Re: Nassim Taleb's comments, WikiLeaks is not a wiki. For better or worse, it's tightly controlled. And it does not have power over anything: it gives the power of information to anyone who wants it.

I'm actually a big fan (with limits) of the free flow of information, but I see one point/coming problem that has been so far neglected: One strength of WikiLeaks, for all its flaws, is its practice of vetting the information for authenticity — usually with original sources, but also with common sense, knowledge of the sources, etc. So far as I know, nothing WikiLeaks has posted has proved to be inauthentic (as opposed to biased, scurrilous, embarrassing, dangerous, etc.).

Indeed, in an odd way, WL is an example of centralization and earning a brand: the central, acknowledged source for quality leaks. Now, there are likely to be imitations, fake mirrors, knock-offs and the like that are less responsible — as you say, hijacked by who knows what. In a truly distributed world, misinformation runs rampant.

I think the issue of "where we draw the line" is difficult — as such issues almost always are — but not insoluble, and in fact I think we already know pretty well where to draw the line, and have done so in the past. The Pentagon Papers is a pretty good example — but nothing is a perfect exemplar.

States, like individual agents, needsecrecy if they are to avoid being exploited in all their dealings. This is simply undeniable. You can't play 'rock paper scissors' if you write your list of moves on a piece of paper visible to your opponent. In a world in which agents (of all sizes and shapes) are constantly looking for an edge, keeping one's plans and one's knowledge of the world (and ignorance about the world) secret is a Good Trick with no alternative. So unless you are a radical anarchist/nihilist who prefers life in Hobbes' state of nature to the security of living in a law-governed society, you should endorse the need for state secrecy (And corporate secrecy—think of the law of trade secrets—and individual secrecy, and ACLU Governing Board secrecy, and . . . . )

But of course state secrecy is often abused, and then we have to hope that enterprising and tenacious journalists and conscience-stricken insiders, will spill the beans, selectively, for a purpose, minimizing collateral damage.Newspaper editors have huddled in secret over whether or not to print various secrets they have uncovered, and have a track record of making pretty good decisions. That going public with state secrets will be law-breaking in most instances is undeniable, but the state that chooses to prosecute the exemplary citizen who exposes major corruption/treason or other crime does so at the risk of its own perceived legitimacy. In a basically free society, judicious leakers earn our respect, even if they get harassed for a time or even jailed by those they expose.

"When does my right to privacy trump your need for security?" seems analogous to the question "What is fair use?", to which the answer is "Whatever activities don't get people convicted for violating fair use." Put another way, fair use is a legal defense rather than a recipe.

Like fair use, the tension between a right to privacy and a right to know isn't one-dimensional — there are many independent variables involved. For instance, does the matter at hand involve elected or appointed officials? Working in the public name? The presumption should run to public review.

Does it involve private citizens? Would its release subject someone to harassment or other forms of attack? The presumption should run to privacy. And so on.

There are a set of clear cases. Congress should debate matters openly. The President should have a private channel with which to communicate with other world leaders. Restaurants must publish the results of their latest health inspection. You shouldn't have your lifetime browsing history published by Google. These are not complicated cases.

The complicated cases are where our deeply held beliefs clash. Should all diplomats have the right to all communications being classified as secret? Should all private individuals be asked, one at a time, how they feel about having their house photographed by Google?

I do not know the answer to this class of questions. You do not know the answer to this class of questions. This is not because you or I don't have strong opinions about them; it is because our opinions differ significantly from the opinions of our fellow citizens, and putting just one of us in charge would be bad for democracy.

So my answer to "When does my right to privacy trump your need for security?" is whenever various democratic processes say it does. If I publish something you wanted private and you can't successfully sue me, I was in the right, and when not, then not.

The faith here has to be in a heuristic, not an algorithm, because the values that come into conflict, and the depth of our intuitions about those values, prevent there being any simple answer. The hardest questions in mediating our lives together have to be adjudicated using lawmakers and the courts and executive choice about what to enforce and how.

The only thing that could go really, terribly wrong right now would be short-circuiting that process.

~~

DANIEL HILLIS RESPONDS:

Clay, you say: The only thing that could go really, terribly wrong right now would be short-circuiting that process." Do you see Wikileaks as an example of short-circuting that process???

