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.)

Getty
Show Hide image

New Times: David Runciman on networks and the digital revolution

The digital revolution has had two profound effects on how power is distributed – both of which squeeze the state's power.

Left-wing political parties exist to use the power of the state to rectify unjust distributions of power in society. What has gone wrong with this project? First, the political parties bit. Established parties everywhere are struggling to seem relevant to most people’s everyday concerns: they look increasingly like the tired relics of a more hierarchical age. The exception, of course, is the current Labour Party, which has opened itself up to become the biggest mass-membership party in Europe. But the trade-off has been to move away from seeing the acquisition of power as its primary purpose. These days parties can only really draw people in by offering to be vehicles for the expression of political resentment and disenchantment. But that is no way to rectify the causes of their resentment; neglecting the challenge of power usually ends up making things worse.

However, this is just a symptom of the wider problem, which is the changing nature of power. Technology lies at the heart of it. The digital revolution has had two profound effects on how power is distributed. First, it has empowered individuals, by providing them with unprecedented access to information, tools of communication and the means of expression. This is power exercised as choice: we all now have multiple ways of registering our likes and dislikes that never existed before.

Second, the digital revolution has empowered networks, creating vast new webs that span the globe. Some of them, such as Facebook, are close to being monopolies. We end up joining the networks that other people have joined, because that’s where the action is. This gives a small number of networks an awful lot of power.

Both of these developments are deeply problematic for the power of the state. The proliferation of choice makes citizens much harder to satisfy. Many of us have got used to micromanaging our lives in ways that leaves government looking flat-footed and unresponsive, no matter how hard it tries. At the same time, states face global networks that they have no idea how to control. International finance is one of these: money is information and information now has too many different ways to flow. States are getting squeezed.

The paradox is that the same forces that are squeezing the state are also giving impetus to left-wing politics. There are huge imbalances of power being created in networked societies. The monopolists are hoovering up money and influence. Personal connections count for more than ever, now that networked connections have become ubiquitous. Education is turning into a way of pulling up the drawbridge rather than moving up the ladder. One temptation for the left is to assume that the evidence of injustice will sooner or later outweigh the disabling effects of these social forces on the state. That is part of the Corbyn gamble: hang around until people are sufficiently pissed off to start demanding social-democratic solutions to their problems.

I don’t think this is going to happen. There is nothing to suggest that popular dissatisfaction will find its way back to the state as its best outlet. It will be channelled through the networks that are making the life of the state increasingly difficult.

The other temptation is to think that the left can achieve its goals by bypassing conventional social democracy and channelling its own ambitions into network politics. This is the other side of the Corbyn gamble, or at least the view of some of the people who have attached themselves to him: a new politics is coming that uses digital technology to mobilise fleet-footed networks of activists who can generate change without going through the cumbersome and time-consuming process of winning general elections. That also looks pretty wishful to me. These networks are just another vehicle for expressing personal preferences. They don’t have any means of changing the preferences of people who think differently. You need to win power to do that.

The state’s power is being squeezed by networks of empowered individuals, but these networks don’t have the kind of power necessary to do the redistributive work of the state. What is the left to do? It needs to try to find value in the fact that the state is not just another network. The right does this instinctively, by talking up the state’s security functions and championing ideas of sovereignty and national identity. But that does nothing to address the deleterious effects of living in a modern networked society, where we are swamped by personal choice but impotent in the face of corporate and financial power.

Rather than trying to harness the power of networks, the left should stand up for people against the dehumanising power of Big Data. The state isn’t Google and should not try to pretend to be. We don’t need more choice. We don’t need more efficiency of the kind that digital technology is endlessly supplying. We need protection from the mindless bureaucratic demands of the new machine age: the relentless pursuit of information, regardless of the human cost. There are limits to what the state can do but it retains some real power. It still employs real human beings; it educates them and provides them with welfare. It should do what is in its power to make the work tolerable and the education meaningful, to provide welfare in ways that don’t leave people at the mercy of faceless systems. The left needs to humanise the state.

At the moment, too much energy is being spent trying to humanise the party. We are told that people are tired of robotic, careerist politicians; they want unspun versions of people like themselves. But robotic politicians aren’t the problem; the coming age of robots is. While the party tries to feel more comfortable with itself, the effects of a networked society are running rampant. Acquiring the power of the state is still the best way to fight back. It doesn’t matter if that has to be done in an ugly, mechanised, artificial way, by careerist politicians with whom we wouldn’t choose to spend our personal time. Better an ugly, artificial politics than an ugly, artificial world. 

David Runciman is a professor of politics and the head of the department of politics and international studies at Cambridge

This article is part of a New Times collection of the future of the left. Read the other pieces here.

 

This article first appeared in the 22 September 2016 issue of the New Statesman, The New Times