Is the Wikileaks Case Really Like the Pentagon Papers Case?
Part Two of a Two-Part Series on a Lawsuit Against a Controversial Site that Hosts Confidential Government and Corporate Documents

By JULIE HILDEN

Wednesday, Mar. 19, 2008

Recently, a case before San Francisco-based U.S. District Judge Jeffrey White made headlines - thanks to two controversial orders the judge issued last month.

The defendant is Wikileaks, which describes itself as "developing an uncensorable Wikipedia for untraceable mass document leaking and analysis." The plaintiff is a Cayman Islands bank whose employee posted some of its documents online.

The bank says that by hosting the documents, Wikileaks has violated the law, by interfering with the bank's confidentiality contract with the employee. Based on his first order, Judge White seemed to be siding with the bank - but a subsequent order, which gave a clearer picture of matters, showed that he is now well aware of the First Amendment issues the case raises.

In Part One of this two-part series of columns, I discussed the facts of the case and the orders issued by Judge White in detail. In this column, Part Two, I will consider a comparison that has been made both by observers and by Wikileaks itself, paralleling this case to the "Pentagon Papers" case.

That case, as many readers will recall, arose from the New York Times's publication, in 1971, of a lengthy secret government history of the Vietnam War, leaked by former Defense and State Department official Daniel Ellsberg. The Supreme Court ultimately lifted an injunction against the Papers' publication on First Amendment grounds.

Is that case truly analogous to this one - suggesting that Wikileaks, too, should prevail on First Amendment grounds?

One Possible Distinction: The Involvement of Professional Journalists

To readers, the parallel between this case and the "Pentagon Papers" case may seem suspect, at least at first glance, because not all of those who volunteer for Wikileaks are professional journalists. Granted, the site does specifically seek people with experience in journalism to contribute their analyses of documents, but it clearly does not limit its analysts to journalists alone.

Moreover, it appears that virtually anyone can upload any document to Wikileaks, without any prior editorial decision as to whether it should appear there. In contrast, at the Times, decisions to publish are made by reporters and editors (in conjunction, at times, with attorneys and corporate management).

Nevertheless, I believe the parallel is valid - for several reasons. First, as in the Pentagon Papers case, Wikileaks is seeking to publish pre-existing confidential documents - not firsthand accounts by confidential sources. Thus, the one fact for which the source is asked to vouch is the document's authenticity. That was also the case with Ellsberg and the materials he provided to the Times.

In addition, just as the Times's editors were able to gain confidence regarding the authenticity of the Pentagon Papers due to Ellsberg's prior position in the State Department and other indicia of their reliability, Wikileaks' host of experts is doubtless quite good at ferreting out fakes. (We'll see if that proves to be true, in particular, in the case before Judge White; the bank says that some of the documents the employee posted are forged.)

Indeed, especially because it has decided not to limit its contributors to journalists, but also to solicit contributors with experience in other fields such as "intelligence," Wikileaks may well prove itself better than newspapers such as the Times in ascertaining when documents are authentic.

Compare, for instance, the way bloggers proved more adept than veteran journalist Dan Rather and his producers in weighing in on the authenticity of the supposed Bush National Guard documents. A small team of journalists, even if it is completing broad and conscientious reporting, may find it hard to compete with the massive collective resources of time and expertise possessed by the contributors to a Wiki.

As I've discussed in prior columns such as this one, the line between journalists and other players in disclosure/secrecy battles is becoming increasingly blurry, and eventually may be decimated. The power of Wikis that draw on expertise is another strong factor arguing against limiting the journalist's privilege to professional journalists.

Whereas one might see a Wiki as a broader funnel for publication, I think it is better viewed as an initially broad but narrowing funnel with a thicker series of successive screens against error, which limit the time bogus material remains on the site. A dozen experts in the field might look at particular documents on a Wiki; a Times reporter might only have time to consult one or two experts pre-publication.

