As expected, more rights groups are speaking out on the WikiLeaks affair -- Committee to Protect Journalists has turned in the most credible and supportable statement so far, in my view, and Human Rights First is back again with another statement that slightly clarifies their first in the direction of recognizing the rights of businesses but that still demands they make a policy to protect"Internet freedom".
I think if we have a Constitutional amendment that says "Congress shall make no law" we should not begin to substitute this protection of freedom with one that lessons it, which is "therefore Companies shall make policies". Either companies should be required to enforce the First Amendment -- or not. I believe they should be asked to do this only voluntarily; non-state actors should not be the keepers and enforcers of law if we are to avoid juntaism and vigilantism.
I believe CPJ has made the more supportable statement because it has avoided writing prescriptions for Internet companies and merely hewed to the topic of the First Amendment and its jurisprudence -- private companies are not required to enforce the First Amendment.
My critique of HRF in particular comes down to this: they are moving in the direction of trying to apply universal human rights standards to non-state actors who are not the proper subject of them nor have signed them as an obligation -- nor should sign them as an obligation (HRF must recognize this, which is why they are trying to build the case focusing on "undue government pressure). CPJ is understandable in its focus on the impact of any prosecution on journalism; HRF is being selective in its call for enforcement of First Amendment protection by companies and not willing to confront both the inherent legal nonsense of demanding non-state actors to comply AND the very uneven performance that is already resulting, and will go on resulting, which amounts to political correctness.
The First Amendment says "Congress shall make no law.." As soon as you make ANY law, even a liberal benign one, you have already restricted speech in wrongful ways. Therefore, to say "Congress shall make no law...but companies shall make a policy" is just as wrong and restrictive in the end. Even a liberal and benign company policy will be insufficient, and also legally nonsensical as non-state actors aren't the enforcers of law -- unless you want to bless a really dangerous concept that leads to vigilantism.
"Internet freedom" is something that is a debate (or should be). Internet freedom for some extremists means child pornography and Jihadist incitement videos and snuff films. Just because government gets involved in prevention of the use of the Internet to commit lawfully-defined crimes doesn't mean it is "chilling speech". (There has been a hugely raucous and largely unnoticed [in U.S. mainstream media] debate about this in Australia, Assange's homeland, with the hard left consistently crying wolf and claiming falsely that the government was already about to block the Internet)
Freedom in fact depends on companies and individuals having privacy and free choice, not having to explain themselves, and not knucking under pressure from do-gooders, self-defined. Today, a concession to the need to host Assange's files. Tomorrow, a request to give equal time to Glenn Beck, or worse.
Polices are Not Legal Protection of Free Speech
I'm afraid that pressuring companies on this issue will inevitably lead to them developing feel-good policies to assauge human rights groups and add to the already considerable grey goo on this subject on servers that sound like they "promote free expression" but aren't the First Amendment or anything remotely like a pledge to really enforce anything really like the First Amendment. At best, companies like Facebook mean that they'll resist possibly conservative religious pressure to keep the subject of gays or abortion off their pages (but as we all know, zealously remove pictures of nursing mothers as obscene); at best, it means Facebook will strike a long, thinky pause but leave Holocaust-deniers up on their pages, but quietly remove "everybody draw Mohamed as a dog" groups.
I want the First Amendment itself, not a waffly policy "toward affirmation of freedom expression" (the Lindens were always telling us they were all about freedom of expression even as they censored us) -- and certainly not Jeff Jarvis' revoluntary manifesto in rights-speak, "A Bill of Rights in Cyberspace" and certainly not John Perry Barlow's "rights in cyberspace" either.
Focus on What Actually Chills Speech not Scarecrows
CPJ is better at affirming and claiming the First Amendment qua First Amendment -- the result of judicial decisions including the future one to be made about this WikiLeaks case -- than either HRW or HRF, which in the end wave vaguely in the direction of "a policy" because they haven't faced the music on whether non-state actors should be required to enforce the First Amendment -- CPJ simply didn't "go there". (This may be due to the awareness of Paul Steiger, who signed the CPJ statement as chairman of the board, that comes from having been the managing editor of the Wall Street Journal, a media company tilting toward the right, and may be a function of his awareness of the need to avoid prescriptions for publishers in general, whether good or bad.)
