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Weak Links and Wikileaks: How Control of Critical Internet Resources and Social Media Companies’ Business Models Undermine the Networked Free Press

I’ve written several times on Wikileaks over the past year-and-half. In this piece I draw together and update my thoughts on Wikileaks in light of recent developments, with a focus on how concentration of ownership and control over critical internet resources (internet access, domain name registries, webhosting sites, payment services, etc.) and the business models of social media companies such as Twitter compromise freedom of expression and the press on the Internet, with Wikileaks serving to illustrate the point.

What follows is a first draft of a chapter that I have written for a forthcoming book edited by Benedetta Brevini, Arne Hintz and Patrick McCurdy. Beyond Wikileaks: Implications for the Future of Communications, Journalism and Society. I would be delighted to hear any constructive comments and criticisms you might have.

In his seminal piece on Wikileaks, Yochai Benkler (2011) makes a compelling case for why Wikileaks is a vital element of the networked fourth estate, and why we should view its harsh treatment by the U.S. government as a threat to the free press. As he says, the case embodies a struggle for the soul of the internet, a battle that is being waged through both legal and extralegal means, with major corporate actors – Apple, Amazon, eBay (Paypal), Bank of America (Visa), Mastercard, etc. – using their control over critical internet resources to lean in heavily on the side of the state and against Wikileaks.

This piece reviews Benkler’s case for seeing Wikileaks as an crucial element of the networked free press, adds a few details to it, then presents an important new element to the story: the role that Twitter, the social media site, has played in what I will call the Twitter – Wikileaks cases. In contrast to the pliant commercial interests that Benkler discusses, Twitter fought hard in a series of legal cases during the last year-and-a-half to avoid having to turn over subscriber account information for several people of interest to the U.S. Department of Justice’s ongoing Wikileaks investigation: Birgitta Jónsdóttir, an Icelandic MP and co-producer of the Collateral Murder video whose distribution over the internet by Wikileaks put it, and her, on a collision course with the U.S. to begin with, Wikileaks’ volunteer and Tor developer, Jacob Applebaum, and the Dutch hacktivist Rop Gongrijp.

The DoJ’s “secret orders” raise urgent questions about state secrets and transparency, the rule of law, internet users’ communication rights, and the role of commercial entities that control critical internet resources. The Twitter – Wikileaks cases also cut to the heart of journalism in light of how journalists routinely use social media such as Twitter and Facebook, but also search engines and internet access services, to access sources, share information, and generally to create and circulate the news.

Wikileaks and the Emergence of Next Generation Internet Controls

Information filtering, blocking and censorship have been the hallmark of China’s model of the internet since the 1990s. Now, however, we are at critical juncture in the evolution of the Internet, with the United States government’s anti-Wikileaks campaign showcasing how such methods are being augmented by a wide range of legal and extra-legal methods in capitalist democracies. Indeed, governments the world over now rely on multidimensional approaches that use technical tools to filter and block access to certain kinds of content while normalizing internet control through legislation and by out-sourcing or privatizing such controls to commercial internet companies (Deibert & Rohozinski, 2011, pp. 4-7). Among other things, the Wikileaks case shows that such actors are often all-too-willing to serve the state on bended knees, albeit with some important exceptions to the rule as the Twitter – Wikileaks cases discussed later in this chapter illustrate.

Three intertwined tendencies are stoking the shift to a more controlled and regulable internet. First, the concentration of ownership and control over critical internet resources is increasing: incumbent cable and telecom firms’ dominate internet access, while a few internet giants do the same with respect to search (Google), social media platforms (Facebook, Twitter), over-the-top services (Apple, Netflix), webhosting and data storage sites (Amazon) and payment services (Visa, Master Card, Paypal), among others. Simply put, more concentrated media are more easily regulable than many players operating in a more heterogeneous environment. Second, the media and entertainment industries have scored victories in Australia, UK, NZ, US, Taiwan, South Korea, France and a handful of other countries for three-strikes rules that require Internet Service Providers (ISPs) to cut-off internet users who repeatedly run afoul of copyright laws. A 2011 UN report condemned these measures as disproportionate and at odds with the internet’s status under the right to communication set out in Article 19 of the Universal Declaration of Human Rights (1948), but they remain operative nonetheless (La Rue, 2011). Lastly, the internet is being steadily integrated into national security and military doctrines, with thirty or so countries, notably the US, Russia and China, leading the push (U.S. Congressional Research Service, 2004). The U.S. Department of Defense’s revised “information operations” doctrine in 2003, for instance, defines the internet (cyberspace) as the fifth frontier of warfare, after land, sea, air and space (United States, Department of Defense, 2003). National security and law enforcement interests are also central in new laws currently being considered in the US (CISPA), Canada (Bill C-30) and the UK (Communications Data Bill).

These trends are increasing the pressure to turn Internet Service Providers (ISPs) and digital intermediaries into gate-keepers working on behalf of other interests, whether of the copyright industries or law enforcement and national security. This drift of events is already bending the relatively open internet, with its decentralized architecture pushing control to the ends of the network and into users’ hands, into a more closed and controlled model. Such trends are not new, but they are becoming more intense and firmly entrenched in authoritarian countries and liberal capitalist democracies alike. This is the big context within which the anti-Wikileaks campaign led by the U.S. government has unfolded.

Wikileaks and the Networked Free Press

There are counter-currents to these trends as well, and one of those is the rise of Wikileaks in the heart of the networked free press, just at a time when the press is struggling to find a sturdy footing in the internet-centric media ecology. While it is common to bemoan the crisis of journalism, Benkler (2011) strikes a cautiously optimistic note, laying the blame for the ongoing turmoil among traditional news outlets on their own self-inflicted wounds that have festered since the 1980s. The rise of the internet and the changing technological and economic basis of the media magnifies these problems, he argues, but the internet is not responsible for them. In fact, nascent forms of non-profit, crowd-sourced and investigative journalism may be improving the quality of journalism.

Wikileaks is part and parcel of these trends. In the events that put it on a collision course with the U.S. government, the whistle-blowing site burnished its journalistic credentials by working hand-in-glove, at least after the “collateral murder” video, with The Guardian, the New York TimesDer SpeigelLe Monde and El Pais to select, edit and publish the Afghan and Iraq war logs and embassy cables. By cooperating with respected journalistic organizations, Wikileaks material was selected, edited and published according to professional news values rather than driven solely by the logic of hactivism or being an indiscriminate and irresponsible dump of sensitive state secrets into the public domain. The collaboration between traditional news outlets and Wikileaks also demonstrated that gaining access to large audiences in a cluttered media environment still requires ‘big media’. Altogether, these efforts set the global news agenda four times in 2010. For its efforts, Wikileaks chalked up a bevy of presitgious awards for its significant contributions to access to information, transparency and journalism, adding to the long list of honours that it had already won from press and human rights organizations, including from British-based Index on Censorship, Amnesty International and Time Magazine, among many others, since its inception (see Wikileaks Press, nd).

Interestingly, while Wikileaks had been offering journalists free access to the war logs and embassy cables for some time, it was only after it offered exclusive national rights to The Guardian, New York Times, and other major newspapers around the world that journalists showed much of an interest. Rights, money, and market power are still important lures, and are cornerstones of market-based media, with or without the internet – although it is important that Wikileaks certainly does not follow the conventional commercial model, and offers an alternative to it.

The more important point for now, however, is that investigative journalism is not the exclusive preserve of the traditional press, but it is the signature feature of what Wikileaks does. That the interjection of Wikileaks into the journalistic process led to outcomes that are probably better than the ‘good ole days’ is underscored by the fact that while the New York Times consulted with the Obama Administration before publishing the war logs and diplomatic cables, it did not withhold the material for a year. Indeed, this is a big and important difference from its behaviour in 2005 when, at the behest of the Bush Administration, the New York Times delayed James Risen and Eric Lichtblau’s (2006) expose of unauthorized, secret wiretaps conducted by the National Security Agency in cooperation with AT&T, Verizon and almost all of the other major telecom-ISPs in the U.S. (Calame, 2006). The war logs and embassy cables stories likely became headline news in 2010 faster than would otherwise have been the case because of Wikileaks role in these events, and its strategy of playing news organizations’ competitive commercial interests off of one another. Moreover, with little need to maintain good standing with the centres of political, military and corporate power, Wikileaks never assumed levels of deference similar to the New York Times and other established news sources.

