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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?

Full post as published by InternetCases.com on December 10, 2010 (boomark / email).