Fast forward to the day when Private Manning is prosecuted and punished, and Assange is not. Amazon will still likely not then agree to host WikiLeaks in the cloud because it won't be good for business to host stolen government files feeding even a now-non-prosecuted hacker operation because it still leaves open the question of how they themselves may be colluding and cooperating with hackers who steal (as distinct from publishers who publish) and leaves them open endlessly to litigation liability.
Secret Deliberations of Rights Groups
Let me say something about the genre of these kinds of human rights statements, and the whole enterprise of making them.
They are deliberated generally in secret, and the thinking that goes into them usually shielded from the public. Dissent, if any in the ranks, is quelled. Collaborative, harmonizing processes go on behind closed doors among the different groups, and if they have differences, they may not articulate them or publicize them -- the fear of appearing disunified, especially to foundations that fund all or many of them and want them to stay unified, and the desire for the "correct line" to be found can suppress any distinctions.
In a joint petition, any group can try editing the text set by a lead group and try to find compromises, but usually the solution is just not to sign the petition rather than put out two or 10 different ones. Human rights groups are not magazines, or not even political NGOs like the Personal Democracy Forum which at least has something sort of like a debate on a subject like "is the DDOS a form of civil disobedience". Human rights groups, unlike think tanks or universities, never have, say, an evening panel discussion which says "Here are some different speakers with different views while we all debate what we should think about this" -- that process is an internal one.
This secretive process -- which is all the more entrenched precisely because some will deny it -- is something I challenge, although of course it's the right of any group to be as secret as they like. I think the application of the universality of international human rights is anything but universal; I think it isn't a science but an art, and that the spirit of universality and freedom should engender ranges of positions. That's something unlikely ever to happen. Usually if a group doesn't agree with "the line" of the main human rights groups, it will be cast out, denounced as politicized, suspected because of the nature of its funders, and so on.
Human rights groups believe ardently that if they have taken upon themselves the noble social role of interpreting international and national human rights standards, then the outcome should be unimpeachable, like themselves, and not even debatable. That's why, when Robert Bernstein broke with the organization he founded, Human Rights Watch, he essentially was saying that the application of universality was a policy that may become politicized (his statement was not an argument that universality "didn't apply" to Israel as an exception; it was a statement that in a region of gross human rights violations, continually and selectively berating Israel "because you can" is unbalanced). This position of his caused so much shock and dismay and outrage that groups felt they had to denounce his criticism as antithetical to the very cause of human rights itself.
But it wasn't. To concede this, you need not at all take any position that the world should excuse Israel's human rights violations (and by the way, there's no danger of the world doing that such as to require shoring up by avid human rights appeals). You could just posit the notion that in its choices of how and when and what to apply universality, groups may be guided by different considerations -- what they feel has the most impact, what they feel is morally right, what they feel is politically correct. That they in fact are guided by something other than the stellar purity of the human rights standards themselves is naturally something some of them don't want to admit.I'm less interested in debating Israel here than the process: how it is that groups come to believe that only they can interpret and apply the holy writ of human rights law, and perfectly correctly.
Here's my position on WikiLeaks and Assange: I do not call for prosecution; I do make a moral condemnation. But here's the other side of it: I don't call for not prosecuting him, either. Why? Because I find that when human rights activists and various other Internet freedom fighters do that, they cut corners, they make political and strategic choices, and they all too eagerly drop the implicit moral condemnation.
Importance of Moral Condemnation versus Legal Prosecution of WikiLeaks
Usually the way they'll do this is to say, "Whether or not you believe this is the right thing to do," or "While not taking a position on the appropriateness of his methods," etc. and procede to condemn prosecution -- but not take you through any moral argumentation about why WikiLeaks is wrong (human rights groups are not in the morality business).
And I'm not willing to do that. The moral condemnation is the most important piece of all of this right now, it is not being made sufficiently, it is being drowned out by voices of the left invoking "the chill on speech" and by certain -- and so far thankfully few -- voices calling for certain prosecution and assassination.
First Amendment Jurisprudence
The Committee to Protect Journalists has done a very good statement because it has stuck very much to the issue that matters to journalists and to the thinking public: that the news media not be punished as a backlash to any government prosecution of WikiLeaks. So convinced are the journalists that any prosecution of Assange will lead to prosecution of their colleagues that they oppose it. They can't entertain the thought of a world in which Assange might rightfully be prosecuted for espionage because he incited the hacking of government servers with intent to harm national security (I can entertain it) because they can't imagine that act separated from the journalism that resulted. Many are willing to bless the result as "journalism" -- and real journalism may be at a tertiary remove from it I suppose -- and not look at how it happened because "it doesn't matter" (Robert Wright); I'm not.
