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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Life with a smartphone is like having a second brain in your pocket

Where there was once soul and body, now there’s also a phone.

On the morning of 11 March 2005, a judge called Robert M Restaino was presiding over domestic violence cases in his courtroom in Niagara Falls, New York, when a piercing sound disturbed him. It was a cellphone, ringing somewhere towards the back of the room. Restaino asked the owner of the offending item to come forward, but no one did. “Every single person is going to jail in this courtroom unless I get that instrument now,” said the judge. He sent guards to find the phone but they returned empty-handed.

The stand-off ended with 46 people in jail. Though it was an appalling violation of the rights of those who were locked up (the judge was eventually removed from the bench), the incident had to it something of the reactionary fascination of Joel Schumacher’s 1993 film, Falling Down, in which an angry divorcé attacks the modern world with a baseball bat and gun. “I’m the bad guy?” he asks when confronted by police, having shot up gangsters, a fast-food joint and a white supremacist. Maybe Restaino asked the same thing when he got fired – because phones were a pain in the ass.

But that was then. Two years after Res­taino’s hissy fit, Steve Jobs launched the first iPhone for Apple at Macworld Expo in San Francisco. Within another two and a half years, smartphones had reached 40 per cent market saturation, matching television as the consumer technology with the fastest adoption rate. There are now two billion smartphone users around the world, 204 million of them in India alone. Since Apple’s entry into the industry, the company’s market value has risen to $586bn; its closest rival, Samsung, is now worth £161.6bn. Jobs promised in 2007 that the “magical device” would “revolutionise” telecommunications. Yet it did more than that: it revolutionised communication itself.

Cellphones had become “smart” long before the iPhone. The first mobile device to offer some of the features we take for granted, such as email and a touch screen, went on sale in 1994. The IBM Simon, however, was clunky and expensive (it cost $1,100)and it had no web browser, which isn’t surprising, because Tim Berners-Lee had only come up with the idea a few years earlier. So the Simon remained a curiosity, an executive toy to place next to the Newton’s cradle.

Smartphones have since fallen in price, shrunk to pocket size and become, in effect, what the Harvard anthropologist Amber Case calls “our external brains”. “We are all cyborgs now,” she said in a 2010 Ted talk, arguing that mobile technology was “helping us to be more human, helping us to connect with each other”. People now use it to look for jobs, get directions, follow breaking news, play games, check social media and watch videos, among other things – often while pretending to be equally occupied IRL (“in real life”). Descartes posited that there was a dualism of soul and body. Perhaps there is now a third self, pinging between phones and internet servers.

Much has been made of the disruptive potential of this new mode of information access. In 2011, a University of Washington report concluded that social media, most of it through phones, had “played a central role in shaping political debates in the Arab spring”. That year, I was living in east London as riots took place across England. From my window I watched kids throwing bottles at lines of police outside. Because my flat had a deep front alcove, young men would duck in off the street and hide there. I crept down the stairs and listened to them. “Where’re we going to go next?” said one. “Check BBM!” said another. Later, I looked up what BBM meant: BlackBerry Messenger. This was a cyborg rebellion.

For most people, however, smartphones have become an indispensable part of ordinary life, rather than a tool to fight the power. According to a 2015 Pew Research Centre poll, 46 per cent of Americans can’t “live without” a smartphone. A survey conducted last year by KRC Research found that 3 per cent would rather lose their wedding ring than their phone – and that 12 per cent would even sacrifice their “mojo”.

Another recent study, published in Computers in Human Behaviour, showed that 89 per cent of participants had felt “phantom vibrations”, in which they imagined that their phone was ringing when it wasn’t. In extreme cases, this can be a sign of neurotic behaviour. And according to the psychologist Kostadin Kushlev, more frequent phone interruptions make people “less attentive and more hyperactive”. So are we becoming too attached to our external brains? Researchers at Nottingham Trent University found in 2015 that the average user checks his or her phone 85 times a day. It’s worth remembering that an early nickname for the BlackBerry was “CrackBerry”.

If we can constantly access the world, the world can constantly access us. The Chartered Management Institute warned last year that, for many UK employees, time spent dealing with after-hours work emails cancels out their annual leave. There is also concern about the extent to which the security agencies can monitor our location and calls. (The Investigatory Powers Act, which extends the reach of state surveillance of phone and internet activity in Britain, was given royal assent last November; although the EU has ruled such indiscriminate collection of data unlawful, Brexit could render future objections by Europe meaningless.)

Amber Case and other evangelists for these new hyperconnected times argue that smartphones allow us to be more human, but I’m not so sure. Nietzsche encouraged “the good solitude” as a path towards the individual’s pursuit of reason. Yet this positive isolation seems ever more out of reach, ever more anachronistic – because, even when we are physically alone, our technology binds us to external concerns. Who can be fully present in his own thoughts when his attention is tugged one way and then the other by the competing appeals of emails, texts and social media alerts, all with the wearying undertow of Fomo (“fear of missing out”)? Call me a Luddite, but I’ll stick to my 15-year-old Nokia.

Yo Zushi is a contributing writer for the New Statesman. His work as a musician is released by Eidola Records.

This article first appeared in the 16 February 2017 issue of the New Statesman, The New Times