All-in-all, Wikileaks is emblematic of a broader set of changes that, once the dust settles, will likely stabilize around a new model of the networked fourth estate, an assemblage of elements consisting of (1) a core group of strong traditional media companies; (2) many small commercial media (Huffington Post, the Tyee, Drudge Report, Global Journalist, etc.), (3) non-profit media (WikiLeaks, Wikipedia), (4) partisan media outlets (Rabble.ca, Daily Kos, TalkingPointsMemo), (5) hybrids that mix features of all the others and (6) networked individuals (Benkler, 2009). The fact that WikiLeaks is so central to these developments, and so solidly at one with journalistic and free press traditions, helps to explain why neither it nor any of the newspaper organizations it partnered with have faced direct efforts by the U.S. to suppress the publication of WikiLeaks’ documents (Benkler, 2011). If the story ended here, it would be a happy one, a triumph of a plucky, determined watchdog willing to take on the powers-that-be, without fear or favour, a testimony to the power of the internet to contribute to freedom of expression, the free press and the public’s right to know – in other words, democracy.

Using Ownership and Control of Critical Internet Resources to Cripple Wikileaks

Unfortunately, however, the story does not end there. The problem, as Benkler (2011) states, is that what the U.S. was not able to obtain by legal measures, it gained with remarkable ease from private corporations and market forces. Thus, buckling under the slightest of pressure, Amazon banished Wikileaks’ content from its servers the same day (December 1, 2010) that Senator and Senate Committee on Homeland Security and Governmental Affairs Chair, Joe Lieberman (2010), called on any “company or organization that is hosting Wikeleaks to immediately terminate its relationship with them”. Wikileaks quickly found a new home at webserver firm OVH in France but lost access to those resources after France’s Industry Minister warned companies on December 4 that there would be “consequences” for helping keep Wikileaks online. A day later, the Swedish-based Pirate Party stepped in to host the “cablegate” directory after they were taken off line in France and the US.

Yet, Wikileaks’ troubles didn’t end there because just a day before it was kicked out of France, the U.S. company everyDNS delisted it from its domain name registry. As a result, Internet users who typed wikileaks.org into their browser or clicked on links pointing to that domain came up with a page indicating that the site was no longer available (Benkler, 2011; Arthur, 2011). The Swedish DNS provider, Switch, faced similar pressure, but refused to buckle. It continues to maintain the WikiLeaks.ch address that Internet users still use to access the site, but has faced a barrage of Distributed Denial of Service (DDoS) attacks for doing so.

As Amazon, OVD and everyDNS took out part of WikiLeaks technical infrastructure, several other companies moved into to disable is financial underpinnings. Over the course of four days, Paypal (eBay) (December 4), MasterCard and the Swiss Postal Office’s PostFinance (December 6), and Visa (December 7) suspended payment services for donors to the site. Two weeks later, Apple removed a Wikileaks app from the iTunes store (Apple removes Wikileaks, 2010). Thus, within a remarkably short period of time, a range of private actors cut-off Wikileaks’ access to critical internet resources. The actions did not kill the organization, but the financial blockade did contribute mightily to the fact that Wikileaks funding plummeted by an estimated 95 percent (Wikileaks, 2011).

Privacy Rights Online and Internet Companies’ Business Models: Weak Foundations for the Networked Fourth Estate and Communication Rights

One important entity has stood outside this state-corporate triste on the outskirts of the law: Twitter. Indeed, it has stood alone among big American corporate internet media brands in refusing to assist the United States’ anti-Wikileaks campaign. Faced with a court order to secretly disclose subscriber information for three of its users, it said no.

In December 2010, at the same times as Wikileaks was being cut-off from critical internet resources, the US Department of Justice demanded that Twitter turn over subscriber account information for Birgitta Jónsdóttir, Jacob Applebaum and Rop Gongrijp as part of its ongoing Wikileaks investigation. The information sought was not innocuous and general, but intimate and extensive: i.e. subscriber registration pages, connection records, length of service, Internet device identification number, source and destination Internet protocol addresses, and more (United States, 2011a, pp. 7-8). Twitter was also told not to disclose the request to the people concerned, and to stay quiet about the whole thing. It did none of this.

Instead, the company mounted a serious legal challenge to the Justice Department’s “secret orders” and pushed the envelope in interpreting what it could do to protect its subscribers’ information (McCullagh, 2011). In Twitter – Wikileaks Case #1, the social media site won a small victory by gaining the right to at least tell Jónsdóttir, Applebaum and Gongrijp that the DoJ was seeking information about their accounts (United States, 2010). They were given 10 days to respond before it was compelled to comply with the DoJ order. It also took the extra step of recommending that they seek legal help from the Electronic Frontier Foundation (EFF), a public interest law watchdog on all matters digital and about internet/cyberspace governance (a copy of Twitter’s letter to Gongrijp is available at Gongrijp, 2011).

The EFF has represented Josdottir on the matter since, while Twitter’s lead counsel, Alex MacGillvray, has stood for the company. Interestingly, Iceland has also weighed in by strongly criticizing the US over Jónsdóttir, while a group of 85 European Union Parliamentarians condemned the United States’ pursuit of Wikileaks. They were especially critical about how the US was harnessing internet giants to its campaign. They “failed to see” how, among other things, the Twitter Order could be squared with Article 19 of the Universal Declaration of Human Rights. More to the point, they worried the United States’ actions were contributing to the rise of a

“national and international legal framework concerning the use of . . . social media . . . [that] does not appear to provide sufficient . . . respect for freedom of expression, access to information and the right to privacy” (Intra-Parliamentary Union, 2011).

The first Twitter – Wikileaks case, or “Twitter Order”, was a shallow victory. It allowed the company to inform Jónsdóttir, Applebaum and Gongrijp that they were of interest in the DoJ’s ongoing Wikileaks investigation, but did not prevent the disclosure. Yet, even this shallow victory looks positive relative to how easily Amazon, Apple, eBay (Paypal), Mastercard, Bank of America (Visa), everyDNS, etc. enlisted in the United States’ campaign against Wikileaks. Twitter staked out a decidedly different position that insisted upon the rule-of-law, speaking out in public and going beyond what was necessary to help its subscribers ensure that their rights, and personal information, are respected.

The full perversity of these circumstancs only came fully into light in the Twitter – Wikileaks Case #2, when Jónsdóttir, Applebaum and Gongrijp appealed part of the first case to overturn, and thus prevent, the requirement that Twitter hand over their account details to the DoJ (United States, 2011a). The U.S. District Court‘s decision in the case in November 2011 had direct results and some potentially far sweeping implications.

The first direct result, as we have seen, is that Twitter had to hand over Jónsdóttir, Applebaum and Gongrijp’s subscriber information. Another, however, is that they have no right to know whether the DoJ has approached Facebook, Google or other Internet companies with secret orders, and if so, for what kinds of information, and with what results (p. 52). The courts seem to believe that neither they nor the public-at-large have the right to know the answers to these questions. For their part, Google, Facebook and Microsoft (Skype) have stayed silent on the affair despite their frequent pontification about internet freedom in a generic sense and mostly in relation to ‘axis of internet evil’ countries, such as Saudi Arabia, China, Russia and Iran, among a rotating cast of others.

If these results are not discouraging enough, more sweeping implications flow from two other directions in the second Twitter – Wikileaks ruling. The first is the poor analogy the court draws between the internet and banks to ground its decision as to why companies of the former type must hand over subscribers’ information just as readily as the latter do when served with a court order. There is a lot of potential discussion in this point alone, but for now it suffices to say that thinking about social media in terms of banking, insurance and clients is a long way from comprehending the internet as a public communications space.

Of more interest for here is the mind-boggling claim that internet users forfeit any expectation of privacy – and hence, privacy rights – once they click to accept internet companies’ terms of service policy. As the court put it, Jónsdóttir, Applebaum and Gongrijp “voluntarily relinquished any reasonable expectation of privacy” as soon as they clicked on Twitter’s terms of service (United States, 2011a, p. 28). Thus, instead of constitutional values, law or social norms governing the situation, the court ruled that privacy rights are creatures of social media companies’ business models. Social media users, according to the court, would have to be woefully naive to expect that privacy is a priority value for advertising-driven online media, given that almost the entire business model of major Internet companies is about collecting and selling as much information about audiences as possible.

But this is ridiculous because Twitter, Facebook and Google’s terms of service policies are about maximizing the collection, retention, use and commodification of personal data, not privacy. It is as if the ruling is intentionally out of whack with the political economy of the internet so as to give the state carte blanche to do with digital intermediaries as it pleases. Christopher Soghoian (2011) captures the crux of the issue in relation to Google, but his comments apply to Internet companies in general:

Google’s services are not secure by default, and, because the company’s business model depends upon the monetizaton of user data, the company keeps as much data as possible about the activities of its users. These detailed records are not just useful to Google’s engineers and advertising teams, but are also a juicy target for law enforcement agencies.

