[LINK] Transparency [Was: Wikileaks, Assange, etc.]

[Roger Clarke]

At 9:47 +1100 8/12/10, Jan Whitaker wrote:
>  ... Roger, help me out here. I think what Assange has done is 
>expose in a way that is going to full transparency, something the 
>press has been clamoring for, and governments of various colours 
>have been promising. ...
>... The public right to know what its government(s) are doing in 
>their name (at least in democracies) or the interests of those who 
>have been given that power?

It's not easy to even identify the key issues, let alone discuss them 
in a rational manner, when there's such intemperate behaviour by (off 
the top of my head) a Swedish prosecutor, Interpol, a British judge, 
the US Administration (Democrat), large numbers of very ugly 
extremist-right-wing Republicans, Paypal, now MasterCard, and 
(although at a lower level of culpability) the Australian Prime 
Minister.

Here are some thoughts.

1.  It's normal for people to seek to protect conversations and 
suppress information.  This is supported by the common law of 
confidence.

2.  Confidentiality is capable of being abused.

3.  The powerful (in any context) tend to not only abuse it, but also 
to build up institutions and processes to assist in the abuse of 
confidentiality, by hiding illegal and immoral acts, hypocrisy, etc.

4.  In principle, one possible way to solve that is to destroy 
confidentiality, such that all information is open.  (I say 'in 
principle', because in practice it's infeasible, and would always be 
subject to delays and distortions).

5.  Destroying confidentiality undermines many processes and leads to 
unaddressable problems.  (Less contentious example:  because written 
references for job-applicants may leak, people say negative things 
rather than writing them, and job-applicants seldom get the 
opportunity to defend themselves against surreptitious negative 
comments).

6.  An alternative approach is to have strong whistleblower 
protection laws, but also an onus on whistleblowers to justify the 
disclosure of the content.  That enables selective dissemination, but 
doesn't enable mass, indiscriminate dissemination.


So, what would that lead to where Wikileaks' actions is concerned:

(a)  many specific leaks can be readily demonstrated to be 'a good 
thing', and should be supported by law, including strong protections 
for the leaker and the publisher

(b)  mass leaks can only be supported, and the leaker and publisher 
protected, if each and every item can be argued to be justifiably 
disclosed, or can be argued to be necessary as part of a body of 
material

(b)  mass, indiscriminate leaks can't be supported


To avoid misunderstanding, let me make my personal position on the 
current schemozzle abundantly clear:
-   all actions by all parties in response to these leaks must be
     themselves legal, and must not urge illegal behaviour
-   the intemperate behaviour by so many organisations and individuals
     is reprehensible, and undermines democracy far more than the leaks do

What my analysis above is trying to do is to provide a framework for 
sensible discussions about the leaking of content that the originator 
had hoped would be accessible by very few people.


Aside:  Looking at 'the big picture' rather than the short-term 
assault on one person and one virtual organisation, I'm disappointed 
that Wikileaks as an organisation will be destroyed by Assange and 
team overplaying their hand.  OTOH, a mass of individuals and 
organisations have leapt into the breach.  Hopefully, one or more 
services will emerge that adopt a 'justifiable leaks only' policy 
rather than a 'mass, indiscriminate leaks' approach.


-- 
Roger Clarke                                 http://www.rogerclarke.com/

Xamax Consultancy Pty Ltd      78 Sidaway St, Chapman ACT 2611 AUSTRALIA
                    Tel: +61 2 6288 1472, and 6288 6916
mailto:Roger.Clarke at xamax.com.au                http://www.xamax.com.au/

Visiting Professor in the Cyberspace Law & Policy Centre      Uni of NSW
Visiting Professor in Computer Science    Australian National University