Saturday, December 04, 2010

Concerning WikiLeaks

Listening to discussions of the case, one repeated theme is that there are some things the government should be allowed to keep secret. That is not an unreasonable view, but I do not think it has much to do with the case. If the government had kept its cables secret, they would never have reached WikiLeaks.

The question at this point is whether when the government fails to keep something secret, when it gives access to its secrets to someone who proceeds to pass them on, it is entitled to put the genie back in the bottle by making everyone whom they have been passed on to, at least everyone with the ability to publicize them, shut up.

Legally speaking, the answer is that they are not—as in the case of the Pentagon Papers. I think that's the right answer. If keeping things secret is important, the government should keep them secret, not let them out and then do its best to gag the press in order to keep the general public from learning them.

Instead, as best I can tell by public discussions, the U.S. government labels a wide range of things secret and then lets a wide range of people have access to them.


Anonymous said...

I think Asange releasing war documents, embarasing war videos etc is a public service by some measure. However releasing private cables on internal discussions isn't much different than hacking Sarah Palin's email.

I agree with your assessment. The anger should be directed toward both the PFC who released this information, and everyone up his command chain, and the process and system that allowed it to leak.

The problem, as you correctly identify, is that too much is classified, and if you put everything in the same bag, you can't give the truly secret things the attention they deserve.

"Hoist on their own petard" seems the appropriate response.

dWj said...

Unless I misunderstand, this is an agency problem; "the government" -- some large majority of government employees, top-level politicians, and citizens in general -- want to keep things generally secret, but certain people need to be privy to the secrets. Some agent has failed a fiduciary duty -- from an instrumentalist standpoint, it looks as though the government is simply trying to create, as best it can, the world it had contracted for.

I'm not, incidentally, sure that in general they should be able to; I imagine there's some extreme situation in which I would think they should. What makes me uncomfortable with this post is that it treats "the government" as a well-defined unitary agent, when it seems particularly salient in this situation that it is not.

NCLu said...

Funny how the news media likes to say that blogs do nothing but repeat the stories that they broke while they are only repeating stories that Wikileaks broke.

jdgalt said...

In practical terms, US law concerning classified information is and should be pretty much the same as trade secret law.

Consider the case from a few years ago when a secretary who worked at Coca-Cola offered the secret recipe for Classic Coke to PepsiCo. They turned her in and she was successfully prosecuted. Trade secret law quite reasonably requires the secret-owner to take the obvious precautions (store the secret on company property, with fences and guards around it, and require an NDA (non-disclosure agreement) from anyone let in). But once these precautions are taken, any leak that occurs is directly attributable to a breach of the NDA, and the person who breached is liable. I see nothing unfair about that process at all.

There are some minor differences between the laws covering national secrets and those covering trade secrets (for instance, if anyone reinvents nuclear weapons, that knowhow is "born classified") but aside from those, they are pretty much the same. The same (or greater) precautions are required and used, and no one, government or civilian, is granted a clearance without signing an NDA.

Therefore I am surprised that the media won the Pentagon Papers case, and I would not rely on it as a precedent. The court must have felt that revealing the contents was enough of a public good to justify the NDA breach -- but I haven't seen anything in the recent releases that would satisfy that test, if I were on the jury.

David Friedman said...

John analogizes the relevant law to trade secret law. Trade secret law only binds people who have an obligation to keep the secret, usually employees. Once a secret is out, other people have no obligation to help suppress it.

WikiLeaks wasn't an employee of the U.S. government, any more than the NYT was. The person who leaked the information was, of course, violating U.S. law, but it doesn't follow that those who passed it on were--including WikiLeaks.

Ari said...

So Mr. Friedman, are you implying that government has right to use some options that private institutions cannot, to keep its secrets? Compare this to a case when a private institution loses secret information, would you give them the right to do the same as government. If not, why not?

And where goes the line, is it allowed to "delegalize" possessing such information. There's already the case when a certain company tried to delegalize certain HEX string that could be used to bypass DVD DRM procedures. To be honest it went beyond absurd when people started making T-Shirts with the HEX string.

I think the question is really relevant to the substance of information.

Suppose government had tortured hundreds of people but still within governments own rules (you can't really win government in its own game). Then wikileaks reveals this. Now would you think it would be morally justified for government to gag anyone who is trying to publish this?