Clay Shirky's nuanced position on Wikileaks

http://www.shirky.com/weblog/2010/12/wikileaks-and-the-long-haul/

Wikileaks and the Long Haul

Like a lot of people, I am conflicted about Wikileaks.

Citizens of a functioning democracy must be able to know what the state is
saying and doing in our name, to engage in what Pierre Rosanvallon calls
“counter-democracy”*<http://ebooks.cambridge.org/chapter.jsf?bid=CBO9780511755835&cid=CBO9780511755835A009&p=5>,
the democracy of citizens distrusting rather than legitimizing the actions
of the state. Wikileaks plainly improves those abilities.

On the other hand, human systems can’t stand pure transparency. For
negotiation to work, people’s stated positions have to change, but change is
seen, almost universally, as weakness. People trying to come to consensus
must be able to privately voice opinions they would publicly abjure, and may
later abandon. Wikileaks plainly damages those abilities. (If Aaron Bady’s
analysis is correct, it is the damage and not the oversight that Wikileaks
is designed to create.*<http://zunguzungu.wordpress.com/2010/11/29/julian-assange-and-the-computer-conspiracy-%E2%80%9Cto-destroy-this-invisible-government%E2%80%9D/>
)

And so we have a tension between two requirements for democratic statecraft,
one that can’t be resolved, but can be brought to an acceptable equilibrium.
Indeed, like the virtues of equality vs. liberty, or popular will vs.
fundamental rights, it *has* to be brought into such an equilibrium for
democratic statecraft not to be wrecked either by too much secrecy or too
much transparency.

As Tom Slee puts it, “Your answer to ‘what data should the government make
public?’ depends not so much on what you think about data, but what you
think about the
government.”*<http://whimsley.typepad.com/whimsley/2010/12/wikileaks-shines-a-light-on-the-limits-of-techno-politics.html>My
personal view is that there is too much secrecy in the current system,
and that a corrective towards transparency is a good idea. I don’t, however,
believe in total transparency, and even more importantly, I don’t think that
independent actors who are subject to no checks or balances is a good idea
in the long haul.

If the long haul were all there was, Wikileaks would be an obviously bad
thing. The practical history of politics, however, suggests that the
periodic appearance of such unconstrained actors in the short haul is
essential to increased democratization, not just of politics but of thought.


We celebrate the printers of 16th century Amsterdam for making it impossible
for the Catholic Church to constrain the output of the printing press to
Church-approved books* <http://bit.ly/ii2o5m>, a challenge that helped usher
in, among other things, the decentralization of scientific inquiry and the
spread of politically seditious writings advocating democracy.

This intellectual and political victory didn’t, however, mean that the
printing press was then free of all constraints. Over time, a set of legal
limitations around printing rose up, including restrictions on libel, the
publication of trade secrets, and sedition. I don’t agree with all of these
laws, but they were at least produced by some legal process.

Unlike the United States’ current pursuit of Wikileaks.

I am conflicted about the right balance between the visibility required for
counter-democracy and the need for private speech among international
actors. Here’s what I’m not conflicted about: When authorities can’t get
what they want by working within the law, the right answer is not to work
outside the law. The right answer is that they can’t get what they want.

The Unites States is — or should be — subject to the rule of law, which
makes the extra-judicial pursuit of Wikileaks especially nauseating. (Calls
for Julian’s assassination are even more nauseating.) It may be that what
Julian has done is a crime. (I know him casually, but not well enough to
vouch for his motivations, nor am I a lawyer.) In that case, the right
answer is to bring the case to a trial.

IIn the US, however, the government has a “heavy burden” for engaging in
prior restraint of even secret documents, an established principle since *New
York Times Co. vs. The United
States**<http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States>,
when the Times published the Pentagon Papers. If we want a different answer
for Wikileaks, we need a different legal framework first.

Though I don’t like Senator Joseph Lieberman’s proposed SHIELD law (Securing
Human Intelligence and Enforcing Lawful
Dissemination*<http://www.wired.com/threatlevel/2010/12/shield/>),
I do like the fact that it is a law, and not an extra-legal avenue (of which
Senator Lieberman is also
guilty.*<http://tpmmuckraker.talkingpointsmemo.com/2010/12/how_lieberman_got_amazon_to_drop_wikileaks.php>)
I also like the fact that the SHIELD Law makes it clear what’s at stake: the
law proposes new restraints on publishers, and would apply to the New York
Times and The Guardian as it well as to Wikileaks. (As Matthew Ingram points
out, “Like it or not, Wikileaks is a media
entity.”*<http://gigaom.com/2010/12/04/like-it-or-not-wikileaks-is-a-media-entity/>)
SHIELD amounts to an attempt to reverse parts of *New York Times Co. vs. The
United States*.

I don’t think such a law should pass. I think the current laws, which
criminalize the leaking of secrets but not the publishing of leaks, strike
the right balance. However, as a citizen of a democracy, I’m willing to be
voted down, and I’m willing to see other democratically proposed
restrictions on Wikileaks put in place. It may even be that whatever checks
and balances do get put in place by the democratic process make anything
like Wikileaks impossible to sustain in the future.

The key, though, is that democracies *have* a process for creating such
restrictions, and as a citizen it sickens me to see the US trying to take
shortcuts. The leaders of Myanmar and Belarus, or Thailand and Russia, can
now rightly say to us “You went after Wikileaks’ domain name, their hosting
provider, and even denied your citizens the ability to register protest
through donations, all without a warrant and all targeting overseas
entities, simply because you decided you don’t like the site. If that’s the
way governments get to behave, we can live with that.”
Over the long haul, we will need new checks and balances for newly increased
transparency — Wikileaks shouldn’t be able to operate as a law unto itself
anymore than the US should be able to. In the short haul, though, Wikileaks
is our Amsterdam. Whatever restrictions we eventually end up enacting, we
need to keep Wikileaks alive today, while we work through the process
democracies always go through to react to change. If it’s OK for a democracy
to just decide to run someone off the internet for doing something they
wouldn’t prosecute a newspaper for doing, the idea of an internet that
further democratizes the public sphere will have taken a mortal blow.

Johne Cook
| http://raygunrevival.com | http://authorculture.blogspot.com |

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