Daniel Ellsberg And Others Discuss The Serious Implications Of Wikileaks
from the public-discourse-on-private-infrastructure dept
What we got was a fascinating, nearly two-hour discussion, on a variety of issues related to Wikileaks, transparency, freedom of speech, politics and the law, which never got slow or boring. The event was streamed live, and the Churchill Club has promised to include the video on YouTube, so I'll post that video here as soon as it's up. While it's two hours long, I'd argue that it's well worth finding the time to watch the whole thing. I'd argue that Ellsberg's commentary is the highlight of the first hour, and Zittrain's commentary is the highlight of the second hour (in fact, I don't think he even spoke until almost an hour into the discussion). But the other three panelists all made some thought-provoking points as well.
Ellsberg kicked it off with a cogent analysis of the legal situation Wikileaks faces today. He noted that the US does not have an "Official Secrets Act," which would make revealing secrets illegal. In fact, he notes that while Congress passed one during the Clinton administration, President Clinton explicitly vetoed it. Instead, all we have is the Espionage Act, which is targeted at spies for foreign countries, not Americans leaking information to Americans. He points out that it's a huge stretch to make the Espionage Act cover leaking content, as it's clearly not designed to do that. However, he thinks that the Obama administration is going to try to do so, and he had an intriguing theory as to why. He notes that the Supreme Court has never actually tested the legality of criminal sanctions for leaking info, and that most previous Supreme Courts would have almost certainly rejected such an interpretation of the law. However, he's much less sure of the current Supreme Court, and he thinks the Obama administration is betting that the Supreme Court will back this questionable interpretation of the law.
He then explained his theory as to why Obama would do this, noting (fairly) that this is pure speculation on his part. He notes that despite all the talk about transparency that helped get President Obama voted into office, this administration has been much more secretive and involved in many more highly questionable acts than any previous administration. He noted that President Bush was involved in all sorts of questionable activities as well... but said that when push came to shove, President Bush was proud of his abuse of power, and happy to show it off when such stories leaked out. Obama, he feels, is actually quite embarrassed by his own abuse of power, and his response to such embarrassment is to try to keep stuff as secret as possible. It's as if he's declared war on whistleblowers who call attention to the things Obama is embarrassed about. Ellsberg notes that Obama has brought more indictments for leaking (five) than all other presidents (three) before. Thus, he's hoping that he can use the Espionage Act as a de facto Official Secrets Act, with which he can intimidate the press, and effectively force them to give up any leak sources to prevent future leaks. Abuse of power equals the quest for more secrecy.
Clay Shirky then spoke about the troubling nature of how we rely on the internet for public discourse, but that it's really privately owned, and how that puts tremendous pressure on guaranteeing that such speech will be in any way protected. He notes that, if you are looking to leak material, you should always leak it to an operation in a different country than the info is about, otherwise it makes it easy for the powers that be to pressure the private chokepoints to block the content. Peter Thiel then made an interesting point about the incredibly difficult position in which the heads of corporations are put in these situations. He notes that it's quite easy to say that you'd tell the government to take a hike if it called and said "stop hosting Wikileaks," but it's quite different to really be in that position. He claimed that the real issue is that the government simply has too much power, and that just by saying something, it can put tremendous pressure (much more than people realize) on companies to comply. He points out that the government has tremendous leverage, and mentions the stat that the average person "commits three felonies a day," and suggests that if the government wants, it can and will dig up such felonies to use against people. Thiel twice used the same joke that companies are to government like governments are to terrorists, claiming "we will never cave to terrorists/government... except in every single specific case."
Shirky pushed back on this point, noting that with a privately controlled internet, companies always have outs in their terms of service, that would let them dump any customer they don't like, and that was his main concern. However, Thiel got the better of Shirky in response by asking the audience how many people actually think Amazon dumped Wikileaks due to terms of service violations... or due to government pressure, and everyone agreed it was really government pressure. The terms of service issue is just an excuse to cover up the government pressure.
