Wikileaks and the brave new world of freedom of information

By Legal Eagle

Having just completed a conference presentation on the history of the law of breach of confidence and control of government information, I am very interested in the recent release of confidential US government cables by media site Wikileaks. Wikileaks’ own website has this to say about their organisation and aims:

WikiLeaks is a not-for-profit media organisation. Our goal is to bring important news and information to the public. We provide an innovative, secure and anonymous way for sources to leak information to our journalists (our electronic drop box). One of our most important activities is to publish original source material alongside our news stories so readers and historians alike can see evidence of the truth. We are a young organisation that has grown very quickly, relying on a network of dedicated volunteers around the globe. Since 2007, when the organisation was officially launched, WikiLeaks has worked to report on and publish important information. We also develop and adapt technologies to support these activities.

WikiLeaks has sustained and triumphed against legal and political attacks designed to silence our publishing organisation, our journalists and our anonymous sources. The broader principles on which our work is based are the defence of freedom of speech and media publishing, the improvement of our common historical record and the support of the rights of all people to create new history. We derive these principles from the Universal Declaration of Human Rights. In particular, Article 19 inspires the work of our journalists and other volunteers. It states that everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. We agree, and we seek to uphold this and the other Articles of the Declaration.

The frontman is Julian Assange, an Australian who has garnered controversy since his rise to prominence over the 12 months. The latest news is that the Swedish government has asked Interpol to issue a warrant for Assange’s arrest in relation to allegations of rape and sexual assault. Apparently Ecuador has offered him asylum. The Washington Post also reports that the US government is investigating whether Assange has violated US laws, including the Espionage Act 1917, passed in the wake of WWI.

Of course, leaking of confidential secrets is not new. One of the first governmental breach of confidence cases, Commonwealth of Australia v John Fairfax & Sons (1980) 147 CLR 39, is “WikiLeaks in a non-digital age”. In that case, some journalists sought to publish a book called Documents on Australian Defence and Foreign Policy 1968 – 1975. It contained Australian government memoranda, briefings, cables and assessments of sensitive issues such as the East Timor Crisis, the ANZUS treaty, the renegotiation of US military bases in Australia, Australia’s support for the Shah of Iran and the security of the RAAF base in Butterworth, Malaysia. Various newspapers were going to publish excerpts from the documents, but were prevented from doing so when the Australian government obtained ex parte injunctions against them. The Australian government then sought to suppress further publication on three bases: breach of s 79 of the Crimes Act 1914 (Cth), breach of confidence and breach of copyright. It was not able to gain an injunction on the basis of s 79 because this was a criminal law provision for which it was inappropriate to grant an injunction. Nor was it possible to gain an injunction on the basis of breach of confidence. Mason J confirmed that breach of confidence did extend to government information (see also Attorney General v Jonathan Cape Ltd (1976) QB 752), but he said that special considerations applied to restraining publication of government information (at pages 51 – 2):

The equitable principle has been fashioned to protect the personal, private and proprietary interests of the citizen, not to protect the very different interests of the executive government. It acts, or is supposed to act, not according to standards of private interest, but in the public interest. This is not to say that equity will not protect information in the hands of the government, but it is to say that when equity protects government information it will look at the matter through different spectacles.

It may be a sufficient detriment to the citizen that disclosure of information relating to his affairs will expose his actions to public discussion and criticism. But it can scarcely be a relevant detriment to the government that publication of material concerning its actions will merely expose it to public discussion and criticism. It is unacceptable in our democratic society that there should be a restraint on the publication of information relating to government when the only vice of that information is that it enables the public to discuss, review and criticize government action.

Accordingly, the court will determine the government’s claim to confidentiality by reference to the public interest. Unless disclosure is likely to injure the public interest, it will not be protected.

It is presumed that government transparency is an important aspect of government (that is, the people are entitled to know what government is doing on their behalf), and thus there is an extra public interest requirement before government secrets will be restrained from publication.