— Danny

~~

CLAY SHIRKY RESPONDS:

No, I see attempts to silence Wikileaks without due process as the short-circuit.

Wikileaks is just the kind of thing that happens from time to time (for which read: once every 500 years or so, as with the Dutch printers). What's at stake is whether democratic or extra-democratic processes become the way the world's democracies adjust.

— Clay

~~

DANNY HILLIS RESPONDS:

I understand your point about attempts to silence Wikileaks, but I am not sure I understand what your position is on WIkileaks itself. Should a democratic society be able to empower its diplomats to conduct confidential discussions? If so, and if those diplomats do the job they were asked to do, would you consider breaking the confidentiality of those discussions a short-circuit of the process??

— Danny

~~

CLAY SHIRKY RESPONDS

Danny,

Well, I think two things: diplomats need secrets, and government secrets are a threat to democracy. What I don't know is how those two conflicting observations should be balanced.

If the last couple of centuries of democracy have taught us anything, its that designing political process is more important than designing outcomes, so I also don't think that diplomats 'doing the job they were asked to' as being much of a Get Out of Jail Free card, since the job is in part to represent our interests, while working in our name (and, of course, being paid with our taxes.) All that suggests to me that diplomats (and foreign policy generally) can't be governed by any simple test of them 'doing their jobs' — unlike, say, postal employees or park rangers, the job of diplomat requires a lot of on-the-job judgment, and so should be part of democratic checks and balances.

I'm enough of a liberal (in the 19th century sense of the word) to believe that when fundamental principles clash (in this case, "international actors need private discourse" vs. "citizens should be able to observe the State's actions"), no one point of view is adequate to resolving them. My not having an answer isn't just "Better minds than mine..." begging off either. It's not that I don't don't think I can resolve the tension between those contradictory goods. I don't believe any single mind can resolve the tension.

(A funny illustration of the cognitive dissonance caused by one person advocating contradictory views is the famous "If by whiskey" speech by a Mississippi lawmaker on the possibility of legalizing whiskey, who gave an impassioned speech simultaneously for and against the proposition; the overall argument ran roughly "If by whiskey, you mean it's bad effects, I'm against legalization, and if by whiskey, you mean it's good effects, I'm in favor.")

Unlike people, though, systems can contain contradictory views. Democracies, when they work, are designed to prevent intellectually or ideologically coherent groups from governing. As a result, we have a bunch of processes where the composite position do not resolve the issues so much as hold them in iso. (Processes like trial by jury or the hashing out of spending bills, leading to results like the Fair Use doctrine or the current rules on abortion.)

These processes are not based on processing a set of facts through a clear theory. They are bargains, balancing fundamental incompatibilities in a way pleasing to no individual or group, but representing something that won't derail the system as a whole.

Consider our immigration policy. It is a farrago of differing rationales around letting people in legally, and around pursuing those here illegally, but the fact of the matter is that all of those arguments were as valid in 2004, and there was little such debate. The key question for immigration is not rational, but cultural and economic — when first-generation immigrants account for 1 in 10 citizens or more, or when there is a recession, the mood of the country turns anti-immigrant. There simply isn't a principled argument about immigration that accounts for these 'stocks and flows' thresholds around the US's cultural and economic carrying capacity.

Similarly, Richard Posner once pointed out that not only is it generally impossible to say whether the Supreme Court has correctly decided any given case, it should be impossible, since the design of the system should keep the Court from spending time on cases where current legal principles provide a clear answer.

So it is with Wikileaks and diplomatic secrets — principled argument isn't adequate to resolving the issue. Diplomats and world leaders have to be able to talk in private, to explore possibilities outside the range of acceptable public discourse. (The Israeli/Palestinian situation would be impossible to even approach diplomatically without this.) Yet the ability of diplomats to operate in secret not only violates principles of democratic oversight, it provides a huge loophole allowing for overproduction of secrets. And Wikileaks changes the balance of power in that situation.

Consider the nested questions involved in figuring out how Wikileaks does and should change that balance:

-Has Wikileaks, the organization, committed a crime? Is that crime bad enough to convince our allies to shut it down?