The discussion turned a bit to the players here, where Ellsberg noted that he has tremendous affinity for Bradley Manning, who is accused of leaking the cables to Wikileaks. Thankfully, the moderator pointed out that 2.5 million people had access to these documents -- a point that is often overlooked -- which suggests that others certainly could have leaked the info as well. Ellsberg also noted that he liked Julian Assange, though he believed Assange had made some mistakes -- but his real identification was with what Manning was going through, with politicians calling him a traitor and calling for his execution. History has mostly vindicated Ellsberg, but he notes that during the Pentagon Papers mess, it was not at all clear that would be the end result. Shirky tosses in a joke about how Assange is perfect for the press, in that he's "a monocle and a persian cat away from being a Bond villian," and notes how the NY Times put a massive attack piece on Assange on the front page at the same time as the first stories about the cable leaks -- and notes that no one did that with "Curveball," the source for Judith Miller's stories on WMDs in Iraq.
Ellsberg also notes that almost everything that Nixon got impeached for, through Presidential fiat, has now been declared legal -- something he finds very disturbing. He specifically calls out warrantless wiretapping (and later notes that Obama voted to give telcos retroactive immunity).
Later on (during the Q&A), Ellsberg made another salient point about Manning: According to international law, US officials are required to further investigate any claims of torture or any complicity in torture -- and Manning had tried to do that. As part of his job, he had discovered either that the US had tortured individuals, or handed them off to others to be tortured, and that was a violation of international law, which required him to investigate it. However, his superiors told him not to. Ellsberg's claim is that Manning was actually the only one who obeyed the law in this situation, and in exposing this issue, he was actually doing what the law required.
There was also a (slightly) heated debate between Zittrain and Thiel on the question of regulation. Thiel believed that less regulation would allow companies to act more independently of government, and Zittrain shot back that then you get situations like the BP oil rig. Thiel pointed out that the situations were entirely different. Zittrain summed it up by stating: "Who should I fear more: corporations or governments, because I just want to get my fears in order." That's actually a pretty good summary of much of the debate -- with the point being that both are issues, and focusing solely on one at the exclusion of the other would be a mistake.
Singham did a nice job talking about things like the massive abuse of gag orders on National Security Letters, and highlighted a group of librarians who stood up to the government, and noted Twitter's recent similar fight (though, he left out Nicholas Merrill who also stood up against a bogus gag order). However, Singham's most salient point was how Amazon's decision to shut down Wikileaks had much further reaching consequences than most people realized:
"What Amazon has done has totally set back the cloud computing movement."As he pointed out, this move is making many individuals and companies think twice about using cloud computing -- especially if it involves servers based in the US or run by US companies. People haven't fully considered the ramifications of this.
Of course, I'd argue that Singham and the other panelists totally skipped over the other element of backlash here: the fact that much of this is spurring people into action to create distributed solutions that are more censorproof. I don't necessarily think this is a bad thing. If the response to this is to hold back a "cloud" system that is all about centralization, and instead promote a distributed cloud solution that has many fewer political and legal points of failure... that seems like it could be a good thing. Along those lines, Tim Bray pointed out that it was a bit disappointing that the panel was so US-focused, ignoring the fact that one of the key reasons why Wikileaks is still going strong is the fact that it's not in the US and can go elsewhere in the world. This is a really good point that was unfortunately not given any time at all in the discussion.
One other key thing that many people noted was lacking: no one on the panel was there to argue that Wikileaks was an unquestionably bad thing. Zittrain came the closest (but not that close) in suggesting that everyone had different roles to play, and that people like Senator Lieberman were simply using every power available him to make the case that Wikileaks was bad, suggesting this was his role to play, as it was others' roles to push back on that.
I'm a bit torn on whether or not the panel would have been better off with an anti-Wikileaks panelist. While it might have added more fireworks to the panel, I'd argue that the panel was plenty interesting as is, with lots of insightful points made and discussed. If there was someone on the panel who was anti-Wikileaks, most of the debate would have likely focused on the basic "Wikileaks good/Wikileaks bad" argument where neither side would have been convincing anyone who believed otherwise, and it would have diminished or drowned out completely the other more nuanced points that were made during the discussion.
All in all, I found the discussion to be fascinating to anyone interested in this subject. I wasn't quite sure what to expect going in, and I found that each of the panelists gave me something to think about -- often presenting things in a framework I hadn't really thought about. I didn't fully agree with any of the panelists on specific points, but all in all felt I learned a lot listening to the discussion, something that I rarely find to be true on panels. These notes only scratch the surface of what was said, so if you want to catch the whole thing, check out the video once it's available.