The £12m question: how WikiLeaks gags its own staff

“A typical open market valuation.”

This blog has previously described the bizarre legal world of WikiLeaks where, for example, the organisation claims some form of commercial ownership over the information that has been leaked to it.

Today, the New Statesman can reveal the extent of this legal eccentricity as we publish a copy of the draconian and extraordinary legal gag that WikiLeaks imposes on its own staff.

Clause 5 of this "Confidentiality Agreement" (PDF) imposes a penalty of "£12,000,000 – twelve million pounds sterling" on anyone who breaches this legal gag.

This ludicrous – and undoubtedly unenforceable – amount is even based on "a typical open-market valuation" for the leaked information that WikiLeaks possesses.

This phraseology is consistent with WikliLeaks's perception of itself as a commercial organisation in the business of owning and selling leaked information. Indeed, there is no other sensible way of interpreting this penalty clause.

Other parts of the legal gag are just as extraordinary. The second recital paragraph, "B", provides that – like a superinjunction – the fact of the legal gag itself is subject to the gag.

So is "all newsworthy information relating to the workings of WikiLeaks". On the face of it, even revealing one is under this agreement could result in a £12m penalty, as would sharing information on how the directors conduct the organisation.

The fifth recital paragraph, "E", is just as astonishing. It purports to extend what WikiLeaks can sue for beyond any direct loss that it might suffer if the gag is breached. WikiLeaks says it can sue for both "loss of opportunity to sell the information to other news broadcasters and publishers" and "loss of value of the information".

All this legalese can only mean that WikiLeaks takes the commercial aspect of selling "its" information seriously: there would be no other reason for this document to have such precise, onerous and unusual provisions.

On the basis of this legal gag alone, it would be fair to take the view that WikiLeaks is nothing other a highly commercially charged enterprise, seeking to protect and maximise its earnings from selling information that has been leaked to it. If so, WikiLeaks is nothing other than a business.

One suspects that the various brave and well-intentioned people who have provided the leaked information would be quite unaware of – and perhaps horrified by – the express commercial intentions of WikiLeaks, as evidenced by this document.

However, for some time it has been apparent that WikiLeaks and its founder, Julian Assange, have had a "pick'n'mix" attitude to legal obligations. They seem to feel free from any restrictions in respect of confidentiality and official secrecy; but on the other hand they make routine legal threats, especially against the Guardian, so as to uphold their perceived rights to their supposed commercial "property" – leaked, sensitive information. Abidance by the law is, it would seem, something for other people.

And, as the legal gag shows, WikiLeaks sought to use the full force of the law to deter or punish anyone who leaks against it – to the tune of £12m a time.

David Allen Green is legal correspondent of the New Statesman and is a practising media lawyer. He was shortlisted for the George Orwell Prize for blogging in 2010.

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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Politicians: it's no longer OK to know nothing about technology

It’s bad enough to joke about not being "techy"; it's worse to back a piece of legislation from a position of ignorance. 

Earlier this week, facing down a 600-strong battalion of London’s tech sector at a mayoral hustings in Stratford, Zac Goldsmith opened his five minute pitch with his characteristic charm. “I’m not very techy!” he exclaimed. “I understand coding about as well as Swahili!”

Pointless jibe at a foreign language aside, this was an ill-chosen way to begin his address - especially considering that the rest of his speech showed he was reasonably well-briefed on the problems facing the sector, and the solutions (including improving broadband speeds and devolving skills budgets) which could help.

But the offhand reference to his own ignorance, and the implication that it would be seen as attractive by this particular audience, implies that Goldsmith, and other politicians like him, haven’t moved on since the 90s. The comment seemed designed to say: “Oh, I don't know about that - I'll leave it to the geeks like you!"

This is bad enough from a mayoral hopeful.  But on the same day, the Intelligence and Security Committee of Parliament filed its report on the Draft Investigatory Powers Bill, the legislation drafted by the Home Office which will define how and how far the government and secret services can pry into our digital communications. Throughout, there's the sense that the ISC doesn't think the department behind the bill had a firm grasp on the issues at hand. Words like "inconsistent" and "lacking in clarity" pop up again and again. In one section, the authors note:

"While the issues under consideration are undoubtedly complex, we are nevertheless concerned that thus far the Government has missed the opportunity to provide the clarity and assurance which is badly needed."

The report joins criticism from other directions, including those raised by Internet Service Providers last year, that the bill's writers didn't appear to know much about digital communications at all, much less the issues surrounding encryption of personal messages.

One good example: the bill calls for the collection of "internet connection records", the digital equivalent of phone call records, which show the domains visited by internet users but not their content. But it turns out these records don't exist in this form: the bill actually invented both the phrase and the concept. As one provider commented at the time, anyone in favour of their collection "do not understand how the Internet works". 

Politicians have a long and colourful history of taking on topics - even ministerial posts - in fields they know little to nothing about. This, in itself, is a problem. But politicians themselves are often the people extolling importance of technology, especially to the British economy - which makes their own lack of knowledge particularly grating. No politician would feel comfortable admitting a lack of knowledge, on, say, economics. I can’t imagine Goldsmith guffawing "Oh, the deficit?  That's all Greek to me!"  over dinner with Cameron. 

The mayoral candidates on stage at the DebateTech hustings this week were eager to agree that tech is London’s fastest growing industry, but could do little more than bleat the words “tech hub” with fear in their eyes that someone might ask them what exactly that meant. (A notable exception was Green candidate Sian Berry, who has actually worked for a tech start-up.) It was telling that all were particularly keen on improving internet speeds -  probably because this is something they do have day-to-day engagement with. Just don't ask them how to go about doing it.

The existence of organisations like Tech London Advocates, the industry group which co-organised the hustings, is important, and can go some way towards educating the future mayor on the issues the industry faces. But the technology and information sectors have been responsible for 30 per cent of job growth in the capital since 2009 - we can't afford to have a mayor who blanches at the mention of code. 

If we’re to believe the politicians themselves, with all their talk of coding camps and skills incubators and teaching the elderly to email, we need a political sphere where boasting that you're not "techy" isn’t cool or funny - it’s just kind of embarrassing. 

Barbara Speed is a technology and digital culture writer at the New Statesman and a staff writer at CityMetric.