Is Wikileaks Like the Pentagon Papers?

Daniel Ellsburg, who leaked the Pentagon Papers, thinks so. Writing in today's Wall Street Journal, Floyd Abrams, who represented the New York Times in the Pentagon Papers case, doesn't. Abrams argues that Ellsburg was principled about revealing official wrongdoing but not injuring U.S. diplomacy. Assange, Abrams argues, is simply opposed to official secrecy in any form, and that, this view of how governments work being wrongheaded and naive, Assange is a bad guy. His acts have actually hurt American journalism by killing any chance of a federal shield law that would protect reporters' confidential sources.

Interestingly, Abrams seems to concur with Assange that he hasn't done anything illegal, if the facts about what he actually has done (merely receiving and not soliciting secrets from individual leakers) are as Assange represents. That being the case, it will be hard to criminalize what Assange did without simultaneously criminalizing what investigative reporters do all the time.

It is crazy that the one thing Assange might do that would make prosecution easy would be to reveal corporate secrets, because he then could be charged with copyright infringement. What a Swiss Army Knife of a statute the DMCA has turned out to be in the hands of creative prosecutors!

I am not sure I buy Abrams' claim that Assange has been indiscriminate and unselective in what he has revealed. (But of course I have only Assange's word about what he has NOT disclosed.)

I think far too much interest has been focused on Assange in this affair. The real question going forward is, what kind of protocols can be developed for sharing secrets within bureaucracies where they need to be shared but limiting access to those with a need to know? This is in large measure a technological problem, made more difficult by the fact that in the technology world, it is no longer reasonable for bosses to be able to do the jobs of the people who work for them. Low-level people therefore have access to enormous databases because they do the grungy work of maintaining computer systems and networks, and their bosses, though in principle more authoritative than these low level geeks are, have no sense of what the geeks are doing.