Last year, we wrote about an effort by Public Citizen along with lawyers Eric Goldman and Martin Schwimmer, to have RosettaStone and Google remove the massive number of redactions that were made in the legal filings each has put forth in the companies' trademark dispute. As Paul Levy of Public Citizen noted at the time, this case will have important public policy impact on others, and it's only fair that the details be known. Despite being secretive upfront, it seems that RosettaStone has mostly been amenable to this and has provided unredacted filings (which have shown that the redacted info never should have been redacted in the first place). Yet, it appears that Google is still fighting this. Eric Goldman points out that Google appears to be working to avoid having to reveal what it redacted, though it's not clear why. Of course, all this really does is make you wonder what Google is hiding.

Mathew Ingram points us to this absolutely worth reading open letter from a US Air Force Intelligence official who served in Afghanistan, explaining why he supports Wikileaks. The whole thing is worth reading, but the key paragraphs:

After reading many of the Iraq/Afghan/Cablegate logs I am compelled to inform my fellow citizens that I saw nothing in these logs that could endanger our troops or public servants.

Here's what I did see: I saw Iraq war logs that painted a very bleak picture of the situation there which doesn't match up with the "improved security" that's been reported by the "Defense" Department for years. I saw proof of public officials acting dishonestly and abusing their posts. Overall, I saw an out of control government that is in over its head and does more to endanger the lives of its people than any publishing organization ever could.

I volunteered to protect this country under the impression that my government followed the will of the American People and adhered to the US Constitution. As it turns out, the wars in Iraq and Afghanistan were never constitutionally declared and despite public opinion being against the two wars they continue to grow more destructive. My experiences in these wars differed greatly from the propaganda the American people were sold by America's mainstream media outlets; many times I would return from a mission to see wild inaccuracies being reported on Fox/CNN/MSNBC about the very operation I had just been supporting. Wikileaks has helped shine light on the true nature of these illegal wars and the policymakers that perpetuate them, for this I am thankful.

This does a really nice job summarizing the points that many people have been trying to make. Not all of us are entirely comfortable with the way Wikileaks itself operates, but on the whole it, and others like it, are helping to expose questionable activities by our government -- and I'm somewhat amazed at the number of people who respond to it by insisting that they're happier having their government lie to them and mislead them. At the same time, it's nice to see someone else confirm that there's little in the documents that has "put people in danger" which is a key point often raised by those who want to pin something on Wikileaks. The problem is that there doesn't appear to be much "there" there.

While many are attacking Wikileaks and the release of State Department cables, Jay Rosen points us to the explanation by Spanish newspaper El Pais as to why it published the leaks. While the whole thing is worth reading, I think the point in the first two paragraphs is particularly salient. Governments insist that they need secrecy to protect the public, but it appears that neither point there is true. The government hasn't done a very good job protecting the public, and what's most telling and revealing about these documents is that the government doesn't need much of the "secrecy" it requests. So publishing these documents highlights the very basic lie of that bargain: "you allow us to act in secrecy, and we'll protect you." In reality, neither part appears to be true. Here's the full explanation:

Cynics will argue that none of what we have learned from WikiLeaks differs from the usual way in which high-level international politics is conducted, and that without diplomatic secrets, the world would be even less manageable and more dangerous for everyone. Political classes on both sides of the Atlantic convey a simple message that is tailored to their advantage: trust us, don't try to reveal our secrets; in exchange, we offer you security.

But just how much security do they really offer in exchange for this moral blackmail? Little or none, since we face the sad paradox that this is the same political elite that was incapable of properly supervising the international financial system, whose implosion triggered the biggest crisis since 1929, ruining entire countries and condemning millions of workers to unemployment and poverty. These are the same people responsible for the deteriorating quality of life of their populations, the uncertain future of the euro, the lack of a viable European project and the global governance crisis that has gripped the world in recent years, and which elites in Washington and Brussels are not oblivious to. I doubt that keeping embassy secrets under wraps is any kind of guarantee of better diplomacy or that such an approach offers us better answers to the problems we face.

