WikiLeaks and the Pentagon Papers

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!

One Response to “WikiLeaks and the Pentagon Papers”

  1. I disagree with your comments on scrutiny of wikileaks. Unlike governments where the difference in scrutiny is important (in that it’s difficult to replace a government) the scrutiny of wikileaks processes and procedures in it’s own decision making and accountability is unnecessary. If wikileaks “misbehaves” (or one don’t like it) you or I or anyone can start our own leak site almost overnight — and live up to a higher standard you suggest the press has while by choice submitting to the jurisdiction of the courts. Then over time the marketplace evolution will determine if the higher standard leak service is necessary. In the end, the existence of wikileaks itself is evidence that the press is not filling the needs of the market and that the government is failing to be openly accountable enough to the people. If both were to the satisfaction of all members of the public then wikileaks never would have existed to fill that gap.

    In the larger view, I think your the essay rests on the assumption that it should be ok for the government to censor for nation security — that the people delegated permission to the government to withhold information from them under the name of national security. I don’t remember that being an explicit delegation of power from the people to the government. Maybe its in a penumbra somewhere. My review last year indicated that the creation of the nation security privilege was created by the courts, but when examined in light of history (aka the truth uncovered years later) its becomes evident that the privilege itself was created based on lies and decent by the government itself.

    So while the government is busy fighting the “war” on terrorism, the “war” on drugs, and every other “war” I’ve long since forgotten about, we the people need to start fighting the war of government accountability — just as the government removes from criminals certain rights and privileges upon being found guilty of crimes, we the people should remove from the government the privilege of withholding information.

    As a republic we cannot effectively audit our representatives, see if they are telling us the truth, and hold our representatives accountable if we do not have all the information.