-Has Julian Assange committed a crime? Is it a crime bad enough to convince our allies to extradite him?

The answer to the first question seems likely to be No, per the Supreme Court's reasoning in the Pentagon Papers case. (IANAL.) The answer to the second question is less likely to be No, because of the wording of the Espionage Act; if Julian aided or persuaded Manning in any significant way, the Act seems to indicate that's a crime, but we don't know how much protection he gets as a publisher. There is also not much case law around the Espionage Act, so it's less clear what the precedents even say. And Julian, an Australian citizen, may be un-extraditable. And so on.

However, all previous reasoning about the legal liabilities of publishers and journalists — all of it — has taken place against a set of background assumptions about publishing: It is expensive. It requires a big, formal organization. The bigger its reach, the more expensive it is to be that kind of organization. Only a tiny group of people can be publishers with global reach. Every media outlet is deeply rooted in some country. And so on.

Like tree roots growing around a big rock, the law has grown up around these facts. Now the landscape has changed; the facts the law grew up around have changed shape, but the law has not yet been reshaped to fit the new facts.

We can't just assume that the old interpretations apply to the new situation, because a law that carves out a special place for a minority class of citizens — publishers and journalists — can't just be extended to the general populace without breaking things. If everyone who has the capacity to broadcast public speech is a journalist, and journalists are immune from testifying about people they've gotten secrets from, no one could ever be compelled to testify.

While I like the status quo ante (it's illegal to leak secrets but not illegal to publish leaks), I also recognize that that situation balanced a bunch of competing interests in an environment that no longer exists. So I don't think my opinion is adequate to capture whatever new balance is required, because the systems we have for setting the balance haven't done their work yet.

Julian's publication of the State Dept cables may be a crime, and if it is, the US may be able to make a case to our allies that it is one so serious he should be extradited. Wikileaks may also have committed a crime, and it may be so serious that the punishment merits shutting them down.

I am skeptical of these propositions to varying degrees, but I also know that the act of deciding them will create global precedents and important new information about the publishing law in the age of the internet. And that new information is almost certain to be contained in an If-by-whiskey-ish bargain, where incompatible principles are both affirmed. And we don't know what that bargain will look like yet.

Wolfram made this point in New Kind of Science: sometimes the energy required to calculate the answer to a problem is so significant that there is no way to model that outcome with heuristics and short-cuts. Sometimes the system just has to run flat-out for the full time it takes to arrive at the answer.

So this is a long-winded way of saying that the situation gives me ontological blindness. It's not that I think there is an answer to your question but I don't happen to know it. I don't think there is an answer to your question, period, and the novelty of the circumstance means there won't be an answer until the system has run flat-out for the time it takes to have a trial, and to see what new laws the world's governments are able to get passed.

And this is why I focused on the terrible risk of an extra-legal shutdown of Wikileaks; it's not just that if Julian doesn't get a fair trial, justice won't be served. It's that if Julian doesn't get a fair trial, we won't know what justiceis in a world where something like Wikileaks is possible.

— Clay

~~

DANNY HILLIS

Clay,

So it seems to me that you are saying that my question is un-computatble, in the mathematical sense of the word. I want to know where the lines "should" be drawn, but you are pointing out the the very concept of "should" assumes understanding of cause and effect that is impossible in this situation. Is that fair summary of what you are saying?

Who gets to keep secrets?

I think that the answer is that we all want to keep secrets, at some level.

That's why we have clothing, and doors to our bedrooms and bathrooms. Logically speaking, we don't need those things but we find them very desirable. A post by one of us argued that privacy is a recent concept — which I find quite unpersuasive in this context. Lots of desirably things are relatively recent, like proper nutrition, healthcare and lots of other things. The fact is that as society has gained the ability for people to have privacy and keep secrets, there is a clear preference for doing so. Along those lines, Douglas Adams, in one of his Hitchhiker books, argued that mental telepathy was considered a great punishment to species that had it because they couldn't have any private thoughts.

Secrecy is one of the reasons we play cards. Is some idealistic killjoy going to argue that a real time Wikileaks ought to tweet what cards are being dealt in poker or bridge games? Secrecy in that context is part of the fun. Secrecy in games works in part because they are a model for real world situations in which we have strong vested interests in keeping secrets. Much of the Wikileaks fallout is to ensure that US ambassadors can't send frank assessments to the Secretary of State. They are daily engaged in a poker game, of sorts, with their counterparts. That is the game of diplomacy. So why should that be exempt from secrets?

