I find myself agreeing with those who think Assange is being unduly vilified. I certainly do not support or like his disclosure of secrets that harm U.S. national security or foreign policy interests. But as all the hand-wringing over the 1917 Espionage Act shows, it is not obvious what law he has violated. It is also important to remember, to paraphrase Justice Stewart in the Pentagon Papers, that the responsibility for these disclosures lies firmly with the institution empowered to keep them secret: the Executive branch. The Executive was unconscionably lax in allowing Bradley Manning to have access to all these secrets and to exfiltrate them so easily.
I do not understand why so much ire is directed at Assange and so little at the New York Times. What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times? Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see. Would our reaction to that have been more subdued than our reaction now to Assange? If so, why? If not, why is our reaction so subdued when the Times receives and publishes the information from Bradley through Assange the intermediary? Finally, in 2005-2006, the Times disclosed information about important but fragile government surveillance programs. There is no way to know, but I would bet that these disclosures were more harmful to national security than the wikileaks disclosures. There was outcry over the Times’ surveillance disclosures, but nothing compared to the outcry over wikileaks. Why the difference? Because of quantity? Because Assange is not a U.S. citizen? Because he has a philosophy more menacing than “freedom of the press”? Because he is not a journalist? Because he has a bad motive?
In Obama’s Wars, Bob Woodward, with the obvious assistance of many top Obama administration officials, disclosed many details about top secret programs, code names, documents, meetings, and the like. I have a hard time squaring the anger the government is directing toward wikileaks with its top officials openly violating classification rules and opportunistically revealing without authorization top secret information.
Whatever one thinks of what Assange is doing, the flailing U.S. government reaction has been self-defeating. It cannot stop the publication of the documents that have already leaked out, and it should stop trying, for doing so makes the United States look very weak and gives the documents a greater significance than they deserve. It is also weak and pointless to prevent U.S. officials from viewing the wikileaks documents that the rest of the world can easily see. Also, I think trying to prosecute Assange under the Espionage Act would be a mistake. The prosecution could fail for any number of reasons (no legal violation, extradition impossible, First Amendment). Trying but failing to put Assange in jail is worse than not trying at all. And succeeding will harm First Amendment press protections, make a martyr of Assange, and invite further chaotic Internet attacks. The best thing to do – I realize that this is politically impossible – would be to ignore Assange and fix the secrecy system so this does not happen again.
As others have pointed out, the U.S. government reaction to wikileaks is more than a little awkward for the State Department’s Internet Freedom initiative. The contradictions of the initiative were apparent in the speech that announced it, where Secretary Clinton complained about cyberattacks seven paragraphs before she boasted of her support for hacktivism. I doubt the State Department is very keen about freedom of Internet speech or Internet hacktivism right now.
Tim Wu and I wrote a book called Who Controls The Internet? One thesis of the book was that states could exercise pretty good control over unwanted Internet communications and transactions from abroad by regulating the intermediaries that make the communications and transactions possible – e.g. backbone operators, ISPs, search engines, financial intermediaries (e.g. mastercard), and the like. The book identified one area where such intermediary regulation did not work terribly well: Cross-border cybercrime. An exception we did not discuss is the exposure of secrets. Once information is on the web, it is practically impossible to stop it from being copied and distributed. The current strategy of pressuring intermediaries (paypal, mastercard, amazon, various domain name services, etc.) to stop doing business with wikileaks will have a marginal effect on its ability to raise money and store information. But the information already in its possession has been encrypted and widely distributed, and once it is revealed it is practically impossible to stop it from being circulated globally. The United States could in theory take harsh steps to stop its circulation domestically – it could, for example, punish the New York Times and order ISPs and search engines to filter out a continuously updated list of identified wikileaks sites. But what would be the point of that? (Tim and I also did not anticipate that state attempts to pressure intermediaries would be met by distributed denial-of-service attacks on those intermediaries.)
The wikileaks saga gives the lie to the claim of United States omnipotence over the naming and numbering system via ICANN. Even assuming the United States could order ICANN (through its contractual arrangements and de facto control) to shut down all wikileaks sites (something that is far from obvious), ICANN could not follow through because its main leverage over unwanted wikileaks websites is its threat to de-list top-level domain names where the wikileaks sites appear. It is doubtful that ICANN could make that threat credibly for many reasons, including (a) the sites are shifting across top-level domains too quickly, (b) ICANN is not going to shut down a top-level domain to get at a handful of sites, and (c) alternative and perhaps root-splitting DNS alternatives might arise if it did.
Jack Goldsmith @'Lawfare'
