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December 03, 2010

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"or on a website you certainly are the press."

Are you sure about that? I would argue that wholesale massive electronic distribution of documents isn't "the press" and isn't "speech". It's publishing, in the very broadest, crudest sense of that term.

"Assange did not steal documents." Receiving stolen property is a crime in most jurisdictions, and to the extent that he conspired to steal the data (which, of course, we don't know) it would be the same as stealing them.

By the way, I agree that what has happened was bound to happen eventually. Obviously, if confidentiality is still an important component of diplomacy (which I believe it is) people will have to do business in a different way. But I'm shocked that people don't think that diplomats need a certain degree of confidential trust with other parties to conduct business. I'm less outraged at what Assange did than I am that people think that confidentiality in diplomatic relations is unnecessary.

Sure, Jacob Davies, if I were overthrowing the government, I would be all in favor of throwing file cabinets in the street. I'm not there yet.

to be clear, "despite the fact that Nate Robinson is shorter than I am"
belongs in that last sentence.

Obviously, if confidentiality is still an important component of diplomacy (which I believe it is) people will have to do business in a different way.

I don't know how many times I have to write this, but: do you have any evidence at all to suggest that other governments (or even the US government) believe that there will be no confidential diplomatic discussions in the future? I mean, do you really think that Wikileaks is so powerful that they can manage to get all diplomatic cables from the US government always and forever? Do you think they've got hundreds of high placed sources just itching to go to prison like Manning? Seriously?

Sure, Jacob Davies, if I were overthrowing the government, I would be all in favor of throwing file cabinets in the street. I'm not there yet.

Wow. I have rarely seen someone so spectacularly miss the point. Or refuse to engage the point.

If I steal documents and distribute them to others, is that "speech"?

Sure. But if you knew they were stolen, as Assange surely did, you just might have committed a crime in being an accessory, or in receipt of stolen property. If Assange received this stolen stuff as scans of documents and not the originals, things progress enough beyond my ken as a not-a-lawyer type that even I know not to speculate there.

None of which has anything to do with the actual divulging of said secrets, I think.

It's publishing, in the very broadest, crudest sense of that term.

That's fine. But given that the Constitution has steered far from trying to split that hair, I think it's both true and irrelevant to the question of whether it's either "press" or "speech". I think once you try to narrow things down that much, things like blogs could wind up being classified as not-speech and not-publishing, and thus legitimately censorable.

But I'm shocked that people don't think that diplomats need a certain degree of confidential trust with other parties to conduct business. I'm less outraged at what Assange did than I am that people think that confidentiality in diplomatic relations is unnecessary.

Me too! Wait...who thinks this?

How is Wikileaks receiving stolen documents from a leaker different under the law from the NYT receiving documents from Daniel Ellsberg? Were the Pentagon Papers not stolen?

"I see no reason why he should tell "us all" where he is so any crazy can take a pop at him, I really think that would be taking "accountability" too far."

Hmmmm. Let's analyze this from the WikiLeaks moral rubric. We can identify a conspiracy under their definition. This conspiracy is a shadowy organization known as WikiLeaks.... If someone were to have access to a cache of their files and the organizations 'private' emails and communication logs, shouldn't that person make such information available to the public at large? Purely for the aim of exposing the conspiracy to the public eye so that its workings, methods and TRUE goals (not just its publicly stated goals) can be inspected? The fact that this information might make it easier for random people who don't like Assange to harass or kill him is just incidental and perhaps regrettable, but secondary to the gosh darn importance of exposing the inner workings of shadowy conspiracies, right?

I addressed only the idea that Assange should, to be regarded as accountable, tell us all exactly where he is, as opposed to making it known through the British media which city he's in, his British lawyer's name, andthe fact that his whereabouts are known to the UK police, and that if he would not tell us (I've since learned, simply by watching the news, that the Swedish police and the Swedish prosecutor know where he is, it's my impression they always have.) I've given my reply. No. And no to the same demand on, say, POTUS. Accountability does not require it.