It is very difficult to imagine having negotiations without having some secrets. The reality is that secrecy and privacy are deemed to be highly desirable in a lot of human contexts.

Everybody on this email has secrets. One set is proprietary information. Anybody doing something nontrivial has some information which they consider proprietary. Usually the word "proprietary" has a business connotation to it, but a scientist's research results are often guarded even more tightly than commercial secrets. I know a physicist who used to throw himself onto his desk to cover up the papers he was working on if a colleague walked into his office — and that was AFTER he had won the Nobel Prize. Right now, the LHC results at CERN are proprietary — they need to be checked and verified, and the people involved want to get credit. The draft of the next book that John Brockman is about to sell — that is proprietary. The research result that isn't published yet. Everybody has proprietary interests.

Wanting to keep secrets does not, by itself mean that it is always desirable. People committing crimes have an obvious desire to keep their activities secret. Finding the balance between personal and societal rights is difficult. The way we run that in our society, as Nassim and David Gelernter point out is a system of laws and elected officials. However, imperfect they are, that is our system. Stepping outside that is something that is hard to condone as a general rule. Who elected Julian Assange to be in charge of this for the planet?

But what is the difference between what Wikileaks is doing and the Chinese hackers who were penetrating Google and other web sites trying (in part) to find evidence of dissidents that could then be punished and imprisoned? Does Google get to keep account info secret? Is it really OK that Chinese hackers can penetrate Google and read everybody's email?

Much of the response to Danny's question, and the response to Wikileaks more generally has a liberal / populist "lets stick it to The Man" quality to it. Dave Winer's response captures much of that. Wikileaks has so far attacked the US government, so people who don't like our government (which at one point or another is most of us!) can treat that as a special case and make special pleadings (as he did) that basically say it is OK to break laws and violate privacy so long as it is somebody I don't like you're doing it. That isn't an intellectual argument — it is an emotional and political argument.

I am sure that somebody will argue that the Chinese hacking of Google is different because it is the Chinese Government that is sponsoring it. If you follow this line of logic you wind up with an answer to Danny's question which is just "the people I don't like shouldn't keep secrets", which is hardly a principled position.

David Gelernter picked a hypothetical exposure of a state secret. I wonder what he thinks about an actual one with historical consequences, say the Pentagon Papers?

This discussion is fascinating, but largely beside the point. The answer to the question "Who gets to keep secrets?" will not be based on ideology or morality. It will be based, as always, on power, perspicacity, and technical skill. The technologies of secret-keeping and the technologies of secret-leaking advance hand in hand. The WikiLeaks case shows that, thanks to the remarkable ease and inexpensiveness of mass data storage and transmission, secret-leaking can now occur on a scale unimaginable before. But that's also true of secret-keeping. Tapping into the Internet and other communication networks allows governments, corporations, and others to collect and store private information on an unprecedented scale.

The U.S. government may in the end come to admit — secretly, of course — that it owes a debt of gratitude to WikiLea ks. Cablegate revealed, after all, that there are huge security holes at the State Department. One wonders how many other CD-Rs, thumb drives, SDHC cards, and other diminutive storage devices filled with confidential data have passed unnoticed through the doors of government agencies—and into whose hands they've fallen. At least with WikiLeaks the government knows what's been purloined; the undetected security breach tends to be the more dangerous one. And at least with WikiLeaks there seems to have been, so far, a careful vetting of the information made public. It's worth remembering that whoever who gave the data to WikiLeaks could just as easily have turned it into a torrent and blasted it, in raw form, across the Net. Julian Assange may be a hero or he may be a creep, but he's far from a worst-case scenario.

If the government wants to keep its secrets secret, it needs to modernize its computing systems, with a particular emphasis on reducing the proliferation of copies of sensitive documents and messages. Wherever possible, for example, the computing devices used by functionaries with security clearances should act as dumb network terminals, with as little onboard storage as possible and without USB and other ports. Such safeguards are not foolproof, of course. Computer security is and always will be a cat-and-mouse game. We can hope that the cats and the mice who gain the upper hand will always be the good ones, but that has never been the case in the past and is unlikely to be the case in the future. We don't get to choose who keeps the secrets.

