Wikileaks and the Hard Problem of Changing Social Bargains

WikiLeaks.org, a website for anonymous individuals to report illegal or unethical behavior, was briefly and famously shut down by Judge Jeffrey White of San Francisco. Or rather, it was half-way shut down -- Judge White ordered that the WikiLeaks.org web address be de-activated, though the site itself remained intact. Judge White took this step because a former VP of Bank Julius Baer & Co., a Swiss bank with a branch in the Cayman Islands, leaked internal documents about the banks' practices in Cayman, documents the leaker claimed showed the banks' strategies for money laundering and tax evasion.

Judge White's action was a little like shutting down a newspaper, sports section and all, for a libelous article in the business section, and he eventually realized this, reversing his own ruling with the rueful observation that "Maybe that's just the reality of the world that we live in. When this genie gets out of the bottle, that's it."

Between the injunction and reversal, it was widely observed that the technical approach of revoking the Wikileaks domain name was ineffective, as the content could still be accessed through its IP address, as well as on other web sites and file sharing services. It's easy to mock Judge White for getting both the law and the technology so wrong, but underneath these seemingly simple issues, the WikiLeaks case exposes a much broader issue.

There is a tension between freedom of speech in general, and restriction of certain kinds of speech; how can society let people say what they like, while still restricting things like libel or publication of trade secrets? And although the law around these issues hasn't changed, the economics of media have been so transformed that the old legal bargains between freedom and restriction are breaking, and we have no easy way of replacing them.

The current way we have structured this bargain relies on the motivations of media professionals. Since media outlets are costly and complex to set up and run, every such outlet has a natural constituency, the professional publishers and editors and engineers who have a long-term commitment to the business. Because these professionals have a long-term commitment, it is possible to balance broad freedom of speech with specific classes restrictions, with laws that punish media professionals for publishing libelous material or trade secrets. The threat of these punishments motivate them to act as filters, not publishing such material in their newspapers or airing it on their stations. And because there are so few media outlets, society can rein in certain kinds of speech with very little little legal leverage.

Except none of those things are true anymore. Creating media is no longer costly or complex as an absolute case, it doesn't require trained professionals, and it doesn't require long-term commitment. Amateurs now have direct access, without going through a professional bottleneck.

Media, in its most elemental form, is the means of repeating a message thousands or millions of times, a capability that has become vanishingly cheap and held in common by amateurs and professionals. This mass amateurization is an end to the scarcity of media outlets. Now, if you have something to say in public, you don't need to ask anyone for help or permission. We can try to find you and punish you, but this will always be post hoc -- the self-interest of media professionals in keeping their jobs is no longer a way of preventing the amateurs from speaking out.

The motives of the Julius Baer VP were doubtless impure, but it didn't matter. He got the documents out anyway, and he could do it again tomorrow. Judge White could have gone a lot further in shutting down the WikiLeaks site, but even if he had, it is but one site of many, in but one country of many.

The question here is not whether we want to increase the ability of every employee able to violate trade secrets. Thats the situation we have today, and short of wholesale internet censorship it is the situation we will have from now on. The question is how (or whether) we can continue to carve out an exception to free speech for cases like Julius Baer without doing more harm than good. So many of our legal traditions around media assume scarcity, commercialization, and professionalization that our sudden lurch to a world of abundant, free, amateur media is going to threaten many existing social bargains, not just the the ones around trade secrets. Judge White's original injunction was a particularly bad solution, but that's no guarantee that there is a good solution to be easily had.

Comments

[guajiro]

"Because these professionals have a long-term commitment, it is possible to balance broad freedom of speech with specific classes restrictions, with laws that punish media professionals for publishing libelous material or trade secrets. The threat of these punishments motivate them to act as filters, not publishing such material in their newspapers or airing it on their stations. And because there are so few media outlets, society can rein in certain kinds of speech with very little little legal leverage".

Very often, those trade secrets include actions by the corporations that are illegal, immoral or both. Because humans have so much time, money, and effort invested in landing those jobs where they have access to the inner workings of the huge corportions, they 'rein in certain kinds of speech' for fear of losing their jobs. The situation of exposing criminal activity balances itself on whether it is better to stay quiet or worth it to expose the corporation only to lose one's job, one's source of revenue for a college bound child, one's source of revenue for a sick parent, one's means of eating and housing, etc. This gives corporations an unfair advantage over people by weighing both situations as if they bore the same value. Now, the Internet has evened the playing field and these people can publish their information on the internet with companies that hire them freelance. Part of the agreement when forming corporations is for them to agree that they will not operate against the public interest. That the internet has now facilitated the process of exposing criminal corporate activity should be cheered. The penalties for libel and such still exist and remain the disincentive it is to those who would expose for impure reasons. You wonder whether there might be more harm done in allowing for situations as in your example. What would be your answer? More penalties? More sanctions? Perhaps a death sentence to those who expose corporate trade secrets? To my knowledge, being a traitor to a corporation is not equal in the eyes of the law to being a traitor to one's country, though I know many of the elite 1% wish this were so. To expose a practice that is corrupt and fraudulent is in the best interest of the economy and marketplace of this country.