The incompetence of Western governments, and their inability to deal with the economic crisis, climate change, corruption, or the illegal war in Iraq and other countries has been eloquently exposed in recent years. Now, thanks to WikiLeaks, we also know that our leaders are all too aware of their shameful fallibility, and that it is only thanks to the inertia of the machinery of power that they have been able to fulfill their democratic responsibility and answer to the electorate.

The powerful machinery of state is designed to suppress the flow of truth and to keep secrets secret. We have seen in recent weeks how that machine has been put into action to try to limit the damage caused by the WikiLeaks revelations.

Given the damage they have suffered at the hands of WikiLeaks, it is not hard to see why the United States and other Western governments have been unable to resist the temptation of focusing attention on Julian Assange. He seems an easy enough target, and so they have sought to question his motivation and the way that WikiLeaks works. They have also sought to question why five major news organizations with prestigious international reputations agreed to collaborate with Assange and his organization. These are reasonable questions, and they have all been answered satisfactorily over the last four weeks, despite the pressure put on us by government, and worse still, by many of our colleagues in the media.

There is now a well-established class of writers about the digital world, whom I fondly dub the Old Curmudgeons. Basically, they agree, things are getting worse all the time -- this modern online nonsense is bad for us and will give us all fallen arches or something. Leading exponents of this view include Nicholas Carr, Andrew Keen and Jaron Lanier.

I think Mr. Lanier is the most interesting of these, because he has a solid technical background and has been creative in the digital sphere for a long time. That makes his Savonarola-like denunciations of the same particularly striking.

Against that background, it was perhaps inevitable that he would weigh in on the Wikileaks business -- and equally inevitable what his line would be, as his title makes clear: "The Hazards of Nerd Supremacy: The Case of WikiLeaks".

If I had several hours to spare, I might try to go through it addressing his various arguments, from those which amount to unsubstantiated assertions about "the ideology that drives a lot of the online world," to ad-hominem sniping (for example, "we didn't necessarily get to know where Mr. Assange was at a given moment" -- maybe because he is doing things a lot of governments and organisations don't like and so discretion is the better part of valour), to outright misapprehension ("Wikileaks isn't really a "wiki," but it is designed to look and feel like the Wikipedia" -- er, well, no actually, it doesn't look like it in the slightest), and to various straw men: "What if we come to be able to read each other's thoughts? Then there would be no thoughts. Your head has to be different from mine if you are to be a person with something to say to me." As far as I am aware, nobody is calling for mandatory telepathy.

But I'd rather examine Lanier's peroration, because I think it exposes the fundamental flaw in his indubitably entertaining essay:

Anarchy and dictatorship are entwined in eternal resonance. One never exists for long without turning to the other, and then back again. The only way out is structure, also known as democracy.

We sanction secretive spheres in order to have our civilian sphere. We furthermore structure democracy so that the secretive spheres are contained and accountable to the civilian sphere, though that's not easy.

There is certainly an ever-present danger of betrayal. Too much power can accrue to those we have sanctioned to hold confidences, and thus we find that keeping a democracy alive is hard, imperfect, and infuriating work.

The flip side of responsibly held secrets, however, is trust. A perfectly open world, without secrets, would be a world without the need for trust, and therefore a world without trust. What a sad sterile place that would be: A perfect world for machines.

What the Wikileaks cables show is precisely that those sanctioned "secretive spheres" are not currently accountable to the civilian sphere. They show all of the shady deals made in backrooms, the outright lies told to the public to keep us quiet, and the connivance with big business to ensure that profit comes before ethics.

Lanier's logic seems to be that everything's fine and the revelations of Wikileaks will only mess things up. And until Wikileaks' revelations, people might have gone along with that analysis, since that was the story that governments were feeding us. But in the wake of Wikileaks, that is simply not a tenable position: as the words of diplomats delineate time and again, everything is not fine and the social pact of accepting those "secretive spheres" in return for a responsible use of the advantage they bring has been broken.

