Wikileaks and the Hard Problem of Changing Social Bargains

The economics of media have been so transformed that the old legal bargains between freedom and restriction are breaking, and we have no easy way of replacing them.
This post was published on the now-closed HuffPost Contributor platform. Contributors control their own work and posted freely to our site. If you need to flag this entry as abusive, send us an email., a website for anonymous individuals to report illegal or unethical behavior, was briefly and famously shut down by Judge Jeffrey White of San Francisco. Or rather, it was half-way shut down -- Judge White ordered that the web address be de-activated, though the site itself remained intact. Judge White took this step because a former VP of Bank Julius Baer & Co., a Swiss bank with a branch in the Cayman Islands, leaked internal documents about the banks' practices in Cayman, documents the leaker claimed showed the banks' strategies for money laundering and tax evasion.

Judge White's action was a little like shutting down a newspaper, sports section and all, for a libelous article in the business section, and he eventually realized this, reversing his own ruling with the rueful observation that "Maybe that's just the reality of the world that we live in. When this genie gets out of the bottle, that's it."

Between the injunction and reversal, it was widely observed that the technical approach of revoking the Wikileaks domain name was ineffective, as the content could still be accessed through its IP address, as well as on other web sites and file sharing services. It's easy to mock Judge White for getting both the law and the technology so wrong, but underneath these seemingly simple issues, the WikiLeaks case exposes a much broader issue.

There is a tension between freedom of speech in general, and restriction of certain kinds of speech; how can society let people say what they like, while still restricting things like libel or publication of trade secrets? And although the law around these issues hasn't changed, the economics of media have been so transformed that the old legal bargains between freedom and restriction are breaking, and we have no easy way of replacing them.

The current way we have structured this bargain relies on the motivations of media professionals. Since media outlets are costly and complex to set up and run, every such outlet has a natural constituency, the professional publishers and editors and engineers who have a long-term commitment to the business. Because these professionals have a long-term commitment, it is possible to balance broad freedom of speech with specific classes restrictions, with laws that punish media professionals for publishing libelous material or trade secrets. The threat of these punishments motivate them to act as filters, not publishing such material in their newspapers or airing it on their stations. And because there are so few media outlets, society can rein in certain kinds of speech with very little little legal leverage.

Except none of those things are true anymore. Creating media is no longer costly or complex as an absolute case, it doesn't require trained professionals, and it doesn't require long-term commitment. Amateurs now have direct access, without going through a professional bottleneck.

Media, in its most elemental form, is the means of repeating a message thousands or millions of times, a capability that has become vanishingly cheap and held in common by amateurs and professionals. This mass amateurization is an end to the scarcity of media outlets. Now, if you have something to say in public, you don't need to ask anyone for help or permission. We can try to find you and punish you, but this will always be post hoc -- the self-interest of media professionals in keeping their jobs is no longer a way of preventing the amateurs from speaking out.

The motives of the Julius Baer VP were doubtless impure, but it didn't matter. He got the documents out anyway, and he could do it again tomorrow. Judge White could have gone a lot further in shutting down the WikiLeaks site, but even if he had, it is but one site of many, in but one country of many.

The question here is not whether we want to increase the ability of every employee able to violate trade secrets. Thats the situation we have today, and short of wholesale internet censorship it is the situation we will have from now on. The question is how (or whether) we can continue to carve out an exception to free speech for cases like Julius Baer without doing more harm than good. So many of our legal traditions around media assume scarcity, commercialization, and professionalization that our sudden lurch to a world of abundant, free, amateur media is going to threaten many existing social bargains, not just the the ones around trade secrets. Judge White's original injunction was a particularly bad solution, but that's no guarantee that there is a good solution to be easily had.

Popular in the Community