Pierre Omidyar noticed. Omidyar was a co-founder of Ebay and a multi-billionaire. Most recently, Omidyar provided a $250 million seed investment to First Look Media. First Look Media is the Publisher behind The Intercept, an online publication that currently employs some of the most aggresive investigative journalists in the world - Glen Greenwald, Lisa Poitras and Jeremy Scahill.
The Intercept regularly publishes articles based on leaked documents and information. A number of such stories are among the most controversial coverage of the intelligence community. For example, The Intercept recently received and published leaked documents that for the first time describe the outrageous growth of the US Terrorist Watchlist to 1.2 million people.
The US was furious about the leaks, and is as of this writing continuing to fumble and grope in the dark to find and destroy the life of the concerned citizen who shared this information with the public. The Washington press immediately and credulously reported the search of a man's home as proof of his involvement in leaking the documents.
Only the most sacerdotal of Totalitarians argue that there is some sort of moral imperative to ensure that documents like those involved in The Intercept's Watchlist leak must only be read and circulated by the Top Men of Government, and should never be exposed to an ignorant and drooling public, lest their eyes melt out of their skull like the penultimate scene of Indiana Jones and the Raiders of the Lost Ark. There was and continues to be a clear public interest in exposing the growth of the terrorist Watchlist to such catastrophic proportions; a growth that was facilitated, as we learned through the Intercept, the US deciding in secret that evidence or even suspicion of terrorist activity or affiliation are no longer requirements to entry into the Watchlist. At the very least, the 1.2 million people deserve to know why their human right to travel has been impeded and in some instances stolen entirely.
The Terrorist Watchlist is the product of a Public organization, in service of a function that is of direct interest to the Public. Such a one to one relationship makes it a straight forward matter to justify the release of such critical information when considered with a modicum of intellectual honesty (a resource that is in rare supply these days, to be sure).
But what of Private organizations? Under what circumstances is it appropriate to publish information deemed secret by a corporation, for example? Let us consider Wikileaks for a moment. In 2007, Wikileaks published a variety of documents obtained from Bank Julius Baer. The documents pertained to a variety of incredibly naughty behavior perpetrated by the Bank. Wikileaks documented how Bank Julius Baer placed former employees and their families under surveillance, and how the Bank had allowed insiders to take out astronomically large loans immediately prior to the collapse of the Bank. Bank Julius Baer's collapse was eventually absorbed and resolved as a sovereign debt. In effect, Bank Julius Baer had allowed insiders to steal from Swiss tax payers; not just allowed the theft, but facilitated that theft.
Once again, in this context, we can see a one-to-one relationship between the content and context of the documents and the public interest. The Bank Julius Baer Leak contained material directly related to massive financial crimes; crimes in which the Public was the victim. The Bank Julius Baer Leak showed how the bank arranged these crimes, how they profited, how they attempted to cover up those crimes and how they attempted to extort and strong arm witnesses to those crimes.
The Bank Julius Baer Leaks and Bank Julius Baer's ham-fisted reactions to the leaks (a failed attempt at a legal attack) catapulted Wikileaks into international prominence.
But what about the Twitter leak that we mentioned at the beginning of this article? On its face, there appears to be a number of differences. The Twitter Leak was not the result of an insider exposing the crimes of an organization to the press, as in the Watchlist and Bank Julius Baer. With Twitter, an outsider broke into the private accounts of Twitter employees in order to take internal documents. But that is not the only difference. Twitter did not appear to "get caught with its pants down", so to speak. No serious malfeasance was uncovered - only a business plan that included what Twitter claims to be legitimate Trade Secrets.
There are, then, contexts in which the leak of information from private entities is ethically complex. For the most part, the US government errs widely on the side of secrecy in all contexts; unless, of course, it is considering individuals, who the US government at this point considers has very little if any rights to privacy or secrecy that cannot, at the very least, be circumvented with the correct arcane mixture of briefs and filings and subpoenas and letters from various agencies. In today's United States, the 4th amendment is no longer a fundamental starting place for consideration of the role of government in its interaction with sovereign individuals with a wide berth of human rights. In today's United States, the 4th amendment is an obstacle to be overcome; a hoop to jump through; a point of interest for clever intellectual games that circumvent its textual and contextual meaning.
