing all that surprising. Some foreign diplomats have joked back: "you should see what we say about you." And yet, we're still hearing claims that Julian Assange needs to be put on trial or (worse) executed, and other forms of "attacks" should be made on Wikileaks itself. All this has done has been to have foreign governments and diplomats start mocking the US for not living up to its claims of supporting freedom of the press and freedom of expression. This will make it much, much harder any time the US tries to stop any form of censorship in other countries, as they'll immediately point back at how many of our politicians flipped out over Wikileaks.

A bunch of folks sent over this blog post by Jack Goldsmith, which succinctly summarizes how backwards and damaging the US's response to Wikileaks has been. He questions if whoever leaked the diplomatic cables (he names Bradley Manning, but nothing has yet proven that he's the specific source, as far as I know) directly to the NY Times -- and the same info would likely have been published -- would the US government reacted in the same way?

Would our reaction to that have been more subdued than our reaction now to Assange? If so, why? If not, why is our reaction so subdued when the Times receives and publishes the information from Bradley through Assange the intermediary? Finally, in 2005-2006, the Times disclosed information about important but fragile government surveillance programs. There is no way to know, but I would bet that these disclosures were more harmful to national security than the wikileaks disclosures. There was outcry over the Times' surveillance disclosures, but nothing compared to the outcry over wikileaks. Why the difference? Because of quantity? Because Assange is not a U.S. citizen? Because he has a philosophy more menacing than "freedom of the press"? Because he is not a journalist? Because he has a bad motive?

He also notes that a reporter like Bob Woodward has published and revealed "many details about top secret programs, code names, documents and the like," obviously with direct help from top administration officials... and yet there's been no anger and threats about all of that. Among the many points he raises, one is particularly compelling: any attempt to actually charge Assange will backfire for a huge list of reasons:

I think trying to prosecute Assange under the Espionage Act would be a mistake. The prosecution could fail for any number of reasons (no legal violation, extradition impossible, First Amendment). Trying but failing to put Assange in jail is worse than not trying at all. And succeeding will harm First Amendment press protections, make a martyr of Assange, and invite further chaotic Internet attacks. The best thing to do -- I realize that this is politically impossible -- would be to ignore Assange and fix the secrecy system so this does not happen again.

Yet again, I'm left noticing the similarities between the US government's reaction to Wikileaks and the entertainment industry's reaction to file sharing. Each move that it made, including going legal, backfired in a big, bad way. It's really quite stunning to watch the US government make the same mistakes.

Filed Under: free speech, politics, reaction, wikileaks
Companies: wikileaks

Congressional Research Service Notes That There Are Serious Challenges To Charging Assange

from the ain't-so-easy dept

While a lot of the rhetoric from the US government -- concerning Wikileaks and Julian Assange and whether or not any law was violated -- has been overwrought and full of hyperbole, it appears that the Congressional Research Service (which tends to do a damn good job most of the time) has put out a nice simple report detailing the specific legal issues and laws that might apply here (pdf), and more or less summarizes that the US government would be breaking new ground in charging Assange, and may have difficulties in succeeding. While the report notes you could probably stretch the law to cover what Wikileaks did, it warns:

[The] statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications.....

The report does note that there has been at least one case it's aware of where a foreign national was charged under the Espionage Act for activities done outside of the US. But, it is quite rare, and beyond a single district court ruling saying this okay, the history and language of the Espionage Act suggest it was not designed for this purpose.

The report also delves into the hurdles to having Assange extradited to the US (something the US is apparently already discussing with the Swedish government), pointing out that no current US treaty "lists espionage as an extraditable offense."

But the biggest hurdle is noted towards the end of the report, in highlighting the rather serious Constitutional issues associated with attempting to try Assange for anything in the US, with a lot of focus on the ruling in the Pentagon Papers case:

Where First Amendment rights are implicated, it is the government's burden to show that its interest is sufficiently compelling to justify enforcement. Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that "state action to punish the publication of truthful information seldom can satisfy constitutional standards." And it has described the constitutional purpose behind the guarantee of press freedom as the protection of "the free discussion of governmental affairs."

