The Aftermath of Wikileaks

The U.K.’s freedom of information commissioner, Christopher Graham, recently told The Guardian that the WikiLeaks disclosures irreversibly altered the relationship between the state and public. As Graham sees it, the WikiLeaks incident makes clear that governments need to be more open and proactive, “publishing more stuff, because quite a lot of this is only exciting because we didn’t know it. . . WikiLeaks is part of the phenomenon of the online, empowered citizen . . . these are facts that aren’t going away. Government and authorities need to wise up to that.” If U.K. officials take Graham seriously (and I have no idea if they will), the public may see more of government. Whether that more in fact provides insights to empower citizens or simply gives the appearance of transparency is up for grabs.

In the U.S., few officials have called for more transparency after the release of the embassy cables. Instead, government officials have successfully pressured internet intermediaries to drop their support of WikiLeaks. According to Wired, Senator Joe Lieberman, for instance, was instrumental in persuading Amazon.com to kick WikiLeaks off its web hosting service. Senator Lieberman has suggested that Amazon, as well as Visa and and PayPal, came to their own decisions about WikiLeaks. Lieberman noted:

“While corporate entities make decisions based on their obligations to their shareholders, sometimes full consideration of those obligations requires them to act as responsible citizens. We offer our admiration and support to those companies exhibiting courage and patriotism as they face down intimidation from hackers sympathetic to WikiLeaks’ philosophy of irresponsible information dumps for the sake of damaging global relationships.”

Unlike the purely voluntary decisions that Internet intermediaries make with regard to cyber hate, see here, Amazon’s response raises serious concerns about what Seth Kreimer has called “censorship by proxy.” Kreimer’s work (as well as Derek Bambauer’s terrific Cybersieves) explores American government’s pressure on intermediaries to “monitor or interdict otherwise unreachable Internet communications” to aid the “War on Terror.”

Legislators have also sought to ensure opacity of certain governmental information with new regulations. Proposed legislation (spearheaded by Senator Lieberman) would make it a federal crime for anyone to publish the name of U.S. intelligence source. The Securing Human Intelligence and Enforcing Lawful Dissemination (SHIELD) Act would amend a section of the Espionage Act that forbids the publication of classified information on U.S. cryptographic secrets or overseas communications intelligence. The SHIELD Act would extend that prohibition to information on human intelligence, criminalizing the publication of information “concerning the identity of a classified source or information of an element of the intelligence community of the United States” or “concerning the human intelligence activities of the United States or any foreign government” if such publication is prejudicial to U.S. interests.

Another issue on the horizon may be the immunity afforded providers or users of interactive computer services who publish content created by others under section 230 of the Communications Decency Act. An aside: section 230 is not inconsistent with the proposed SHIELD Act as it excludes federal criminal claims from its protections. (This would not mean that website operators like Julian Assange would be strictly liable for others’ criminal acts on its services; the question would be whether a website operator’s actions violated the SHIELD Act). Now for my main point: Senator Lieberman has expressed an interest in broadening the exemptions to section 230’s immunity to require the removal of certain content, such as videos featuring Islamic extremists. Given his interest and the current concerns about security risks related to online disclosures, Senator Lieberman may find this an auspicious time to revisit section 230’s broad immunity.