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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A quote-by-quote analysis of how little Jeremy Hunt understands technology

Can social media giants really implement the health secretary’s sexting suggestions? 

In today’s “Did we do something wrong? No, it was social media” news, Health Secretary Jeremy Hunt has argued that technology companies need to do more to prevent sexting and cyber-bullying.

Hunt, whose job it is to help reduce the teenage suicide rate, argued that the onus for reducing the teenage suicide rate should fall on social media companies such as Facebook and Twitter.

Giving evidence to the Commons Health Committee on suicide prevention, Hunt said: “I think social media companies need to step up to the plate and show us how they can be the solution to the issue of mental ill health amongst teenagers, and not the cause of the problem.”

Pause for screaming and/or tearing out of hair.

Don’t worry though; Hunt wasn’t simply trying to pass the buck, despite the committee suggesting he direct more resources to suicide prevention, as he offered extremely well-thought out technological solutions that are in no way inferior to providing better sex education for children. Here’s a quote-by-quote analysis of just how technologically savvy Hunt is.

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“I just ask myself the simple question as to why it is that you can’t prevent the texting of sexually explicit images by people under the age of 18…”

Here’s Hunt asking himself a question that he should be asking the actual experts, which is in no way a waste of anybody’s time at all.

“… If that’s a lock that parents choose to put on a mobile phone contract…”

A lock! But of course. But what should we lock, Jeremy? Should teenager’s phones come with a ban on all social media apps, and for good measure, a block on the use of the camera app itself? It’s hard to see how this would lead to the use of dubious applications that have significantly less security than giants such as Facebook and Snapchat. Well done.

“Because there is technology that can identify sexually explicit pictures and prevent it being transmitted.”

Erm, is there? Image recognition technology does exist, but it’s incredibly complex and expensive, and companies often rely on other information (such as URLs, tags, and hashes) to filter out and identify explicit images. In addition, social media sites like Facebook rely on their users to click the button that identifies an image as an abuse of their guidelines, and then have a human team that look through reported images. The technology is simply unable to identify individual and unique images that teenagers take of their own bodies, and the idea of a human team tackling the job is preposterous. 

But suppose the technology did exist that could flawlessly scan a picture for fleshy bits and bobs? As a tool to prevent sexting, this still is extremely flawed. What if two teens were trying to message one another Titian’s Venus for art or history class? In September, Facebook itself was forced to U-turn after removing the historical “napalm girl” photo from the site.

As for the second part of Jezza’s suggestion, if you can’t identify it, you can’t block it. Facebook Messenger already blocks you from sending pornographic links, but this again relies on analysis of the URLs rather than the content within them. Other messaging services, such as Whatsapp, offer end-to-end encryption (EE2E), meaning – most likely to Hunt’s chagrin – the messages sent on them are not stored nor easily accessed by the government.

“I ask myself why we can’t identify cyberbullying when it happens on social media platforms by word pattern recognition, and then prevent it happening.”

Jeremy, Jeremy, Jeremy, Jeremy, can’t you spot your problem yet? You’ve got to stop asking yourself!

There is simply no algorithm yet intelligent enough to identify bullying language. Why? Because we call our best mate “dickhead” and our worst enemy “pal”. Human language and meaning is infinitely complex, and scanning for certain words would almost definitely lead to false positives. As Labour MP Thangam Debbonaire famously learned this year, even humans can’t always identify whether language is offensive, so what chance does an algorithm stand?

(Side note: It is also amusing to imagine that Hunt could even begin to keep up with teenage slang in this scenario.)

Many also argue that because social media sites can remove copyrighted files efficiently, they should get better at removing abusive language. This is a flawed argument because it is easy to search for a specific file (copyright holders will often send social media giants hashed files which they can then search for on their databases) whereas (for the reasons outlined above) it is exceptionally difficult for algorithms to accurately identify the true meaning of language.

“I think there are a lot of things where social media companies could put options in their software that could reduce the risks associated with social media, and I do think that is something which they should actively pursue in a way that hasn’t happened to date.”

Leaving aside the fact that social media companies constantly come up with solutions for these problems, Hunt has left us with the burning question of whether any of this is even desirable at all.

Why should he prevent under-18s from sexting when the age of consent in the UK is 16? Where has this sudden moral panic about pornography come from? Are the government laying the ground for mass censorship? If two consenting teenagers want to send each other these aubergine emoji a couple of times a week, why should we stop them? Is it not up to parents, rather than the government, to survey and supervise their children’s online activities? Would education, with all of this in mind, not be the better option? Won't somebody please think of the children? 

“There is a lot of evidence that the technology industry, if they put their mind to it, can do really smart things.

Alas, if only we could say the same for you Mr Hunt.

Amelia Tait is a technology and digital culture writer at the New Statesman.