WikiLeaks: New Frontiers in International Law

Taken at its most basic level the issue of WikiLeaks is a case of conflicting legal codes—press freedom and concerns about international security. The problem is new only in its current form and unparalleled global scope.

Ultimately WikiLeaks should be viewed as the purest form of press—unbiased, unanalysed and open for all interpretations. It is true that the nature of information published on WikiLeaks tends to have a decidedly anti-authoritarian slant, however such is the nature of any “leaked” information, whether it is broadly published on it’s own website or covertly handed over to a reporter in a brown manila envelope.

The global nature of the Internet has created many confusing problems for previously nation-specific organisations. Web restrictions in China are the easiest examples to reference, but many smaller scale restrictions and conflicts have quietly made their way into all of our lives. I will admit that as an American living in the UK, I frequently flout international copyright law by masking my browser’s IP address in order to watch US television shows that are licensed a season ahead of Britain (which is possibly more embarrassing than shirking international law in the first place). I have yet to receive a subpoena from the Glee marketing team.

Every information-disseminating technology has faced scrutiny. From the printing press to airfare price aggregators, the further, faster and cheaper information travels, the more panicked the sources of that information become. Ultimately, understanding WikiLeaks as a global news entity necessarily frames the debate in a way that lends itself to the application of existing precedents. Without such framing, both sides of the argument are floating in legal limbo.

If we were to look at the issue in reference to private internet-based libel lawsuits, the case could take place “in virtually any court anywhere under the laws that apply in that jurisdiction.”[1] However, citing libel cases as precedent would not be actionable as WikiLeaks would inevitable be classified as “the operator of or provider of access to a communications system” as they simply provide a secure drop box and site on which the submitted information is accessed. It would be akin to taking legal action against a printing press itself. As a service they are therefore subject to the immunity guaranteed to Internet Service Providers by many international regulations including those in the US and UK.[2]

To take legal action on a national level is the logical option since much of the inflammatory content deals with various governments’ actions. While the information on WikiLeaks is wholly international in nature, large parts of the current documentation concern US international relations and foreign policy. In US law, allegations would likely be divided between two sometimes competing precedents.

In 1971, the Supreme Court case of New York Times Co. vs. United States ruling allowed the New York Times to publish the classified Pentagon Papers. It established that the First Amendment (Freedom of the Press) was superior to the right of the US government to keep such classified information secret. To counter any such claims, the government would need to show sufficient evidence that the publication would cause a “grave and irreparable injury to the public interest.”[3] The question now becomes whether the content of WikiLeaks causes a danger that is sufficiently “grave and irreparable.” But in the case of NYTCo. vs. US, it was the opinion of the court that the actual content of the Pentagon Papers was immaterial,[4] concluding that, “Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.”[5] Possibly of more importance, Justice Thurgood Marshall claimed that the specific term “national security” was far too broad to constitute the terms of the threat.[6]

On the other side of the argument, Freedom of Press superiority could go up against various contemporary anti-terrorism legislative elements, including the USA PATRIOT Act[7], Executive order 13224[8] and the Homeland Security Act—which has been criticised specifically for heightening issues of increased government secrecy.[9] Most US terrorism-specific legislation has not yet been tested in this way, but considering the precedent set forth in NYTCo. vs. US, allegations would face significant difficulty establishing themselves as above first amendment rights. Conversely, in one of the only such cases to date, Holder vs. Humanitarian Law Project, the ruling upheld the governments right to prohibit “advice or assistance” to terrorist organisations.[10] The argument could be made that WikiLeaks provides information to any number of organisations and nations that may be classified as terrorist in nature. I believe this argument would be difficult to prove since, as a press entity WikiLeaks provides information to all parties, regardless of national or organizational affiliations. The alternative, framing WikiLeaks as an entity that is non-press related (as a private publisher or perhaps as a terrorist organisation itself) is also unlikely as it would create a potentially devastating legislative free-for-all on all internet content, including individual personal data.

At an international level the debate would be similar, though international legislation tends to be more open to interpretation. Considering the fully international reality of the Internet, WikiLeaks host country, multinational mirror site locations, and various nations’ documents contained within the site—the debate hinges on the Charter of Fundamental Rights of the European Union’s Article 11, which highlights Freedom of Expression and Freedom and Pluralism of the Media.[11] Importantly, legal action could potentially take place in the European Court of Justice, however there are virtually no standards to base a decision on. As “the Court is bound to draw inspiration from constitutional traditions common to the Member States,”[12] the interpretation of both the Freedom of Expression and anti-terrorism laws are entirely open localized debate, putting it once again in the hands of individual nations.