Conclusions and Implications: Wikileaks, the Networked Fourth Estate and the Internet on Imperiled Ground

Things don’t have to be this way. The idea that privacy rights turn on the terms of service policies of commercial internet companies rests upon a peculiarly squinty-eyed view of things and leverages the mass production and storage of personal data enabled by Twitter, Facebook, Google and so forth for the advantage of the state. But even if we took corporate behaviour as our moral compass, Twitter has occasionally distinguished itself, as it did during the London riots/uprising in August 2011 by refusing to comply with the UK government’s requests to shutdown its service and handover users’ information, while Facebook complied. Thus, even by the standards of corporate behaviour, Twitter’s behaviour could cultivate a higher sense of privacy amongst its users.

Concentrated Internet Markets and Small Details: Changing the business model of internet companies to minimize the collection, retention and disclosure of personal information, as the EFF recommends and as some non-commercial sites such as IndyMedia sources do, would be helpful. Sonic.net, a small ISP with 45,000 internet subscribers in the San Francisco area, and which is also implicated in the Wikileaks case because Jacob Applebaum, a key figure in the Twitter – Wikileaks case, as we saw above, has been one of its subscribers, does just this. Most ISPs, in contrast, take the opposite view, as a cursory review of the terms of service policies from AT&T, Comcast. Verizon and Time Warner – the big four ISPs in the U.S. that account for just over 60% of internet access revenues (Noam, 2012) – illustrates. While Sonic.net may offer a model of a free and open internet that maximizes its users’ privacy by minimizing data collection and retention, the fact of the matter is that with less than .05 percent of the US internet subscriber base, it is easily ignored.

Ultimately, the relevant measuring rod of communication rights is not corporate behaviour or the market, but legal and international norms. Social norms govern how we disclose personal information in complex, negotiated and contingent ways, as well (Nissenbaum, 2011). Internet companies’ terms of service policies and the Twitter – Wikileaks cases largely ignore these realities, and thus are out of touch. These issues as well as the fact that the vast majority of people do not even read online terms of service policies — and those who do more often than not do not fully understand them — were brought to the court’s attention, but brushed aside. The decision at least makes it clear that the hyper-commercialized ‘free lunch’ model of the Internet comes with a steep price: our privacy rights and an entire industrial arrangement poised to serve as the handmaiden of the national security state.

The Virtues and Vices of Twitter: It is against this backdrop that the significance of what Twitter has done is clear. It has not flouted the law, but has been hoisted upon its own petard on account of its “business model”. But this is an irreconcilable contradiction of capitalism, to use a marxist formulation, and won’t be solved by simply changing Twitter’s business model. Nonetheless, Twitter went beyond just complying with the law to afford as much respect for users’ rights as circumstances allowed. We might also ask if Twitter’s recent adoption of a “transparency report” chronicling government requests for user information and to take-down certain content reflect lessons learned by the company in the midst of the anti-Wikileaks campaign as well?

There is no need to pretend that Twitter is the epitome of virtue, because it is not. While Google, WordPress and others have all signed on to the broad statements of principles regarding privacy and online free speech rights in the Global Network Initiative, for example, Twitter, along with Facebook, has not. But in this area, pontificating is rife, and while Google preaches transparency and open information absolutism, it has said nothing direct or substantial about the U.S.’s treatment of Wikileaks, or even if it has been implicated in the campaign.

Deepening National Security Imperatives: The U.S. governments’ campaign against Wikileaks further entrenches the post 9-11 securitization of the telecom-internet infrastructure, in the U.S. and globally, given the reach of the most well-known US telecom and internet giants (Risen & Lichtblau, 2006; Calame, 2006). Some courts have condemned expansive claims of state secrets and unbound executive powers when it comes to national security matters, but others seem to grant the state a blank cheque (United States, 2006; United States, 2011b). When the law has not proved serviceable, as the earlier discussion suggests, important U.S. government figures have tip-toed around its edges, compliant private companies in tow, to get what it wants. Congress has also stepped in occasionally to make legal what before was not, as in the passage of the much revised and expanded Foreign Intelligence Services Act (FISA) in 2008, which is now up for renewal again and set to pass with little opposition in Congress (United States, 2008).

The Global Dimension: The campaign against Wikileaks cannot be kept to narrow confines and readily spills over into wide ranging areas, including diplomatic and global internet policy angles, too. Nation-States, and the US in particular, are flexing their muscles and attempting to assert their sovereignty over cyberspace – a point that defines the Wikileaks case. Scholars such as Lawrence Lessig, Ropald Diebert, Jonathan Zittrain, Jack Goldsmith and Timothy Wu, among many others, have long shown that cyberspace is no more immune to government intervention than you or are I are immune to the laws of gravity. Struggles over the Internet Corporation for the Assignment of Names and Numbers (ICANN), the rift between Google and China, and the United State’s campaign against Wikileaks clearly expose that fallacy for what it is. Legitimate criticisms of U.S. dominance of critical internet resources has been a staple of global internet politics since the ITU’s tussles with ICANN in the late 1990s, through WSIS I & II (2001 – 2005), to the creation of the Internet Governance Forum (2005), and back again to the ITU in 2012 (Mueller, 2010). The Wikileaks case offers a rational basis for such concerns. Criticisms of the U.S. in the Wikileaks case by EU parliamentarians, for instance, are of this kind.  The Guardian newspaper in the UK made the same point, too, by choosing Jónsdóttir, Assange, Applebaum and Twitter’s chief legal counsel, Alex MacGillvray, for its list of twenty “champions of the open internet” in April 2012 (Ball, 2012). Many of the awards bestowed upon Wikileaks by respectable human rights and free press organizations before and after the organization’s Collateral Murder video, war logs and Embassy Cables trilogy in 2010 are of a similar kind.

The problem, however, is that legitimate criticism are often mangled when mixed with attempts by strong states in authoritarian countries to use them as a Trojan Horse to smuggle in even less appealing attempts to dominate their own sovereign slices of the internet. A balkanized collection of Web 3.0, nationally-integrated internet media spaces is the result.  To the extent that the anti-Wikileaks campaign feeds such a pretext and fuels the ‘clash of sovereigns’ on the internet, it is unhelpful.

At the opposite end of the spectrum, the Twitter-Wikileaks rulings may serve the U.S. government’s bid to drive Wikileaks out of business well, but they have also lit a fire in the belly of hactivist groups like Anonymous and LulzSec, for whom such things are their raison d’etre. It may not be too much to suggest that the whiff of the anti-Wikileaks campaign fresh in the air helped to bring about the demise of recent attempts to strengthen national and international copyright laws – e.g. SOPA, PIPA and ACTA — given that, like the campaign against Wikileaks, each sought to leverage critical internet resources to control content and further restrict what people can do with their internet connections. If that, in fact, is the case, perhaps the battering of Wikileaks may have unintentionally served a noble cause.

Perhaps we can take solace in that and the fact that the distributed nature of the Internet means complete copies of Wikileaks files have been scattered across the planet, beyond the reach of any single state, no matter how powerful: the ultimate free speech trump card in a way. Yet, the fact that Wikileaks is now floundering, one of its founding figures on the lamb, and its funding down to a tenth of what it once was means that we ought not be so sanguine in our views. Happy stories about digital democracy should not deter us from the harsh reality that important open media principles have already been badly compromised, and more are at stake yet. Indeed, the deep ecology of the Internet is at stake, and so too is how we will conduct our lives in this highly contested place.

The Twitter – Wikileaks Cases and the Battle for the Network Free Press, Now its Personal: an Afternoon with Birgitta Jónsdóttir

A week-and-a-half ago I met up with Birgitta Jónsdóttir, an activist Icelandic MP and central figure in the Twitter-Wikileaks cases (see earlier posts on the topic hereherehere and here). Passing time on Twitter, I saw she was in Ottawa, sent her a tweet, quickly received a reply and presto, we met on a Sunday afternoon with a fellow professor from Ottawa University, Patrick McCurdy.

Jónsdóttir came to our attention after becoming a target of the U.S. Justice Department’s ongoing investigation of Wikileaks because of her role as co-producer of the video Collateral Murder. The video documents a U.S. Apache helicopter gunning down two Reuters journalists and several others in Baghdad and was released by whistle-blowing website Wikileaks in April 2010. It marked the beginning of the site’s campaign to release what would be the largest cache of US classified material the world has ever seen.

Over the course of 2010, Wikileaks teamed up with five of the world’s most respected news outlets — New York Times, The Guardian, Der SpeigelLe Monde and El Pais – to release material that wreaked havoc with the routine conventions of journalism and to set the global news agenda not once, but three more times: (2) the release of the Afghan and (3) Iraq war logs in July and October, respectively, and (4) a cache of diplomatic cables starting in late November.

