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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How Linux conquered the world without anyone noticing

Twenty-five years ago, the open source operating system came into being.

Linux is probably the only operating system that all of us use every day, but only some of us actually know it.

Its creator, Linus Torvalds, first posted about his work on this new, free OS back in 1991 but said it was "just a hobby, won't be big". How wrong, or perhaps humble, he was.

Everyone from Google to IBM and Nasa to the New York Stock Exchange uses the open source software in one shape or another. But, legend has it, self-effacing developer that he is, Torvalds initially shied away from using part of his name in naming this new product.

"I'm so glad it didn't end up being called Freax," says Martin Percival, senior solutions architect at Red Hat, probably open source's biggest commercial success story, built right on top of Linux. "Had Linus got his way, Linux may not have become such a success with the companies that it has."

One of those companies is, of course, Red Hat, which is credited with making Linux enterprise-ready with its Red Hat Enterprise Linux operating system. "If it weren’t for the rise of Linux, Facebook and Google and so many others would have had such a harder time getting scale," Percival says.

For Red Hat, its distribution of Linux helped the company reach annual revenues of $1.79bn last year. It's a profitable, open source company that works on a subscription model – giving you the software for free in exchange for ongoing technical support.

As well as testing new bits of Linux to ensure they're compatible with your existing infrastructure, that also means ensuring its users are protected from patent trolls who try to find companies accidentally using proprietary code.

Open source, open society, open job roles

As open source has grown, it seems to have happened in sync with society becoming more open. Indeed, these trends may well have fed off each other.

Red Hat's current CEO Jim Whitehurst, author of The Open Organization, talks in public as much about openness in companies and society as he does about open source.

"Society has changed a lot over 20 to 30 years," Percival agrees. "There's a generation of folks coming through who connect more, are more open with peers, share more and that naturally flows through into the workplace.

"They're confused by organisations that say 'you're not allowed to pull apart this thing we’ve provided and if you do, to fix a problem, we'll sue you'. That's an insane thing to say to an organisation that’s fixed a problem."

And where big, historically proprietary companies are letting professional staff go left, right and centreopen source jobs are growing. Not least because so many enterprises now use open source in much of their operations.

"Open source has reached a point where it’s relied upon to do substantial amounts of infrastructure we rely on," Percival says.

"It's now good enough, robust enough, reliable enough, so why would most organisations go off and build giant teams to create solutions for themselves when they can build open source or on the public cloud?

"It's not great for the poor folks who are being put out of business by robust open source software. But that just means they have to redeploy their teams in a more agile way to build software with a business value that sits on top of it."

That feud

By the early 2000s, Dell, IBM, HP and Oracle had all already lent their support to Red Hat in one way or another. Indeed, Intel is the largest contributor of code to the underlying Linux kernel. That's not least because the creation of this new OS profoundly shaped how Intel designed its chip sets. 

But Red Hat, and no doubt the entire open source community, did had a long-running feud with Microsoft around the principles that technology is built upon.

So much so that Red Hat's first CEO Bob Young wrote in 2000:

"The software industry that Microsoft has been the role model for is built on the premise that customers are not to be trusted with the technology that they are building their organizations on.

"The legacy software industry is built on the proprietary binary-only model where not only does the user not get the source code he needs to make changes, but worse he receives the product under a license that essentially says that if you make any improvements to the technology you are using, if you solve a bug that is causing your systems to crash, or add a feature that your users or customers desperately need the vendor can have you thrown in jail. (If you don't believe me, just read any shrinkwrapped software license).

"This kind of business model, where the customer is completely beholden to his supplier exists in no other industry in any free market that I know of. It harks back to the old feudal systems of 12th century Europe."

Then, just two months ago, Red Hat made a historic deal with Microsoft. "That was unheard of and pretty unimaginable five years ago, " Percival admits.

"Microsoft has come under pressure to respond to the challenges that open source has thrown up and now it's going faster in this direction than it has for a long time. And everybody benefits.

"Innovations in the marketplace, companies like Hadoop and Docker, all of that has used open source. The challenge to companies selling proprietary software is: why have you not spotted this trend? Of course, it's the innovator's dilemma and there's a natural tendency to cling on just too long."

As a community, Linux dealt with the issues thrown up with the rise and rise of virtualisation, it also took a bet on containers two years ago and now they're everywhere.

Perhaps its largest challenge today is that it's so widely used, hackers are on the hunt for vulnerabilities. A flaw found earlier this month puts the world's billion-or-so Android users at risk. And that really also means every organisation that's built on Linux too.

Seeing Fuchsia

The latest from Google is that, unlike the Android operating system, its upcoming, custom-built OS Fuchsia will no longer be built on the Linux kernel. The Register's analysis of what we know so far speculates:

"If it can create a fully optimized platform for each key emerging area of connected experience, and then marry them all together at the applications layer with the ubiquitous Android, it might achieve what Unix, Linux and Java promised, but failed to deliver all these years."

Yes, Linux has done much for many, but now Google appears to be hedging its bets on a new approach to open source development. It remains to be seen whether developers would be willing to trust a company over the community-driven Linux effort.

So what's on the horizon for the world's most popular OS? Speaking to the criticism that it hasn't quite built an "any device, anywhere OS", Percival says:

"There will be tweaks to Linux to better handle stuff in the IoT space, but that'll largely be handled in a layer above the OS that deals with more specialised problems. On AI, we're working out how you build an AI layer that meets the needs of business: how do you make it fast enough? Do you really need it in the Linux layer?"

On launching its 25th birthday report, which found that 13,500 people from 1,300 have so far been identified as contributors to this highly ambitious project – that had surprisingly modest beginnings – Jim Zemlin, executive director of The Linux Foundation, said:

“Even after 25 years, Linux still serves as an example of how collaborative development can work, which can be applied to other open source projects."

Whether the Linux kernel remains as popular as it is today in another 25 years, it's surely the possibility of transparency, participation and community in tech and beyond that should be its lasting legacy.

This article originally appeared on NS Tech

Kirsty Styles is editor of the New Statesman's B2B tech site, NS Tech.