Is there such thing as illegal information?

WikiLeaks founder Julian Assange, calmly trying to interpret social cues

Deep in this New York Times article about Julian Assange’s sexual assault charges is another, more interesting story about Amazon’s decision to stop hosting the WikiLeaks website on its servers—a decision apparently prompted by a call from the Homeland Security and Governmental Affairs Committee. According to committee chair Joe Lieberman, staffers asked Amazon to explain its business relationship with WikiLeaks. They didn’t tell them to terminate that relationship, of course; that would be borderline-unconstitutional, and certainly creepy. They just called the multibillion-dollar web-based retailer and pleasantly inquired how many of their web servers might be connected to the activities of a publicly-declared enemy of the US government. By sheer coincidence, Amazon shut down WikiLeaks’s site a few hours later.

Joe Lieberman approves. Quote:

I wish that Amazon had taken this action earlier, based on WikiLeaks’s previous publication of classified material. The company’s decision to cut off WikiLeaks now is the right decision and should set the standard for other companies WikiLeaks is using to distribute its illegally seized material. [Wikileaks’s] illegal, outrageous, and reckless acts have compromised our national security and put lives at risk around the world. No responsible company—whether American or foreign—should assist WikiLeaks in its efforts to disseminate these stolen materials.

The “material” Lieberman refers to is, of course, information. It’s a manner of speaking, calling the mass of diplomatic cables and other official communications “material,” that comes from years of talking about classified documents. The word “material” only becomes problematic when we match it with the word “stolen.”

Information is not a material thing, and one of the most important aspects of its immateriality comes to the fore when we start talking about stealing it. Obviously, the US State Department still has all of the communiques that Assange leaked. Even if they somehow didn’t, they could download them from his website. The State Department cables are “stolen” only in the sense that the information they contain became public through illegal means.

Bradley Manning gave Julian Asssange the WikiLeaks cables, and the means by which Manning got them were surely illegal. Whether what Assange did—accept classified information from a source that got it illegally, possibly at his direction and possibly not—was illegal is a little more gray. Whether what Amazon did—provide Assange with a platform by which to make his maybe-illegally-obtained information available to the general public—was illegal is positively overcast. Yet the US government, or at least the part of it directly overseen by Joe Lieberman, has no compunction against strongarming one very large corporation to make this “illegal information” disappear.

According to CNN, the feds are poised to prosecute Assange. Representative Peter King (R–NY) has said that he should be tried for espionage, and that WikiLeaks should be classified as a terrorist group “so we can freeze their assets.” He also said Assange should be classified as an enemy combatant—presumably so he can be detained indefinitely without trial, and maybe waterboarded.

It’s hard to tell when we’re hurtling through the moral constraints of government at such terrifying speed, but that thing on the horizon looks like an uncomfortable parallel. Back when we were tying “enemy combatants” to boards, stuffing towels in their mouths and pouring water down their noses and throats to allow them to experience the sensation of death by drowning for indefinite periods of time, we got all sorts of information. Now that we have agreed with the rest of the international community that waterboarding is torture, what do we do with that it?

By the federal government’s own reasoning, that information is illegal because it was obtained through illegal methods. We ought to seal it up and pretend that we don’t know any of it, like we do with the findings from Nazi medical experiments. Yet I suspect that whatever locations of Taliban encampments various Afghan prisoners blurted out as their brains flooded with endorphins in preparation for death are still clearly marked on a map somewhere. And I suspect that the State Department would argue that information is neutral, and it’s okay for us to know it now regardless of how we got it, because it’s important.

I’m not sure if what Julian Assange did was right. I am sure it wasn’t an act of terrorism, unless we’re now willing to define terrorism as “telling people stuff the US government doesn’t want them to know.” I am also sure that there is nothing illegal or even immoral about reading those diplomatic telegrams. If we’re going to let a congressional committee act as if it were illegal to let other people read them, maybe we should start laying down some ground rules. We need to ask ourselves some hard questions, and the first might be why we’re afraid of certain types of information in the first place.

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  1. If someone working in Defense (wherever) copies or otherwise appropriates information detailing who’s working undercover where; or weaknesses in America’s defense, like the secret to shutting down SAC, and then gives it/sells it to someone else (say, “the enemy”, or Cosmo, or the NYTimes) is that treason or just “providing information”? What if they “leak” a city engineer’s memo detailing how the entire NYC electrical grid could be brought down or the perfect spot to plant an explosive that would bring down the Brooklyn Bridge, is this an exercise in freedom of speech?

    Could the Wikileak people be prosecuted under some “industrial espionage” theory? Sued for conversion of property for their own commercial use? Sued by individuals whose family members die, via some extrapolation of how divulged information may or may not have been connected to their deaths? Does every author of every memo have a case for alleging theft of their “intellectual property”?

    Is this type of leak OK because it involves the government; but wouldn’t be OK if it involved an individual’s diary? Medical or mental health records? The business plan of a new company in a competitive field?

    Does “public discourse” have any boundaries?

  2. This issue is a briar patch. There are so many frameworks from which to evaluate it, which makes it fascinating but also societally disastrous. We need a consensus on something like this, and we’re never going to get it.

    Let’s remove terrorism and national security from the conversation for a second. While there are certainly thresholds of this reason that are overcome in many, many instances of everyday professional behavior, there is often good reason for keeping specific pieces of information non-public (if not secret). Diplomats, bureaucrats, etc. need to be able to communicate clearly and emphatically to perform their jobs effectively. To rob them of that robs them of a necessary condition for efficacy. Imagine if every conversation you ever had at your job was suddenly painfully public. Fuck. And the argument that they shouldn’t have written this stuff down is fallow: They’re flung across the globe, across different time zones and telecommunications systems, and were communicating on a purportedly private server.

    I’ve read a lot of blog posts from internet purists (a community I think should do a more thorough job of self-review and examining its principals) who take a sort of libertarian, “information belongs to everybody,” tack on this issue. Simple worldviews are a hallmark of simpletons. Extend that thinking to its logical end, and take a long hard look at the world thereby created. … The fact is: Information does not belong to everybody. Information is an asset, and assets do not belong to everybody (by definition). If information belonged to all of us what would happen to the expertise we work so hard to develop our entire lives? What would happen to privacy? What would happen to capitol markets, and the workplace, and competitiveness? I’m all for the idea of a more-level playing field; but that presupposes a playing field.

    One thing I’m surprised about in this discourse is the lack of calls from the internet privacy community.

    Another is the quietude from another set of internet purists: What about people who deeply, honestly feel that the internet is a social good and an instrument of progress? Is WikiLeaks in line with that view? Depends on how you define “social good” and “progress.”

    Which brings us to this concept of a briar patch.

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