Of course, there are also a whole bunch of cases related to the Spycatcher book by Peter Wright (an ex-MI5 agent who wrote an autobiography critical of the Secret Service). However, the Spycatcher cases show that governments may cause more harm to themselves than good by seeking to suppress the release of information. Ultimately the UK government was unsuccessful in taking action against various newspapers and publishers in both Australian and New Zealand under either the Official Secrets Acts 1911 (UK) or breach of confidence. They were largely unsuccessful even in the UK because Wright had subsequently gone to publish his book in the United States, where he was protected by the Constitutional freedom of speech guarantee, and thus any confidential information published by newspapers had largely lost its confidential character after the US publication. The main effect of the various cases was to bring the book to top of the bestseller list. There’s nothing which will lead to better book sales than to tell people that the powers that be have tried to ban this book. People are naturally curious, and if you tell them that they are not allowed to see something, they immediately wonder why not, and want to see it.

So, governments do have to be careful with these kinds of actions. The last thing they want to do is to draw attention to the very thing they were seeking to conceal. It comes through loud and strong in these government secrecy cases that governments don’t tend to like people who disclose their secrets very much (not only in the Spycatcher cases, but also in cases like US v Snepp and Attorney-General v Blake). It has always been a problem for whistleblowers – they are often perceived as disloyal, even if they disclose terrible secrets about an organisation.

I must confess that I am ambivalent about WikiLeaks, regardless of whether any proceedings are brought against Assange or not. In one of the cases involving a breach of contract by a former CIA agent, United States v Marchetti (1972), Haynsworth CJ said at 1315:

Citizens have the right to criticize the conduct of our foreign affairs, but the Government also has the right and the duty to strive for internal secrecy about the conduct of governmental affairs in areas in which disclosure may reasonably be thought to be inconsistent with the national interest.

One has to carefully balance freedom of information with other interests. Disclosing information is not always a good thing. And it’s natural enough that the views a government expresses in private communications differ from the views it expresses publicly (this happens with individuals too: it’s called tact). There was a good post at The Drum by Craig McMurtrie on the recent leak:

The problem here is that his main target so far has been the pluralist though, of course, flawed US democracy. Is he so naive to hold Washington to a transparency standard unmatched anywhere else? Does that really make our world safer?

It is a terrible responsibility he takes on himself.

In the aftermath of the WikiLeaks dump Hillary Clinton told reporters that there was nothing laudable about it and confidential communication is essential to government business.

An inevitable consequence of this episode is a security crackdown, which according to some diplomats will mean less transparency, not more, in global affairs.

If governments such as the US feels like they are under siege, they will go into “lockdown” and even less information will be available. Thus, there will be a short-term gain in information but a long-term loss. What do others think of WikiLeaks? Do they feel as ambivalent about it as I do?

Update:

More posts around the traps at Club Troppo, Jim Belshaw, Lorenzo at Thinking out Aloud, and Derek Barry at Woolly Days. All worth reading.

8 Comments

  1. TerjeP
    Posted December 10, 2010 at 9:30 pm | Permalink

    If you can access it you can copy it. Worst case you take a photo of the computer screen. The secret to keeping secrets is to only give access to people you trust. Oh, and don’t trust anybody.

  2. desipis
    Posted December 11, 2010 at 10:56 am | Permalink

    So therefore it’s ok to make a quick copy (of all the diplomatic cables of the most powerful country in the world, including stuff so sensitive that our PM and other talking heads fear for the very future of the world), so you can keep working at home after an hour at the pub?

    I didn’t say it’s ok. I said it was difficult to put measure in that will prevent such a thing happening without significantly reducing the efficiency of the intelligence analyst. In military intelligence such a loss of efficiency can cost lives; this means that there will be a strong motivation to work against any imposing security protocols or standards being pushed down from the top.

    Also, what TP said.

  3. Posted December 11, 2010 at 11:20 am | Permalink

    [email protected]

    You are right, but even photographing the screen can be made difficult with older style monitors (and associated screen driver config) by having refresh/interlace settings that a human can integrate in the brain, but a camera might find difficult (unless you use a tripod, longish exposure and small aperture). Such shenanigans aren’t worth it for highly sensitive stuff, which the wikileaks cables weren’t.

