Legal Commentary

WikiLeaks

By Michael Froomkin

John S. Quarterman has some thoughts on Our Friend Unfairly Maligned in London’s Court at Perilocity.

I haven’t written about any of this myself because my thoughts seem pedestrian to me: I think there’s a huge difference between a leaker and a recipient of classified information. The leaker commits an act of civil disobedience, and takes the risk of severe consequences, although one hopes bounded by due process and humanity. The constraints on the recipient are — and/or should be — strictly moral ones, not legal ones, or journalism as we know it is over. Legally, WikiLeaks is like the New York Times, or rather, as regards US law, the UK’s Guardian. This ought to be too simple to even need repetition, although sadly that repetition seems necessary.

The moral questions can be much more complicated, especially if an unredacted leaked document puts lives at risk. In the most recent document dump, however, WikiLeaks defused most of the moral issues as regards itself by using expert intermediaries: as I understand it, it gave the documents to various quite well respected newspapers, and let them decide what to print, what to withhold, what to redact. So the choices were outsourced to experts, and thus so too a good share of the moral responsibility.

As regards the legal cases now underway in London and Sweden, I feel too ignorant to say much, except that the whole thing looks odd to me, starting with the local Swedish prosecutor’s decision not to bring charges being supplanted by a different prosecutor in the capitol, and going forward via odd steps (Interpol? Most wanted?) to the present day proceedings in London (no bail?). But without knowing far more about the relevant local law, I don’t feel justified in doing more than asking questions.

The sight of US legislators and other fomentors baying for Assanage’s head is ugly as sin — in fact, in some cases it is sin — but it’s also now par for the ugly course on which my fellow voters have set the ship of state.

Full post as published by Discourse.net on December 16, 2010 (boomark / email).