Berkman Center faculty associate Matthew Hindman provoked an energetic email exchange among members of the extended Berkman community today, in anticipation of U.S. Secretary of State Hillary Clinton's "Internet Freedom" speech (transcript, #NetFreedom). Matt had asked for suggestions of a question to ask Secretary Clinton:
A digest of the pre-speech responses to Matt's request:
Rebecca MacKinnon: I also understand that this is an effort to assert that the U.S. still believes in Internet freedom after wikileaks.
Clay Shirky: so a possible question might be to ask her why she thinks those two views are compatible.
Sasha Costanza-Chock: here are some followups for "will anyone think the U.S. still believes in internet freedom after..."
* After the Protecting Cyberspace as a National Asset Act (the 'kill switch' legislation)?
* After ACTA (Anti-Counterfeiting Trade Agreement)?
* After the proposal to use trade law (Special 301) to target countries that 'harbor pirate websites' contained in this 90 pages of IP monopolist industry drivel: Feb 2010 Intellectual Property Enforcement Coordinator report?
* After maneuvering for 'veto power' over new top level domains?
Elliot Noss: please do not forget the COICA bill and ICE enforcement against domain names.
Chris Soghoian: "This week, the House Judiciary Committee is holding a hearing focused on law enforcement access to modern communications services -- specifically, the FBI wants backdoors in Skype, Blackberry, Google and Facebook. If the FBI wants to force these services to enable communications intercepts, how can we judge the Saudis, the Indian and the Lebanese governments for wanting similar access? Isn't it a bit hypocritical for the State department to encourage the use of secure encryption tools in those countries when the FBI is trying to circumvent encrypted communications here in the US."
Rebecca MacKinnon: "Given that no case has yet been brought in any court against Wikileaks for publication of the diplomatic cables, if the U.S. Secretary of State makes a statement claiming that Wikileaks had no right to do what it did - despite the fact that numerous first amendment scholars believe there is no legal case against Wikileaks - isn't that a message to the world that the U.S. executive branch seeks to weaken the first amendment, does not respect rule of law, separation of powers, or the fundamental principle of our legal system that everybody is innocent until proven guilty?"
Wendy Seltzer: "We've set a great example for the world in protecting freedom of expression through the First Amendment -- even when that expression makes those in our government uncomfortable. If the Secretary is now condemning Wikileaks without a trial and Senator Lieberman pressured Amazon to stop doing business with the group -- despite the fact that numerous first amendment scholars believe there is no legal case against Wikileaks -- doesn't that weaken the power of our example? Do we now invite others to disregard rule of law, separation of powers, and the fundamental principle that everybody is innocent until proven guilty?"
Brad Abruzzi: "It's been argued that the U.S. government exerted pressure and made threats implicit or explicit under the century-old espionage laws that predate and surely offend contemporary, generally-held constitutional protections owed to a free press, in order to deter online entities from hosting the leaked diplomatic cables and routing donations to Wikileaks. To the extent this has occurred, don't these actions compromise our moral authority to advance the causes of Internet freedom, free expression, the rule of law, and the fundamental legal principle of innocent-until-proven-guilty?"
"How does your stated position that Wikileaks acted unlawfully -- which we assume is based on the century-old espionage laws that predate and surely offend contemporary generally-held constitutional protections owed to a free press -- square with the values that you hope to promote abroad (e.g., Internet freedom, free expression, the rule of law, and the fundamental legal principle of innocent-until-proven-guilty)?"
Dan Gillmor: And will the technology being created to preserve Net freedom in other countries be deployed in the US, too?
David Weinberger: If I may answer for The Secretary: We support Internet freedom, not the use of the Net for unlawful purposes, whether that's to violate national security or the rights of the owners of intellectual property. This is precisely analogous to our nation's long-held commitments to free speech and the right to assembly: those rights are not intended to protect illegal activity,
Since that is pretty much the predictable answer (isn't it?) and since that answer is not by itself all that outrageous or unreasonable (note my weasel words "by itself"), I think to push this discussion forward, you have to either focus on something highly specific (to which The Secretary is likely to give a dodgy, unsatisfyingly generic answer) or try to take the discussion in a different direction. E.g.:
"It is thrilling to hear the Secretary of State stand so firmly on the side of Internet Freedom. But, when it comes to how to apply that policy, we seem to be running into a clash of cultures on several issues. For example, US policy increasingly favors strict enforcement of so-called intellectual property rights, including harsher punishments, while many on the Internet (including many young people) are building a culture based on sharing and remixing that assumes a looser interpretation of those rights. There has not been in this country an opportunity for all the stakeholders to sit at the table to discuss how these issues might be worked through to protect the rights of creators and remixers in the new age the Net is ushering in. Would you favor opening such a dialogue, sponsoring it, having State participate in it, and perhaps holding off on some of the more extreme IP protection policies the US government is so aggressively pursuing?"