I view WikiLeaks as a media outlet and as a tool. Both the US and European Union have established that freedom of the press is guaranteed as an irrefutable right of a democratic society. There is no case to be made against WikiLeaks, neither within the US nor EU. In the words of Justice Stewart, “an informed and critical public opinion... alone can here protect the values of democratic government.”[13] As for watching American TV shows, I hereby promise to tune in again, whenever they finally make their way across the pond.

Playing with Data to Reform Healthcare, One Patient at a Time

There's an excellent article in the January 11th Issue of the New Yorker, The Hot Spotters: Can we lower medical costs by giving the neediest patients better care? about one doctor, Jeffrey Brenner who discovered a lot more than how to care for patients while playing with local healthcare and crime data. “I’d just sit there and play with the data for hours,” he said.

He made block-by-block maps of the city, color-coded by the hospital costs of its residents, and looked for the hot spots. The two most expensive city blocks were in north Camden, one that had a large nursing home called Abigail House and one that had a low-income housing tower called Northgate II. He found that between January of 2002 and June of 2008 some nine hundred people in the two buildings accounted for more than four thousand hospital visits and about two hundred million dollars in health-care bills. One patient had three hundred and twenty-four admissions in five years. The most expensive patient cost insurers $3.5 million.

What he found was that the people who had most recurring healthcare costs, "frequent flyers" as ambulance and E.R. staff jokingly call them, are from areas that are ignored in other areas of public service as well. In short, when all public services work together for individuals—hospitals, general practitioners, social workers, and law enforcement, and as those organizations share information between each other, we have a much healthier population.

In my own experience, while doing EMT training in rural South Carolina, this was incredibly obvious to me, but I hadn't actually considered a data driven way of thinking about it. For example, I went on one ambulance call that came from an elderly patient who was reportedly "not feeling well." When we got to the call, as the crew went about their "packaging" — getting a patient onto a stretcher, taking basic information and loading onto the ambulance — I, as a trainee, was given the job of interviewing. I found out the patient was in need of a twice-weekly dialysis treatment, which was scheduled at a Dialysis Center every Tuesday and Friday. The center was separate from both his General Practitioner and the Main Hospital. The problem was that the Dialysis Center was closed for renovations this week and he hadn't been directed to a substitute (or had simply forgotten or not understood, which considering his condition was equally likely).

Obviously this is potentially deadly for the patient, which is the real impetus for analyzing a situation like this. But since public policy increasingly speaks the language of money we can just as well look at the cost analysis. I have absolutely no doubt that the hospital cost for his ambulance ride, emergency room visit, emergency dialysis, and overnight hospital stay could have covered a very sizable portion of the yearly salary of one social worker, we'll call them an Interagency Patient Care Coordinator (or as the innovative Atlantic City Special Care Center calls them, "Health Coaches"), who's job it would be to look at a patient's full picture via communication with patient, doctors, treatment centers, pharmacies and data. Lots and lots of data.

WikiLeaks and How the US Government Might be the Next Enron

I just reread Malcolm Gladwell's 2007 essay, "Open Secrets: Enron, Intelligence and the Perils of too much Information." While I'm not one for financial analysis, Gladwell's strength always lies in his ability to make a number of complex factors easily understandable. The point of the whole essay is this: in our complex and information filled times, transparency - in accounting or otherwise - is simply not enough to ensure against potential problems, corruptions or dangers. More important than transparency is the presence of someone reading and understanding everything that is going on.

When was the last time you thought figuring out a 20% tip between a party of four at a restaurant was simple? Now multiply that by one of the largest energy companies in America at the time. That is one big table. And then it turns out each person in your party is borrowing money from the person on his left, with an IOU written on a napkin. How many napkins do you have? Alot. Three million pages worth, just in Enron's Special Purpose Entitiy (SPE) documents, according to Gladwell. By the time the Powers Committee took a look at it it had been distilled into a two hundred page document, and that was a summary of the summaries of only the most important summaries of "the most significant transactions."