The response from the U.S. Government was ferocious. The search to find the source of the leaks quickly led to the arrest of U.S. Army intelligence analyst, Bradley Manning, in May 2010, and his detention in solitary confinement ever since. Simultaneously, it began shaking down popular U.S. search and social media sites such as Twitter, Facebook, Skype and Google in a bid to gain access to information about people of interest in the Wikileaks investigation.

Birgitta is one of those people, along with Wikileaks front man Julian Assange, Tor developer, activist and Wikileaks volunteer, Jacob Applebaum, as well as Dutch hactivist Ron Gongrijp. Let’s call them the “Twitter –Wikileaks Four”.

Entering this murky world of state secrets, blacked out documents and unnamed internet companies cooperating with electronic surveillance efforts by the state offers a rude slap to anyone who sees the U.S. as a beacon of democracy, human rights and the free press. In fact, such values seem to have wilted with alarming ease in the face of the national security claims surrounding Wikileaks, and Birgitta Jónsdóttir specifically.

Talking to Jónsdóttir gave us a personal look behind the cool, technical view found in legal briefs and court rulings. And one of the first things she told us is that she no longer sets foot on U.S. soil on the advice of her lawyers and Iceland’s State Department, despite having diplomatic immunity on account of being a Member of Parliament in Iceland. Still embroiled in the Wikileaks cases, she has recently joined a lawsuit launched by Noam Chomsky, Noami Wolfe, Christopher Hedges, Daniel Ellsberg, and others to overturn the National Defense Authorization Act on the basis that its vague definition of terrorists threatens to sweep up dissidents into its maw, thereby threatening their ability to travel freely in the US and worldwide without fear of being arrested.

That we know much at all about how internet companies have been dragooned into the crackdown on Wikileaks is due to the fact that Birgitta, Applebaum and Gongrijp have led the fight with legal support from the American Civil Liberties Union and Electronic Frontier Foundation against such activities in the courts of law and public opinion (Assange has kept his focus elsewhere). And it is for this reason that The Guardian newspaper last month put Birgitta, Applebaum, Twitter’s chief lawyer, Alex MacGillivray, and Assange on its list of twenty “champions of the open internet”.

MacGillivray made the list primarily because only Twitter had the spine to challenge the Justice Department’s “secret orders” (not “court authorized warrants”), whereas all of the other search and social media companies rolled-over and shut-up. This was not just a one-time stance, either. This week Twitter was at it again, pushing to have a court order forcing it to hand-over information about an Occupy Wall Street activist to New York Police over-turned.

Twitter won a modest victory in January 2011 in the first Twitter – Wikileak case when it obtained a court order allowing it to tell Jónsdóttir and the others that the Justice Department was demanding information about their accounts as part of its Wikileaks investigation. The victory also opened a bigger opportunity to discover what other internet companies may have received the Justice Department’s secret orders.

Whatever hope was raised by the first Twitter – Wikileaks ruling was dashed by a District Court ruling in the second case last November, however. The ruling was blunt: users of corporate-owned, social media platforms have no privacy rights.

Using the same logic subsequently used in the “Occupy Wall Street” case, the court argued that Jónsdóttir et. al. had no privacy rights because Twitter, Skype, Facebook and Google’s business models are based on maximizing the collection and sale of subscriber information. Under such conditions, users alienate whatever privacy rights they might otherwise claim. As the ruling put it, Jónsdóttir and her co-defendants “voluntarily relinquished any reasonable expectation of privacy” by clicking on Twitter’s terms of service (p. 28).

With privacy reduced to the measuring rod of corporate business models and a perverse interpretation of its terms of service, Twitter was forced to hand over Jónsdóttir, Applebaum and Gongrijp’s account information to the Justice Department: registration pages, connection records, length of service, internet device number, and more.

A last ditch appeal was made by lawyers at the ACLU and EFF last January to reveal which other internet companies had received “secret orders” from the Justice Department. While no one knows for certain who they are, all eyes are on Google, Facebook and Skype (Microsoft). A decision is expected by the end of June, but Jónsdóttir isn’t holding her breath.

Pausing to reflect on the personal affects of the Twitter – Wikileaks cases overall, however, she remains upbeat rather than down-trodden.

“You have to completely alter your lifestyle. It’s not pleasant, but I don’t really care. . . . It’s just insults my sense of justice . . . . I would not put anything on social media sites that . . . I don’t want on the front pages of the press.”

Rather than dwelling on the costs to her personally, however, Jónsdóttir is quick to tie these events into a larger, more daunting picture. In doing so, she wants to prick the fantasy of Obama as a great liberal president and the illusion that the U.S. turned a corner after he replaced Bush as President.

As she reminds us, the Twitter – Wikileaks cases occurred on Obama’s watch. The Obama Administration has charged more whistle-blowers (six) than all past presidents combined (three), she offers (also here).

To this, we can add that revisions to the Foreign Intelligence Security Amendments Act in 2008 gave retroactive immunity to companies and ISPs such as AT&T and Verizon for the illegal network surveillance activities they conducted under the Bush regime, with few barriers now standing in the way of their continuing in that role under Obama (see here and here).

These concerns are crystallized in the latest Reporters Without Borders’ Press Freedom Index showing that press freedom in the U.S. plummeted from 20th to 47th place between 2010 and 2011. In short, the national security state after 9/11 has not been rolled back but kept intact. Jónsdóttir experience, she wants us to know, is not a fluke.

Glenn Greenwald has made a similar case that positions Wikileaks as being part and parcel of a new kind of journalism that mixes crowd sourcing, the internet and professional journalism. After a recent talk in Ottawa co-hosted by the National Press Club, he also mentioned that Wikileaks had invited journalists to use its material long before all hell broke loose in 2010, but it was the lure of exclusive access in their respective home markets that finally enticed The GuardianNew York TimesDer SpeigelLe Monde and El Pais to the table.

In other words, it was the pull of exclusive rights and private profit, not a good story, that brought the press to Wikileaks’ table, and it into the journalistic fold. And seen in that light, Wikileaks serves as a much-needed corrective to lazy and cautious journalism.

Harvard University law professor Yochai Benkler makes a similar case but in a much more systematic and constitutionally grounded way. He also shines a light on how the network free press is being subject to death by a thousand legal and extra-legal cuts when what we need is a strong press to counter the power of the strong state if democracy has a hope in hell of surviving, let alone thriving.

Benkler argues that attempts to bring Wikileaks to heal have involved a dangerous end run around Constitutional protections for the networked fourth estate, i.e. the First Amendment. Pressure from Senator Joe Lieberman, Chair of the Senate Committee on Homeland Security and Governmental Affairs, for instance, led webhosting provider Amazon, domain name supplier everyDNS and financial payment providers (Paypal, Visa, Mastercard) in December 2010 to withdraw internet and financial resources that are essential to Wikileaks’ operations to exemplify the point.

While government actors are prevented from such actions by First Amendment protections for the press, Lieberman used commercial actors who were, Twitter aside, all-too-willing to serve the state on bended knees, and a campaign to denigrate Wikileaks journalistic standing, to do an end run around such Constitutional restraints. Such actions eliminated the routine financial channels (Paypal, Visa, Mastercard) through which an estimated 90 percent of Wikileaks donor funding flows, and to scramble to find a new domain name provider and webhosting site.

Now of course, some argue that Wikileaks has nothing to do with journalism and the free press. They are wrong.

Remember, it set the global news agenda repeatedly in 2010, mostly by working hand-in-glove with the world’s leading newspapers to edit and publish stories. It has won oodles of journalist awards before and after these events, as the following partial list shows: Economist – Index on Censorship Freedom of Expression award 2008; Amnesty International human rights reporting award (New Media), UK 2010; Human Rights Film Festival of Barcelona Award for International Journalism & Human Rights, 2010; International Piero Passetti Journalism Prize of the National Union of Italian Journalists, Italy 2011; Voltaire Award of the Victorian Council for Civil Liberties, Australia 2011; Readers’ Choice in Time magazine’s Person of the Year (Julian Assange) 2011. The honorifics bestowed on the “Twitter Wikileaks Four” by The Guardian, also referred to earlier, adds yet another.

Awards are nice, and the recognition helps to bestow legitimacy, Jónsdóttir observes, but the real key is to keep pushing the envelope. To that end, she updated us on the Icelandic Modern Media Initiative (IMMI) that she and others have spearheaded since the initiative’s birth in the Icelandic Parliament in July 2010. IMMI is, in short, a “dream big” project designed to make Iceland a digital free media haven where whistle-blowers are protected by the highest legal standards in the world and the value Net Neutrality formally incorporated into the country’s new Constitution that now awaits Parliamentary ratification.