— Nick

~~

DANNY HILLIS RESPONDS:

Nick,

You are right, but the intent of my question was who should get to keep secrets. As you point out, the relative strengths of secret-keeping and secret-exposing technologies makes a difference. As in inventor of technology, which way should I try to tilt the balance?

— Danny

~~

NICHOLAS CARR RESPONDS:

Danny,??

I think I'd tilt the technological balance slightly toward secret-keeping when it comes to individuals and slightly toward secret-exposing when it comes to institutions. Is that possible???

— Nick

~~

DANNY HILLIS

Nick,?

Let me ask a narrower question, which will make clearer my motivation and help me understand your position. Should I work to increase or decrease the technical ability of institutions to keep secrets?

— Danny

~~

NICHOLAS CARR

Danny,

I think institutions have a legitimate need, and often an obligation, to keep some information secret, so I think it's entirely appropriate for you to help them build technical defenses against theft and sabotage, and it would be inappropriate for you to work to create tools to make theft and sabotage easier.

At the same time, I also believe it would be appropriate for you to work on technologies that would make it easier for individuals to discern — and to block such efforts when desired. I also think it would be appropriate to work on technologies that would help shield the identity of whistleblowers inside institutions.

These efforts might well conflict with one another, but I don't think such conflicts are bad. In fact, I think the conflicts are necessary in order to keep a balance between the need to keep information secret and the potential for secrecy to be abused.

— Nick

It is important to distinguish between personal privacy and government secrecy. In the first instance, we are considering a fundamental human right, in the second an instrumental technique that extends the power of the state.

DANIEL HILLIS RESPONDS:

TO MARC ROTENBERG

Marc,

I wish you would say more about this. When the governments withholds information about individuals is that an issue of privacy or secrecy? Do individuals have a fundamental right to withhold any information or can society demand transparency from them in certain circumstances? For instance, should courts be stripped of their current powers to force individuals to reveal information?

 —Danny

~~

MARC ROTENBERG RESPONDS:

Interesting questions. Here are a few more thoughts.

Niether privacy nor secrecy is absolute. But in democratic societies, the default settings are toward privacy for the individual and transparency for government. In authoritarian societies — and in prisons — it is transparency for the individual and secrecy for the government. Privacy is also highly dynamic. A person's ability to move between a private sphere and public sphere is a measure of political freedom.

When the interests in personal privacy and government transparency come into conflict, there are often non-zero sum solutions. So for example, it is reasonable to expect that governments should make available records to the public while redacting the names of individuals. At times, of course, we need to understand the activities of individuals when they are acting in an official capacity.

David Gelentner has a great point. All these discussions miss something central: in this romantic utopianism for free information few of the advocates realize that the wiki concept may not be that much a bottom up process. Rather it is one that can be easily hijacked by a few techies and bully hackers creating cliques and their own mafias. It gives a disproportionate power to people we did not elect. And it seems to want to escape the legal system, which we spent to much of our history fighting to refine in order to protect individuals.

Precisely ... We need heroes willing to sin for us if necessary. (Yes, who decides it's necessary?)

The Czech dissident Jan Prochazka was spied upon for years by the Communist government in Prague, but he didn't let this inhibit his conversation. He spoke to his friends as anyone would, expecting that his talk would go no further than his social circle. Then one day the police did a shocking thing: They broadcast Prochazka's private chatter on the radio. He was devastated. Milan Kundera, who has written about this assault several times, explained it in terms of the contrast between public and private life: "that we act different in private than in public is everyone's most conspicuous experience, it is the very ground of the life of the individual," as he writes in Testaments Betrayed.

I'd like to propose that the issue isn't that simple — that we don't have a private self and a public self, but rather many different selves. One for work. One for the home we've made as adults, another for the family in which we were once children. One for old friends and one for new acquaintances. This variability is well-documented by social psychologists, behavioral economists and other researchers.