I would love it to be the case that Lanier's analysis were true and in some scaled-up, digitised version of Athenian democracy we could have a responsible wielding of state powers, with secrecy applied wisely and justly. But Wikileaks has confirmed what many have suspected, but have hitherto been unable to prove: that politicians use secrecy to hide their continual and continuing breaches of the trust we placed in them.

Until they change in the light of what Wikileaks is showing, we cannot trust them as we did before. And the more they -- and their defenders, however well intentioned -- deny the situation revealed by their own words through Wikileaks and try to stop us from seeing it, by hook or by crook, the longer that is likely to take and the messier it will be.

And given that proven record of abuse, when they do finally change we will need more transparency about what they are doing -- but not total transparency, which is neither feasible nor necessary -- to make sure that they are not falling back into their bad, old ways under the convenient, comforting cover of secrecy.

Cross posted from Open...

As more and more attention was paid to the ridiculous level of secrecy concerning the ACTA negotiators last year, a bunch of ACTA supporters tried to claim that the level of secrecy (such as calling it a state secret involving national security) was perfectly normal for such agreements. A year ago, we went through a rather detailed explanation of how similar negotiations were much more open. The response we heard was that we were wrong and that this was "entirely normal." Turns out, even the diplomats involved knew this was bunk. One of the latest cable leaks from Wikileaks shows an Italian diplomat complaining to a US official about the level of secrecy involved in ACTA, noting that it's much higher than normal and that it makes it more difficult to get stuff done:

The level of confidentiality in these ACTA negotiations has been set at a higher level than is customary for non-security agreements. According to Mazza, it is impossible for member states to conduct necessary consultations with IPR stakeholders and legislatures under this level of confidentiality.

Can't wait to see defenders of ACTA secrecy try to backtrack their claims that the secrecy level was perfectly normal.

Separately, this particular cable shows some of the problems with the USTR's annual Special 301 report in which it makes up a list of who's been naughty and who's been nice when it comes to intellectual property issues -- based not on evidence, but almost entirely on entertainment industry and pharma industry say so. The Italian official complained to the US that Italy had been working hard to crack down on infringement in Italy, but the USTR slammed them anyway and made no mention of all of the efforts they'd already put towards pushing through changes that Hollywood (via the State Department) was demanding. The Italian official was worried that this would actually lead to a setback, as Italian government officials wondered why they should bother if the USTR was just going to slam them no matter what they did.

Of course, none of this is a surprise. The same points about both the Special 301 process and ACTA secrecy were made by many folks, including us at Techdirt, and every time we did, supporters mocked us for "crying wolf" and making stuff up. Yet, now, it turns out that the points many folks were raising were also being stated by government officials.

Glyn Moody points us to a blog post that has a video/audio clip of a John F. Kennedy speech to the press about secrecy and censorship, which is getting some attention for the contrast to the way our government is responding to the Wikileaks controversy. The key paragraph is the one that opens the video:

The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it. Even today, there is little value in opposing the threat of a closed society by imitating its arbitrary restrictions. Even today, there is little value in insuring the survival of our nation if our traditions do not survive with it. And there is very grave danger that an announced need for increased security will be seized upon by those anxious to expand its meaning to the very limits of official censorship and concealment. That I do not intend to permit to the extent that it is in my control. And no official of my Administration, whether his rank is high or low, civilian or military, should interpret my words here tonight as an excuse to censor the news, to stifle dissent, to cover up our mistakes or to withhold from the press and the public the facts they deserve to know.

Compare that to the way our government has been responding -- demanding that US companies block access to Wikileaks and other such moves.

Of course, if you read the full speech from JFK (which was given to the American Newspaper Publishers Association), it's really quite nuanced. JFK argues forcefully against censorship from the government -- but actually is suggesting that the press consider self-censoring itself, taking into account the impact that it could have if it publishes certain information. However, he does try to make it clear that he does not want criticism or errors to be shielded from the public -- just that he hopes the press will decide for themselves to avoid publishing info that directly reveals vital points to enemies of the country.