Even so, CPJ achieves several beneficial things with this statement:
We write because of deep concern about reports that you are considering the prosecution of WikiLeaks and Julian Assange for publishing classified cables and other documents. Based on everything we know about these events, we urge you to avoid such action. Our concern flows not from an embrace of Assange's motives and objectives. Indeed, we wish that he would fully disclose his sources of financing and support. But the Constitution protects the right to publish information of important interest to the public. That right has been upheld through decades of American jurisprudence and has served the people well.
On Thursday, the House Judiciary Committee held hearings on the implications of prosecuting Assange under the 1917 Espionage Act. We believe that such a prosecution could encourage the government to assert legal theories applying equally to all news media, which would be highly dangerous to the public interest. History shows that Congress didn't intend the law to apply to news reporting. Over nearly a century, the government has refrained from using the act against the media. To reverse these long-standing positions would threaten grave damage to the First Amendment's protections of free speech and the press.
o CPJ is willing to say they do not embrace Assange's methods, and indeed wish him to apply wikitarianism to himself and disclose his financing and support.
o CPJ says nothing on the issue of Amazon or Paypal. Good! They don't demand that the government "stop putting pressure" on them or hypothesize that Amazon's decision not to host WikiLeaks files or Paypal's decision not to pay for hacking incitement operations are not "a chill on free speech" but imply (by not mentioning it) that it just might be about "publishers' rights".
o CPJ says nothing about Private Manning -- indeed, a soldier whose job it is to analyze intelligence, not put it on the front page of newspapers, might be lawfully prosecuted, and shouldn't be made a journalism hero.
o CPJ highlights the crux of the issue that the espionage act was not intended to apply to news reporting and has not been used in that fashion
To be sure, CPJ, like Human Rights Watch, uses the rationale of how tyrants abroad may seize any U.S. prosecution as a mirror-imaging to justify their own, but at least, unlike Human Rights Watch, they didn't make that the first reason mentioned, but focused on the First Amendment's history of jurisprudence at home. Even before there was any WikiLeaks and any notion of prosecuting Assange, all those countries that jailed journalists in the CPJ list, including this year, had no problem finding their own reasons to jail them without invoking "American hypocrisy".
Human Rights First also addressed an appeal to the hearing. Unlike CPJ, which is willing to imply it does not embrace Assange's methods, and indeed questions his funding and sources, Human Rights First says, "Whether one views Julian Assange as a hero or a villain, and whether the information WikiLeaks released helps or hurts the United States, his actions, and the government and corporate responses to them, raise issues that transcend the particulars of this case."
This is purporting to mount to that utopian politics-free "higher ground" that human rights groups often purport to speak from, but not to condemn Assange and merely file it under "range of a opinion" is already to take a moral position.
"We are concerned that, in its zeal to cripple WikiLeaks, the United States government and U.S. corporations are taking steps that could undermine the rule of law and restrict fundamental rights,” HRF continues.
Well, I'm not as concerned. I'm more concerned about human rights campaigns, both independent of, and in collaboration with certain businesses (see the GNI list, Google, etc.) that begin to campaign against other organizations in society and browbeat and pressure them into having to accept content or join in causes they don't wish to be part of. Is that because I "don't care" about freedom of speech? No, I care about fighting companies for it more than these groups, and that's why I'm not willing to make my Internet freedom dependent on them or whatever companies they coopt.
That might not seem like the priority cause right now when everyone else among the liberals and leftists are finding urgently that the prosecution of Assange is paramount. But that's why I'm not worried about sounding this note. I don't see anybody else doing it. And after the prosecution fails -- as it is likely to -- and after Assange has been made an unstoppable poster boy for freedom and rights and journalism -- as he will be made along the way to this achievement -- then we will be left with that problem: people pressuring other people to join the info war and support the hacker revolution. It's because I believe the forces of radical revolution are stronger now than the United States -- and succeeding -- that I take this position.
Role of Non-State Actors in Society
Now, to be sure, individuals and groups in society do get to pressure other individuals and groups in society. If I criticize a position of human rights groups as an individual, it's with that implicit myself. What's at issue here isn't the *right* to campaign on any damn thing you want. What's at issue is the *judgement* involved and challenging its premise.