Thus, as she rails against powerful forces on the global stage, Jónsdóttir is helping to build in Iceland a model of information rights, privacy and free speech for the world.

These are important things, she says, because they are all about our history and about making democracy fit for our times. In terms of history, and reaching for the right words, she points to the importance of Wikileaks as

“part of the alchemy of what is going on in the world. . . . The Iraq and Afghan war logs changed how people talk about the wars. It has provided us with a very important part of our record, our history”.

As for democracy, “voting every four years is absolutely not democracy, it is just a transfer of power”, Jónsdóttir exclaims as our conversation draws to a close. Of course, the rule of law, an open internet, and fighting against the strong state are essential, but these are abstractions unless they are made personal and concrete.

Hmmm, the battle for the open internet and network free press, now its personal. That seems like a great way to think of Birgitta, and our long afternoon together last week.

The Twitter-Wikileaks Decision: How the Corporate Model of Internet Privacy Serves the National Security State

Social media users of the world take note: according to a U.S. District Court‘s decision in the Twitter-Wikileaks case (November 9, 2011), you have no right to expect privacy online. The immediate result of the decision is that Twitter must hand over a substantial body of personal data for three of its users to the U.S. Department of Justice in relation to the latter’s ongoing Wikileaks investigation: Icelandic MP and Collateral Murder video co-producer, Birgitta Jonsdottir, Wikileak’s volunteer Jacob Appelbaum and Dutch hacker Rop Gongrijp.

The information sought is as expansive as it is intimate: subscriber registration pages, connection records, length of service, Internet device identification number, and more (see pp. 7-8). It’s reach is global, as is the opposition mounting against the the so-called Twitter Order. Besides putting fuel in the belly of hactivist groups such as Anonymous and LulzSec, the U.S. government’s efforts to shake-down Wikileaks has been condemned by Iceland, 85 members of a European parliamentary group and the Inter-Parliamentary Union.

The latter was especially sharp, stating that it “failed to see” how the Twitter Order could be squared with Article 19 of the Universal Declaration of Human Rights. It also worried aloud about the emergence of a “national and international legal framework concerning the use of . . . social media . . . [that] does not appear to provide sufficient guarantees to ensure respect for freedom of expression, access to information and the right to privacy”.

The case began last December 2010 when the U.S. Department of Justice obtained a court order requiring Twitter to turn over a slew of user account information for a list of people that were of interest in the ongoing Wikileaks investigation. To its credit, Twitter refused to do so without notifying the people targeted first and mounted a serious legal challenge to the ‘gag’ order (see the story by Declan McCullagh of CNET here).

Hope was dashed and important communication rights rolled back last week when a District Court in Eastern Virginia declared that Jonsdottir, Appelbaum and Gongrijp forfeited their right to privacy when they clicked to accept Twitter’s terms of service policy. As the court argued, by clicking on Twitter’s terms of service policy, they “voluntarily relinquished any reasonable expectation of privacy” (p. 28).

For good measure, the decision also curbed Jonsdottir, Appelbaum and Gongrijp’s First Amendment rights claims as well, declaring that they have no right to know if the DOJ has also approached Facebook, Google or any other Internet companies with similar requests and, if so, just what kinds of information about their lives online had been turned over (see p. 52). The case is also about the network free press too because Twitter has become an integral part of journalistic routines, and Josdottir is undoubtedly worthy of as much free speech as can be mustered, given her status as a video producer, MP and advocate of turning Iceland into a ‘digital media, free speech haven’.

The decision’s outstanding feature is the way in which it makes privacy rights a creature of social media companies’ business models rather than a function of constitutional values, law or social norms. Making Internet corporations’ business models the standard of online privacy, however, is outlandish because Twitter, Facebook and Google’s terms of service policies are all about maximizing the collection, use and commodification of personal data, not privacy.

The Twitter-Wikileaks decision is remarkably candid in its view that the standard of privacy on the Internet that we should expect is whatever Internet companies’ terms of service policies say it is. Social media users, according to the court, would have to be woefully naive to expect that privacy is a priority value for advertising-driven online media, given that almost the entire business model of major Internet companies is about collecting and selling as much information about audiences as possible.

Such a view reduces privacy to the logic of corporate business models and market transactions. Worse, by turning privacy into the plaything of corporate business models, the court essentially turned commercial Internet companies such as Twitter, Facebook and Google into the handmaidens of the national security state.

Christopher Soghoian captures the essence of the problem in relation to Google, but his comments are applicable to Internet companies in general:

Google’s services are not secure by default, and, because the company’s business model depends upon the monetizaton of user data, the company keeps as much data as possible about the activities of its users. These detailed records are not just useful to Google’s engineers and advertising teams, but are also a juicy target for law enforcement agencies.

Things don’t have to be this way. Instead, the Internet could be organized in ways that further communication rights and a democratic society by, amongst other things, minimizing the collection of personal information and retaining it for the shortest time possible, as the Electronic Frontier Foundation recommends and as some non-commercial websites such as IndyMedia centres do. The Virginia District Court, in sharp contrast, leverages the mass production and storage of personal data enabled by Google, Facebook, Twitter, and so forth as fully as possible and for the advantage of the state.

The idea that privacy rights turn on the terms of service policies offered by private companies rests upon a peculiarly squinty-eyed view of things. Even if we took the perspective of corporate behaviour as our guide, Twitter has sometimes distinguished itself in the Wikileaks and other cases by placing a higher premium on privacy values than Facebook and Google, for instance.

In contrast, to the latter, which have remained quiet in the case, and to Amazon, Apple, Paypal, Visa, Mastercard, everyDNS, and several webhosts in Europe that were only too eager to aid the U.S. government’s crackdown on Wikileaks by withholding critical resources — money, servers, domain names, webhosting, etc. — essential to Wikileaks’ survival (see here, here and here), Twitter refused to join the information blockade. Instead of buckling under intense government pressure, it refused to turn over account information for Josdottir, Applebaum and Gongrijp before notifying them first when a subpeona wielding US Department of Justice came knocking last December.

Twitter challenged the gag order in court as well, thus giving Jonsdottir, Applebaum and Gongrijp a heads-up about the events unfolding. It also directed them to the Electronic Frontier Foundation for legal advice, which, in turn, brought some of the best minds in the U.S. on privacy, social uses of the Internet, surveillance and security to mount their case (see here).

Twitter adopted a similar stance during the London riots this past August by refusing to comply with British government requests to shut-down its service and hand-over users’ information, while Facebook served eagerly on bended-knee. Thus, even by the narrow measures of corporate behaviour, it is not unreasonable to assume that Twitter’s behaviour could cultivate a higher sense of privacy amongst its users.

Of course, there’s no need to pretend that Twitter is the epitome of virtue in such matters, because it is not. To take just one instance, for example, while Google, WordPress and several other entities have all signed on to the broad statements of principles regarding privacy and online free speech rights set out in the Global Network Initiative, Twitter and Facebook have conspicuously refused to sign on to even these ‘market-friendly’ standards.

More important than all of this, however, is the fact that the relevant measuring rod of communication rights is not the market or corporate behaviour. Instead, we should look not to corporate business models and terms of service policies as a guide but to legal, political and international norms. Even more importantly, the focus should be on how social norms govern privacy and how we disclose personal information in complex, negotiated and contingent ways (see dayna boyd’s work on the point, for example).

People manage their identities and disclose personal information differently in the ‘online world’ versus the ‘real world’, but in both cases their expectations about privacy are contingent on time, place, contextual cues as well as the nature of the relationship involved. These issues as well as the fact that the vast majority of people do not even read online terms of service policies — and those that do more often than not do not fully understand what they mean — were all brought to the court’s attention, but quickly buried in a footnote and brushed aside (see here).

In the end, the Twitter-Wikileaks decision serves the U.S. government’s bid to drive Wikileaks out of business well. Even reluctant actors such as Twitter have been forced back into line. For the rest of us, the decision at least has the merit of making it clear that the hyper-commercialized ‘free lunch’ model of the Internet comes with a steep price: privacy rights and an entire industrial arrangement poised to serve as the handmaiden of the national security state.

Birgitta Jonsdottir has just published a new column, How the US Justice Department Legally Hacked My Twitter Account in The Guardian, here.

Global Internet Regulation: Tightening the Screws?

Last week in the run-up to the G8 leaders meeting in France, French President Nicolas Sarkozy convened a conference among prominent media and Internet types. The goal: how to ‘civilize’ the Internet.

As Sarkozy said,

The internet is the new frontier, a territory to conquer. But it cannot be a Wild West. It cannot be a lawless place, where people are allowed to pillage artistic works with no limits.

And you know what, he’s right. The Internet should not be a lawless frontier disconnected from the real world, and it is not. It is already deeply shaped by the same legal, political, economic and social forces that govern our actions daily.