In the end, I actually think these two paragraphs may be even more powerful than the one that most people are talking about:

I not only could not stifle controversy among your readers--I welcome it. This Administration intends to be candid about its errors; for as a wise man once said: "An error does not become a mistake until you refuse to correct it." We intend to accept full responsibility for our errors; and we expect you to point them out when we miss them.

Without debate, without criticism, no Administration and no country can succeed--and no republic can survive. That is why the Athenian lawmaker Solon decreed it a crime for any citizen to shrink from controversy. And that is why our press was protected by the First Amendment-- the only business in America specifically protected by the Constitution- -not primarily to amuse and entertain, not to emphasize the trivial and the sentimental, not to simply "give the public what it wants"--but to inform, to arouse, to reflect, to state our dangers and our opportunities, to indicate our crises and our choices, to lead, mold, educate and sometimes even anger public opinion.

Too bad we're not hearing much of that from our politicians today.

Earlier today, Congress held hearings about Wikileaks and, given how the government has been reacting so far, I fully expected pure grandstanding about how "evil" Wikileaks is and how Julian Assange must be brought to justice. There was some of that, but it appears much more of it was focused on how the US government was abusing the classification system to make things secret that never should have been secret -- and how that was the real problem. Panel chair John Conyers apparently kicked off the hearing by saying that criminal charges against Assange would be "extreme" and saying that "caution is needed" before anything is done:

"Prosecuting WikiLeaks would raise the most fundamental questions about free speech, about who is a journalist and what citizens can know about their government," Conyers said. "The problem today is not too little secrecy but too much secrecy."

He also noted -- in contrast to much of the hysteria we've heard -- that while the releases have been embarassing "the real-world consequences have been fairly modest." Rep. William Delahunt appeared to echo these sentiments and again noted that secrecy by the government has been the real issue:

"Secrecy is the trademark of totalitarianism. In contrast, transparency and openness is why democracy is all about," Delahunt said.

"There is far too much secrecy and overclassification in the executive branch, and I think it puts American democracy at risk."

Rep. Bob Goodlatte also noted that expansion of government secrecy was "out of control" and "illegitimate," while Rep. Bobby Scott noted that we need to remember the 1st Amendment. Rep. Hank Johnson warned of the "chilling effects" of prosecuting Wikileaks.

Many panelists appeared to make similar points as well. Thomas Blanton, the director of the National Security Archive at George Washington University, told the panel that the government always overreacts to leaks and that "more openness makes us more secure." He also urged the government to "use a little restraint" and to avoid rushing into charging Julian Assange with violating the Espionage Act.

Of course, not everyone argued this way. Many of the Congressional Reps still seemed pretty bloodthirsty to charge Assange. And some of the panelists seemed to agree. Kenneth Wainstein, a lawyer from O'Melveny and Myers, warned the panel that any lawsuit against Wikileaks would raise serious First Amendment issues but then argued that the government could easily distinguish Wikileaks from the media though he did so by misstating that Wikileaks was "indiscriminately" dumping documents -- a point that has been debunked already. Gabriel Shoenfeld, who is a big supporter of government secrecy, spent a lot of time talking about how there's too much secrecy and that the government leaks info to the press all the time but ended his talk by saying that doesn't apply to Wikileaks.

However, even those who seemed to think that the government should still seek to prosecute Assange, they all seemed to admit that the government is way too secretive and abuses its classification privileges.

Paul Levy has been staying on top of a rather important aspect of the ongoing Rosetta Stone/Google lawsuit over whether or not Google is liable for trademark infringement over keywords ads that might point to counterfeit copies of Rosetta Stone software. So far, Rosetta Stone has lost badly and it seems likely that will continue. However, what caught Levy's attention is that in the appeal, both sides worked out an agreement to file certain aspects of their briefs "under seal" thus hiding from the public large segments of the facts related to this case that will surely set an important precedent one way or the other. That's hugely problematic and Levy complained about it. Both companies agreed to unseal their briefs, though Google has not yet done so, and Rosetta Stone only did so at the last minute, leaving little to no time for potential amici to make use of the unredacted filings in making their own arguments. However, once Rosetta Stone's brief was released unredacted, it was quickly realized that the redacted sections had no reasons for the redactions in the first place, as they did not contain confidential information at all.