[...]

[If] national security interests were not sufficient to outweigh the First Amendment principles implicated in the prior restraint of pure speech related to the public interest, as in the Pentagon Papers case, it is difficult to discern an obvious rationale for finding that punishing that same speech after it has already been disseminated nevertheless tilts the balance in favor of the government's interest in protecting sensitive information.

The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection. The Court has not resolved the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well." (The Pentagon Papers Court did not consider whether the newspapers' receipt of the classified document was in itself unlawful, although it appeared to accept that the documents had been unlawfully taken from the government by their source).

The Court has established that "routine newsgathering" is presumptively lawful acquisition, the fruits of which may be published without fear of government retribution.

There are definitely plenty of loopholes whereby the government can try to file charges against Assange, but in reading through the document it would likely be a pretty tough sell. You can read through the entire document after the jump.

Filed Under: espionage, extradition, julian assange, wikileaks
Companies: congressional research service, wikileaks

Is The CIA Hosting A Wikileaks Mirror? [Updated]

from the honeypot-or-not? dept

Whatis42? points us to an interesting post on Reddit, which is initially just highlighting a Google heatmap showing the locations from which people are searching for the term "wikileaks." Not surprisingly, the hottest spot on the heatmap is the Northern Virginia, Washington DC area. Shocking, I know.

But, perhaps more interesting is a comment on the thread, which notes that it appears at least one of the Wikileaks mirrors appears to be hosted by the CIA, or at the very least a company associated with the CIA using (for a time) a CIA netblock. The address, wikileaks.psytek.net no longer appears to be hosting anything (right now it just leads you to a standard Apache install page that says "It works!"). There's an interesting discussion in the Reddit comments over what this means -- ranging from everything to someone suggesting this is just a joke, to the "honeypot" question, to the one that seems most plausible to me: as a mirror that is quickly updated as Wikileaks puts up new documents, it allows the CIA to get access to what's being released as quickly as possible. Updated: And, as noted in the comments, it appears the answer is "no." Or, at least, if it is, it ain't this particular site.

Filed Under: cia, mirrors, wikileaks
Companies: cia, wikileaks

Ron Paul's Sensible Thoughts On Wikileaks

from the good-for-him dept

A bunch of folks have been submitting Ron Paul's recent speech to Congress in defense of Wikileaks, which is absolutely worth watching/reading (full text included after the jump). There's not much new here, but it's nice that at least some in the government are pointing these things out:

Filed Under: ron paul, wikileaks
Companies: wikileaks

How The Press Misleads About Wikileaks

from the journalism-at-work dept

As Julian Assange's lawyers fully expect him to get charged in the US under the Espionage Act, it's interesting (and a bit distressing) to see how some in the press -- who should be his biggest supporters -- are acting. Glenn Greenwald highlighted how a Time Magazine report on the potential US legal case against Assange misstated a variety of facts -- including the idea that Wikileaks itself had published "thousands" of classified State Department cables and that it had done so "indiscriminately." As Greenwald points out Wikileaks itself has only published a little over 1,000 of the cables, and nearly all of them are the ones that the press has already posted/vetted/reported on.

This is a part of the story that isn't getting much coverage. While most of the news reports have said that Wikileaks published over 250,000 such cables, that's not exactly true. It has over 250,000 such cables and appears to have passed them on to its media partners, but it's slowly releasing specific cables -- with redactions -- and mostly after the press partners are releasing those same cables. In other words, it appears that Wikileaks is actually being judicious and discriminating in what it's releasing. Or, you could say (and probably should say) that Wikileaks is actually doing much of what a journalist would do in selecting which documents to pass along at this time.

But by trying to claim that Wikileaks is "just" a data dump, it's an effort to make Wikileaks look like it's not a journalistic or media entity -- thereby affording it fewer First Amendment rights. But, it appears that some in the press, such as Time, are being quite misleading in doing so. After Greenwald called them on it, Time issued a "correction," but it's a "correction that's not a correction" in that they basically say that Assange and some others disagree with some of Time's claims. But it makes no attempt to fix the factually incorrect statements.