That said, the crux of the approach being advocated by Sarkozy, and perhaps to come out in a communique at the end of the G8 meetings, is that Internet Service Providers, search engines and others are being ‘deputized’ to act on behalf of law enforcement officials and vested interests in the entertainment and ‘copyright industries’ (see the New York Times story as well). That is, they are being turned into adjuncts of both the state and vested interests to deal with matters that are, some more than others, sordid ones indeed: child pornography, money laundering, counterfeit goods and software and, of course (and in some instances) large-scale enabling of copyright infringement.

Of course, I’m the last to stand in support of child porn, money laundering, industrial scale piracy, and so forth. However, I am opposed to the full-court press that is now coming from three directions that aim to turn ISPs and search engines from being ‘gateways’ to the Internet to ‘gatekeepers’.

First, and largely since 2008, ISPs have come under a full-court press by the Recording Industry Association of America and the International Federation of Phonographic Industries (IFPI) to adopt a notice and take-down procedure. In this situation, once notified of allegations of copyright infringements, ISPs would block Internet users access to such content and, in some cases, cut off repeat offenders. Search engines would essentially make such content disappear by turning up a blank when suspect sites were queried.

The problem with this is already well-known: the gap between what is allegedly an infringement and what the law in each country actually determines to be so is big indeed. What typically happens is that private contractors using automated ‘notice and take-down’ systems take a shotgun approach, capturing much that is on the side of right in the process.

People caught in the cross-hairs have a steep hill to climb to prove their innocence. That is wrong because it turns presumptions of innocence on their head. Here’s a link to the Electronic Frontier Foundations “Takedown Hall of Shame” to get a sense of how overly-broad notices also curtail freedom of expression.

Second, Digital Rights Management (DRM) technologies began to go out of favour in the last few years, but as they were being abandoned, after 2008 the RIAA and its international counterparts were signing new memoranda of understanding with ISPs that enrolled the latter in the effort to combat piracy. The RIAA and IFPI have also pushed hard for national laws to accomplish the same ends. In other words, the RIAA is using technology, States and Markets to accomplish its goal of clamping down on content.

Sarkozy and the French Government were early and enthusiastic endorsers of such efforts and the three strikes law in France is considered by most to be particularly draconian. The IFPI has also chalked up several wins for such measures in other countries as well, including Sweden, South Korea, Taiwan and the UK, among a few others (see pp. 25-27).

Now, however, and at least in Britain such measures are under severe challenge in the courts by way of initiatives launched by two of Britain’s biggest ISPs, BT and TalkTalk, and in the court of public opinion, where they are losing badly. Yet, just as such measures come under severe criticism and challenge in some countries, they are being expanded in others.
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Wikileaks and the Digitally Networked Free Press

Yochai Benkler has just published a fascinating study of Wikileaks and what he calls the free and irresponsible press. The study’s focus is on WikiLeaks, the Internet-based ‘whistle blower’ site, but it is more than that; it is, as Benkler states, a battle for the soul of the networked fourth estate.

Benkler makes several key arguments.  The most important in my view is that WikiLeaks is part and parcel of a broader set of changes that, once the dust settles, will likely stabilize around a network media ecology consisting of (1) a core group of strong traditional media companies; (2) numerous small commercial media (e.g. Huffington Post, the Tyee, Drudge Report, Global Journalist, etc.), (3) non-profit media (e.g. WikiLeaks, Wikipedia), (4) partisan media outlets (e.g. Independent News Network, Rabble.ca, Daily Kos, TalkingPointsMemo) and (5) hybrids that mix features of all the others.

Second, he argues that far from the Internet aggravating the ‘crisis in journalism’, it may in fact be improving the quality of the new media and journalism overall. According to Benkler, the current turmoil amongst traditional news outlets is the result of so many self-inflicted wounds that have festered for decades.  The rise of the internet and the changing technological and economic basis of the media magnifies these problems, but it is not responsible for them.

Instead of bemoaning the impending ‘death of journalism’, Benkler strikes a cautiously optimistic note. The blogosphere and Internet are undoubtedly bastions of vanity, personal opinions masquerading as fact, and where bellicose politics trumps civility. Crucially, they are also sites where new forms of journalism, new approaches to knowledge production and new kinds to creative expression are emerging that have the potential to make a mighty contribution to journalism and democracy.

Wikileaks is the poster-child for some of the potentials of non-profit, ‘crowd-sourced’, investigative journalism. More broadly, the poster child of ‘crowd-sourced’ knowledge is Wikipedia, a socially produced online encyclopedia that now ranks among he top 7 or 8 most visited websites in the world — except in countries such as China, where it is hard to access. Wikipedia’s credibility ranks on par with venerable entities such as the Encyclopedia Britannica.

Benkler is keen to show that unless we recognize that relatively new actors are making valuable contributions to the networked media environment, we will end up with impoverished journalism and weakened democracies. A key step in this process of recognition is to understand that outlets such as WikiLeaks are fundamentally ‘journalistic’ in function.

Third, to the question of whether or not WikiLeaks is a ‘news organization’ and its key players, most notably Julian Assange, journalists, Benkler offers an emphatic yes.

The first proof of this is that, since it began in 2006, WikiLeaks has received several awards recognizing it as such from Amnesty International and the British magazine, Index on Censorship. More recently, it has been nominated for a Nobel Peace Prize.

Second, it is a global news agenda setter. In 2010, it did this not just once, but four times:

(1) the release of the ‘collateral murder’ video in April;

(2) the release of the Afghan and (3) Iraq war logs in July and October, respectively, and

(4) the release of 1,900 diplomatic cables beginning November 26th.

This is no small feat. It would seem to indicate that Wikileaks is not marginal to journalism, but central to it.

Third, Wikileaks has worked hand-in-glove with the most prestigious news outlets in the world: The Guardian, the New York TimesDer SpeigelLe Monde and El Pais. Rather than simply dumping all of the 250,000 ‘embassy cables’ that it claims to hold into the public domain, only 1,900 or so have been released since late November. Its materials, at least after the problematic “collateral murder” video, have been selected, edited and presented according to professional news values.

Fourth, working with these news organizations has maximized attention for these stories. It has also allowed these news organizations to bolster their already strong positions in local and ‘global news markets’. The cables were leaked pretty much simultaneously by Wikileaks, The Guardian, the New York TimesDer SpeigelLe Monde and El Pais.  The benefits of cooperation cut both ways.

Fifth, this is better than the ‘old days’. For example, in the WikiLeaks’ case, the NYT consulted with the Obama Administration before releasing the ‘war logs’ or the ‘diplomatic cables’. Such deference might seem odd, unduly deferential perhaps, and it is. It was better than sitting on the material for a year, however, as the NYT did in 2005 at the behest of the Bush Administration in the context of the NSA/AT&T unauthorized wiretap case (see mea culpa by NYT public editor Byron Calame, Jan. 1, 2006).  As a non-profit source, and without the need to stay in good standing within the circles of political, military and corporate power, Wikileaks does not have to assume such a deferential stature.

Awards, agenda-setting, cooperation with prestigious news organizations, mutually beneficial arrangements, and no small degree of reliance on long-standing professional practices and some deference to state power, however, are still not enough, it seems, to prove WikiLeaks’ journalistic credentials.  Despite all this and the careful, indeed, responsible approach it took (i.e. as a free and responsible press), WikiLeaks’ actions led to paroxysms in some quarters.

Calls for execution, treason charges, and so forth would normally seem to fall beyond the pale of ‘normal democracy’, but in the WikiLeaks’ case they have heavily framed the discussion. The coverage of the press has been, at best, poor when it comes to specifics about the case. Two-thirds of news reports have mistakenly implied that WikiLeaks simply dumped everything it had into the public domain. Several members of the U.S. Congress called for Assange to be tried for treason; a common tactic was to label him a terrorist. This is not a political culture in which a free press flourishes.

Two Republican presidential candidates, Sarah Palin and Mike Huckabee, as well as some hard-line conservatives in Canada (e.g. Tom Flanagan and Ezra Levant) called for Assange’s execution. All of these actions were not just over-the-top; they are a threat to a free press and to democracy.  Just how over top they are is indicated by the measured response of the U.S. Defense Secretary, Robert Gates. As Gates put it,  “Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest” (quoted in Benkler, p. 16).

Highlighting WikiLeak’s status as a journalistic organization reminds us that rather than being beyond the pale, it should be situated firmly within the parameters of the free press tradition. The collaborative venture exercised an editorial hand with a keen eye to minimizing threats to humanitarian workers and to military operational security. The WikiLeaks case offers a glimpse of a template for a ‘new cooperative model’ between established news outlets and new comers. It can help to move us beyond the snooty idea that journalism is whatever traditional media tell us it is.

