[AfrICANN-discuss] Seven Thoughts on Wikileaks

Anne-Rachel Inné annerachel at gmail.com
Sun Dec 12 12:16:34 SAST 2010

Thoughts on Wikileaks

by Jack Goldsmith<http://www.law.harvard.edu/faculty/directory/index.html?id=559>

   - I find myself agreeing with those who think Assange is being unduly
   vilified.  I certainly do not support or like his disclosure of secrets that
   harm U.S. national security or foreign policy interests.  But as all the
   hand-wringing over the 1917 Espionage Act shows, it is not obvious what law
   he has violated.  It is also important to remember, to paraphrase Justice
   Stewart in the *Pentagon Papers*, that the responsibility for these
   disclosures lies firmly with the institution empowered to keep them secret:
   the Executive branch.  The Executive was unconscionably lax in allowing
   Bradley Manning to have access to all these secrets and to exfiltrate them
   so easily.

   - I do not understand why so much ire is directed at Assange and so
   little at the *New York Times. *What if there were no wikileaks and
   Manning had simply given the Lady Gaga CD to the *Times*?  Presumably the
   *Times *would eventually have published most of the same information,
   with a few redactions, for all the world to see.  Would our reaction to that
   have been more subdued than our reaction now to Assange?  If so, why?  If
   not, why is our reaction so subdued when the *Times *receives and
   publishes the information from Bradley through Assange the intermediary?
   Finally, in 2005-2006, the *Times *disclosed information about important
   but fragile government surveillance programs.  There is no way to know, but
   I would bet that these disclosures were more harmful to national security
   than the wikileaks disclosures.  There was outcry over the *Times’
   disclosures, but nothing compared to the outcry over wikileaks.  Why the
   difference?  Because of quantity?  Because Assange is not a U.S. citizen?
   Because he has a philosophy more menacing than “freedom of the press”?
   Because he is not a journalist?  Because he has a bad motive?

   - In *Obama’s **Wars*, Bob Woodward, with the obvious assistance of many
   top Obama administration officials, disclosed many
top secret programs, code names, documents, meetings, and the like
   *. *I have a hard time squaring the anger the government is directing
   toward wikileaks with its top officials openly violating classification
   rules and opportunistically revealing without authorization top secret

   - Whatever one thinks of what Assange is doing, the flailing U.S.
   government reaction has been self-defeating.  It cannot stop the publication
   of the documents that have already leaked out, and it should stop trying,
   for doing so makes the United States look very weak and gives the documents
   a greater significance than they deserve.  It is also weak and pointless to
   prevent U.S. officials from viewing the wikileaks documents that the rest of
   the world can easily see.  Also, I think trying to prosecute Assange under
   the Espionage Act would be a mistake.  The prosecution could fail for any
   number of reasons (no legal violation, extradition impossible, First
   Amendment).  Trying but failing to put Assange in jail is worse than not
   trying at all.  And succeeding will harm First Amendment press protections,
   make a martyr of Assange, and invite further chaotic Internet attacks.  The
   best thing to do – I realize that this is politically impossible – would be
   to ignore Assange and fix the secrecy system so this does not happen again.

   - As others<http://thecable.foreignpolicy.com/posts/2010/12/07/state_to_host_celebration_of_digital_information_openness>have
pointed out, the U.S. government reaction to wikileaks is more than a
   little awkward for the State Department’s Internet Freedom
   The contradictions of the initiative were apparent in the speech that
   announced it<http://www.washingtonpost.com/wp-dyn/content/article/2010/01/31/AR2010013101834.html>,
   where Secretary Clinton complained about cyberattacks seven paragraphs
   before she boasted of her support for hacktivism.  I doubt the State
   Department is very keen about freedom of Internet speech or Internet
   hacktivism right now.

   - Tim Wu and I wrote a book called *Who Controls The
   ?* One thesis of the book was that states could exercise pretty good
   control over unwanted Internet communications and transactions from abroad
   by regulating the intermediaries that make the communications and
   transactions possible – e.g. backbone operators, ISPs, search engines,
   financial intermediaries (e.g. mastercard), and the like.  The book
   identified one area where such intermediary regulation did not work terribly
   well: Cross-border cybercrime.  An exception we did not discuss is the
   exposure of secrets.  Once information is on the web, it is practically
   impossible to stop it from being copied and distributed.  The current
   strategy of pressuring intermediaries (paypal, mastercard, amazon, various
   domain name services, etc.) to stop doing business with wikileaks will have
   a marginal effect on its ability to raise money and store information.  But
   the information already in its possession has been encrypted and widely
   distributed, and once it is revealed it is practically impossible to stop it
   from being circulated globally.  The United States could in theory take
   harsh steps to stop its circulation domestically – it could, for example,
   punish the *New York Times *and order ISPs and search engines to filter
   out a continuously updated list of identified wikileaks sites.  But what
   would be the point of that?  (Tim and I also did not anticipate that state
   attempts to pressure intermediaries would be met by distributed
   denial-of-service attacks on those intermediaries.)

   - The wikileaks saga gives the lie to the claim of United States
   omnipotence over the naming and numbering system via ICANN.  Even assuming
   the United States could order ICANN (through its contractual arrangements
   and de facto control) to shut down all wikileaks sites (something that is
   far from obvious), ICANN could not follow through because its main leverage
   over unwanted wikileaks websites is its threat to de-list top-level domain
   names where the wikileaks sites appear.  It is doubtful that ICANN could
   make that threat credibly for many reasons, including (a) the sites are
   shifting across top-level domains too quickly, (b) ICANN is not going to
   shut down a top-level domain to get at a handful of sites, and (c)
   alternative and perhaps root-splitting DNS alternatives might arise if it
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