Responsibility to Respect in the Age of WikiLeaks: Time for Clarity
Commentary, 20 December 2010
By Salil Tripathi, Senior Advisor, Global Issues, IHRB
The controversy over WikiLeaks has raised five separate but interlinked issues from the human rights perspective.
One, the rights of a whistleblower.
Two, the free speech rights of a website publisher.
Three, the responsibility of that website to protect innocent people from harm, including human rights defenders and dissidents who might be named in the leaked cables.
Four, and not unimportant, the charges of sexual offences that WikiLeaks’s editor-in-chief Julian Assange faces in Sweden.
And five, the responsibility of companies offering their services to WikiLeaks.
We don’t know the identity of the whistleblower (or whistleblowers), and it is right to expect the due process of law to be observed as the U.S. Government (and other governments affected by the leaks) move to prevent further leaks and go after those who may have leaked the information. What all governments need to do, in any case, is to re-examine what should – or should not – be marked as confidential or secret. Governments are accountable to people, not the other way round, and therefore they must become more transparent. They need to make a case to the people why certain things are confidential, instead of marking every document as confidential.
The free speech rights of a publisher are nearly absolute in the United States, under its First Amendment, which prevents the State from passing any law restricting that right. As The New York Times vs Sullivan case showed, the press can write about public figures without fear of prosecution, provided the press could show that it acted without malice, even if the information were false.
Wikileaks cautioned by human rights groups
WikiLeaks has been careless in dumping the cables without redacting names of human rights defenders or dissidents, and human rights groups have cautioned WikiLeaks. When Amnesty International and others asked WikiLeaks to take due care, the website threw a tantrum, asking Amnesty International to make its staff available to WikiLeaks to do the redacting. Amnesty International has walked the fine line, by calling for due process to be followed.
As for the charges of sexual assault against Assange, they must be seen as distinct from the issue of free expression. Just as Assange is innocent unless his guilt is established before a Swedish court, it is also wrong to trivialize the complaint against him, and the attacks on the two women by WikiLeaks’s over-zealous supporters are unworthy.
The responsibility of companies
It is the fifth issue that’s of particular significance for companies. As we know now, several companies have taken unusually aggressive steps to cripple WikiLeaks’s ability to operate. Those steps raise critical questions about free speech in the private sphere, and it is for those companies to examine their conduct in light of their responsibility to respect human rights.
As is now known, on Nov. 28 WikiLeaks began releasing US embassy cables, and soon thereafter, its website faced simultaneous attacks, known as distributed denial of service, to overwhelm the site with so many requests, that its functioning suffered. Three days later, Tableau Software, a company that offers free tools to visualize data, disabled views of the cables.
According to The Guardian, it did so because of pressure from Joe Lieberman, the independent senator from Connecticut, who was Al Gore’s running mate in the contentious 2000 U.S. Presidential elections. Lieberman called on any company "that is hosting WikiLeaks to immediately terminate its relationship." He called WikiLeaks’ behaviour illegal, outrageous, and reckless. "No responsible company – whether American or foreign – should assist WikiLeaks in its efforts to disseminate these stolen materials," he said.
Soon thereafter, Amazon, which provided server space to WikiLeaks, everyDNS.com, which gave free routing services, PayPal, Mastercard, and Visa, which allowed donations to be made to WikiLeaks, and the Swiss postal system where Assange had a bank account, terminated their relationship with WikiLeaks. Amazon says it did so because the material WikiLeaks was distributing was stolen, and it was impossible for WikiLeaks to have looked at every document and taken sufficient care to ensure that the rights of people named in the documents were not violated. PayPal initially said it acted in response to a communication from the U.S. Government. When the State Department denied asking companies to withdraw, PayPal clarified that it was responding to a public communication by the State Department, which said that the cables were obtained illegally.
The technological and financial squeeze is real, and if this had happened to a newspaper like The New York Times (which has been publishing materials from the cables), the corporate response would have been different. (None of these companies has withdrawn services to the four publications with whom WikiLeaks shared the cables prior to publication). WikiLeaks, some have said, is not a traditional newspaper – but then what is a "traditional newspaper" in the age of the Internet?