‘Networked journalism’ and ‘crowd-sourcing’ are being rapidly integrated into the operations of well-established news outlets. Such activities are not just free-loading on the ‘content’ of the mainstream press, but rather sometimes function as rivals, while partners at others.  As the uprisings across the Arab world indicate, the network public sphere and crowd sourcing are fast becoming standard operating procedure in the global news system.

The history of cooperation between WikiLeak and the above news outlets has been far from smooth. It has been rife with tensions and personal animosities, especially, it appears, between at least one senior New York Times’ editor and Julian Assange. Beyond individual personalities, constant claims about ‘journalism in crisis’ have made it easy to cast the Internet in the role of villain. Yet, the bottom line in all this jostling between the ‘new’ and the ‘old’, is that members of the networked fourth estate deserve the full rights and protection of the ‘free press’ no less than ‘pamphleteers’ and well-established news outlets such as the Globe & Mail, New York Times or the Nation do.

Wikileaks sturdy journalistic credentials, Benkler argues, makes it all but impossible that any direct attempt by the U.S. Government to put WikiLeaks out of business could pass legal and Constitutional muster. The New York Times’ Pentagon Papers case in 1971 is, in fact, very instructive to the present situation, despite constant denials to the contrary.

The key figure in the Pentagon Papers case, Daniel Ellsberg, has already argued that Assange and WikiLeaks are no more treasonous and outside the scope of the free press protections of the U.S. Constitution than he and the New York Times were in the era of the Vietnam War. Benkler concurs, and walks us through the legal steps as to why this is so:

  • unless the government can show that publication will result in direct, immediate and irreparable harm to the U.S., or its people, any attempts to prevent publication will run foul of the First Amendment;
  • journalists cannot instruct their sources to steal documents, but they are not obligated to determine or reveal how the source obtained them;
  • in times of war, there is no better counter to ‘strong presidents’ than a free press.

The parallels between these two events have been obscured by denial and the tendency in journalistic and other circles to belittle Internet-centric forms of journalism and commentary in the blogosphere. Yet, investigative journalism and commentary are not the sole dominion of the traditional press. They are a signature feature of Internet-based news and commentary outlets. Those qualities are more important than ever in light of the constant erosion of these capabilities within the mainstream media over the past two decades or so. Hot heads and conservatives may not like dissent, but that’s why freedom of speech, press and association exists to begin with.

The fact that WikiLeaks is so solidly at one with journalistic and free press traditions helps to explain why neither it nor any of the five major newspaper organizations — The GuardianNew York TimesDer SpeigelLe Monde and El Pais – that it is working with have faced direct efforts by the U.S. Government to suppress the publication of WikiLeaks’ documents. Although, as the Twitter case indicates, this was not for a lack of trying (see here for earlier post).

The problem, however,  is that what the state has not been able to obtain by legal and constitutional measures, it has been able to gain with remarkable ease from private corporations and ‘market forces’.  Thus, buckling under the slightest of pressure, Amazon removed all of Wikileaks’ content from its servers on the same day (December 1, 2010) that independent Senator and Senate Committee on Homeland Security and Governmental Affairs chair, Joe Lieberman, called on “any . . . company or organization that is hosting Wikeleaks to immediately terminate its relationship with them”.

Two days later, the company everyDNS delisted Wikileaks from its domain name registry. As a result, Internet users who typed wikileaks.org into their browser or clicked on links pointing to that domain came up with a page indicating that the site was no longer available (in addition to Benkler, see the Guardian’s timeline on the sequence of events).

Wikileaks quickly found a new home at webserver firm OVH in France. This connection, however, was also severed after the French Industry Minister warned Internet companies on December 4 that there would be “consequences” for helping to keep Wikileaks online. The Swedish DNS provider, Switch, faced similar pressure, but refused to buckle. It continues to maintain the WikiLeaks.ch address that Internet users still use to access the site. It is also under a constant barrage of Distributed Denial of Service (DDoS) attacks. The Swedish-based Pirate Party also stepped in on December 5 to host the “cablegate” directory after they were taken off line in France and the US. Twitter has also resisted strong arm tactics from the U.S. government (see Twitter does the Right thing).

While Amazon and everyDNS took out part of WikiLeaks technical infrastructure, several other companies moved into to disable is financial underpinnings. Over the course of four days, Paypal (owned by eBay) (December 4), MasterCard and the Swiss Postal Office’s PostFinance (December 6), and Visa (December 7) suspended payment services directed by donors to the site.

The lessons here are three-fold. First, that private companies all too often all too eager to comply with political directives from the state. Cutting Wikileaks off from the key technical and financial resources after coming under the slightest bit of pressure essentially means that several key private businesses willing served as proxies for the U.S. and other governments to do what they would otherwise be prevented from doing by constitutional protections for the free press.  This is a real threat to the networked free press. It is also one of the reasons that Wikileaks exists in the first place.

Second, efforts to suppress unwanted speech are never complete. The distributed nature of the Internet and dispersed actors committed to open media and a free press means that sites can and will be relocated elsewhere. However, that should not detract from the fact that fundamental open media principles have been seriously compromised in the meantime.

Third, the reticence to recognize new forms of journalism and to lash ourselves to the mast of the ‘old’ media is compromising the cultural foundations of the ‘networked free press’. A hostile political and cultural environment is not conducive to a ‘free press’. The response of traditional media organizations, in particular, in the U.S., and the New York Times especially, has been ambivalent on this point. By collaborating with WikiLeaks, they have polished the latter’s journalistic credentials. Just as importantly, they have also once again demonstrated that gaining access to attention in a cluttered media environment still requires ‘big media’.

As Benkler emphasizes, there are contrasts in how different news organizations see WikiLeaks. In contrast to the reluctance of the New York Times to treat it as anything more than just a source, and a mangy one at that, the Guardian sees its experience with WikiLeaks as a template for a ‘new model of cooperative journalism’.  In fact, the Guardian and BBC are way ahead of their North American brethren when it comes to using ‘crowd-sourcing’ and ‘user-created content’ in news coverage.

The trend was kick-started in the UK with the London bombings in July 2005, and has continued to play a strong role since. If the current uprisings spreading through the Arab world are an indication, this ‘hybrid’ genre of news is now  moving quickly from the margins to the mainstream.

The constant hand-wringing about the ‘crisis of journalism’ in the U.S. (and to a degree in Canada), and the tendency to lay this at the doorstep of the Internet, blogs and readers unwilling to pay or incapable of discerning good journalism from bad, has undermined the status of the networked free press in the culture at large.  This ambivalence, along with the hard rights ability to reach easily for the ‘terrorist’ trope and unleash a vitriol hard to imagine in ‘normal times’, further compromises the ‘cultural protections’ needed for a networked free press.

Ultimately, Benkler does a great job, as he so often does, in drawing our attention to not just how the technology and economics of network media are decisive, but also how constitutions and culture play a pivotal role in determining whether the contribution of network media will, on balance, be a boon or bust for democratic societies.

WikiLeaks and the ‘Dogs of War’

A quick note on Wikileaks and the ‘World Diplomacy Scandal’.  WikiLeaks release of 250,000 diplomatic cable messages on Sunday, November 28 captures a whole lot of powerful people caught behaving badly. That, however, is not how the story is being spun in many quarters. Indeed, quite the opposite: the ‘dogs of war’ have come out in full force, not over the scandalous behaviour of powerful people acting stupidly as they supposedly carry out public diplomacy on our behalf, but to target the messenger for lethal consequences.  Some members of the bombastic far right of the Canadian political scene have literally advocated that WikiLeaks’ founder, Julian Assange, be assassinated.

As University of Calgary Political Science Professor Tom Flanagan, and former senior advisor to Prime Minister Harper’s election and transition teams stated on the CBC’s Power and Politics the other night that “Assange should be assassinated, actually”, while adding a touch of laughter to soften the blow of such powerful language. He “wouldn’t be unhappy” if the WikiLeak’s founder “disappeared,”, Flanagan noted. Not to be outdone, eternal blowhard Ezra Levant delivered much the same message from his perch amidst the QMI stable of media outlets, Karl Peledeau’s Quebecor Media empire. In the Toronto Sun Levant mused approvingly about the assassination of Julian Assange.  I can only wait to hear what this group’s sidekick, the self-anointed ‘military strategist and historian’ David Bercuson has to intone on the matter. Similar sentiment is even more widespread among conservative extremists south of the border. They are in good company with the Communist Party of the People’s Republic of China, which has blocked access to the site in the country, while denouncing WikiLeaks. The Italian Foreign Minister incredulously states that Wikileaks has unleashed the equivalent of a “diplomatic 9/11″.  This is nuts.