But you are concerned with consistency, as a matter of morality. Simply personally, I feel a massive sympathy for this. But power asymmetries, I suggest, preclude it. If Wikileaks were to broadcast full accounts of all its dealings, there would be no Wikileaks. More importantly, if all investigative journalists broadcast all their dealings, few investigations would take place. There is no perfect solution to this question, I know.

Actually I'm pretty darn confident that Wikileaks would come up with some justification why their own rules don't apply to them.

Given that he's endangered himself for the principle of extreme transparency, Im not at all certain that he would take that position. Im certainly not "darn confident" either way. And Id hesitate to put an argument in his mouth either way and then debunk it; if he does object to revealing his position, then Id rather debate the rationale that he gives.

If I steal documents and distribute them to others, is that "speech"?

The stealing part isn't speech or press, but Im pretty sure that the "distribute them to others" is speech, or press.

And I don't think what the NYT is doing is the same as what Assange is doing since they're publishing selected texts. They certainly have a valid First Amendment claim.

I don't see anything expressed or implied in the first amendment about a selection process. So wikileaks could publish any of the documents and it would be speech, but if they publish all of them it's not? Im not sure I understand your argument here.

Receiving stolen property is a crime in most jurisdictions

Information is not property; insofar as there are protections for stolen information (corporate secrets, personal data, official government secrets) they are not the same thing as receiving or being in possession of stolen property.

And, while it's possible that wikileaks is in possession of original stolen documents, it's also possible that they do not have and have never possessed such documents. If the latter is true, I think we are still having the same discussion about secrecy, governments, etc, so we can ignore the possibility that they have possessed stolen property (or conspired, etc).

And I don't think what the NYT is doing is the same as what Assange is doing since they're publishing selected texts. They certainly have a valid First Amendment claim.

Again: the whole point of the First Amendment is to protect speech regardless of its content. If you can say that the NYT can receive these documents and report on them, then you have to grant that Wikileaks can also do so. The fact that Wikileaks doesn't edit them to your satisfaction is meaningless from a First Amendment point of view.

You may not like Wikileaks' editing. You may even deny that Wikileaks did any editing at all. Doesn't matter. We have free speech in this country, and freedom of the press.

Just charge Assange with copyright violation ;-)

This is less of a joke as it might seem. Some high profile people on the Right tried to suppress embarassing statements they made in public by this very maneuvre.
Or related: the US government re-classified documents that had already been officially published (not leaked!) in order to prevent their use in court.

McKinney Texas:

you wrote:
Assange's declared intent is to damage our country and ours alone.

I'm surprised by this statement, because it corresponds to nothing I've come across -- not that my research has been all that thorough. Can you give me a link to go on?

More generally, the fact that the major leaks so far have been from US sources doesn't strike me as "picking on" the US. This is what American exceptionalism looks like: the US is the most powerful country in the world, so *of course* someone who wants to change the world will look at the US first. Starting with the keystone does not demonstrate unfairness.

Sebastian:

There is no law of nature which says that authoritarian structures HAVE to respond to this by being more open. They could respond to this by becoming much more oppressive. In which case he has likely made everyone's lives worse off.

As I said in my post, Assange's argument is that increased secrecy and oppression is likely, but that process hurts the oppressing organization because it makes it dumber and less effective. He also argues that stupid, oppressive, unfair institutions will be more strongly opposed than smart, open, fair ones.

This IMHO is the greatest weakness in Assange's line of argument. If he was talking about two corporations in a free market, then yes, the "smarter" one is likely to be more successful. But people generally live under only one national government at a time, so if the government is getting stupider and more oppressive it's impossible for most people to escape -- and that, as you say, will make most people's lives worse off.

Carlton Wu says "Information is not property; insofar as there are protections for stolen information (corporate secrets, personal data, official government secrets) they are not the same thing as receiving or being in possession of stolen property."