And now it's looking even more ridiculous, because while the briefs have been (or will be) released in unredacted form, the 15 volumes of Joint Appendix is still mostly (13 of the 15 volumes) being filed under seal. Lawyers Eric Goldman, Marty Schwimmer and Levy have filed motions to intervene and to have the entire Joint Appendix unsealed. In explaining why, Levy notes:

For more than three decades, the courts have recognized a general policy under both the common law and the First Amendment under which judicial records -- both briefs that argue how judges should resolve vases, and the evidence submitted in support of those arguments -- should be open to the public unless there are very good reasons why particular pieces of evidence should be kept secret. That is the best way for consumers to understand how their courts are operating and why judges reach their decisions, as well as to monitor the activities of the parties to litigation. But Rosetta Stone and Google have flagrantly disregarded these rules in the course of litigating their trademark dispute in federal court in Virginia, and more recently in the Fourth Circuit....

The pressures of commercial litigation have created an increasing tendency for private litigants and judges alike to ignore the requirements for public scrutiny by entering joint agreements in which each side gets to keep its own information secret. To save time and expedite discovery, particularly in "rocket-docket" jurisdictions that put a high premium on expedited resolution of cases, parties agree that each side can designate documents as "confidential" subject to the later right to challenge the need for confidentiality. The agreements typically further provide that, when discovery materials are used in support of dispositive motions, anything designated as confidential must then be filed under seal.

As he notes, in theory each side can challenge this, but they rarely do, since they tend to both agree to keep each other's info secret -- and it's the public that loses out. Hopefully the court pays heed to this and pushes Google and Rosetta Stone to unseal the full filings in the case.

EU's ACTA negotiators apparently held a briefing about the latest draft, and apparently they ordered the WiFi in the room turned off, to stop real time reports from "leaking" to sites like le quadrature and Wikileaks. Apparently, EU negotiators are unfamiliar with mobile data and sites like Twitter, where reports of the meeting were posted in real time by folks like David Hammerstein.

So why would EU's head negotiator, Luc Devigne, want the WiFi turned off in a meeting about an agreement that can impact everyone and should be debated in public? Apparently, he claimed "without secrecy, no trade agreement can be successful." Huh? This must be from the secret negotiators handbook, because it makes no sense, and there's absolutely no support for such a statement. And, he's being willfully misleading in pretending that this is a trade agreement. It's not. And if you want to know how an agreement will be unsuccessful? It's by keeping out those stakeholders who such an agreement will most impact.

Separately Devigne insisted that Mexico will sign the document, despite the unanimous vote against the ACTA process.

Finally, he claimed that "ACTA text is finalized but not stabilized." What does that even mean? It means it's not finalized and negotiators are trying to sugarcoat the fact that there are still substantial differences between participating countries.

This is hardly a surprise given previous reports and previous actions of the USTR, but it does highlight the blatantly false claims from the USTR that it is being as transparent as possible when it comes to ACTA negotiations. The Obama administration has repeatedly told different groups in the administration to be as transparent as possible, but apparently the USTR simply doesn't care. It puts out content free statements claiming that it's "committed to improving transparency," but when it comes time to release the latest draft of the document, it's not released officially at all... and reports are now coming out to say that this is due to US demands to keep it secret. Transparency? Not around the USTR, apparently. They've been using transparency as a negotiating ploy, and when they don't get what they want, they refuse to let the document be released. Of course, in being so childish, all the US has really done is draw more scrutiny, and pretty much guarantee that a draft (including the markup that the one and only official release left out) get leaked.