Now, imagine you say something cruel and funny, but unfair, about one friend to another friend. If the listener repeats what you said, you will feel (a) betrayed and (b) that you didn't "really mean it." You feel betrayed because you expected that Listener Friend would respect the unspoken assumption of a conversation, which is that you were presenting a version of yourself appropriate to that time and place, a version which is almost always not for export to the wider world.

Why, though, do you feel that you didn't "really mean it"? Why is the self in the bar at 2 a.m. a less legitimate, less real version of you than another self--for example, the self who knows he will be on a radio program talking about his friend tomorrow? I think it's because when you know you're going to be broadcast, you can prepare a version of your self to fit the occasion. It's probably axiomatic that we always mean what we say, when we say it. The important thing is to have control over your own self-presentation--to say what you want to mean at the funeral, and not have to hear what you said in bar.

Privacy is version control. It's not a set of protections around a single True Self. It's the right to decide which of many versions of your self will be known to others, in a particular context or situation. It's the expectation that, if your voice is broadcast on the radio, it will be your "radio self" that the world hears, not the last-round-of- drinks self. People who can't control their self-presentation — children, prisoners, celebrities who have lost control of their own stories — feel the pain of missing autonomy, missing adulthood. Someone else is deciding what they really meant; someone else decides which version is true and which others don't count. So the opposite of privacy, as Kundera noted, isn't serene secretless glass-house transparency. It's totalitarianism.

Hence I was appalled by Wikileaks' violation of privacy in its cables release. Sure, I was titillated and amused to read what American diplomats think of Vladimir Putin or Nicolas Sarkozy. But Wikileaks did to them what the Communist apparatchiks did to Prochazka. It robbed them of that control over self-presentation that's essential to human dignity and autonomy.

Yes, but what about the other issue — state secrecy, rather than personal privacy? Surely some "secrets" are just the nation-state equivalent of personal privacy: The State Department can't do any business if it's limited to one version of itself (the one that issues bland communiqués about cooperation with Russia, or the one that calls Putin and Medvedev Robin and Batman, take your pick. Both are necessary).

Other kinds of state secrets have political and material consequences. They are the kinds of information that people in governments have decided to withhold from their own people. You could take the view that this is always a bad thing, but that's hard to defend. Should we really let Osama bin-Laden know we've found his cave, in the name of perfect transparency?

I accept that states should keep consequential secrets, then, but it puts me in a bind: I must trust people in government to do what is right. But given the sacredness of privacy, I cannot know know more about those people than they choose to let me know. So can I really trust them? It seems to me that democratic societies don't have a stable place to stand between the imperative of individual privacy and the imperative of trust-in-others. Yet I feel sure that if we let our justified mistrust lead us to deny the importance of privacy, we'll end up with a worse State, not a better one.

I don't know who gets to keep secrets, but it's good that these secrets are coming out.

We're not really learning anything we didn't already know (but couldn't prove).

Now maybe some of our leaders will go to jail, and maybe some will be driven from office, and maybe some in the future will be a little less bold with the lies and trumped up reasons to go to war. (And maybe some reporters will dig in a little more and press harder for the truth.)

Maybe cynicism won't rule the day so much. Maybe we have a chance at getting reality-based in the future. Seems we could use a bit of that to deal with the exploding population.

We've gone way overboard with the secrecy thing. Now it's time for the pendulum to swing back from that extreme. It's good. Stop worrying.

Late to the conversation, but just checked in on Christmas night to find this present of a conversation gift-wrapped and sitting in my mail box.

Late though I am, I'll chime in with a few things.

1. To Danny's original question, one obvious answer to "Who gets to keep secrets?" is "Anyone capable of keeping them." As noted, that list is increasingly hard for organizations to get on, because the tension between access for insiders and lack of access for outsiders is no longer aided by a media environment characterized by a cartel of nationally-based actors who own substantially all modes of global distribution, and who would decline to publish such material.

2. It is astonishing that Pfc. Manning (or the person who copied the cables from SIPRnet) has gotten almost zero attention, even though, in both law and practice, he is clearly the person most culpable. Like the music industry, the government is now desperate to add new forms of control at intermediary points, as they have witnessed the million-fold expansion of edge points capable of acting on their own, without needing to ask anyone for help or permission.