Bruce Etling: She'll address this argument in her speech, I'm sure. I too would emphasize the need to be supportive of the goal of a free and open internet for everyone; i don't think this community is opposed to that. My response on the wikileaks question if I'm Secretary Clinton:
"If a Chinese or Iranian patriotic hacker broke into your computer and online accounts and stole your banking and credit card information and posted that on the web to intimidate you, and also broke into your email to find out which dissidents you are talking to privately and made those names public as well as portions of those emails, taken out of context, to arrest and then try those dissidents on trumped up charges, and you speak out against those hackers, aren't you, as a leading internet scholar, being hypocritical, seeking to weaken the first amendment, lack respect for the rule of law, separation of powers, and the fundamental principle of the US legal system that everybody is innocent until proven guilty?"
While those in support of wikileaks will argue he's a journalist and has free speech protections, it is clear that the govt. treats this as a case of theft and possibly violation of espinage act. All public statements have made this clear and they will not say the opposite publicly at this speech--if you got her to say that opposite it would be something, but I doubt she would fall for it.
Jillian York: The counter-question to that, of course, is what the US would do if a Chinese or Iranian patriot hacker broke into their government's systems and released documents...
As to your second point, though I think you're absolutely right about their attitude, that still doesn't explain why the US State Department would stand idly by while a US Senator bullies corporations--without any law to back him--into taking Wikileaks sites down. That most certainly doesn't jibe with US attitudes toward whistleblowing sites elsewhere.
Yochai Benkler: If this ends up being her response, then it would be based on a reassertion of what we know to be false, factually. That's what I spent the last two months studying and what I documented in the paper I emailed around last week. Wikileaks did nothing remotely comparable to "broke into your computer and online accounts and stole your banking and credit card information and posted that on the web to intimidate you, and also broke into your email to find out which dissidents you are talking to privately and made those names public as well as portions of those emails, taken out of context," It isn't about being "haters" as opposed to "loyal opposition." It is about refusing to be swept up in moments of red baiting and witch hunts.
If the secretary wants to preempt these claims, she should say something like
"Internet freedom is hard, it can be embarrassing and it can be challenging. We learned it on our own skin with Wikileaks, and we overreacted because it can be very unpleasant, and it can seem very threatening. But we spent the last two months digesting the events and we have come to understand that at the end of the day we are all better off in a world where Wikileaks can leak and we get to argue back, but not shut it down."
I wouldn't hold my breath.
Bruce Etling: i love david's framing/question.
jill, that is a good question. i don't think that's ever happened, though, so we don't know yet. (right?) or has secretary clinton said something specific about an overseas whistle blowing site already?
Yochai Benkler: as to whether it is, or is not, appropriate to criticize State for what Lieberman did, remember that PayPal referred to Harold Koh's letter in its explanation of its removal of services, and that letter apparently also played a role in how Amazon justified its removal of services; OMB memo regarding continuing classified status was followed by a range of agencies, including pentagon and library of congress, shutting off access to Wikileaks for their employees; and the Washington Post publishing a career advice column suggesting that ambitious young professionals not read the cables if they don't want to jeopardize their futures in government jobs.
I'm not sure it is very powerful to say, "I stood up and said that Wikileaks was an attack on the international community; my legal advisor wrote a letter demanding return of the cables that were illegally obtained; the Vice President said Assange was like a high-tech terrorist; Senate Homeland Security Comittee chairman asked firms to shut down access; I said nothing when firms began shutting off services to Wikileaks in response to his request; but, hey, the US government is a complicated place, and we're not responsible for what others are doing." Would we accept "the government is a complicated place" as an excuse made by the foreign minister of another country in reference to some other agency being responsible for asking private ISPs to shut down Internet access to a political irritant?
Catherine Bracy: It's worth noting that Secretary Clinton specifically called out Joe Lieberman in her last Internet Freedom speech:
"I wish to acknowledge Charles Overby, the CEO of Freedom Forum here at the Newseum; Senator Edward Kaufman and Senator Joe Lieberman, my former colleagues in the Senate, both of whom worked for passage of the Voice Act, which speaks to Congress’s and the American people’s commitment to internet freedom, a commitment that crosses party lines and branches of government."
Fernando Bermejo: It seems that the idea of Internet freedom, as being put forth by this administration, aims towards universal applicability (after all, why is it the Secretary of State—and not any other Secretary—who’s become the main proponent and leading figure in this issue?). My question would be whether she is willing to accept the same principles at home and abroad. If Wikileaks releases secret information from an African government or from China, is that a problem? (If not, it should be the same for the US). If Iranian officials put Liberman-like pressure on private companies to block, say, Facebook, is that a problem? (If yes, it should be the same for the US). Etc.
Matthew Hindman: There are some great points and suggestions in this thread.
It's a hard call, but I'll do my best to ask a variant of Dan and Fernando's question (with some additional context added by Sasha / Chris / Bruce / others): will the same principles and technological tools that we use to support activists in emerging democracies be available U.S. citizens?
The conversation continued through Secretary Clinton's speech:
Jillian York: Well, [Clinton] answers my second question! Too bad she didn't call out Lieberman by name.
Rebecca MacKinnon: so according to her logic the pentagon papers should not have been allowed either?
