WikiLeaks: political choices and public interest

Jake Goldenfein

This article was published in Living Ethics: issue 84 winter 2011

In a survey of whether or not WikiLeaks is a force for good, political choices become crucial as the adjudication of whether private, confidential or leaked information can be released almost always uses ‘public interest’ as a determinate. While the institutions of law have their criteria for this political category, a public with access to a greater number of ethical systems to justify its position may arrive at a different conclusion.

At this stage, neither WikiLeaks nor its activities are outlawed. A Grand Jury in the United States is attempting to assemble a case against WikiLeaks for conspiracy and for crimes under the Espionage Act, Computer Fraud and Abuse Act. Most commentators, however, consider constitutional free speech protections to be a significant impediment to prosecution. But WikiLeaks’ legal status also reflects its ‘organisational status.’ That is to say, whether WikiLeaks is considered a journalistic organisation, a publishing organisation or simply a source affects which laws are relevant. The laws applicable to each category vary and despite often being treated by mainstream media as simply a source of leaks, WikiLeaks is not being prosecuted as such, meaning it must only comply with laws relevant to journalists or publishers. American precedent such as the famous Pentagon Papers case suggests that the messy balance between the Administration’s need for secrecy and the public’s right and need to know should enable the Administration to function, subject to occasional disclosures to keep it honest. The rare exceptions would require a combination of high likelihood, magnitude and immediacy of harm to justify suppression, meaning there is a very high threshold to WikiLeaks’ prosecution under that doctrine. It is difficult to assess whether WikiLeaks’ legal situation would be different if pursued under Australian law considering we have no express constitutional right to free speech (though we do have an implied right of political communication) and our whistleblowing laws do not apply to the media at large. Commonwealth v John Fairfax and Sons seems the most applicable Australian case and indicates that under our law WikiLeaks may be exposed to a breach of confidence or copyright action.

Despite its relatively stable legal status, WikiLeaks certainly continues to come under attack from institutional actors. And those attacks, generally effected through privately owned intermediaries, expose some of the more concerning aspects of the new media environment in relation to freedom of the press. ‘Extra-legal’ actions (including denial of service cyberattacks) by companies that control crucial aspects of cyberinfrastructure like Visa, Mastercard, Paypal, EveryDNS and Amazon, betray a private-public partnership with dangerous censorship implications. Scholars like Yochai Benkler suggest these censorship actions would have been practically impossible under legal and constitutional frameworks.

After the original reaction to the ‘Cablegate’ leaks, the rhetorical framing of WikiLeaks shifted away from a major threat to the peaceful world order towards a more realistic suggestion that it undermines the checks, balances and accountability established within traditional media organisations. Indeed, no significant harm (apart from embarrassment) to any diplomatic
or military institution has yet been claimed as a consequence of the leaks, suggesting the established media and state institutions reacted more from a motivation of anxiety than actual danger. That anxiety could be valid, however, as WikiLeaks may have serious implications for traditional media models as well as profound consequences for nation states and democracy. For example, Professor John Keane from University of Sydney places WikiLeaks within the emergence of ‘monitory democracy’ in which democracy has shifted away from simple ‘parliamentary democracy’ towards a form of democracy that includes the permanent scrutiny of power wherever it is exercised.

Therefore, if we take the starting position that WikiLeaks’ publication of materials (often in conjunction with mainstream media) is prima facie legal, and that the releases seem to have caused no real damage, then deciding whether or not WikiLeaks is a force for good requires the personal determination of whether we approve of WikiLeaks’ fundamental mission, an inherently political decision. On the whole, do we consider the outcomes of WikiLeaks’ actions beneficial?

WikiLeaks’ neutron bomb effect, described by Kim Beazley in Dr Longstaff’s previous article, may indeed curtail some exchange of information. That itself, however, is not determinative of whether the outcomes of WikiLeaks’ actions are positive or negative. Without doubt governments need secrecy for certain actions (for example, effective diplomatic practices). They also need sufficient trust from the citizenry, however, to maintain that secrecy. Raimond Gaita recently said in a lecture at Melbourne Law School that the current political situation, such as the spin and misinformation, has led to an absence of the conditions of sober judgement and ultimately an incapacity of people to consent to their state’s actions. In that sense WikiLeaks is facilitating the information necessary for consensual governance. Another fundamental effect was described by Glenn Greenwald who recently wrote that the republican ideal requires that governments are transparent and citizens are private. Yet the past decade has seen a wholesale reversal of that ideal. WikiLeaks therefore stands as a subversion of that reversal, a goal that goes beyond embarrassing diplomats or bringing political pressure to end a senseless war. Finally, commentator Guy Rundel has argued WikiLeaks gives whistleblowers a new choice, a chance to avoid the decision between life and truth, with the outcome that pursuing honesty can result in a flourishing of life rather than a suicide mission. Perhaps these outcomes are worth diplomats being slightly more cautious in how they communicate, or perhaps not.