3. It's unlikely we'll ever again see as massive and indiscriminate a collection of secret documents leaked from a single governmental source by a single person. As Markoff said, the poor design of SIPRnet access controls, as well as the insanity of a demoted specialist being allowed to keep his clearance, are not the kind of mistakes governments are likely to make twice. We will still see leaks, but they will be narrower in scope, and the leakers will be more centrally placed.

(3a. It is, however, the sort of mistakes hospitals will make. They have exactly the same "Multiplication of insiders/resistance to internal segmentation" that .mil had. Electronic records are proliferating, while the health care system continues to resist requirements to take on the expense and inconvenience of protecting its data (including resisting requirements to encrypt all data at rest). As a result, we will see at least one #cablegate-scale leak of healthcare data.)

4. As a consequence of the government's reaction, the Age of Intellipedia is over (9/12/01-11/28/10, RIP). After the shock of the 9/11 attacks, the intelligence community had been re-thinking its approach to silo'ed data, moving, fitfully, from a culture of "Need to know" to one of "Need to share." That giant sucking sound you hear is a billion putatively shared documents being slurped back into their silos, and even now, somewhere in the bowels of the Pentagon, there is doubtless a Powerpoint deck being crafted whose title is "Need to Know 2.0".

5. Julian claims that the history of these matters will be divided into "pre-Wikileaks" and "post-Wikileaks" periods. This claim is grandiose and premature. However, it is not, on present evidence, visibly wrong.

6. There are several ways in which Wikileaks marks a break with previous examples of such leaks, but for my money, the most dramatic is its global nature. Even the NY Times vs. the United States (1971), universally referenced as the apposite legal judgment, was a local affair.

Though, as Nathan noted, the leaking of the Pentagon Papers leading to that case didn't much change the prosecution of that war, it did affect the principal target of the protests of the 1960s, which was ending the draft. The Papers made it harder to ask middle-class parents to sacrifice their children to that kind of action. (It also helped feed into the collapse of trust in the government and of authority figures generally.) All this, however, was in the US context, as was every actor involved: Ellsberg, McNamara, Sulzberger, the NY Times, the Supreme Court, and so on. No one was out of the reach of the Federal Government.

Wikileaks, as both an institution and as a capability, has been global from the beginning, and the additional complexity of both jurisdiction and extradition make this particular problem much much more complex than any issues, legal or practical, triggered by the Pentagon Papers. Wikileaks has been operating since 2006, and the AG still has huge difficulty bringing charges.

7. Because of the massive increase in the number of actors who can make things public and the globalization of the stage on which those actors can act, I don't think there is yet a practical answer to Danny's question in the context of Wikileaks.

For many of our most important social systems, we resolve clashing principles by providing an escape valve, in the form of a set of actors who are less rule-bound than the rest of the system. The most famous and ancient is the jury, a collection of amateurs who can, in the face of clear laws and evidence, simply not return the verdict a judge would have returned.

So while I share Nathan's belief that the publication of the Pentagon Papers wasn't itself such a momentous event, I am nevertheless willing to defend the subsequent court decision not to punish the NY Times as "Holy Writ", on different principles. The Supreme Court's ruling seems to say (IANAL) that there is no law-like way to balance the State's need for secrets with the threats secrets pose to democracies, so it simply said that the 1st Amendment provides immunity to publishers; it is illegal to leak secrets, but it is not illegal to publish leaks.

8. This immunity sets up publishers as self-regulating checks to government power, albeit in a system that can never be made intellectually coherent — neither total success nor total failure of the state to keep secrets would protect the Republic as well as a regime of mostly success with periodic failures.

In this, it is analogous to other such legal systems, like Fair Use, which says "It's fair to use some bits of copyrighted work without permission, except when you use too much, or in the wrong way, and we're not going to define 'too much' or 'wrong way' too predictably." The effect of this is that claiming fair use is an assertion of a sufficiently low probability of being successfully sued; put another way, fair use is simply the concatenation of behaviors that won't get you fined for violating fair use.

9. However, a system like the one we got in 1971, a system that lets publishers operate as self-regulating checks to government power, was constructed in an environment of significant extra-legal constraints. A publisher, circa the Pentagon Papers, was a commercial, nationally-rooted media firm subject to significant tradeoffs between scale and partisanship — large publishers had to be deeply embedded in the culture they operated in, and they had to reflect mainstream views on most matters most of the time, to find and retain both revenue and audience.

