wikileaks: trust and consequences

UpdateThe video of the Wikileaks panel mentioned below is now up here: WikiLeaks: Why It Matters. Why It Doesn’t?

Gerstein spotted this little argument popping up in proceedings against Sterling, who is accused of passing information along to a NY Times reporter for his book. Really? To try and claim this? Feds: leaking is worse than spying

The argument came in a motion supporting the detention of Jeffrey Sterling, a former CIA officer indicted for allegedly giving a reporter classified details about a CIA program aimed at interfering with Iran’s nuclear efforts.

“The defendant’s unauthorized disclosures…may be viewed as more pernicious than the typical espionage case where a spy sells classified information for money,” the prosecution team wrote in a brief submitted by attorneys at Justice Department headquarters and the U.S. Attorney’s office in Alexandria, Va.

“Unlike the typical espionage case where a single foreign country or intelligence agency may be the beneficiary of the unauthorized disclosure of classified information, this defendant elected to disclose the classified information publicly through the mass media. Thus, every foreign adversary stood to benefit from the defendant’s unauthorized disclosure of classified information, thus posing an even greater threat to society,” the brief said.

The Obama administration has been vigorously prosecuting whistleblowers and “leakers” (despite the rhetoric and promises of the Obama campaign). (References: War on whistle-blowers intensifies, Obama More Aggressive Than Bush In Targeting Whistleblowers, Obama Takes a Hard Line Against Leaks to Pressand President Obama: Prosecuting Whistleblowers, Intimidating Their Supporters.) It’s not at all difficult to see this line of reasoning applied in a future campaign to indict Assange over Wikileaks. (I still find it maddening that much of this intent to prosecute Assange seems to treat him as a U.S. citizen, or more properly, that the U.S. somehow has license to prosecute anyone on the face of the earth. Really?)

I would think that more recent revelations that Wikileaks was not as harmful as the Obama administration (except for Hilary Clinton, who opined in December that the leaks were not damaging and even showed a properly functioning diplomatic corps) made them out to be would undercut this kind of claim, but we’ll have to see. This weird mixed reaction to the fact of the leaks rather than the actual impact fascinates me. Recall that he [Assange] seeks to oppose the power of the state by treating it like a computer and tossing sand in its diodes. This garbage-in-garbage-out model seems to me to be exactly what’s happening here, that [y]ou destroy the conspiracy, in other words, by making it so paranoid of itself that it can no longer conspire[…] (If you haven’t read zunguzungu’s excellent analysis yet (and if you haven’t, how on earth have you managed that?!) go forth and read immediately: Julian Assange and the Computer Conspiracy; “To destroy this invisible government”.)

In furtherance of the increasingly secretive tendencies of this government: Obama administration keeps new policy on Miranda secret:

The Obama administration has issued new guidance on use of the Miranda warning in interrogations of terrorism suspects, potentially chipping away at the rule that bars the government from using information in court if it was gathered before a suspect was informed of his right to remain silent and to an attorney.

But the Department of Justice is refusing to publicly release the guidance, with a spokesman describing it in an interview as an “internal document.” So we don’t know the administration’s exact interpretation of Miranda, even though it may have significantly reshaped the way terrorism interrogations are conducted.

I can’t even begin to wrap my mind around this. How can you possibly modify something like the Miranda warning and not make it clear how it’s been so modified? How are law enforcement personnel supposed to use (or not use) Miranda rights — does the average police officer get to decide that a particular suspect is involved with terrorism, and if so, how far can the police officer go in disregarding Miranda? If there are no published guidelines, I can’t see how this ends well for anyone. (I wouldn’t even want to be the law enforcement officer in that position, and I’d be very leery of the one that relished it.) It also makes it nearly impossible to be properly defended by your lawyer if the government swoops in and declares your case to be involved somehow in the “War on Terror.” That makes it entirely arbitrary, objectionable, and I’d even say un-American.

This sounds like it was an awesome panel and it should be available on YouTube at some point (although I don’t know about transcripts or captioning). Here is a detailed account of that panel: Daniel Ellsberg And Others Discuss The Serious Implications Of Wikileaks. Among other points:

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.

