Governance in the age of Wikileaks — Part 3

The past few entries have covered Wikileaks and its impact. Part of my reason for doing so is that I believe that this is another battle in the continuing war to retain freedom of expression on the internet. But what principles should be established? In this entry, I try to establish some basic concepts that could be used moving forward.

Wikileaks on Paper

Imagine, for an instant, that wikileaks had enough money to print its leaks on paper and distribute the leaks in paper form to millions of people. Would that make a difference?

In truth, it probably would make a substantial different in terms of the debate as there would be ample precedent allowing for Wikileaks to do on paper what it has done on the internet.

The first amendment and leaks

In 1969, the New York Times was given access to 43 volumes of classified information stolen from the Pentagon. The issue, to later be known as the “Pentagon Paper”. The government first tried to get the Times to no publish things, and then they decided to take them to court. The case quickly made its way to the Supreme Court where it received a swift response:

In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people


The word “security” is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged.

This case pretty much established that the press was protected when it cames to exposure of leaks. The argument was fully grounded on the first amendment providing that support.

The first amendment and the internet

It was a different case that brought these rules into the internet age. In 1996, the US passed the Communication Decency Act, which attempted to control indecent content on the internet. In a quick lawsuit filed by the ACLU, the case went to the Supreme Court as Reno vs. ACLU. The decision could not have been clearer in its extension of first amendment rights to the internet:

As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

A particular footnote was interesting:

applies to a medium that, unlike radio, receives full First Amendment protection

On that basis, first amendment protection has been fully extended to the internet and is it relatively safe to assume that what applies to any media apart from radio also applies to the internet.

As such, it appears that wikileaks may have a defensible position for its leaks. However, what has happened to wikileaks over the past few weeks has been outside of legal bounds and it seems that som new rules of engagement should be defined when it comes to the internet.

The cloud contract

If we are to keep the internet as a relatively free speech zone, we need to start defining some lines we are not willing to cross. Much has been said about Visa, Mastercard, Amazon, Paypal, and others pointing to the fine print in their contract to justify their action when it came to shutting down Wikileaks. However, what are we to do if we want to prevent future wikileaks-type organization to suffer the same fates. And if we do not, where will we draw the line when it comes to the press?

So I’d like to propose a simple set of amendments to every contracts on the internet based on some basic rules of engagement:

  • On the internet, you are presumed innocent until proven guilty.
  • On the internet, speech, no matter how unpopular, is protected.
  • On the internet, we believe in the rule of law and are willing to follow pre-existing governance models for prosecution and redress.

Now that we’ve established what rights you have, the question is how those translate. From a high level, there are three basic components to publishing online:

  1. Connectivity: you can connect to the internet and anyone can connect to your site.
  2. Hosting: you can host any legal content.
  3. Findability: you can be found via domain name and search engines.

Based on these three components, I would present the following basic rights for any internet users:

I. The right to connectivity: Any site on the internet is equal to any other site and lowering or cutting off access to it is illegal.

II. The right to hosting: As a user of hosting service, you are allowed to host any legal content. The content will stay on the internet until the courts have legally required the content to be taken down.

III. The right to findability: Any resource on the internet should have the right to a domain name and the ability to be found in search engines.

IV. Until you are convicted of a crime, those rights cannot be forfeited. To deny you those rights is a violation of the law.

V. No amendments can be made to the above rules.

Some people may argue that there is a need for more detailed rights specifying what type of content is legal and so on but I live that to the courts to decide. The idea here is to create a framework that allows for rights to be managed in the very long run. The 3 basic rights, along with the contention that “no indictment, no violation” represent, at their most basic level, something we should require of any internet service company. Why not ask your providers to sign on to those basic rights: they would cover them legally while providing the greatest possible amount of freedom for anyone to express themselves on the internet.

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