Wikileaks operates with none of those extra-legal constraints. As a result, the legal bargain from 1971 (which was in turn public codification of US practice; no publisher has ever been successfully prosecuted under the Espionage Act) simply does not and cannot produce the outcome it used to, even though no aspects of the law itself have changed.

Society is made up of good things that can't be resolved in any perfect way — freedom vs. liberty, state secrets vs. citizen oversight — but the solutions to those tensions always take place in a particular context. Sometimes a bargain is so robust it lasts for centuries, as with trial by jury, but sometimes it is so much a product of its time that it does not survive the passing of that time.

I think that this latter fate has befallen our old balance between secrets and leaks. This does not mean that the Pentagon Papers precedent shouldn't free Wikileaks from prosecution, but I think it does mean that we can't assume that the old rules should be applied without amendment to the new situation.

I hope for all of our sakes that Holder brings a case under the Espionage Act, because that outcome would be better than either the extra-legal attacks on a media outlet the US Government doesn't like, or than finding ways to hold Julian on charges that don't revisit the basic balance the Court struck 40 years ago. This is new ground, and needs to be hashed out as an exemplar of the clash of basic principles that it is.

And with that, from snowy Geneva, a Merry Christmas to all, and to all, a good night.

Just like it's impossible to think of human interaction without secrets or intimate communications, it's quite naïve to think that there will not be secrets within and between governments — at a minimum during war or in the context of sensitive diplomacy.

Secrets are not just useful for governments to operate with others around the world and to defend their respective citizens but morally necessary in certain instances, as in the case of secret negotiations to end a genocide or civil war or tracking a suicide bomber with the intent of saving the lives of innocent civilians.

Normatively, secrets can certainly be destructive and be used to hide the indefensible, but they can also enable good and moral events and developments.

If we accept there are scenarios in which secrets can be morally necessary and important, then there is no absolute, apriori rule of openness and transparency for information — unless one is purposely amoral or destructively relativistic. If so, we then need to create structures and systems as societies that allow for appropriate secrets, oversight, and revelation — all of which we've debated within American culture and politics since the founding of the republic.

A more relevant question in this context then — and for a democracy — is what that system looks like, who gets to divulge secrets, and how this works in a way to ensure there isn't abuse. We have answered that as a society — perhaps not well enough and perhaps in need of more consistent review — but we've answered it. Assange may not feel a part of that debate or understand it, but he isn't American and has no right to make these judgments for the American people.

Shouldn't Americans be offended then that a non-American is determining what it means to be a transparent democracy and what should be divulged globally — to all actors (friends and foes alike)?

Have Assange or his supporters addressed the validity of the balance struck within the United States between necessary secrecy and transparency — existing declassification procedures, the Freedom of Information Act, the role of internal Inspector Generals in all th key departments and agencies, the oversight of all of the government's activities by the peoples' representatives in Congress, and the ability of the media to act consistently as a check on the government in the American context?

This system may not be perfect, but it allows for a balance between the need for secrets and the need for transparency and accountability in a democracy. There is a deafening silence in this current debate regarding this balance and how it works in the American context. The fact that no grand revelation or policy bombshell has emerged in anything Wikileaks has produced may in fact be a reflection of this system working — one which tends to reveal over time alleged government abuses and missteps along with the rich contours of American policies consistent with what the media and public already know and expect.

All of this is revelatory of Wikileaks' real purpose. Wikileaks' wanton dumping of diplomatic cables (dribbled out to create headaches and headlines) demonstrates nothing other than a contempt for American influence and an attempt to undercut the ability of the U.S. government to operate effectively around the world. (Ironically, most of these documents revealed in this latest tranche are merely sensitive and not classified.) Assange and his supporters may argue that they are defending a broad principle of transparency, but this is less about principles and more a normative judgment about the nature of American power.

His focus on American "secrets," vice those of the most reclusive, repressive, and purposely opaque regimes in the world, demonstrates a failed moral compass and a flawed, fulsome principle unveiled now as simple anti-Americanism.