Not all of those weighing in from the lofty heights of state power in the U.S. hold such rabid views, however. There is even a certain amount of levity displayed by the Obama administration, but not much.  Instead, there is a significant crackdown on those who facilitated the leaks and a condemnation of Assange for putting the lives of soldiers and countless individuals in jeopardy.

The U.S. Government has the capacity to eliminate WikiLeaks from cyberspace. That it has not raises fascinating questions about diplomacy in the global digital media age.

The U.S. controls the ‘root domain server’ through ICANN (the Internet Corporation for Assigned Names and Numbers), the ‘global registery’ of all internet sites.  ICANN is a private corporation, but one that was created by the U.S. Department of Commerce and whose continued existence depends on the Department’s periodic renewals.  The U.S. Government does not control ICANN directly, but ICANN serves as a kind of proxy for U.S. Government interests.  ICANN could be ordered to delist Wikileaks, to send it into an electronic blackhole, at the drop of a hat (see M. Mueller, Networks and States, MIT, 2010 regarding these arrangements and capabilities).

That is a risky move, however. In this instance, given the worldwide opprobrium being heaped onWikiLeaks, a decision by the U.S. to use this power in this instance might even be applauded.  However, doing so would further fuel the ‘militarization’ of cyberspace. The same countries likely to condone such an act in this instance would also be given a stark reminder of how the power to control cyberspace is a formidable instrument of State and military power in the 21st century. Such concerns have already driven a concerted and protracted effort by many governments, and the International Telecommunications Union, to dilute the power of ICANN, or in more aggressive ‘realpolitik’ terms, to wrest such unilateral control from the U.S.  The U.S. has steadfastly refused to budge. Others groups also aim to dilute corporate and U.S. State control of ICANN, but do so as part of a much broader advocacy of a more democratic, multi-stakeholder-oriented approach to “internet governance” where freedom of expression, access, and the complex realities of a complicated world are given the highest priority (Kleinwachter; Raboy, Free Press). So far, these efforts have born meager benefits, stone-walled both by U.S. intransigence and by ‘global real-politik’ amongst countries who seek a diminution of U.S. influence only as path to aggrandizing the capacity to project their own sovereign authority over the internet.

Although the U.S. Government has drawn back from the brink of banishing WikiLeaks from cyberspace, its actions are significant, nonetheless. Why has is it refused to go all the way, so to speak?  Is it reasons of ‘realpolitik’ — the threat of further fuelling the militarization of cyberspace — that is holding it back? Or is there buried in this some deference to principles regarding the free flow of information and freedom of expression? Or is something else altogether at play?  I think it is probably a reflection of all three. The most important ‘something altogether’ is the U.S. Government’s use of private businesses as proxies to accomplish some of its aims, while drawing back from a full-scale assault on Wikipedia comparable to, say, the bombing of Al Jazeera’s media offices Kabul or Baghdad in 2001 and 2003, respectively.

In this instance, instead of laser-guided bombs dropped by jet-fighters, it is the giant internet bookseller Amazon that has accepted the role of proxy for the power of the State. Who knew that Amazon didn’t just sell books and a bunch of other merchandise, but also operated one of the world’s largest ‘server farms’, essentially giant digital warehouses that store the collections of websites like WikiLeaks, and many others.  So-called web hosts are surprisingly few and far between; the market is highly concentrated (see Eli Noam, 2009, Media Concentration in America). When Amazon was approached by independent Senator, and chair of the Senate Committee on Homeland Security and Governmental Affairs, Joe Liebermam, rather than the Obama Administration formally, with the request to drop WikiLeaks from its servers, it did.  The company, in other words, agreed to tool of the State. Censorship has been privatized.  Far better than assassination, but certainly a chilling part on the continuum of state power.

The use of private proxies is a convenient fiction that the U.S. government periodically invokes to avoid the injunction of the 1st Amendment to the U.S. Constitution (1791) prohibiting Government from making any law that abridge the freedoms of speech, the press, and association.  It is also a strategy that is consistently ruled illegal by U.S. courts.  Subcontractor capitalism may be the ‘new capitalism’, but the State is not allowed to ‘subcontract’ the suppression of citizens’ rights and freedoms to private actors like Amazon. In doing so, it puts a bullet through the heart of the First Amendment of the US Constitution and Article 19 of the United Nations Declaration of Human Rights (1948).

This is becoming an increasingly common pattern in the ‘regulation of the Internet’. Governments around the world, and not just the U.S., but in Canada, Britain, Europe, Korea, Taiwan, People’s Republic of China, among many others, have expanded the extent to which ‘private business’ are used to project national sovereignty of slices of the Internet, in particular in relation to the enforcement of copyright, standards regarding adult-oriented and pornographic material, and electronic surveillance for national security purposes. Internet Service Providers (ISPs), in particular, have become the major locus of such activities, sometimes justifiably (i.e. in relation to the notice and take-down of child pornography), often times in circumspect ways. Now such actions have been extended to taking down a dissident voice that dared to show not just that the ‘emperor has no clothes’, but that international diplomacy (and the business negotiations that interact with it) appears to be run more by a tawdry group of spoilt fratboys and drama-queens.

The yoke between network media and national security was tightened greatly by the Bush Administration’s secret “Terrorist Surveillance Program”, which was disclosed to the public in a series of articles by the New York Times at the end of 2005.  The program involved the systematic electronic surveillance of the communications of US and foreign citizens’ telephone, Internet and other communications. The program was initiated by the National Security Agency and operated with the compliance of all the major US telecoms companies — ATT, Verizon, Sprint, etc. (except, probably, Quest). The program was denounced in 2006 by the Federal Court, District of Michigan, Judge Anna Diggs Taylor, as a travesty in which the Bush Administration acted completely outside the boundaries of the law and the US constitution. Within six months, however, the U.S. Congress duly passed a new law making what had been illegal legal, and granting the telecom carriers immunity from prosecution.

Amazon now takes up its place in this long and dubious line. Moreover, it is doing so for an event that is emphatically not a ‘diplomatic 9/11′ or ‘Pentagon Papers’ situation, but rather an amazing demonstration of just how stupid people who are suppose to lead can be. For Canadians, the sight of Jim Judd, the head of the Canadian Security and Intelligence Service (CSIS) until 2009 pandering to American officials about Canadian citizens as having “moral paroxysms” and prone to “knee-jerk anti-Americanism” over Gitmo, torture and so forth, surely indicates how connected he and others like him are to the real people who make up this country. He is part of a broader clothe of what I am calling the ‘dogs of war’; and they are scoundrels.

There are other instances in which WikiLeaks has played a more important role in the past year. Indeed, the latest ‘dump’ is just that, a dump of miscellaneous examples of poor behaviour and bad judgment in comparison to the far more significant releases that it put forward on three other occasions earlier this year related to Iraq, Afghanistan, and the infamous “collateral murder” video of two Reuters journalists killed by American soldiers (Google the “collateral murder” video distributed by WikiLeaks, and now on YouTube). The two journalists, Saeed Chmagh and Namir Noor-Eldeen were among twelve people killed in a suburb of Baghdad in July 2007 when soldiers in an Apache helicopter hovering overhead opened fire. Watching the video, and from the soldier’s perspective, it is plausible that the soldiers could have had legitimate ambiguities about whether the people they were stalking were packing RPGs and AKs, as the narrative accompanying the video constantly states.

Even so, the video demonstrates a more reprehensible portrait of soldiers jacked up on testosterone and a mission where human life appears to be worth precious little.  The global news agency Reuters, which Canadians might now be interested to know, if they don’t already, is now owned by the Thomson information and newspaper powerhouse (Globe & Mail), and to its credit the news agency sought access to the video footage through the Freedom of Information Act in the United States. Nothing came of such efforts. The graphic footage only became available when Wikileaks released the material in April, 2010. Level-headed groups like Reporters Sans Frontiers have either denounced the actions or called for much more forthright inquiry into the killing of these journalists, as well as others in the Afghan and Iraq Wars.

The spaces of war and the space of media have converged in the 21st century. In fact, this is recognized in the new doctrine of information warfare adopted by the United States Department of Defense in 2003, where cyberspace is made into the fifth realm of ‘total military dominance’, alongside the traditional areas of land, sea, air and space. At a time when war proceeds with no definitive bound in time or space, outlets like WikiLeaks are essential members of an expanded ‘digital fourth estate’.  They are also inevitable in this age of co-operative news and commentary production.  The reaction to WikiLeaks by the ‘dogs of war’ in Canada and other places around the world is a travesty, a real disgrace.  It is not just a threat to the life of Julian Assange and the free flow of information that is at stake, but the rights of us all to know and to live in a decent world.

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