Jillian York: The problem, I think, is that her framing implies that Wikileaks itself stole the documents. Since we don't know if that's true (the alternative being they were handed the documents by Manning), then the question is: would her response be different if she thought Manning--and not by Wikileaks' order--had stolen the documents?
Rebecca MacKinnon: yeah exactly. i thought the law was pretty clear. that stealing docs is a crime, but publishing them if you obtain them from somebody else is not.
Jillian York: That's why I think her premise is that Wikileaks itself stole (or coerced Manning to steal) the documents.
Bruce Etling: I'm waiting to read Yochai's article, but my understanding is that if they can prove that Assange coerced or encouraged Manning to steal the documents, then they can prosecute him under the espionage act as part of a conspiracy to steal the documents. My understanding is that it will be very difficult to prove.
Harry Lewis: So the question could be very simple: "Are you saying that Wikileaks stole the diplomatic cables and should be prosecuted for theft? Or merely "denounced" for publishing documents someone else stole?" She should be pinned down on this dishonest rhetorical glide, which does make the NYT of Pentagon Papers day also thief.
Andy Carvin: Alas, she took no questions. Bolted as soon as she finished.
Matthew Hindman: Apparently Secretary Clinton has decided that discretion is the better part of valor. Unlike her Internet freedom speech a year ago, and contrary to on-the-ground reports prior to the event, she left the podium without taking questions...
I'm sorry that I didn't get a chance to ask a question. But thanks anyway for an edifying discussion.
Brad Abruzzi: But the Espionage Act also, by its terms, reaches distribution and even receipt of information downstream of the "theft." 18 U.S.C. sec. 793(c), (d) (query whether the state of mind req'ts might give Wikipedia some wiggle room. as against the measure of deference a court might give to the gov't's views on what is "information relating to the national defense" and "used to the injury of the United States, or to the advantage of any foreign nation").
To my knowledge there is no First Amendment limiting gloss on the law that would constrain the government from enforcing these provisions criminally, where the recipient did not conspire in or aid and abet the theft (although the Court has interposed a requirement that the defendant have acted in bad faith). The Pentagon Papers case only declined to restrain the publication of the papers; it did not rule out criminal punishment of publication after the fact.
The Secretary makes a fair point, I think, in emphasizing the difference between persuasion and coercion — although as anyone working in the U.S. State Department well knows, there are gradations between the two, and we might very well obtain a result by "persuading" a result by implying coercion in the alternative. We're all much more persuasive when we're backed by power. Brandishing laws like these, with their significant criminal penalties and all the uncertainty that attends their application, starts to edge into the coercion zone. Short of doing the brandishing, it's still at least somewhat problematic to deploy "persuasive" rhetoric against this backdrop of law.
Yochai Benkler: 1. part III of the paper does the legal analysis. If they had stolen, it's not controversial that they can be prosecuted for the theft. But that has never been the argument. It's "conspiracy" of a type that would put the NYT reporters who did NSA eavesdropping or Pentagon Papers as co-conspirators as well.
2. The strategy in this talk is similar to the strategy throughout the events. The framing is very similar to Koh's letter, or, for that matter, to Mitchell's letter to the NYT during the Pentagon Papers conflict.
Step A: state truthfully that the documents were obtained initially illegally (by the whistleblower);
Step B: leave open the implication that publishing the materials was also illegal.
This is false, as a matter of constitutional law; but it is not in fact stated, it is merely implied by omission; this leaves room for various extralegal avenues that can be denied as not under your control to do the suppression work (Amazon, EveryDNS, Mastercard, various US agencies for computer systems under their control, etc.)
Step C: Make the weakest possible version of the claims of your critics: that saying Wikileaks should not be suppressed means that you think that governments should never have confidential communications ever. And then use the obvious refutation of that claim to produce the implication that you are in fact engaging the criticism. This is nonsense. The argument is that it is the government's role to keep confidential what needs to be kept confidential, and it is the press's role to decide which parts, and how, to publish when leaks do occasionally occur. This produces a system that mostly can work secretly, with occasional stochastic moments of sunshine to give a spot-checking possibility for the public.
There is nothing unusual about this practice. It is fairly standard in debating and legal argument. As in those other contexts, the fact that a skilled practitioners makes the moves does not mean you, the reader, should allow yourself to be suckered into thinking that it is in fact a substantive response to the actual criticism.
David Weinberger: By my reading of her remarks, she would have condemned the leaking of the Pentagon Papers, assuming that those documents had the same deleterious effects on policy and safety of personnel that she claims for the Wikileaks material. "Condemn" is weak tea in the range of options, and I don't think there is any Secretary of State in history who would condone (and not condemn) the leaking of confidential materials.
So, the question isn't whether she condemns the leak. Of course she does. The question is what steps she thinks should be taken to prevent such leaks and to punish those in the chain of leakage. About that she is quiet in this snippet of this speech, except to say that the gov't did not (and, by implication, should not) "coerce conduct" in the private sector that would limit Internet freedom.
If you think about the pressure she's under, what she says seems designed calibrated to dispute those who want to use Wikileaks as an excuse to limit Internet freedom.
How this matches to State's behavior -- then, now, and later -- is a different matter.