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.