Of course, this may come back to the view that many have: that certain elements in the press are upset about Wikileaks because it shows what a crappy job they've been doing on their own. If we had a functioning press that actually sought to hold the US government accountable, there would be much less of a need for Wikileaks. Instead, we have a press that focuses on keeping "access" to those in power, and that means not digging too deep at times.

Filed Under: espionage, journalism, julian assange, time magazine, wikileaks
Companies: wikileaks

Wikileaks Leak Suggests Hollywood Is Better At Preventing Terrorism Than The TSA

from the winning-the-hearts-and-minds dept

While it seems like US politicians keep insisting that Wikileaks' release of State Department cables has put people in harm's way -- despite a lack of evidence to support that -- some are pointing out that at least some of the cables actually show that some of what the US is doing in the Middle East has been quite effective. Prashanth points us to the news that one of the leaks showed that American TV and movies in Saudi Arabia are actually "are doing more to dissuade young Muslims from becoming jihadists than virtually anything else." As the cable noted: "Saudis are now very interested in the outside world and everybody wants to study in the US if they can. They are fascinated by US culture in a way they never were before."

Of course, the same politicians blasting Wikileaks as a "terrorist" organization can't admit that some of the leaks are actually showing that some of what the US is doing is working quite well. As Prasanth notes in his own blog post, if US politicians were smart, they'd use cables like this to play up evidence that they're doing some things well:

I feel like this is along the lines of winning the people's "hearts and minds". The reason why this works is because as opposed to state-sponsored propaganda (which is pretty obvious when shown), this more subtly shows what's so great about the US.

Finally, I think this report is a great send-up of all the politicians who are equating Wikileaks with terrorism. Quite the contrary: while a lot of what it shows is what we've done wrong (and of course these politicians will hypocritically call for press freedom in other countries yet repress it here), it also shows a lot of what we've done right. Why not publicize that more?

Filed Under: entertainment, hearts and minds, hollywood, saudi arabia, terrorism, wikileaks
Companies: wikileaks

New Competition For Wikileaks Shows Up -- Say Hello To OpenLeaks

from the are-we-going-to-jail-them-too? dept

Like many folks, I'm somewhat conflicted about Wikileaks as an organization. It's been clear for quite some time that it has some organizational issues, to put it mildly. However, as we've pointed out the concept behind Wikileaks is inevitable, and we fully expected that even if Wikileaks itself went away, others would quickly step up to take its place. Last month, we noted that some former Wikileakers (who were not at all happy with Assange's leadership) were planning a new competitor.

Slashdot points us to the news that their offering, to be called OpenLeaks, is expected to launch next week. The new operation claims it will function slightly differently than Wikileaks, but with the same general intent: allowing whistleblowers to leak sensitive information. The main difference appears to be that OpenLeaks won't publish information directly, but will offer it up to others to publish. I'm not entirely sure how that will work, but either way it seems to be clear that even if the US government were successful in somehow making Wikileaks "go away," it won't stop the general trend towards systems and institutions designed to help whistleblowing.

Filed Under: competition, journalism, openleaks, whistleblowing, wikileaks
Companies: openleaks, wikileaks

What Would Happen If Wikileaks Got Its Own Top Level Domain?

from the a-freedom-tld? dept

With all the talk about how the whole Wikileaks/domain name seizures issue is about a centralized vs. decentralized internet and even talk of a more decentralized DNS system, IP Watch raises an interesting question. With ICANN's plans to allow just about any TLD, what would happen if Wikileaks were to apply for its very own TLD?

Given ICANN's official statement that it does not take down domain names and has no technical or legal authority to participate in such forms of censorship (and, in fact, we've noted in the past that ICANN has refused to meet with IP Czar Victoria Espinel about this, noting that it would not be appropriate), would it allow such a TLD to be created, and then take a hands off approach?

