2011-03-25 NYU Law School Panel on the 'Anxiety' Caused in the World by WikiLeaks

A major panel discussion was recently put on by New York University Law. The panel featured various law, Internet, journalism and national security experts discussing WikiLeaks' release of State Department cables. The individuals at the panel included:

Simon Chesterman, Global Professor of Law, Director, New York University School of Law Singapore Program

Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law, Co-Director, Arthur Garfield Hays Civil Liberties Program

Brian Markley, Partner, Cahill Gordon & Reindel

Burt Neuborne, Inez Milholland Professor of Civil Liberties, Legal Director, Brennan Center for Justice

Samuel Rascoff, Assistant Professor of Law

Jay Rosen, Associate Professor of Journalism, New York University, Author, PressThink

Katherine Strandburg, Professor of Law

Diane Zimmerman, Samuel Tilden Professor of Law Emeritus

Ira Rubinstein, Senior Fellow, Information Law Institute

Panelists each discussed what worried them most about the response to WikiLeaks' leaking of cables and other documents in the past year. The Panel then got into some more specific issues.

Samuel Rascoff, who came to NYU from the New York Police Department, opens the panel saying:

The thing that’s causing the deep-seated anxiety in the national security establishment is that we seem to be structurally incapable of maintaining a secret. It’s not just that hundreds of thousands of sensitive diplomatic cables, of records from the battlefield, of sensitive records of covert operations have now been disclosed, but it’s the sense that going forward we’ll never be able to undertake to do these things without public knowledge and participation. That causes the anxiety especially when it is coupled with the recognition on the part of the government that the legal tools that are available to, let’s say the prosecuting arm of the Dept of Justice, to contain these leaks are actually totally ineffective.

Rascoff laments the fact that the government can legally go after former Pfc. Bradley Manning, the alleged whistleblower, but cannot go after Julian Assange because he is on the level of the New York Times and protected. He says that two good things have happened: the disclosures do not appear to have damaged the US reputation and in some ways have enhanced the reputations of diplomats in the cables. He doesn’t appear to think that laws can rectify the “situation” but does have faith in adjustments to information technology infrastructure to prevent leaks in the future.

Burt Neuborne reacts to Rascoff saying the anxiety created by WikiLeaks is a result of a realization that secrets cannot be kept because of technology. Neuborne compares WikiLeaks to Gutenberg’s invention of the printing press and all of a sudden the people in control was terrified because information was going to be widely available to the masses.

Jay Rosen of PressThink.org take a different tack entirely stating, "It takes the world’s first stateless news organization to show our news organizations how statist they really are." That statement is unpacked.

WikiLeaks can be described as first significant stateless news organization. What I mean by that is that up to now the press is free to report on what the powerful wish to keep secret because the laws of a given nation protect it. WikiLeaks is able to report on what the government wishes to keep secret because the logic of the Internet permits it. And the way that it is organized and the way that it operates is stateless – it doesn’t require the law to protect it.

He adds US News organizations are poorly informed about the way they are embedded in the state. And he comments on Assange being mis-characterized as a "source." With the "network public sphere" at his disposal, he is much more than a source. But that is what is familiar to the press so that is how Assange was characterized. They ignore the fact that he can, at any time, publish the cables himself.

Rosen goes on to note, "The sources are voting with their leaks. They are choosing to go to WikiLeaks instead of the press but rather than interrogate that reason our press has tried to belittle WikiLeaks, to mis-describe it, to keep it in a box that makes it more familiar than it is."

Importantly, Rosen notes that in a fine paper put together by Yochai Benkler on WikiLeaks (read here in .PDF form), Benkler found 60% of reports from media were completely wrong about one key fact: WikiLeaks did not dump 250,000 State Department cables.

That's just the first 15 minutes of the panel. It continues for an hour and a half and gets at many legal issues.

The Key Issue - Media Cross-Ownership and Consolidation

Wikileaks only exists because of the failure of main stream media.

This failure has occurred because MSM's close relationship with the Government makes it a partner rather than an adversary and so it no longer performs its primary function of critically reporting on what the Government is doing. Jay Rosen states, "US News organizations are poorly informed about the way they are embedded in the state."

This problem is difficult to correct because MSM is now so cross-owned and consolidated that there is no powerful outsider that can raise any broadly visible criticism of how MSM performs. They report as they see fit. We've seen many examples of this with a most obvious one being that, "60% of reports from media were completely wrong about one key fact: WikiLeaks did not dump 250,000 State Department cables."

