The Wikileaks Subpoena

By , 14 January, 2011, No Comment

I’m getting to this a week late, because I was on the road on behalf of Public Business when the story broke, but some thoughts on the subpoena. Seems to me there are two conversations to be had:

One is from the perspective of individual consumer privacy and what kind of legal compliance policies companies ought to have when it comes to user data. Companies, plural, because, as Tom Phillips has noted, there’s a whole lot of language in the subpoena that’s got nothing to do with Twitter. And, I would add, several classes of company not covered in this subpoena who might be targeted for data in future lawsuits if this prosecutorial M.O. persists. It’s something I’ve been thinking about a while, at least since I had the chance at Columbia to take a course on privacy with a professor who prophesied that the ability to broadly subpoena Google + Microsoft + Citigroup + BofA would produce 21st century totalitarianism. While I thought his vision hyperbolic–and while we butted heads a lot in class–that the information subpoena was a scary tool was something on which we agreed.

The second conversation taking place is one about journalism and shield protection. That is, do journalists and news organizations have the right to defy demands for information on grounds of source anonymity in contexts where ordinary citizens would be charged with contempt of court? And is Wikileaks a news organization of the sort that should be granted this privilege?

My thoughts on shields: I’m looking for a set of regulations that balances the freedom of the press against the responsibility of the press, the right to things like anonymous sourcing against the requirement not to defame or deceive. Which means, I don’t think shield privileges should be granted to any outfit, on any platform, that cannot also be sued for libel. That’s the line along which I would distinguish between say, a journalistic blog–which should never libel anyone, and should absolutely have the same source liberties as a newspaper–and a personal blog–which should be as subject to subpoena as the individual who writes it, and should never be subject to a defamation suit no matter what crazy things it publishes. It is the difference–in US terms–between press and speech, which are awkwardly separated by a comma in our Constitution.

Like Vadim Lavrusik, I think Wikileaks and any data surrounding or supporting it fall–narrowly–on the press side of the press/speech line.

But one point he doesn’t make, and that has bothered me watching this story unfold, is the degree to which my most technophilic friends, now rallying around the idea of Wikileaks-as-press were lukewarm the federal shield law when it was up for debate in Washington 2 years ago. That law was awkwardly worded, in that it tried to incorporate bloggers and freelancers but couldn’t figure out any measure except income to differentiate them (us) from amateurs. But the critique from the techies was not about the vagueness of the wording; rather, they sneered at the notion of the shield as a vestige of a kind of reporting–access journalism–that the web would render irrelevant. ‘We don’t need secret sources. We don’t keep people’s secrets. We don’t need your Washington cocktail parties.’ And so on.

Except that the Wikileaks saga is all about access: a whistleblower’s access to private files, and then secondarily, his personal access to Julian Assange. Just as with an anonymous source, the point is that the whistleblower and Wikileaks have access where the public does not. The thing that grips me about the Wikileaks saga is that it is at once the poster child for ‘internet journalism’ and the apotheosis of the most old school reporting tactic on the books.

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