Which fits in perfectly with the narrative above.

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.

Tossing sand in the diodes, indeed… what is illegal is legal, what is legal is illegal… Following, by the way, is a very salient point and an issue we need to watch closely. The Wikileaks “war” is not just damaging to governments but potentially also to online culture in exposing the ways in which we are vulnerable:

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.

On the other hand, I agree with the author here, because I think that at present, the online community is far more adaptable than most nations and governments are:

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.

I think if anything, Amazon destroyed its own position in the “cloud computing” business. I wonder whether an analysis of its usage statistics would support this or not? Because would I use them? Are you kidding me? There’s a lot of good points in this writeup and I hope the resulting video is accessible.

This, Three reasons why WikiLeaks is dangerous to corporations, illustrates Assange’s methodology perfectly. After outlining why corporations can’t simply “sit out” the Wikileaks furor, here’s the recommended course of action:

Whoever doesn’t value ethical behavior towards their workers, customers, suppliers, partners and so on, are taking the risk of being publicly branded and embarrassed. Businesses should learn from the mistakes of the U.S. government, and institute IT policies restricting access to sensitive documents. The outsourcing of data storage and applications to the Cloud increases the danger of non-authorized access to data. Employees being released should be encouraged to not denounce the company upon their termination. Finally. public relations departments should prepare themselves to be challenged with compromising data which will be released through leak portals. In this situation there are few options to reduce the damage. Be proactive, consequent,and build allies; trying to sit out the storm won’t work anymore.

Emphasis is mine. (Note also the same conclusion about using the cloud as noted in the Ellsberg panel above.)

In the meantime, EFF has been doing a lot of digging to come up with this indispensible overview: Social Media and Law Enforcement: Who Gets What Data and When?

This month, we were reminded how important it is that social media companies do what they can to protect the sensitive data they hold from the prying eyes of the government. As many news outlets have reported, the US Department of Justice recently obtained a court order for records from Twitter on several of its users related to the WikiLeaks disclosures. Instead of just turning over this information, Twitter “beta-tested a spine” and notified its users of the court order, thus giving them the opportunity to challenge it in court.

We have been investigating how the government seeks information from social networking sites such as Twitter and how the sites respond to these requests in our ongoing social networking Freedom of Information Act (FOIA) request, filed with the help of UC Berkeley’s Samuelson Law, Technology & Public Policy Clinic. As part of our request to the Department of Justice and other federal agencies, we asked for copies of the guides the sites themselves send out to law enforcement explaining how agents can obtain information about a site’s users and what kinds of information are available. The information we got back enabled us to make an unprecedented comparison of these critical documents, as most of the information was not available publicly before now.

I have no doubt that over the next few months or years, we will see more detailed and comprehensive discussion of these sorts of policies by social media companies. It’s very interesting to see how they’ve evolved so far, and what sorts of procedures some have detailed and some have not. (Yahoo, Craigslist and Facebook have very interesting provisions, almost certainly as a result of their specific past experiences.)

A good overview here, although nothing new per se. It’s a good reminder of Richard Stallman. I can recall rms sounding the alarm for decades now. At first I thought he was alarmist but by the early 90’s it was clear to me he was right. Wikileaks: The first full-scale pitched battle between Government and the Open Web

What the Wikileaks story is really about is a clash of world views, about how we handle and process information and who controls it. The political establishments are like Europe before the Reformation and the invention of printing, like businesses trying to impose an outmoded model on top of technologies which threaten to overwhelm them. Increasingly, people whose cynicism about politics and politicians has reached epidemic proportions in the wake of the non-show WMD and the sub prime crisis are gravitating towards a politics based on more direct action and that action is hugely facilitated by the internet—whether it be Facebook or Twitter. Everything prior to Wikileaks has only really been the initial skirmishes leading up the main event. I do not have a crystal ball but I’m confident that when historians come to write the history of the internet in the early twenty-first century, this will be seen as a pivotal moment.

I tend to agree. Though none of us are likely to see what history’s ultimate judgement will be.

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