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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2017 is the year we realise we've been doing the Internet wrong

Networks can distribute power or they can centralise it.

A couple of years ago I visited Manchester tech start up Reason Digital. They were developing an app to help keep sex workers safe. The nature of sex work means workers are often vulnerable to crime, crimes which can be particularly difficult to solve because witnesses are reluctant to come forward and crime scenes often public and subject to interference.

Reason Digital thought if they could alert sex workers of relevant incidents in their vicinity – harassment, a foiled attack – that would help sex workers protect themselves.

So, of course, they created an app which tracked the location and habits of all sex workers in Manchester in a central database and sent out alerts based on where they were and what they were doing, right?

Did they hell.

They knew a real-time centralised, location database would immediately be a target for the very people they wanted to help protect sex workers from. Moreover, they wanted their app to empower sex workers, to put them in control. And they knew that sex workers would be reluctant to hand over any part of their hard fought privacy.

So the Reason Digital app kept the location and other data on the sex workers’ smart phone and let it decide which alerts were relevant and what information to share.

That is the kind of distributed, autonomous app putting people in control we just don’t see on the Net.  No, all the apps that improve our lives – from Facebook to Uber to match.com – cull the intelligence and data from the user and stick it in the vaults of a company or, occasionally, a government.

Thankfully, the majority of us are nowhere near as vulnerable as the majority of sex workers – to physical crime at least.

But we are increasingly vulnerable to cybercrime, a vulnerability which will increase exponentially once everything is connected to the Internet of Things.

And we are vulnerable to the exploitation of our data, whether through data mining or algorithmic determinism. Google’s search engine can be “gamed” by extremists, used to strengthen hatred and spread stereotypes. I have also been told one major dating site optimises it matchmaking algorithm for short term relationships – it means more return business. And Uber have admitted it knows you’re likely to pay more for a ride if your battery is low – which it also knows. Our data is what drives services and profits on the Net - but we’re unable to reap the rewards of the value we create.

That’s why 2017 will be the year we realise we got the Net wrong.

Not the underlying internet, designed by the public and third sectors in the seventies to be as distributed and autonomous as possible.

Or even the World Wide Web, invented in the nineties by the public and private sectors, again without central control.

But the apps developed in the last couple of decades to use the infrastructure of the internet to deliver services.

Networks can distribute power – like the electricity power grid –  or they can centralise it – like old boys networks.

Increasingly, I fear the Net is doing the latter.  And for three main reasons.

Firstly, a technical legacy of the early internet: in the days of slow broadband and unreliable devices it made sense to transmit as little as possible and control your user experience by centralising it. That problem is by and large history, but the centralisation remains.

Secondly these apps were mainly developed by a small group of privileged people – white, male, relatively well-off engineers. That’s why, for example, the biggest campaign of the early  internet pioneers was against porn filtering. Yes, for many years the most inspirational internet civil rights struggle was for rich western men to have absolutely untrammelled access to porn. So often I was the only woman at the conference table as this issue was raised again and again, thinking ‘is this really the biggest issue the tech community faces’?

But there is a seam of libertarianism in technology which sees it as above and beyond the state in general and regulation in particular. Even as a replacement for it. Who needs a public sector if you have dual core processing?  When tech was the poor relation in the global economy that could be interesting and disruptive. Now tech is the global economy, it is self-serving.

And thirdly these apps were developed in a time of neoliberal consensus. The state was beaten and bowed, shrunk to its role of uprooting barriers and getting out of the way of the brilliant, innovative, invisible hand of the private sector.  When I was at Ofcom in the 2000s we strove valiantly, day and night, to avoid any regulation of the internet, even where that included consumer rights and fairer power distribution.

As a consequence now the Net is distributing power but to the wrong people.

  • It’s not empowering the poor and dispossessed but the rich and self-possessed.
  • It’s not empowering sex workers in Manchester but criminal cartels in China.
  • It’s not empowering the  cabbie in Coventry but the $62Billion Uber everywhere.
  • It’s not empowering the plucky little startup in rural Hexhamshire but the global enterprise headquartered in Bermuda.
  • It’s not empowering the Nigerian market woman with a yam to sell but the Wall Street stockbroker with your data to market.
  • It’s not empowering the Iranian dissident but the Russian state.

That’s a betrayal of the power and original purpose of the net: for greater human empowerment.

To be sure some of that is happening. The Arab Spring, for example  Campaigns for the tampon tax and Black Lives Matter are enhanced by the web. Apps such as Pol.is and MassLBP look to make 

digital democracy work. Institutes like Newcastle’s Digital Civics Institute are working at systems to enable real democratic collaboration. Groups and enterprises such as Medical Confidential, MySociety, Cap Collectif and Delib try to deliver control back to the citizen consumer. European research project d-cent has helped develop tools that can make deliberative democracy work.

But against that we have the rapacious data centralisation of big companies and, at times, the state.

What we need is a government that is capable of leading and inspiring the tech sector to empower citizens and consumers. Ignoring the libertarian technocrats who say it’s for them to determine how tech power is distributed and remembering that the white heat of technology should be at the service of the people, not the other way round.  This government has neither the capacity nor the will to take on that mission. As part of our review of industrial strategy, Labour will be examining ways in which tech can be empowered to deliver the economy we want, and people empowered to make the best use of it.

Tech and politics are the twin drivers of progress, and I’m lucky enough to have worked in both. If there is one thing we have seen it is that as people become richer they have fewer children, more education and a greater sense of privacy and autonomy.  2017 is the year to start giving back to the people the data and control they should never have lost.

Chi Onwurah is the Labour MP for Newcastle upon Tyne Central, and the shadow minister for industrial strategy.