David Allen Green, legal correspondent for the New Statesman out of the UK, has spent the last few days calling attention to a leaked confidentiality or non-disclosure agreement (NDA), which he revealed in a blog post on May 11. Green has posted a second post on the agreement on his blog, Jack of Kent, and will be posting a summary to the New Statesman website on May 16, which last time I checked, he intends to glibly title, "NDAs for Dummies."
Green, who is the blogger who was the first to draw attention to the agreement, called it a “draconian and extraordinary legal gag that WikiLeaks imposes on its own staff” and, in particular, focused on Clause 5 of the agreement that “imposes a penalty of ‘£12,000,000 – twelve million pounds sterling’ on anyone who breaches this legal gag.”
In his follow-up post, which cites the analysis I wrote, he groups me with others who “sought to explain the document away: to normalize it and to contend that it is somehow unexceptional.” That is true. That is what I did.
It may be well that for WikiLeaks partisans (like "the Birthers" in the United States), nothing - not even a disclosed document- will shift their adherence to their cause.
If so, that would present rather a paradox, as one claim for the WikiLeaks enterprise is that publishing original documents can undermine artificial and self-serving narratives.
So for WikiLeaks and its partisans, and for anyone else who is interested, what follows is a technical legal analysis of this extraordinary document.
This is the pejorative framing for Green’s legal analysis: others and myself are so fervently supportive of WikiLeaks that we are blind to the contents of this agreement. In fact, we are so biased that we are like the racist faction of people in the United States, who fought to get President Barack Obama to produce his birth certificate to prove he was American—a campaign that made some recall the days when the US government required African-Americans to take literacy tests in order to vote.
What about Green’s opinions on WikiLeaks? If one looks at each of his posts on WikiLeaks, it becomes apparent that Green is an iconoclast when it comes to WikiLeaks. He is a denouncer or skeptic, who only ever has something critical to say of WikiLeaks, and, while he will say something good about WikiLeaks here and there, he only does it to buffer the tartness of his posts on WikiLeaks.
Green has written at least eight posts that mention or cover WikiLeaks. He wrote a few on the Julian Assange sex case and has put forth a legal analysis on why Assange lost the extradition decision saying he lost because a valid “European Arrest warrant was issued and served for serious alleged offenses.” He’s written about what he calls the “bizarre legal world of WikiLeaks,” scrutinizing a tweet sent out by WikiLeaks that read, “The Guardian book serialization contains malicious libels. We will be taking action.” But, to understand Green’s attitude toward WikiLeaks, the best post to read is what he wrote just as WikiLeaks began to release the US State Embassy Cables: "WikiLeaks and the liberal mind."
After writing, “the release by WikiLeaks of US government cables is a sheer triumph for transparency,” Green at the end of his post concludes this transparency triumph may not be worth celebrating because WikiLeaks is a “powerful but undemocratic and unaccountable entity that shows a general disregard for both the rule of law and the practical need for certain communications and data to be confidential.”
Green, who writes liberal and critical posts, uses liberal values (perhaps, values he shares) to critique WikiLeaks. He writes legitimacy is a liberal value and suggests WikiLeaks has no “democratic mandate” or “accountability” for its release of documents. He notes that legality is a liberal value, as if WikiLeaks transparency work is illegal. Finally, he adds privacy is a liberal value and assurances “of confidentiality can be crucial.”
Oddly, Green doesn’t detail what illegal acts WikiLeaks might have committed. He insinuates and fabricates this idea that what they do has an illicit component. WikiLeaks, to this author’s knowledge, has broken no laws. They have published previously classified information that whistleblowers have submitted to them. Whistleblowers submit the information to them through a system that prevents WikiLeaks from knowing who leaked the information. Since they do not leak the material or solicit individuals for information to leak, it seems to me that it would be difficult to indict or convict members of WikiLeaks in a court of law.