What if it wasn't even a .wikileaks (or just .leaks) TLD, but a more general .open DNS, managed by an organization that agreed not to censor anything, no matter what the cause?

Filed Under: dns system, icann, openness, tld, top level domain, wikileaks
Companies: icann, wikileaks

If Assange Were In China, US Politicians Would Be Cheering Him On

from the transparency-means-different-things-when-it's-about-you dept

We've pointed out the general hypocrisy of US politicians calling for an end to internet censorship, while threatening Wikileaks at the same time. If you want to see some real irony, check out the fact that Senator Joe Lieberman, who has been the loudest voice in pushing for censorship of Wikileaks and of others in the press, just so happens to be a member of the "Global Internet Freedom Caucus." Yeah, except here in the US.

Along those lines, Martin Varsavsky points out the obvious: if Julian Assange were a Chinese citizen, publishing Chinese government documents, the US would likely be cheering him on:

Lately I have a strong feeling that the Chinese must be rejoicing at all the "retroactive law invention" that is going on in the West to put one man in jail. Because if Assange had been a Chinese citizen promoting transparency in China we would be lining up to give him the Nobel Prize. We can't demand transparency from others and censorship for ourselves.

In fact, as Evgeny Morozov notes, Russia's Ambassador to NATO, Dmitry Rogozin is already using the US's reaction to Wikileaks to say what a joke "freedom of the press" is in America. That tweet is in Russian, but the Google translation is:

In my opinion, the fate of Assange says the lack of media freedom in the West, the presence of political persecution and human rights violations.

What's really stunning, beyond just the sheer uselessness and impotence of the US government's response to Wikileaks, is the fact that it's inevitably destroying any moral high ground on claims of freedom and support of free speech we might have once had. In the end, I would expect that to have a much bigger impact than anything that's in the actual leaked cables.

Filed Under: china, free speech, governments, julian assange, russia, transparency, wikileaks
Companies: wikileaks

Operation Payback And Wikileaks Show The Battle Lines Are About Distributed & Open vs. Centralized & Closed

from the the-soul-of-the-internet dept

Back in October, I wrote a thought-piece on how "the revolution will be distributed," comparing Wikileaks to Anonymous' "Operation Payback" (whose tactics I disagree with). I noted that the two were very different, and were focused on very different issues, but that both were essentially about distributed and open systems taking on systems that were centralized and closed -- and that the folks in those centralized and closed systems didn't seem to understand this. Thus, all of their reactions did little to fix the challenges they were facing.

It seems that my comparison of the two operations was a bit more prophetic than I expected. In the wake of the latest Wikileaks saga, Operation Payback is getting attention for pointing its DDoS takedown efforts on Visa and MasterCard for their decision to disallow any payments to Wikileaks via their cards.

I still disagree with the tactics of Operation Payback -- which I fear will be counterproductive and could lead many people to think this is all about some "rowdy kids" rather than people with a serious agenda. However, it is rather telling how much attention they're getting. The folks behind Operation Payback point out that they're not affiliated with Wikileaks, but:

We fight for the same reasons. We want transparency and we counter censorship. The attempts to silence WikiLeaks are long strides closer to a world where we can not say what we think and are unable to express our opinions and ideas.

Again, I'm struck by the simple split many have here: it really is an argument between those who believe in distributed and open vs. centralized and closed -- and I'm still not sure if the folks supporting centralized and closed even realize this. Their response, to date, has been to act as if they're fighting a centralized system. They focus on things like Wikileaks' domain and its founder -- as if that's the issue. They target the centralized pieces. And even if you make the argument that Wikileaks needs Julian Assange to stay together, if it were to shut down, it wouldn't take long for a ton of other, similar offerings to spring up in its place. And, they would probably be even more effective (and potentially more damaging).

While I don't necessarily like "war" analogies, what we're seeing is very much a battle between the way people want to see information flow, and one side seems to be still fighting the last war.

Filed Under: anonymous, centralized, closed, distributed, open, operation payback, wikileaks
Companies: wikileaks