One Possible Distinction: Pre-Posting Review and the Lack Thereof

Wikis do have an Achilles heel, though: As noted above, initial Wiki postings are unreviewed. Thus, when posted documents are forged or false or inauthentic, there will be a time gap - potentially, a substantial one, between publication and correction. And during that time, the information may be disseminated all over the Internet, making de-posting potentially quite ineffective. Newspapers, including Internet newspapers, do not have this problem, as there is pre-publication review by editors (and sometimes attorneys as well).

Still, it seems only fair to look at Wikis' advantages and disadvantages overall, rather than to focus on this one weakness - for print newspapers have weaknesses too. First, as noted above, Wikis may actually be more accurate than professional journalists in ferreting out falsehood, if they draw the attention of dozens of subject-matter experts, as Wikileaks hopes to do. Thus, Wikis' potentially greater risk of false initial postings may be counterbalanced by a greater probability that false stories will be effectively debunked.

Second, newspapers do let errors through, too. In addition, they are much slower than Wikis in correcting them, and, I believe, more prone to let errors stand for reasons of pride and reputation. One Wiki user can instantly correct what he or she sees as a falsity, and only his or her reputation is on the line. Yet newspaper corrections are made in the name of the institution, and at the cost of institutional and personal pride. No wonder that they often appear only days or weeks later, tucked away in an unobtrusive corner.

Granted, the presence of an ombudsperson/"public editor" may help matters: Consider the New York Times's public editor's response to the Times's recent story on John McCain's alleged "inappropriate behavior" with a lobbyist. But the time lag between the story's hitting on February 21, and the ombudsman's weighing in on February 24 was substantial. Had the ombudsman been a Wiki contributor, he could have deleted the story the moment he saw and doubted it.

Another Possible Distinction: Government Documents Versus Corporate Documents

In the end, I believe the only real distinction between the Pentagon Papers case and this one is that that case involved a government document and this one involves a corporate document. Wikileaks invites the submission of both.

Arguably, the First Amendment interest in the publication of an internal government document is stronger, since a core purpose of the First Amendment is to protect the kind of speech necessary for our political system to function.

Conversely, however, one might also think that the government's interest in keeping confidential documents secret is stronger than a corporation's interest in doing the same. Thus, one might see the Pentagon Papers case as simply being like the Wikileaks case, but with higher stakes.

Napster and FuckedCompany.com as Predecessors for Wikileaks: How It May Have Learned From Their Mistakes

Interestingly, the battle over Napster was fought out in California federal district courts as well. My view on Napster has always been that its court losses resulted, in part, from a tactical mistake: It presented itself as a forum for stealing, not sharing.

Had Napster styled itself as a site for garage bands to disseminate free mp3s of their work to potential future fans, it might have had a far warmer reception in the courts - even if the site had still come to be dominated by unlicensed, copyright-infringing swaps. After all, policing stealing on a swapping site can be incredibly difficult. But the courts weren't willing to listen to Napster's arguments to this effect, in light of the fact that the evidence showed that Napster had never intended to police stealing in the first place; it intended to enable it, instead.

Wikileaks, fortunately, has chosen to put on the white hat from the very beginning - and wisely so. (Its predecessor FuckedCompany.com also invited the posting of internal corporate documents, but did so in a much snarkier, less public-interested way, using a tone and approach close to Napster's.) Wikileaks takes as its primary target countries that are major human-rights violators - villains few will ever defend. It explains its mission as follows: "Our primary interest is in exposing oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East, but we also expect to be of assistance to people of all regions who wish to reveal unethical behavior in their governments and corporations."

Yet, while Wikileaks's statement of purpose is useful to recruit the right volunteers and attempt to set a tone for the site, it should not be mistaken for the ability to effectively control what is posted. For instance, it's hard to imagine that Wikileaks would have wanted the case before Judge White as its ideal test case in the United States - but thanks to its contributors, it's stuck with that case (as opposed to, say, a case about a Guantanamo manual it also hosted) as its first major testing ground.

Unfortunately, however, one less-remarked byproduct of going the Wiki route is that litigation strategy may be taken out of one's hands, as users create flash fires that the Wiki domain name owner (and sympathetic amici) must go to court to put out.


Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes free MP3 and text downloads of the novel's first chapter.

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