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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Don’t shoot the messenger: are social media giants really “consciously failing” to tackle extremism?

MPs today accused social media companies of failing to combat terrorism, but just how accurate is this claim? 

Today’s home affairs committee report, which said that internet giants such as Twitter, Facebook, and YouTube are “consciously failing” to combat extremism, was criticised by terrorism experts almost immediately.

“Blaming Facebook, Google or Twitter for this phenomenon is quite simplistic, and I'd even say misleading,” Professor Peter Neumann, an expert on radicalisation from Kings College London, told the BBC.

“Social media companies are doing a lot more now than they used to - no doubt because of public pressure,” he went on. The report, however, labels the 14 million videos Google have removed in the last two years, and the 125,000 accounts Twitter has suspended in the last one, a “drop in the ocean”.

It didn’t take long for the sites involved to refute the claims, which follow a 12-month inquiry on radicalisation. A Facebook spokesperson said they deal “swiftly and robustly with reports of terrorism-related content”, whilst YouTube said they take their role in combating the spread of extremism “very seriously”. This time last week, Twitter announced that they’d suspended 235,000 accounts for promoting terrorism in the last six months, which is incidentally after the committee stopped counting in February.

When it comes to numbers, it’s difficult to determine what is and isn’t enough. There is no magical number of Terrorists On The Internet that experts can compare the number of deletions to. But it’s also important to judge the companies’ efforts within the realm of what is actually possible.

“The argument is that because Facebook and Twitter are very good at taking down copyright claims they should be better at tackling extremism,” says Jamie Bartlett, Director of the Centre for the Analysis of Social Media at Demos.

“But in those cases you are given a hashed file by the copyright holder and they say: ‘Find this file on your database and remove it please’. This is very different from extremism. You’re talking about complicated nuanced linguistic patterns each of which are usually unique, and are very hard for an algorithm to determine.”

Bartlett explains that a large team of people would have to work on building this algorithm by trawling through cases of extremist language, which, as Thangam Debonnaire learned this month, even humans can struggle to identify.  

“The problem is when you’re dealing with linguistic patterns even the best algorithms work at 70 per cent accuracy. You’d have so many false positives, and you’d end up needing to have another huge team of people that would be checking all of it. It’s such a much harder task than people think.”

Finding and deleting terrorist content is also only half of the battle. When it comes to videos and images, thousands of people could have downloaded them before they were deleted. During his research, Bartlett has also discovered that when one extremist account is deleted, another inevitably pops up in its place.

“Censorship is close to impossible,” he wrote in a Medium post in February. “I’ve been taking a look at how ISIL are using Twitter. I found one user name, @xcxcx162, who had no less than twenty-one versions of his name, all lined up and ready to use (@xcxcx1627; @xcxcx1628, @xcxcx1629, and so on).”

Beneath all this, there might be another, fundamental flaw in the report’s assumptions. Demos argue that there is no firm evidence that online material actually radicalises people, and that much of the material extremists view and share is often from mainstream news outlets.

But even if total censorship was possible, that doesn’t necessarily make it desirable. Bartlett argues that deleting extreme content would diminish our critical faculties, and that exposing people to it allows them to see for themselves that terrorists are “narcissistic, murderous, thuggish, irreligious brutes.” Complete censorship would also ruin social media for innocent people.

“All the big social media platforms operate on a very important principal, which is that they are not responsible for the content that is placed on their platforms,” he says. “It rests with the user because if they were legally responsible for everything that’s on their platform – and this is a legal ruling in the US – they would have to check every single thing before it was posted. Given that Facebook deals with billions of posts a day that would be the end of the entire social media infrastructure.

“That’s the kind of trade off we’d be talking about here. The benefits of those platforms are considerable and you’d be punishing a lot of innocent people.”

No one is denying that social media companies should do as much as they can to tackle terrorism. Bartlett thinks that platforms can do more to remove information under warrant or hand over data when the police require it, and making online policing 24/7 is an important development “because terrorists do not work 9 to 5”. At the end of the day, however, it’s important for the government to accept technological limitations.

“Censorship of the internet is only going to get harder and harder,” he says. “Our best hope is that people are critical and discerning and that is where I would like the effort to be.” 

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