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.

Here comes the MPAA

The Chronicle of Higher Education reports that the Motion Picture Association of America  plans to remind universities of the anti-piracy provisions it got Congress to include in the Higher Education Opportunity Act. Turns out part of the price for Congress to create educational opportunities is that universities have to devise plans to address illegal movie and music downloading on campus.

Now what the MPAA (and the RIAA) would really like is for universities to monitor their campus networks for illegal content. The nice thing about this strategy is that the university tends to be a monopoly provider of Internet services to students. If one of my students doesn't like Harvard's services, she can't ask for a Verizon DSL connection instead. If she is going to download illegally, Harvard has a way to know it.

Of course, the same logic would suggest that since pirated CDs can arrive in a student's room only through their campus mailboxes, universities should open students' postal mail to make sure there is nothing illegal in it.

Whatever the universities can be pressured into can serve as a model for what Congress can be asked to impose on other ISPs, or what individual ISPs can be pressured into doing. Watch for more pressure for pre-emptive surveillance to protect American intellectual property as both Congress and the courts grow increasingly sympathetic to business interests where they conflict with personal liberty.