    To a large extent, it is laziness:
    * not having properly labelled documents that define the audience (metadata does this)
    * not setting up the viewing to use role-based-access (this is a once-only do-it-once-do-it-right-thing)
    * if they’d put an internal google engine (pretty cheap – about 1 or 2 cents per indexed document), it’s trivial to set up access on roles that let you (a) not know a document exists (b) know a document exists but are prohibited from seeing it (b) know a document exists and can see it.

    Convenience v security, as franklin said.

    If you are going to be angry about release of secrets, then lock them properly. If you’d be angry about your car being stolen, lock it. Otherwise, as Rudd said, it’s your own fault if the data (or the car) goes awol.

  4. kvd
    Posted December 11, 2010 at 11:58 am | Permalink

    [email protected] (my apologies for incorrectly spelling your name earlier) again I acknowledge that this is a side issue, but I would note the following points:

    This from The Independent UK:

    “Lamo contended Manning could not have done it all alone. But Manning, we learn, had sufficient guile to see that while the military had banned all personnel from using zip drives and other storage devices that might be used to download sensitive material, they had not included CD-Roms. So, he would slip in discs that he pretended were Lady Gaga albums and even reportedly lipsynched her songs as he downloaded the secret material.

    Note that this is discussing the Afghanistan leaks – not the latest 400,000 plus diplomatic cables, HOWEVER there is this – from a data security and all-things-IT website:

    Army Private First Class Bradley Manning, who is now in custody in Quantico, Virginia, has already admitted to collecting over a quarter million messages (which the U.S .Department of State calls “cables,” but are really e-mails) using nothing but rewritable media and a USB drive.
    Manning remains in federal custody for the release of the video, but will likely be charged for the State Department leaks in the near future. In the meantime, the military and the rest of the government have some thinking to do. Clearly the most important is how a 22-year-old (at the time) junior enlisted man was able to gain access to some of the most tightly-held government secrets. The second is how was he able to use removable media on a military computer with access to such sensitive data.

    So desipis, I stand corrected. The world really does apparently work on the “it’s just not cricket” method. My humble apologies; somewhere along the line since I retired the word “stupid” has been redefined.

    Also, what DB just said.

  5. desipis
    Posted December 11, 2010 at 1:07 pm | Permalink

    not having properly labelled documents that define the audience (metadata does this)

    Who, exactly, is going to have the responsibility for labelling the huge amount of classified data currently stored and continually being generated? Are these people going to have sufficient information about what everyone else is doing to know who might have a legitimate need for the data?

    You could default to only having it available to those who clearly do need the data, but that lack of sharing was criticised as one of the problems that let 9/11 happen.

  6. kvd
    Posted December 11, 2010 at 1:44 pm | Permalink

    Who, exactly, is going to have the responsibility for labelling the huge amount of classified data currently stored and continually being generated?

    Well obviously it’s either Julian Assange or Bradley Manning. Next question?

  7. Posted December 11, 2010 at 2:17 pm | Permalink

    [email protected]:
    Actually, it doesn’t take THAT much that isn’t already known: author is obvious, as is, for cables, the country concerned. Automagic scanning can find keywords (google can) and add labels allowing “you can look at stuff on Oz, but not Russia”…

    Not difficult to do programmatically actually, with minimal if any human intervention, and getting the permissions 99% right.

    As for writable CD-ROM!!! Why wasn’t that turned off? Not too difficult, and again, if they’d been running virtual workstations, even with writes through USB enabled, the documents couldn’t have been taken, just screen dumps (very painful – and obvious “over the shoulder” observers).

    Seriously, there is no excuse of this apart from shoddy management. Ties limiting oxygen supply to the brain again.

    As for sharing, metadata labels give not only protection, but allow for easier discovery and sharing.

  8. Posted December 12, 2010 at 2:12 pm | Permalink

    Seriously, there is no excuse of this apart from shoddy management. Ties limiting oxygen supply to the brain again.

    Government management fails to do some elementary stuff. What a shock 🙂

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  2. […] …On doit soigneusement faire la part des choses entre la liberté d’information et les autres intérêts. Révéler des informations n’est pas toujours une bonne chose. Et il est naturel que les opinions qu’expriment des gouvernants dans leurs communications privées diffèrent de celles qu’ils expriment en public (même chose pour les individus : ça s’appelle le tact). Wikileaks et le meilleur des mondes de la liberté d’information […]

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