Do you have a cite for that, Carleton? Because this case and the cases cited therein seem to suggest otherwise.

More generally, the fact that the major leaks so far have been from US sources doesn't strike me as "picking on" the US.

If anyone was picking on the US, it was those who provided Wikileaks with the information. Is Wikileaks supposed to say, "No, no, we don't want that stuff. America is just too wonderful for us to do anything embarrassing to its government. God bless America."? Weird. (And what Doc Sci otherwise wrote.)

And, as has been mentioned a number of times before, if we didn't have such shatty security on the network the cables were swiped from, this probably wouldn't have happened. Wikileaks is at the end of the supply chain. They don't have absolute control over what becomes available to them.

"This IMHO is the greatest weakness in Assange's line of argument. If he was talking about two corporations in a free market, then yes, the "smarter" one is likely to be more successful. But people generally live under only one national government at a time, so if the government is getting stupider and more oppressive it's impossible for most people to escape -- and that, as you say, will make most people's lives worse off."

Additionally he doesn't seem to have put much thought in to "less effective" at what projects. Governments in the past have proven wildly effective at oppressing their own people and carrying out wars while using relatively inefficient, tightly bottled up communication systems (like personal couriers for example). What such governments are really bad at is getting good information from the community on local projects, good information on local needs, and mediating good negotiations between locals with differing interests. Those are the types of things that more open governments are better at. And if Assange pushes toward less open government, those are the types of things that will suffer.

Further, in this particular case, the network was widely shared as a measure to keep the compartmentalization down which many think(I'm not sure I'm convinced either way) led to the clues about 9/11 which were scattered about the various intelligence and law enforcement fields to not be put together into a whole that made sense.

If this is true (again I'm not sure) then he is making the next terrorist attack more likely to slip through. Which is a bad thing in itself, but think of what it will do to his "authoritarian" focus. Is that more or less likely to cause more people to accept greater authoritarian measures? I would argue that it makes it much more likely for people to accept authoritarian measures, thus undercutting his whole stated aim.

Time had an interview with Assange that might not be widely known here, some interesting questions answered, excerpts:

RS: One of the unintended consequences is the opposite effect, which is what we've seen with the Department of Defense, and even the State Department, here in the U.S., of trying to make secrets more impenetrable rather than less and trying to take precautions against what has happened from happening again in the future. How do you regard that?

JA: Well, I think that's very positive. Since 2006, we have been working along this philosophy that organizations which are abusive and need to be [in] the public eye. If their behavior is revealed to the public, they have one of two choices: one is to reform in such a way that they can be proud of their endeavors, and proud to display them to the public. Or the other is to lock down internally and to balkanize, and as a result, of course, cease to be as efficient as they were. To me, that is a very good outcome, because organizations can either be efficient, open and honest, or they can be closed, conspiratorial and inefficient.


RS: Are there any instances [in] diplomacy or global affairs in which you see secrecy as necessary and as an asset?


JA: Yes, of course. We keep secret the identity of our sources, as an example, [and] take great pains to do it. So secrecy is important for many things but shouldn't be used to cover up abuses, which leads us to the question of who decides and who is responsible. It shouldn't really be that people are thinking about, Should something be secret? I would rather it be thought, Who has a responsibility to keep certain things secret? And, Who has a responsibility to bring matters to the public? And those responsibilities fall on different players. And it is our responsibility to bring matters to the public.

[...]

One of the issues that's discussed a lot in American politics these days, in part because of criticism of President Obama, is this idea of American exceptionalism. You seem to also believe in American exceptionalism in a negative sense, that America is exceptional only in the harm and damage it does to the world. Would you describe that as a fair characterization of your view of the U.S.?