[cshirky]

We already have laws for whistleblowing, so the principle you are advocating already exists. In the case of this Wikileaks leak, the wrongdoing seems clear, but your analysis says nothing about publication of trade secrets that are neither illegal nor immoral.

[GnitenGoodLk]

Wouldn't enforceable confidentiality agreements cover those instances of trade secret violations? Companies already employ unprecedented surveillance and logging of employee access to company information, which makes the leaker (s)quite identifiable, therefore libelous information or exposure of trade secrets are dangerous, with little benefit to the doer. Corporations do not run like the government. You check many of your rights and privacy at the door when you clock in.

Traditional media can fight against charges of libel, individuals, not so much. It incurs more risk and consequence to the individual than a reporter or journalist .

Also, you can shutdown the website, or part of it, or filter the whole damn web to protect corporations and traditional media.....­but....you­'ll still have cell phones, text messaging, instant messaging, scanning and mass-emailing, ip cloaking.... people want to get something out, they will find a way, even if you restrict access to sites for the masses.

As for the Whistle blowing laws, why should MSM decide alone what constitutes a story that needs exposure? I'm sick to death of reading about Paris Hilton's latest scandal. I like reading what real journalists with their own sites have to say. If any changes should be instituted, it is making sites like this one, or other journalists, pay sites. Put the megas out of business.

[Indedave]

We also have laws governing contracts between employers and employees that are more than adequate to protect true trade secrets: I doubt that we will see the recipe for Coca-Cola posted anytime soon. As for the laws covering whistleblowers, not a week goes by without the Associated Press passing along another story about another whistleblower having to sue the corporation that fired him/her for taking the moral high road.

[Paul]

The Internet must be considered in the same legal category as the mainstream press. The same freedoms must apply. The only difference between a newspaper and a website is the fact that paper is not needed for the Internet - the reach is the same. Freedom of expression is for everyone - not just dinosaur media.

[cshirky]

But that's not true. The internet is different -- radically different -- from all traditional media, because it lacks the scarcity and professionalization of traditional media. As a result, the same laws, once applied, will have different effects.

[S1m0n]

So when did trade secrets become something that society has any obligation--or even responsibi­lity--what­soever to protect? Keeping its secrets is a business's lookout, not mine. If they fail, it's not my problem, or yours. It's theirs.

In many cases, particularly the ones wikileaks was created to address, there is a substantial public interest in airing such information. Concern about trade secrets trumps nothing in the public sphere, and shouldn't, even if that public interest is mere curiousity.

[cshirky]

Trade secrets became something society has an obligation to protect when our elected representatives passed laws to that effect. This says nothing about whether those laws are right or wrong, its just how democracies work -- the people who write the laws create social obligations.

[research]

Trade Secrets: "A company can protect its confidential information through non-compete non-disclosure contracts with its employees (within the constraints of employment law, including only restraint that is reasonable in geographic and time scope). The law of protection of confidential information effectively allows a perpetual monopoly in secret information - it does not expire as would a patent. The lack of formal protection, however, means that a third party is not prevented from independently duplicating and using the secret information once it is discovered."

Wiki

[OutsideLookingIn]

I guess you can now say 'there are lies, damned lies, and the Internet'.

The 'filtering' supposedly imposed by the print media gives a degree of authority to what it prints. Without such filtering the Internet is just gossip. Most of us learn, sooner or later (and usually before we leave the school-yard), that gossip may be true but may also be false. To sort one from other we need to develop and learn to use our own filters rather than rely on others

We need to learn to develop and use our own filters when it comes to the Internet rather than relying on others to do it for us, or trying to find technological ways to filter the Internet itself.

[joebaggadonuts]

We needed to learn to use our own filters to undo the bias of what the MSM presents, but we never were capable of doing that. Thus the laws that shirky writes about as bargains. So we have to develop filters in the first place to cover both kinds of communications providers, the MSM, the gossipy web, al of it, all at once.

Clearly a task for the next generation.