Dec 042010
 December 4, 2010  Posted by  Featured News, Govt

Because I haven’t really blogged about Cablegate, let me make a few points — knowing that I will almost certainly irritate the hell out of some people I truly respect by the time I’m done:

WikiLeaks Didn’t Steal the Documents

I find it somewhat mind-boggling how many governmental and non-governmental folks seem to equate the receipt of the cables with the copying and transmission of the cables.

I see WikiLeak’s publication of the material as raising the same issues as were raised in the Supreme Court justices’ opinions in the Pentagon Papers case. If you’ve never read the Supreme Court opinion (with all the concurring and dissenting opinions) in that case, or if you haven’t read it in a long time, I think the opinion is worth re-reading. It’s an extraordinary affirmation of the First Amendment but it also suggests where the line might be drawn, under what circumstances the federal government might successfully seek prior restraint, and under what conditions entities who publish materials that could harm national security or governmental interests (including the ability to negotiate with foreign powers) might be tried criminally.

Do Nothing Then Blame the Messenger?

Our government knew months ago that WikiLeaks had data that it intended to publish. Our government made no attempt to get a court to authorize prior restraint. Why didn’t they? If they anticipated great harm to future diplomatic interactions, why didn’t they seek to enjoin publication? The Pentagon Papers case dealt with historical events and did not really reveal any sensitive information that might create harm for soldiers or others going forward. In this case, some of the cables deal with plans for the future and the government claims that it puts lives at risk. Why then, did it not turn to the courts? Why, after publication of other leaked data, did it not ask Congress to enact legislation that would permit prior restraint? Could it be because they knew that they could not prevail?

You Are What We Say You Are (or Aren’t)

I think that the State Department is flat out wrong in claiming that WikiLeaks is not a media organization:

QUESTION: Do you know if the State Department regards WikiLeaks as a media organization?
MR. CROWLEY: No. We do not.
QUESTION: And why not?
MR. CROWLEY: WikiLeaks is not a media organization. That is our view.

Simply asserting something is your “view” does not make it true, of course. Mr. Crowley might want to review all of the news and media awards WikiLeaks has won before attempting to answer that question again.

Heroes or Villains

Do I think Julian Assange and Bradley Mannings are heroes? No. I realize that some might think them heroes because they risked prosecution and prison (or even execution/assassination), but their acts do not make them heroes in my book. So far, the government has been fairly successful in deflecting attention from the real issues to the two men. Hopefully, that won’t continue for much longer.

What’s the Real Story?

Neither Manning nor WikiLeaks is the real story as far as I’m concerned:

  • We should be discussing how our own government had incredibly lax security that allowed this leak or breach.
  • We should be discussing how our government is trying to pressure or censor material using extra-legal political means.
  • We should be discussing how these types of breaches are likely to occur again and again and what we will do going forward.
  • We should be discussing whether the cables are consistent with what our government has publicly told us or if they indicate governmental conduct that shames our country.

Although the government argues that the publication of these cables will impair trust, it is not publication of the leaked material that will destroy trust.  Just knowing that the cables had been improperly accessed and/or acquired would be enough to make others leery of talking openly and frankly  in future cables, even if the cables are never published.  Because WikiLeaks is not responsible for the breach, neither they nor any other publisher of the cables should be viewed as primarily responsible for any lack of open dialog going forward.

Corporations Cave in Droves

Should Amazon and PayPal be boycotted? Be my guest, although again, I don’t think they’re the issue as much as what the government is doing to secure their cooperation. I don’t expect businesses to fight for the First Amendment. I think that what Amazon Web Services did, however, is pretty dishonorable: they accepted Wikileaks as a customer, used Wikileaks to help promote their service, and then dumped them. Their explanation of how Wikileaks supposedly violated their TOS has been refuted by many others, such as Chris Soghoian who noted how Amazon publishes the Pentagon Papers (the contents of which are not owned or wholly controlled by the publisher) and others who note there is no indication that any of the cables hosted on AWS caused or is likely to cause injury to any person or entity. Indeed, if AWS were serious about enforcement of that “injury” clause, Amazon would not host or sell any book that contains illegally obtained material that might harm someone’s reputation.

Amazon denies that it caved in to government pressure but in light of an explanation that doesn’t stand up to scrutiny, their denial is generally met with skepticism.

As to PayPal, the timing of their notice that they have permanently restricted WikiLeak’s account for violation of their Acceptable Use Policy is curious, to say the least. Why didn’t they restrict WikiLeaks’ account before now? They had frozen it in January 2010, reportedly over money laundering issues, but reinstated it. Why now, PayPal?

Significantly, PayPal’s AUP does not seem to say what the blog entry suggests it says. The blog entry says that (emphasis added by me):

PayPal has permanently restricted the account used by WikiLeaks due to a violation of the PayPal Acceptable Use Policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity. We have notified the account holder of this action.

But PayPal’s AUP says (emphasis added by me):

… You may not use the PayPal service for activities that:
… relate to sales of (a) narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety, (b) drug paraphernalia, (c) items that encourage, promote, facilitate or instruct others to engage in illegal activity, (d) items that promote hate, violence, racial intolerance, or the financial exploitation of a crime, (e) items that are considered obscene, (f) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction, (g) certain sexually oriented materials or services, or (h) ammunition, firearms, or certain firearm parts or accessories, or (i) ,certain weapons or knives regulated under applicable law

Since WikiLeaks isn’t selling items that do that, how have they violated AUP, PayPal?

If there were a Buckle Award or Knuckle Award for corporations that knuckle under to pressure, I’d nominate Amazon and PayPal for it.

Consumers always have the right to express their disappointment with a firm’s policy by taking their business elsewhere. But let’s not let that divert us from focusing on what the real issues are. And the real issues are not Manning or WikiLeaks – or, for that matter, Amazon, PayPal, or all of the hosting firms who chose not to get involved.

The real issues concern our government’s actions and how future leaks will be addressed.

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