Note: I forgot to mention that the piece is coming out this spring in the Wake Forest Journal of Law & Policy. Thanks to Jim Bauer and his team for their hard work on it! (Updated 15 Feb. 2011.)
Hat tip: to Larry Solum and Josie Brown for linking to the piece on their blogs.
I’ve uploaded the draft of a short article on WikiLeaks to SSRN. It examines the claims that WikiLeaks can be understood as the Internet progeny of the famous Pentagon Papers case, and argues that the site falls short. Here’s the abstract:
WikiLeaks is frequently celebrated as the whistleblowing heir of the Pentagon Papers case. This Essay argues that portrayal is false, for reasons that focus attention on two neglected aspects of the case. First, the New York Times relied on a well-defined set of ethical precepts shared by mainstream journalists to contextualize the Papers and to redact harmful information. Second, American courts acted as neutral arbiters of the paper’s judgment, and commanded power to enforce their decisions. WikiLeaks lacks both protective functions to regulate its disclosures. The Essay suggests that WikiLeaks is a bellwether: an exemplar of the shift in power over data generated by plummeting information costs. While that trend cannot realistically be reversed, the Essay offers two responses to the problems that WikiLeaks and its progeny create. First, established media outlets must continue to act as gatekeepers governed by strong journalistic ethics, even in an environment of ubiquitous access to raw data. Second, governments should consider, and debate, the possibility of using technological countermeasures – cyberattacks – against intermediaries threatening to disclose especially harmful data. There are times when the censor should win.
I welcome comments on the piece!
Filed under: Anonymity, Court Decisions, Encryption, Filtering, First Amendment, Intermediaries, international, Internet & Society, Law School, Media, national security, NSA, Open Access, Peer Production, Privacy, Scholarship