JA: Well, I think both of those views lack the necessary subtlety. The United States has some immutable traditions, which, to be fair, are based on the French Revolution and the European Enlightenment. The United States' Founding Fathers took those further, and the federalism of the United States also, of relatively powerful states trying to constrain federal government from becoming too centralized. Also added some important democratic controls and understandings. So there is a lot of good that has historically come from the United States. But after World War II, during World War II, the federal government of the United States started sucking the resources to the center, and the power of states started to diminish. Interestingly, the First Amendment started overriding states' laws around that time, which I see as a function of increasing central power in the United States. I think the problems with the United States as a foreign power stem from, simply, its economic success, whereby it's, historically at least, a very rich country with a number of people and the desire left over as a result of ... Let me explain this a bit better. The U.S. saw the French Revolution and it also saw the behavior of the U.K. and the other kings and dictatorships, so it intentionally produced a very weak President. The President was, however, given a lot of power for external relations, so as time has gone by, the presidency has managed to exercise its power through its foreign affairs function. If we look at what happened with Obama and health care reform, we see this extraordinary situation where Obama [indecipherable] can order strikes against U.S. citizens overseas but is not able to pass, at least not easily and not in the form that he wanted, a health reform bill domestically. And that seems to be ... the very good idea, which was to try and keep the country free from dictatorship by keeping the presidency weak. But as the United States has grown economically, that has led to a situation where the foreign affairs power is latched on to by central government to increase the power of the government, as opposed to state government. The U.S. is, I don't think by world standards, an exception, rather it is a very interesting case both for its abuses and for some of its founding principles.

[...]
RS: I want to ask you a broader question, about the role of technology and the burgeoning world of social media. How does that affect the goal you're trying to achieve of more transparent and more open societies? I assume that enables what you're trying to do.


JA: Let me just talk about transparency for a moment. It is not our goal to achieve a more transparent society; it's our goal to achieve a more just society. And most of the times, transparency and openness tends to lead in that direction[...]

This is what I found most interesting however:

RS: And how — and I know we're running out of time, but — and the standards by which you do the redaction, how would you define that?


JA: Carefully. Also, what we have asked the State Department, we have formally asked the State Department for assistance with that. That request was formally rejected, and they also refused to engage in any harmonization [variant: harm minimization] negotiation. So that tends to lead us to the view, given what we think about it, that they've being working on the material for some four months now, and we have intelligence of many organizations and individuals [inaudible] have been contacted by the State Department. They do not believe that there are many people that would be vulnerable, but we are still conducting with [inaudible], and the New York Times, the State Department already mentioned eight broad areas of concern. And some of those were people trying to cover up some embarrassing activities, which the New York Times also rightfully rejected.

Do you have a cite for that, Carleton? Because this case and the cases cited therein seem to suggest otherwise.

Sapient, that is a civil case. I think we were discussing whether criminal charges related to stolen property would be relevant.

Since the USA is running around all over the world, their intrigues therefore become everybody's business.

Whether Assange is a hero, a jackass, or a heroic jackass, is unimportant. The leaked cables are a gift to the world, irrespective of the giver.

Leakage from Russia, India, UK, France, and the PRC would make splendid reading, too. But all those countries combined don't mess about with the planet as much as the USA does, so there's less urgency.

Well, Carleton, you could read about Ian Murphy,, who was convicted of receiving stolen property in 1982.

Arguably, the reason why that category of crime hasn't been used more often in data theft cases is not because electronic data isn't property, as you suggest, but because more specific statutes with more severe penalties have been enacted. The fact that intangible property has not been traditionally equated with tangible property has muddled the issue - accounting for the landmark rulings slowly coming forth, state by state, in the area of tort law.

As in many areas of the law concerning electronic data, there's not a universal consensus. But although I have provided some authority for my belief that documents stored electronically are substantively no different from tangible documents in a file cabinet (the stealing of which would clearly be punishable as theft - and you can do the research on that if you doubt it), you have merely put forth your claim that "Information is not property; insofar as there are protections for stolen information (corporate secrets, personal data, official government secrets) they are not the same thing as receiving or being in possession of stolen property."

