Wikileaks, decentralized distribution, and the lack of meaningful remedies for unauthorized disclosure

Apart from the difficult question of liability — that is, whether Julian Assange should hang for his actions — the decentralized nature of the distribution methods of Wikileaks content gives us a meaningful opportunity to consider the remedies that should be imposed upon an actor like Wikileaks in those cases in which liability should attach. To do this we can set aside for the time being the more essential question of whether Wikileaks is good or bad. (I have come to think that question may be about as answerable as whether God exists or whether abortion is right.)

It is erroneous to think that Wikileaks should be less culpable merely because it does not have the capacity to be blocked. Wikileaks is not just a website with documents hosted on one server. More cleverly, Wikileaks made its content available via the Bittorrent protocol, which ensures that the information is as widely distributed as possible given today’s reasonably available technology. Attempts to completely block the content would be futile, because so many computers on the network that contain the distributed files (millions?) can work together to ensure that the content remains available.

By seeing to it that the content was available via Bittorrent, Wikileaks knowingly facilitated the decentralized distribution. To say that Wikileaks is not an evildoer because it is without power to undo the harm it caused is an exemplar of the principle behind the old saying that a defendant accused of killing his parents should not be shown leniency because he is now an orphan.

The real relevance of the decentralized distribution and unable-to-block-ness of Wikileaks lies in measuring the culpability for the original act of releasing the information. Here is the central thesis: to the extent generally available methods of information distribution like Bittorrent become further decentralized, the potential for that distribution to have effect becomes correspondingly greater.

Whether this correlation (i.e., greater effect potential in proportion to extent of decentralization) is good or bad depends on the nature of the information being distributed. Obviously, when the released information is harmful, the effect will be bad, and vice versa. A really, really decentralized release of information that, like Wikileaks content cannot be blocked, and which has a harmful effect from being disclosed, causes harm which truly is irreparable. Deleting, returning, or blocking further distribution of the information is impossible.

So what is to be done when harmful information is released in an ultra-distributed, unblockable way? Money damages will rarely do the trick. But what kind of equitable remedy will work? No type of injunction will have any effect in reducing the amount of information that has escaped into the wild, never to be redomesticated in even the slightest sense (since its perpetual propagation is assured through technologies like Bittorrent). How can we meaningfully deal with this problem uniquely occasioned by the digital age? What do you suggest?

3 thoughts on “Wikileaks, decentralized distribution, and the lack of meaningful remedies for unauthorized disclosure

  1. Paul keating

    The solution is to ensure that things kept as "secrets" are really secrets. Having read some but by no means all of the cables involved I cannot see where the documents touch on ,atters that constitute national secrets. Sure they are embarrassing but embarassment does not rise to the level of a national secret. An example: many of the cables were opinions by embassy staff about others. Would the result (embarrassment) been any different if the embassy staffer explained their view publicly in a newspaper interview? Would it have been different if the views had been explained as "unattributable", "background" or "by a person choosing not to be named because he had no authority to speak on behalf of his government"? Lots of embarrassing things happen that hurt the Reputation of the US – one president was caught lying about his sexual activities in the Oval Office for God's sake.

    It see,s at first blush that most of what I have seen could be required to be disclosed under a freedom of information act request.

    The issue is not really about the content here – the involvement of the Internet and a distributed or non-distributed network differs from the activities of the daily press only by nature of volume. The real issue is that governments must be better at defining their secrets and keeping their secrets secret. Thus, the hammer falls on the government employee who leaked the information AND on the security engineers who designed such a flawed system that allowed the documents to become available.

    The US is doing far more harm to it's reputation by acting in the manner it is acting and certain senators should be ashamed at having given the likes of China and Russia the moral high ground.

    To punish wilkileaks or it's founder because someone else gave them material is just wrong. If the pundits for punishing wikileaks had their say, Nixon would have served out his term and his violation of the law would never have come to light.

    Such are my personal views.

  2. Davis Freeberg

    I'm not sure that I want a solution to this problem. Even beyond bit-torrent, simply putting something on the web can have the same impact. Once people see it, they can copy it and it gets hyper distributed after that. Once anything goes public, it's impossible to delete especially if the material is interesting. While I can appreciate the point that your trying to raise, if we were to create a law that differentiated between regular distribution and irrevocable distribution, it wouldn't take long for people to abuse the line between the two. It is both the beauty and the curse of the internet age, but one that I wouldn't want to see messed with.

  3. Nic Nelson

    I think one of the larger questions, impliedly suggested by the author, is how this mass distribution on this scale can be addressed – or better yet, redressed – where *someone* (whoever it may be) engages in mass publication of private communications. Set aside whether you think this communication or that communication should truly be designated as a "government secret" and simply consider the notion of mass disclosure of private communications. Let's assume for the sake of argument that there was a legitimate expectation of privacy in a particular communication which was violated by someone's unauthorized snooping, followed by mass-disclosure. What is the remedy? I don't have an answer, I'm just re-phrasing the question…

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