In this talk, Burt Neuborne states, "7 large corporations own every media outlet in the U.S." and expands on the worrying impact this has. (See min 1:05:40 thru 1:08:00).

Thomas Jefferson stated, "I'd rather have a free press and no government than a government with no free press".

When the free press has been consodlidated into the hands of 7 mega media-moguls who are largely partners with the most powerful politicians, one has to ask, "is it still a free press".

WikiLeaks is attempting to resolve this issue by exposing Government and has been widely attacked by the so-called free press for doing so.

That fact alone should prove my argument.

It is time to regulate for the break-up of the consolidated media.


Mr. Bean

You wrote,"It is time to regulate for the break-up of the consolidated media."

I disagree. Breaking up the media giants plays into their hands. It is like breaking up Standard Oil, or cutting legs off starfish. All you end up with is even more of the same animal, while the masses are led to believe there has been a real change.

We: need to replace the 'Main stream media'. MSM's failings are widly known, but there is no cohesive opposing force. The internet is fine, but we have hundreds of small voices competing for readership and advertising dollars, while the MSM sits back laughing as they are subsidized by the corporate and government printing presses.

The human psyche can only take a limited amount of bad news, before it retreats to the womb of television and entertainment. Yahoo is not considered a credible source, but I suspect they are trying to keep people somewhat informed.

If we could engineer a marriage between Yahoo, Al Jazeera, and Wikileaks it might be possible to reach the people???

But, then you have little problems like cable access and broadcast licences.

Important note

Unlike the UK, the US has no organization that can be considered an equivalent of BBC News. The government does not fund journalism as it could. By having government designate journalism a "public good," community news ventures could be kickstarted all over and begin to properly check corporate media and act as a counterweight to the abuse of power and statist tendencies exhibited by media in the US.

The government funded Public Media??? NOT!

Why on earth do you call for the ? Government to solve all your problems? That is what started all this mess.

The only relevant contribution government should be allowed to make is to ensure that there is open access to distribution, as in broadcast frequencies and internet broadband. And perhaps a law stating that tax payer's advertising dollars and government information, must be equally available to all media outlets.

As soon as there is government funding of media, then there is bureaucratic oversight of that media, and presure to conform to government agendas.

Provide the proof, and let competition decide the winner

Paul, Kevin, there are many solutions but first the public needs to see proof that there is an issue.

In Tunisia (and a new location almost daily), it was widely 'known' there was an issue but it was only when Wikileaks provided the proof that this wide knowledge was accepted as fact and people were moved to act.

Similarly, it is widely 'known' now that media-consolidation is an issue; for example, the people of Italy, Australia, Canada, and The U.S. 'know' the news is being manipulated and that media consolidation and cross-ownership has exacerbated this problem, but they need proof.

Assange has said, "There are 504 US embassy cables on one broadcasting organisation and there are cables on Murdoch and News Corp". Maybe these will provide the proof required to start a media revolution.

I suspect there is proof out there somewhere that many of the media mega-moguls have breached the terms that allow them to own media licenses and if so, exposing such information may result in their licenses being revoked. Imagine what impact that could have.

It may be damaging enough to cause the break-up of media empires.

Doing so would support open and free competition, promote wider scrutiny of Government and of Media itself, and allow the voices that are now emerging via the internet to grow stronger.

Reducing the size and therefore power of the massive media organisations so they are again forced to compete will promote the correction currently needed. This competition will decide the form that serves the public best.

And never again should media be allowed to be so concentrated in the hands of so few.


The credibility of the Fifth Estate is called into question,

by laws (enabled by government), which allow the 'News media' in some countries to publish anything they choose as fact.

This was narrowly averted in Canada recently, but in the US, news media can publish anything, whether fact or fiction. Without penalties for knowingly spreading lies, the ownership is almost a side issue.

Canada is lucky to have the CBC, which is quite good. But, even they must be carefull not to be critical of the government, which provides much of their funding. I would like to see the CBC funded by public contribution, but few people care enough to do that.

Rule of Law;

Mr. Rascoff seems to be quite an authoritarian, and as such misses the point. If governments abided by their own laws and had any regard for honesty and transparency, WikiLeaks would be a non issue. Who in the pubic really cares about airing diplomatic laundry lists in public.

When conventional/mainstream leakers in democratic countries are punished and even killed for exposing illegal activities, there is no option but to have super leakers like WL who can access a wider audience to avoid supression.

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