Also, see 18 USC 641, which may be relevant:

"Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—
Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.
The word “value” means face, par, or market value, or cost price, either wholesale or retail, whichever is greater."

Sapient,
Well, Carleton, you could read about Ian Murphy,, who was convicted of receiving stolen property in 1982.

So I did, and what did I find:
Major consequences came later. Murphy and his buddies created dummy corporations with Triple-A credit ratings and ordered thousands of dollars' worth of computer equipment....
Right. Murphy was arrested and convicted of receiving stolen property in 1982.

He was convicted of receiving *stolen computer equipment* which was stolen via hacking. He wasn't convicted of receiving stolen information AFAICT from the article (which is from People Mag, so not very technical). I don't know what you think this has to do with the idea of treating information rather than physical property as property under criminal law, since stolen computers are physical.

The fact that intangible property has not been traditionally equated with tangible property has muddled the issue - accounting for the landmark rulings slowly coming forth, state by state, in the area of tort law.

As I said before, there's a very large difference between civil and criminal law. We're talking about criminal law here.

But although I have provided some authority for my belief that documents stored electronically are substantively no different from tangible documents in a file cabinet (the stealing of which would clearly be punishable as theft - and you can do the research on that if you doubt it), you have merely put forth your claim that "Information is not property; insofar as there are protections for stolen information (corporate secrets, personal data, official government secrets) they are not the same thing as receiving or being in possession of stolen property."

Proving a negative is a tricky thing. You've yet to show anyone being prosecuted for possession of stolen property or any other criminal offense that would normally be property related, for the possession of stolen information.
The fact that there are specific laws used to address this sort of thing suggests that Im correct as well- there are, for example, no laws that Im aware of specifically regarding the theft or possession of stolen microwave ovens, because those cases are easily handled using existing laws for stolen physical property. [otoh, there are some specific laws about stolen cars iirc].

Also, see 18 USC 641, which may be relevant

I said that laws other than those covering the possession of stolen property cover these sorts of matters- citing one isn't exactly disproving my position. Let me restate: IANAL, but as far as I know wikileaks is not in any danger of being prosecuted for possession of stolen property based on their possession of stolen information. They may be in violation of any number of other laws related to secret information or whatever, and we should discuss those rather than IMO speculating from the incorrect premise that "stolen property" laws are somehow relevant.
As to 18 USC 641, Im not sure that the language would apply to someone leaking or publishing leaked data for press purposes- the langauge suggests the use of government data or property for personal gain of some sort. And this certainly wouldn't trump any freedom of the press claim. But again, IANAL.

Regarding le Carre's comments: American intel, at least, is more successful at disseminating propaganda than it is in gathering intel.

I think Mr. Assange is on to something but perhaps it is more peripheral than he describes (or we infer). Perhaps it is not so much that leaks reduce the privacy of conspiratorial data traffic but that it muddles the credibility of this data.

It;s harder for intel hacks and wonks to believe their 'secret data' is so valuable and wise when it becomes a public laughing stock. The flavor of their chosen Kool-Aid loses its savor. It's no longer 'special'.

Can I just point out that the word "steal" is inappropriate in this context? Under English common law, at least, to "steal" something means "to permanently deprive (the owner) of the use of". The originals of those documents are still available to the rightful owners, whoever they may be.

That's why there is a statutory crime of "infringement of copyright". IANAL, of course, especially w/r/t Federal security law ...

The Time interview from which Christian G. quotes goes along with a lengthy article that is quite amazingly good. It gives dates and figures for the growth of the US "classified" zone, and argues that:

a fundamental mistrust of government is a natural outgrowth of secrecy inflation. As the number of secrets expanded in the 1990s, Moynihan observed in his 1997 report, the imperative to keep them secret diminished. Because "almost everything was declared secret, not everything remained secret and there were no sanctions for disclosure," Moynihan wrote. And the more secrets leak, the worse it is for government credibility: either they are important and the sanctions are too minimal, or they are unimportant and the public believes there's no point in keeping secrets at all."

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