I find the conflation of Julian Assange and WikiLeaks as one entity to be one of the more frustrating features of the WikiLeaks furore, and was therefore pleased to read Clay Shirky’s analysis of what groups like WikiLeaks mean for the future of, well, the world and democracies—rather than whether Julian’s rape charges are really a US conspiracy to “get at” WikiLeaks.
Like many recent areas directly affected by the changing ways technology provides to mediate access to content—in this case both access to data to leak and the ability to widely and instantly publish leaked data—the reaction generally seems to miss out on the fact that we’re dealing with fundamentally game-changing processes at work.
For many of our most important social systems, we resolve clashing principles by providing an escape valve, in the form of a set of actors who are less rule-bound than the rest of the system. The most famous and ancient is the jury, a collection of amateurs who can, in the face of clear laws and evidence, simply not return the verdict a judge would have returned.
So with secrecy. Though I am not a lawyer, the Supreme Court’s 1971 ruling [with respect to the Pentagon Papers] seems to say that there is no law-like way to balance the State’s need for secrets with the threats secrets pose to democracies, so it simply said that the 1st Amendment provides immunity to publishers in most circumstances; the presence of publishers as “unrestrained actors” provides one of the many limits on government power that make democracies work.
These unrestrained actors typically do have rules affecting them, not necessarily legal rules but societal mores, so what happens when a publisher has less control acting upon it by a society?