I don't see any chill by government on corporations. I don't see them saying that at all; I don't see them filing legal letters or launching litigation; I don't see them defiantly continuing to host this material; I don't see them joining GNI. And that's ok. That's freedom and plurality. That's our guarantee of the future, not shrill extremism and misplaced calls against "chills".
If these human rights group have any evidence that these corporations in fact did feel a chill, or backtracked and reversed a position after getting pressure from "the government" (whether executive or legislative branch), by all means let them bring it forward. This is, after all, the era of WikiLeaks.
Instead, I see server companies refusing to host WikiLeaks (unless they are in Sweden or run by various small firms or individuals here and there) or refusing to serve as a payment platform and promoter (unless they are Michael Moore or Noel Hidalgo). They are businesses, after all. Their freedom is what makes the Internet in fact a free place for all of us where people can socialize and do business in large numbers, instead of a sectarian backwoods pathway for techcommunists and cyberutopians of every stripe to try to gin up world revolution and their self-serving Singularity.
HRF doesn't see it this way, however, as their press release explains:
In her letter, Massimino acknowledged that WikiLeaks’s decision to publish classified information has triggered justified concerns about the safety of innocent people, disclosure of whose names might put them in danger, but she warned that a series of actions taken in the wake of the classified document dump may cause even greater lasting damage. For example, she asked Conyers to consider how government pressure on companies to force WikiLeaks off of the Internet and out of existence without a clear indication that it has broken the law will impact human rights activists, particularly those who rely on a free and open Internet to do their work. “The Internet is a lifeline for people living under repression, an invaluable tool for opening up closed societies. In many countries where there is no independent media and where civil society groups are under threat, the only public square open to dissenting voices is the virtual one,” wrote Massimino. “Pressure on companies is no less troubling when it comes from the U.S. government.”
It's good that HRF is still willing to keep referencing the danger to human rights activists who served as the sources in cables (something most everyone else has dropped in the mistaken belief that if we haven't heard about any of them being jailed or killed directly, it must not be relevant). But it's not good that they've now mounted another concept that has overtaken their first, legitimate concern -- the notion that companies refusing to host unlawful material are somehow antithetical to human rights or human rights activists.
They aren't; they are practicing the right of freedom of association and freedom of publishing themselves.
And the case for actual pressure from the U.S. government has not been in fact made and supported with facts and documentation.
HRF invokes the virtual space. I don't know if they realize how much in fact America's public space has already moved to the virtual. They ought to come along with me on a ride through the wilderness of Second Life, where criticism of the platform owners' favouritism, insiderism, self-dealing, collusion and negligence can get people banned permanently and have their virtual property, worth real money, seized. They ought to come along with me on an exploration through Facebook, where teenagers IMing too fast can be told by FB staff that they will be banned if they don't shut up. They ought to come with me to Gov 2.0 discussions and websites where fussy little metaversal myrmidons silence criticism of critics with mutes and bans. They ought to ponder with me the KGB-like implications of the White House creating an address "firstname.lastname@example.org" for citizens to turn in bloggers who "spread myths" about health care; they ought to consider the implications of a Metaverse run by Steve Gillmor of the aptly named Gilmore Gang, who could shut off my mike when I questioned certain memes of Obama's as being from the socialist movement.
Or walk with me through Twitterland, where "freedom fighter" Cory Doctorow of the Electronic Frontier Foundation calls on the Twitter devs to ban me because I took up Andrew Keen's challenge of him to explain whether his book-giving policy really made income, or the Guardian's tech thug Charles Arthur, to whom Doctorow whistled for back-up, who called for launching a lawsuit against me for "stalking" (!) because I criticized the geek leftist icon Doctorow and had a news story with a screenshot of him speaking in Second Life.
Look, I'm a brave person. I told Tim Berners-Lee, inventory of the Internet the other day: "I think it's time this be said to you: leave the Internet alone. It doesn't just belong to you and your peers anymore."
These struggles that have gone on for the last decade or more, and especially intensively since 2005, may be opaque to HRF. Perhaps HRF still lives in a world where their op-ed piece in a physical dead-tree newspaper with a mirror presence online, their testimony at a physical carbon-based Congressional hearing, their meeting in meat-world, as the geeks call real life, with a top official off the recordm are all very much in the real world and very important. They still have not realized that not only WikiLeaks itself lately, but many other developments are rendering obsolete their lovely little liberal world, so dependent on carbon. It's gone. The people who put the issue of disproportionate force in the Iraq war on the global consciousness aren't liberal human rights groups in Washington or New York, but an Australian hackers -- who cunningly did it for the wrong reasons and who are not steeped in the universality of human rights as a value but hobbled by the myopia of revolutionary extremism and an infantile misidentification of America as the enemy. They have no intention of keeping universal human rights for you or me when they are done.
