Elon Law faculty explore WikiLeaks in launch of Hot Topics series

The WikiLeaks panel featured commentary by Elon Law Professors Eric Fink, Steve Friedland, David Levine, and Michael Rich.

Providing context for the WikiLeaks discussion, Professor Levine described a society increasingly infused with secrecy, especially post 9/11.

“Various studies that have been done suggesting an increased use of classification efforts to keep more information from the public, law making efforts that have been designed to prevent public knowledge about negotiations, like the negotiations on the anti-piracy trade agreement (ACTA), fusion centers – entities operating at the state and local level designed to mine data shared by private entities with governments for purposes of trying to profile terrorists – and standing in the way of this secrecy are these rebel organizations like WikiLeaks,” Levine said.

Countering the notion that WikiLeaks inherently improves governments or increases transparency, Levine said structural issues in how WikiLeaks operates raise concerns.

“It is interesting to note that this entity designed, it appears, to create a war on secrecy itself … operates largely in the proverbial shadows,” Levine said.

While noting that WikiLeaks’ obscure physical presence is, in part, to avoid being shut down by governments, Levine said WikiLeaks was not a reliable or adequate system of disclosure.

“We cannot build a system of government disclosure, of government transparency, around an entity that eschews all rules, all laws,” Levine said.

The Future of Secrecy and Privacy

Professor Friedland discussed WikiLeaks as an exemplar of the future of the information age.

“Where are they going to use WikiLeaks next? Against all of us. They’re going to find out where we were, what we were doing, and how we were doing it. And when I say, ‘they’ it’s the government or private,” Friedland said. “When you talk about what’s secret these days – my suggestion to you is, privacy is dead. No longer is their privacy as we know it.”

Friedland discussed the rise of data aggregators, cloud computing, and an FBI data mining base that currently holds 1.5 billion documents of information, gathered in the government’s cause to identify possible terrorist threats.
“The notion of privacy needs an extreme makeover,” Friedland said. “Times are changing in significant ways. We need to have a different consciousness and we need new rules about how to deal with privacy.”

Ethics of Disclosing Secrets

Professor Rich, drawing on a hypothetical situation wherein personal and harmful information about an individual was provided anonymously to a “neighborhood gossip,” who then made the information public, said that WikiLeaks is engaging in an approach to disclosing secrets that is fraught with ethical problems.

Rich said that the WikiLeaks approach was similar to the breach of confidence detailed in the hypothetical situation in that the information disclosed and the act of disclosure may 1) exacerbate harms from what is already known to be a moral wrong, 2) allow individuals to profit from the secrets of others, and 3) encourage people to betray each other.

“There is something deeper and morally troubling about what WikiLeaks does, an what the Julianne Assange’s of the world – the gossips of the world – effectively do,” Rich said.

While granting that individuals involved in WikiLeaks may be correct in pushing for greater transparency by governments and private entities, he concluded that their approach to achieving transparency was harmful to important elements of social organization.

“Confidential relationships are crucial to the way that society functions, both at a personal level, but at a professional level – economically they are important,” Rich said. “Secrecy and confidential relationships are in some way important.”

WikiLeaks and State Power

Professor Fink reviewed the theoretical insights of Max Weber, Michel Foucault, and Slavoj Zhizek among others, placing WikiLeaks in a broader analysis about the methods of agitation and control relating to state and commercial power.

“The targets of WikiLeaks are characteristic, almost archetypal, rational legal organizations,” Fink said, noting their impersonal authority, vast and pervasive use of written records, and necessity for broad accessibility to sensitive documents.

Fink said that the bureaucratic complexities of modern states and corporations made them vulnerable to WikiLeaks, but that those same complexities made them capable of effective responses.

“On the hand, WikiLeaks stated mission is to turn the Panopticon against power, to say, ‘We are going to subject you, government, you, big banks, to Panoptic observation – we can know everything about you,’” Fink said. “The problem is, that takes place in a context in which WikiLeaks, the people behind WikiLeaks, and the recipients of this information – the people to whom this information is supposed to be disseminated – are themselves also subject to this same observation by the same power that’s supposed to be undermined … Government is quite able to respond to and to adapt to new sorts of threats to its authority, and to use the same technology that makes it possible to expose their secrets … It ends up being a cat and mouse game where the only ones who are really subject to transparency is us.”

Reaction

During an audience question and comment period, law student Brennan Aberle said that the position that secrets should be protected for the sake of protecting secrets is morally indefensible in many cases, describing a scenario in which video evidence surfaces of soldiers shootings on innocent civilians.

“There’s room for debate about whether some secrets really deserve to be protected, “Aberle said. “I think some people do not have the right to keep something a secret and it is a dishonor to the dead civilians to keep that a secret.”

Upcoming Events

As a follow-up to the WikiLeaks discussion, a faculty-student discussion group on the subject will be held Tuesday, April 19 at noon in Room 107. The focus will be on a dialogue among attendees about the legal, political, sociological, cultural and other implications of the release of government documents through the WikiLeaks website.

Introducing the Hot Topics series, Professor Levine, said, “When there are current interesting legal issues that we can discuss as a community we will put these on.”

The next Hot Topics forum is scheduled for Wednesday, April 27, focusing on online sales taxation. The forum will feature presentations by Professors Scott Gaylord and Andy Haile.

Levine said the faculty welcomed ideas and suggestions from students for the Hot Topics series and that the series would continue in the next academic year.