FWIW, I also held forth at length: http://www.tbray.org/ongoing/When/201x/2010/12/05/Wikileaks
On Mon, Dec 6, 2010 at 8:19 PM, Udhay Shankar N <[email protected]> wrote: > A great post from Clay Shirky, who needs to get back onto silk sometime. <g> > > This adds some much-needed nuance to the public discourse. Speaking > for myself, I believe that Wikileaks is a symptom of some backpressure > from the collective unconscious - a move towards some form of > sousveillance [1] and that we will see more such efforts [2]. > > Maybe this is the 21st century version of Gilmore's Law [3] ? I can > hope, can't I? > > Udhay > > > [1] http://en.wikipedia.org/wiki/Sousveillance > [2] As a start point, wikileaks now has ~800 mirror sites. See > http://wikileaks.ch/mirrors.html > [3] http://blog.futurestreetconsulting.com/?p=11 > > http://www.shirky.com/weblog/2010/12/wikileaks-and-the-long-haul/ > > Wikileaks and the Long Haul > > Like a lot of people, I am conflicted about Wikileaks. > > Citizens of a functioning democracy must be able to know what the > state is saying and doing in our name, to engage in what Pierre > Rosanvallon calls “counter-democracy”*, the democracy of citizens > distrusting rather than legitimizing the actions of the state. > Wikileaks plainly improves those abilities. > > On the other hand, human systems can’t stand pure transparency. For > negotiation to work, people’s stated positions have to change, but > change is seen, almost universally, as weakness. People trying to come > to consensus must be able to privately voice opinions they would > publicly abjure, and may later abandon. Wikileaks plainly damages > those abilities. (If Aaron Bady’s analysis is correct, it is the > damage and not the oversight that Wikileaks is designed to create.*) > > And so we have a tension between two requirements for democratic > statecraft, one that can’t be resolved, but can be brought to an > acceptable equilibrium. Indeed, like the virtues of equality vs. > liberty, or popular will vs. fundamental rights, it has to be brought > into such an equilibrium for democratic statecraft not to be wrecked > either by too much secrecy or too much transparency. > > As Tom Slee puts it, “Your answer to ‘what data should the government > make public?’ depends not so much on what you think about data, but > what you think about the government.”* My personal view is that there > is too much secrecy in the current system, and that a corrective > towards transparency is a good idea. I don’t, however, believe in > total transparency, and even more importantly, I don’t think that > independent actors who are subject to no checks or balances is a good > idea in the long haul. > > If the long haul were all there was, Wikileaks would be an obviously > bad thing. The practical history of politics, however, suggests that > the periodic appearance of such unconstrained actors in the short haul > is essential to increased democratization, not just of politics but of > thought. > > We celebrate the printers of 16th century Amsterdam for making it > impossible for the Catholic Church to constrain the output of the > printing press to Church-approved books*, a challenge that helped > usher in, among other things, the decentralization of scientific > inquiry and the spread of politically seditious writings advocating > democracy. > > This intellectual and political victory didn’t, however, mean that the > printing press was then free of all constraints. Over time, a set of > legal limitations around printing rose up, including restrictions on > libel, the publication of trade secrets, and sedition. I don’t agree > with all of these laws, but they were at least produced by some legal > process. > > Unlike the United States’ current pursuit of Wikileaks.* > > I am conflicted about the right balance between the visibility > required for counter-democracy and the need for private speech among > international actors. Here’s what I’m not conflicted about: When > authorities can’t get what they want by working within the law, the > right answer is not to work outside the law. The right answer is that > they can’t get what they want. > > The Unites States is — or should be — subject to the rule of law, > which makes the extra-judicial pursuit of Wikileaks especially > nauseating. (Calls for Julian’s assassination are even more > nauseating.) It may be that what Julian has done is a crime. (I know > him casually, but not well enough to vouch for his motivations, nor am > I a lawyer.) In that case, the right answer is to bring the case to a > trial. > > IIn the US, however, the government has a “heavy burden” for engaging > in prior restraint of even secret documents, an established principle > since New York Times Co. vs. The United States*, when the Times > published the Pentagon Papers. If we want a different answer for > Wikileaks, we need a different legal framework first. > > Though I don’t like Senator Joseph Lieberman’s proposed SHIELD law > (Securing Human Intelligence and Enforcing Lawful Dissemination*), I > do like the fact that it is a law, and not an extra-legal avenue (of > which Senator Lieberman is also guilty.*) I also like the fact that > the SHIELD Law makes it clear what’s at stake: the law proposes new > restraints on publishers, and would apply to the New York Times and > The Guardian as it well as to Wikileaks. (As Matthew Ingram points > out, “Like it or not, Wikileaks is a media entity.”*) SHIELD amounts > to an attempt to reverse parts of New York Times Co. vs. The United > States. > > I don’t think such a law should pass. I think the current laws, which > criminalize the leaking of secrets but not the publishing of leaks, > strike the right balance. However, as a citizen of a democracy, I’m > willing to be voted down, and I’m willing to see other democratically > proposed restrictions on Wikileaks put in place. It may even be that > whatever checks and balances do get put in place by the democratic > process make anything like Wikileaks impossible to sustain in the > future. > > The key, though, is that democracies have a process for creating such > restrictions, and as a citizen it sickens me to see the US trying to > take shortcuts. The leaders of Myanmar and Belarus, or Thailand and > Russia, can now rightly say to us “You went after Wikileaks’ domain > name, their hosting provider, and even denied your citizens the > ability to register protest through donations, all without a warrant > and all targeting overseas entities, simply because you decided you > don’t like the site. If that’s the way governments get to behave, we > can live with that.” > > Over the long haul, we will need new checks and balances for newly > increased transparency — Wikileaks shouldn’t be able to operate as a > law unto itself anymore than the US should be able to. In the short > haul, though, Wikileaks is our Amsterdam. Whatever restrictions we > eventually end up enacting, we need to keep Wikileaks alive today, > while we work through the process democracies always go through to > react to change. If it’s OK for a democracy to just decide to run > someone off the internet for doing something they wouldn’t prosecute a > newspaper for doing, the idea of an internet that further democratizes > the public sphere will have taken a mortal blow. > > -- > ((Udhay Shankar N)) ((udhay @ pobox.com)) ((www.digeratus.com)) > >
