Re: Clay Shirky's nuanced position on Wikileaks

Uh…
 
Ok, I was with him at the beginning because I too am conflicted.  But my second
reason for being conflicted are way different.
 
His first point, the trust issue is spot on.
 
But the reason I am conflicted is that the guys actions were illegal, and could
seriously endanger people’s lives.  His pure transparency statement does not
work for me.
 
 
 
 
From: [email protected] [mailto:[email protected]] On Behalf
Of Johne Cook
Sent: Monday, December 06, 2010 1:25 PM
Subject: [DADL-OT] 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=CBO97805117558
35A009&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-cons
piracy-%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-li
mits-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_d
rop_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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