Gladwell points out that more than enough information was available, mostly online, from Enron's public filings to see what was going on, which is exactly how John Emshwiller, Jonathan Weil, Jim Chanos and at least one group of Cornell Business School students figured out Enron was "overvalued" and "may be manipulating it's earnings." However, it took a massive amount of financial training and, perhaps more importantly, a significant time commitment to figure it out.

This is where I find a culturally alarming parallel to the current release of ninty-two thousand pages of Afghanistan war-related documents on wikileaks.org. Most reporters and analysts seem most alarmed about the fact that these documents were supposed to be secret government information. The secrecy of absolutly every aspect of the US military is largely a matter of tradition. Of course, there are Very Important Things that Must Be Kept Secret, there always will be. But I think I can safely wager that the majority, and perhaps all of these reports are not part of that group of Very Important Things. In the context of important wartime information, these are the "last cleaned on:" charts taped to the public restroom door of the US war in Afghanistan. Nine thousand pages of them.

Suddenly we can see that the problem may not actually be what we feared. The problem is not that the enemies of the US may have critical information, but that either side, everyone involved, everyone in the modern era, has far too much information available for one person, or possibly even one military, to parse through with any kind of accuracy. We are drowning in it. Micro information. Metadata. Metadata on the metadata. And very few people, if any have the combination of time and training to decipher exactly what is going on, aside from the day to day horrors of war. Cleaned by: RL On: 5/24/09 10:15pm.

As of June 7th, 2010, the US war in Afghanistan is the longest war in American history (104 months of engagement), and the further we go into it, the more likely we are to get lost in the paperwork and choked by the metadata. Much of what I look at in my work is the simplification of complicated and interrelated pieces of information, and to be honest I havn't got a clue what a solution to something like this might be, other than of course, shutting down the data machine and going home.

The Challenges of Government Innovation

After what can mildly be described as a "rough" few years, years that included the Oscar Grant shooting, a few riots, the murder of four of their own on-duty officers and nearly daily homicides, the Oakland Police Department laid off 80 active duty cops last week. If there can be an upside of weakening the police force in one of the most crime riddled cities in the country, it will be innovation.

Today, the OPD launched an expanded online reporting system. It allows online reporting for at least eight additional citizen crime reports including identity theft, pet theft, credit card fraud, vandalism, and burglary or abandonment of a vehicle. It seems the majority of these reports don't have any expandable leads and are reported primarily for insurance claims. Of course there will always be situations, even in the above circumstances, where an online form will not be the appropriate response (such as cases that are reported as being "in progress" and the quick presence of an officer would not only stop the crime but could also arrest the perpetrator - no word on how that kind of thing is being handled). However, it took necessity to get this small technological advances in shape.

I've been told that the proposal for expanded online reporting has been on the table for at least the past year, if not more, but had been continually derailed for various reasons - I would assume budget issues and the general fear of technological change that seem to be inherent in government organizations could be to blame. The OPD certainly wouldn't be the only government entity guilty of that (have you seen the 1st Circuit Court of Appeals website? Welcome to the web, circa 1997). As I understand it, in the midst of the layoffs, suddenly the online reporting improvements became very, very important. Someone high up, thankfully, realized that the only way to actually get the job of policing done was to automate some of the smaller processes and the records department was ready with the previously shelved proposal to step up to the task. I applaud OPD for their swift adaptation, but I think it's a harbinger of bigger issues, not just for them but for government agencies across the board.

I think the above situation is inherent in both very large and very small forms throughout the country today. The "ain't broke so don't fix it" attitude isn't just rampant in online tech (though that is probably the easiest to point at from a layman's point of view), it permeates through US government agencies' view of all technological innovation. Crime reporting is a minor bump in the road. The man made catastrophes that we've seen in the past five years - flooding from hurricane Katrina, the current gulf oil spill, bridge failures and so on - are all the result of aging technology that however well maintained - or not maintained at all in some cases - simply weren't made for the modern situations that they have been put into after fifty or a hundreds years. The New Orleans levies, the underwater drilling processes, and the Bay Bridge were all incredible innovations for their time, but their time was decades ago. I believe that there was a time in this country when municipal projects were at the absolute forefront of technology and innovation. Coincidentally, the massive New Deal programs that worked so hard to build and integrate these innovations - the WPA & CCC, are what got the average American out of the last major economic depression. I think it's time we tried something like that again. After all, if it ain't broke don't fix it.