If you’ve done nothing wrong, you’ve got nothing to fear: Wikileaks and RIPA
Governments around the world have condemned Wikileaks recent release of US diplomatic cables, often while simultaneously denying they matter; the reactions are tellingly similar to the previous reactions from the US military simultaneously claiming the leaks were highly illegal, dangerous and irrelevant. At the same time many have defended the release as helping transparency. As David Waldock twittered: "Dear government: as you keep telling us, if you've done nothing wrong, you've got nothing to fear".
Is this correct?
The common good
In recent years we have seen an unprecendented expansion of government power to monitor citizens, driven both by technological change and changed laws. Often these laws have been constructed rather haphazardly, a combination of past regulations and emergency measures in response to events such as terrorism. The update and monitoring of such powers also show a significant lag (a current UK example is the criticism made by civil liberties groups of the brief consultation on the RIPA act that appears set to exclude stakeholders outside government and business). A common defense of such sweeping surveillance powers is that the common good must be protected, and people who have done nothing wrong have nothing to fear.
The first problem is what constitutes the common good in an international setting. Even if one accepts domestic surveillance as ultimately benefiting oneself or the community, it is not clear this applies to other communities. The 'common good' for the US might not be good for me or my community (e.g. it might benefit the US and its citizens to act against our interests or rights), and often national interests are clearly self-serving. It might be bad for the common good of the US to have diplomatic relations revealed but it could be helpful for the common good of other groups, even humanity as a whole. Whether the Wikileaks documents actually fulfill this is a complex and uncertain matter, but the case is certainly not weaker than the case made by proponents of government surveillance – they are also claiming great common good benefits, yet tend to be reticient in revealing any empirical support.
A key difference between Wikileaks and government surveillance is the limited filtering and oversight. In principle government surveillance in most democratic societies should be possible only under proper oversight (e.g. the RIPA act), limiting misuse, balancing rights and public interests and ensuring accountability. In practice this might fail, of course, but the aim ought to be to to serve the common good by limiting the spread of private information. On the other hand, the data released through Wikileaks has been claimed to be partially filtered to reduce risks to individuals, but is then left open for dissemination, interpretation, and use. It is doubtful whether person-protecting filtering can be completely achieved, or even whether it is entirely desirable: there can be a strong public interest in revealing some information such as major crimes, even when that may increases the risk of violent or unlawful action against people.
The safety of innocents is vulnerable to both government surveillance and Wikileaks-style disclosure. Without the right context even truthful and inocuous information in a government database can be misinterpreted in ways that harm citizens (e.g. in some US states public urination convictions lead to people being placed in sex offender databases, with consequences far beyond the crime itself). As more information is gathered and used the risk of accidental misinterpretation increases.
Stuck in the panopticon?
The Wikileaks idea is to serve the common good by revealing the activity of organisations and nations as widely as possible. Rather than restricting information on a need-to-know basis, the leak aims to provide information to anyone wishing to know. It can be seen as part of a wider transparency movement.
The ability for the public to disseminate and process information has increased significantly. Back in the 1980's the current leak would have been a heavy filing cabinet, hard to transport and to copy, only accessible in a few places to a few people. Today it is not only accessible through the internet and hard to police, but also comes equipped with various attempts at improving browsing, visualisation and setting up further data investigations. Data leaks have become far more global and irreversible, at least if they promise to contain some interesting material. There are good reasons to call for scientists to open up their data, since releasing it will likely improve the scientific process. Open data initiatives attempt to get government data into the open to help the deliberative process or encourage innovations.
One of the key arguments for transparency is that it improves accountability. If what we do becomes known, then we have rational reasons to act well. This underlies many procedural rules and freedom of information regulations in democratic societies. However, it can sometimes backfire. While the "climategate" affair may not have showed any serious scientific misconduct, it demonstrated the sordid state of everyday research. Ideally the risk of such a disclosure would lead to scientists behaving more responsibly. But one can easily imagine researchers instead avoiding to email or write down potentially damaging facts or opinions, leaving them in the ephemeral form of personal discussions. Increased freedom of information has apparently led many civil servants to avoid taking notes, since they could be subpoenaed. Some people have warned that Wikileaks might impair the work of future historians.
More seriously, as the Swedish foreign minister Carl Bildt argued, this kind of leak could limit trust and confidence in diplomatic communications. If governments cannot communicate confidentially, they would be forced to make public 'megaphone statements' that presumably would be more polarizing. This argument has merit, but it is partially based on the idea of diplomatic channels are a gentlemens club in the first place. As some of the leaks have revealed, there have been mixing going on between foreign policy and espionage, demanded from top officials. That is surely a worse problem for the diplomatic system than the possibility that confidences are leaked.
If the risk of leaks is a serious problem to governments, then it seems that this is also an argument against data retention initiatives. Large databases on private citizens are surely not better protected than diplomatic or military information. While the impact of disclosure of government information might be more widespread than the impact of disclosing information about an individual, to the individual the effects can be personally more damaging. By collecting private information leaks can become more pervasive.
Similarly, if the argument that confidential discussions are necessary for the proper function of governments and international relations is viewed as true, then there is a strong reason to consider the confidentiality of discussions people have privately or as part of organisations as important. Trust is just as important for the functioning of civil society as the international community.
There are indeed paralels, if imperfect, between the increased ability of scrutinize citizens and to disclose government informations. Both can serve the common good (in a local or global sense), improve accountability by raising the cost of misbehavior and possibly help bring wrongdoers to justice. Both raises the issue of how to properly manage the costs of revealing private information and reductions of confidentiality in transparent environments. They also fundamentally differ in their specificity (at least as government surveillance regulations are officially formulated in democracies): need-to-know selective disclosure or want-to-know public revelation. Both are based on different assumptions about how the information can be used, the likeliehood of misuse and the benefit of innovative new uses.
Whether Wikileaks have acted morally in their 2010 releases is hard to tell without a deep analysis of their motivations, method of work and consequences (depending on your favorite ethical system). But regardless of the morality of their actions this release is unlikely to be the last.
We might indeed be witnessing the slow birth of a new world order where governments are subjected to scrutiny even when they do not desire it, as unable to defend themselves from it as individuals are from government scrutiny. This has so far been driven more by technology than legal or ethical principles (and is hence hard to prevent without sacrificing economical growth and many other benefits). However, there is also a strong countermove where governments increasingly claim a right of global monitoring without easy citizen oversight. This, fortunately, is not so much driven by technology as politics, and is in principle amenable to democratic and ethical control.
There are good reasons to watch governments closely. Historically the largest anthropogenic losses of life has been due to state activities (wars, democides, famines through economic policies), and even fairly benign governments have engaged in deeply unethical behavior that has both been hidden from and negatively impacted citizens. Two-way transparency might be the only way of surviving even more powerful states.