The squeeze is similar to what financial institutions do when they try to choke the bank accounts of sanctions-busters or organisations known to be linked with terrorism, drug trafficking or money-laundering. But those institutions do so because a law, or sanctions, require them to do so. No legal authority has asked these companies to suspend their relationship with WikiLeaks.
And yet, oddly, the companies are probably within their rights for what they have done. As the explanations of PayPal and Amazon show, the general counsels of both companies assert that WikiLeaks has violated its terms of service. (The Swiss postal system too was within its rights to close Assange’s account; Assange had given a place in Geneva as his address, and he did not live there. Anti-money laundering laws and terrorist finance laws were designed precisely to prevent the use of banking facilities by clients the banks could not verify).
But two things cause serious concern: one is that the companies have acted on their own, interpreting their policies on their own, without any official request or command from a government. American lawyers say companies have some responsibility to affirm free speech such as, for example, permitting people to distribute leaflets in privately-owned shopping malls. Restricting them from operating in such privately-owned public spaces restricts the individuals’ rights of free expression. And that’s the second concern: The companies’ move jeopardizes free expression when the space in which the individual speaks freely is in the private sphere.
Imagine if WikiLeaks had gained access to secret notes of meetings in Beijing in 1989, where decisions were taken to crack down on student demonstrators at Tiananmen Square on June 4, leading to the massacre and disappearances of thousands across China. (In fact, such papers were leaked, and are now in a book published in 2001).
China was outraged then, and officials issued dire threats to those involved with the publication. Had WikiLeaks published those documents, the website would have been considered heroic, and western governments would have defended the publication. Sen. Lieberman should reflect on this before he issues warnings to companies.
And that raises the larger point: the senator is only one of 100 senators, and has no legal authority to call companies to stop doing business with WikiLeaks. The U.S. Government can impose such sanctions, but it hasn’t done so – at least partly because the issue is legally complex, and it is not easy to prosecute WikiLeaks under the Espionage Act, which was passed in 1917 when an isolationist United States was still debating whether it should join World War I.
The critical issue is the respect for free speech within the private sphere. Many companies have staff rules that severely restrict free speech. These include restrictions on using company property, including laptops or printing facilities, for specific purposes such as promoting political activities, writing blogs, posting messages on public bulletin boards, accessing private email accounts or shopping websites, spending time on social networks, posting messages or images that some might consider offensive, and other personal activities. Some of those restrictions may be to enforce laws against discrimination, child pornography, or racism, and protect other employees from abuse.
Likewise, companies impose restrictions on customers too: Apple, for example, has decency standards which have required several magazines to edit their Apps. Likewise, Amazon has taken off books from sale, if those books violate specific laws. The auction site eBay (which owns PayPal) disallows trade in stolen goods. Few companies would want to actively support violation of official secrecy.
A Slippery Slope
But "official secrets" represent a slippery slope. Authoritarian governments use the same arguments to target dissidents. Shi Tao, the Chinese journalist who publicized the Chinese Government’s plans to manage coverage of an anniversary of the Tiananmen massacre, was arrested after a Yahoo! subsidiary divulged his identity to the Chinese Government. Many, including U.S. politicians criticized Yahoo!, and its chief executive publicly apologised to Shi Tao’s mother. That soul-searching was among the reasons that led to the formation of the Global Network Initiative.
While that initiative is noteworthy and commendable, it cannot provide, and has not provided, clear guidance to companies that face similar requests from politicians like Lieberman.
Instead of complying with a legal order, companies have acted on their own, relying on their own policies. But how companies implement those policies is not transparent, and does not inspire confidence that their procedures would provide adequate remedy to people whose rights are undermined by the company’s policies. Leaving aside the charges against Assange’s personal conduct in Sweden, laws for whistleblower protection, and Wikileaks’s responsibility towards those named in the documents, it is clear that the companies have acted too soon, and have ended up undermining freedom of expression.
This issue will remain at the forefront of the international debate, as more and more companies take on responsibilities for which at one time the State had monopoly.
The consequences of corporate actions have direct bearing on human rights. To enclose that space as "private sphere" where a company can set its own rules is no longer sufficient, because companies still have the responsibility to respect human rights, particularly in the sphere under their exclusive control. In fact, that responsibility is enhanced. And the ultimate danger is that companies lack the expertise, capacity, and mandate to be effective protectors of human rights. It is time for the information technology and financial sectors to examine their own conduct more thoroughly.
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