The Media Should Not Be Assigned a Social Role
The methods and the personality matter -- it didn't stop the war. Assange found out what everybody else found out long ago in the falling Soviet empire: that even when the press is freed, and the state propaganda instrumentality is removed, the persistent notion that the press should have a social role and right wrongs is insufficient -- they are not righted that way.
One concept I learned in a more developed way from Bill Orme, the former executive director of CPJ when I worked there for two years (1996-1997) was the idea that the media should not be assigned a social role. That was what the struggle at the UN for the New World Information Order was all about, too.
Russians still persist with this cultural vestige, a sort of backwards reification of the Soviet state's propaganda role to promote its revolutionary, terrorist and finally totalitarian goals. Russian journalists still go and save orphans from war zones and still raise money for them directly (the New York Times Neediest Cases is at a remove from that sort of direct social work). Russians still think that if only they can get the eyes of the world on this or that awful thing, why, the prosecutors will do their duty, everybody in the state and society will do their duty and right will prevail. It seldom does there; that it works that way better in America is not because we have a free press, but because we have free elections, a free Congress and an independent judiciary, too.
This is why I oppose Assange and WikiLeaks the most. They want to come to power by force, and become the executive in a worldwide revolutionary movement that Jay Rosen is already blessing as "the world's first stateless news operation" as if that was benign and beneficial. They don't have any notion of "parliamentary democracy and a mixed economy" or "federalism and free enterprise".
Policies of Prviate Companies and "Proxy Censorship"
HRF, which goes farther than other groups in busying itself with admonitions and prescriptions with non-state actors like businesses, says:
With respect to the role and actions of private companies, Massimino recognized that companies have the right to make business decisions, but they should not become proxy censors or otherwise help the government restrict Internet freedom—at least not without an extremely compelling reason to do so. Given the stakes, companies should have clear and transparent policies for decision-making when governments request them to censor information on the web, and these policies should be weighted heavily on the side of preserving Internet freedom.
Well, no. We haven't seen that Amazon, Paypal, or Mastercard have become "proxy censors" just because they refused to host stolen government classified documents, and just because they refuse to aid and abet hacktivist operation. They get to do that. They aren't complaining.
Furthermore, the "extremely compelling reason" is not going to be one that net-nannying HRF will like: it's *because they don't feel like it*. They just aren't in to you and your revolutionary cause. They see the government issue a "cease and desist" letter -- they act on it.
(BTW, note to Fiskers: the fact that Amazon hosts a book about the WikiLeaks story, or even a publication of the documents themselves isn't "hypocritical"; it *is* different than becoming co-terminous with the *hosting* of the files which is to join the hacking operation.)
I don't doubt, knowing the California cool of Amazon (Jeff Bezos is an investor in Second Life), that pressure from their peers -- other geeks to the left, the Huffpo and their lovely advisor Moot of 4chan, the human rights groups -- might get them to "come round" on this and start letting it be known privately that they were pressured (so they can still appear cool, and even a victim) and even start publicly making noises.
And that's what HRF hopes to do with its brow-beating campaign, force companies to develop " clear and transparent policies for decision-making when governments request them to censor information on the web, and these policies should be weighted heavily on the side of preserving Internet freedom."
"Heavily-weighted" policies pretending to be the First Amendment but not REALLY enforcing them fully are an awful enforcement of political correctness -- a world in which Internet Service Providers only produce a half-baked form of the First Amendment means that only what they find politically correct or expedient -- or only what pressure groups like the Electronic Frontier Foundation or Human Rights First find politically-correct or expedient -- will define speech.
Of course, the demands for Wikitarian transparency in decision-making about matters of public policy isn't one that human rights groups want to apply to themselves because they don't think they have to do that if they take upon themselves the noble right of applying universal norms -- they only think it should be applied to companies suspected of government collusion.
But if you're going to play transparency, play transparency. Invoking it as a social good only for those you suspect of government collusion while you won't apply it to yourself is suspect. Assigning a social role to the media to do only the politically correct things you want endangers the freedom of media as much as government restriction.