I don’t fully know the scale of the legal issues that WikiLeaks raises in the United Kingdom. I mostly know, from an American perspective, that, for example, what is disconcerting is the attempt to prosecute Assange and others that can be connected to WikiLeaks under the Espionage Act. I know how the investigation could lead to an increased chill of freedom of the press in America and I also know how WikiLeaks directly breaks secrecy barriers the US government has erected, which prevent US citizens from fully knowing the extent of its dealings with private corporations or what crimes it is committing in wars or at places like the Guantanamo Bay military prison.
One person that does know about the legal issues WikiLeaks could raise in the UK is Lilian Edwards, Professor of e-Governance, University of Strathclyde. She notes in "Wikileaks, DDOS and UK criminal law: the key issues," “the legality of WikiLeaks itself may be mainly an issue for US law, but key questions may soon also arise for UK lawyers.” She provides background on how WikiLeaks brought to the “public’s attention the phenomenon of denial-of-service attacks(DOS) and raises questions about whether DOS attacks are a crime in the UK and whether UK Internet service providers could be forced to block access to WikiLeaks sites in foreign jurisdictions.
Why hasn’t Green written on either of these legal issues?
Why hasn’t Green gotten into the Official Secrets Act in the UK and discussed what WikiLeaks’ impact might be on the classification of information in the UK might be? Why hasn’t he looked at protections for whistleblowers under UK law (or the lack thereof)? Why hasn’t he assessed the implication of the US investigation into WikiLeaks and what the effect could be on the United Kingdom, which is a close ally of the US?
The problem with Green’s postings on WikiLeaks is that they seem to be nothing more than casual and indifferent observations. He does not really grapple with the issues of transparency, secrecy, legitimacy, legality or privacy raised by WikiLeaks. He doesn’t consider the domestic or international implications WikiLeaks could have on the UK. Instead, each of his posts are a caution to readers to not fully buy into what Assange has said about the extradition or what the WikiLeaks staff says about the Guardian and libel or what WikiLeaks staff say its mission is because they violate liberal values and have this agreement that he thinks subverts the cause they support.
I have thought about what I wrote about the agreement a few days ago. I provided a layman’s analysis and must admit that Green’s analysis of the documents far surpasses any analysis that I might provide. It's especially good that Green includes a section on what WikiLeaks could have done to draft a better agreement.
I must note I was confused and argued that the documents could gain an extra layer of protection because of this agreement. I now realize protecting documents obtained from whistleblowers is a whole different issue than keeping what goes on within the WikiLeaks organization confidential. I realize that it is not really a good thing to "gag" staff on everything that might have happened during their work with WikiLeaks. And, in that respect, if the organization as a whole thought legitimate adjustments could be made, it would be appropriate to make such adjustments.
That said, Green fails to consider the larger issue, which is that when this non-disclosure agreement was drafted Assange and others likely thought it could face attacks or possible infiltration and sabotage attempts from adversaries.
I would like to know whether Green can understand, given the war on WikiLeaks, why the organization might have a non-disclosure agreement like the document he has scrutinized. I would like to know whether Green thinks it is understandable that WikiLeaks drew up such a “draconian” document given the allegation that Daniel Domscheit-Berg crippled and sabotaged “WikiLeaks’ ability to receive new leaks” and also took a “backlog” of leaks that his new organization OpenLeaks could publish. I would also like to know whether Green truly thinks WikiLeaks has commercial intentions or if he is just setting that strawman up to further delegitimize the organization.
In the end, Green's coverage of this agreement is at its core a run-of-the-mill attempt to capitalize off the fact that most of the public, especially in the United States, doesn't understand the issues surrounding WikiLeaks.
Green should consider whether he thinks WikiLeaks has helped to make the world a better place by helping "to 'catalyze' a series of uprisings against repressive regimes, notably the overthrow of Tunisia's long-serving president, Zine al-Abidine Ben Ali." He should further confront the idea that WikiLeaks has brought about a "watershed in journalism and in freedom of information" and politics.
Perhaps, when he finally stops to think about what WikiLeaks has accomplished, he will no longer simply suggest all WikiLeaks supporters are simply a cult of conspiracy theorists but rather a growing demographic of people who see themselves as citizens of a world society who are not willing to remain passive in the face of injustice and so they act to build a more just world, one where people have access to the information which has the power to give people justice.