On the other side of the debate are those who favor transparency. It is a diverse group (and a group that I am a vocal, obvious and unapologetic member of). You have libertarians of both the civil and capital "L" variety, privacy advocates, internet security researchers, journalists, human rights campaigners of all different stripes, lawyers and even the odd-ball politician or two. Among this group there is a great deal of disagreement. Unlike the other side of the argument, membership is not determined by jingoistic and unquestioning affiliation to a faceless, monolithic entity. Those in favor of transparency have arrived at their point of view as the result of reflection, introspection, a Platonic sense of social duty or even good old fashioned Self Interest. Argument ensues.
There are absolutists on the side of transparency. Today they are sometimes called "Open Access Advocates". Technology neophytes and most "news" people are under the mistaken impression that this position is a relatively new one. There is no shortage of intellectual mush that condescends to explain to the rest of us in blog posts, in tweets and all other manner of too-cool-for-school 'new media' how Millennial are to blame for a religious devotion to transparency. Its because of Facebook and Myspace. The kids don't event know what privacy is - they live in the public sphere, "dick pics" and all, and they expect everyone else to, as well - corporations and governments, included. This explanation is, of course, wrong.
The absolutist take on transparency is as old as modern computing itself. It was the default position of nearly all of those driving the early personal computer movement; and it was the absolute essence of hackers in the 80's and 90's (myself included). The essential document of this movement was published not in 2013 with the Guerilla Open Access Manifesto, but in 1986, by Phrack Magazine. It was in the pages of Phrack, Volume One Issue 7, that a very talented young man who called himself The Mentor wrote The Hacker Manifesto. It was a call to arms to young men across the world (ladies would play a pivotal role, but not in the 80's hacker scene). Governments and Corporations had valuable information - information about how computers worked, how networks functioned. The information they had, they locked away. In 1986 if you wanted to learn about computer networks your options were severely limited. You could go to university, where you could expect to have to take two years of math and out-dated theoretical 'computer science' before so much as logging into a computer. You could buy a personal computer, which could easily run several thousand dollars and would not allow you to learn UNIX or VAX/VMS. But what if you were 15? Or 50, for that matter? What if you didn't have the money?
If you wanted to learn, you had to hack. The 80's and 90's was a time when the pursuit of knowledge was explicitly and aggressively criminalized. Many, many children were made felons for trying to learn; or, as the Mentor put it, "My crime is that of curiosity".
This time was what sowed the seeds of the many problems with the Internet today.
Not all transparency advocates are absolutists. If one reaches the point of advocating transparency through the consideration of liberal legal and social principles (liberal in the classical, British, sense and not the convoluted US sense, where liberal is a synonym for a progressive socialist). Such principles take the notion of private property as the starting point for a great deal of what people in the US consider "rights to privacy". From this point of view, it is because government agencies invade or steal or destroy the property of a sovereign citizen that we must view improper Government search and seizure with disdain. From this point of view, it is easier to understand why the liberal transparency advocate may fiercely admonish the Government for hiding information of public interest, while also criticizing people like Hacker Croll for leaking information from a private corporation like Twitter; private information that lacks as direct a Public interest.
It is this debate within the transparency community that has driven recent criticism of First Look Media founder Pierre Omidyar. When asked about the Twitter hack and leak on, of all platforms, Twitter, Omidyar had this to say:
I am including below a brief transcript of Assange's comments on First Look Media during this recent interview. Please bear in mind that this transcript, while unedited, is incomplete. I strongly recommend watching the entire interview for the clearest possible understanding of Assange's position.
AMY GOODMAN: Julian Assange, you just recently had a Twitter battle with Glenn Greenwald. It might have surprised some. You know, the whole Intercept, the new online publication, releasing information based on Edward Snowden’s documents around the NSAspying on whole countries. You felt that they should name the countries, not withhold any names. Explain what that was about.
JULIAN ASSANGE: Well, I have a lot of respect for Glenn. Glenn has defended WikiLeaks from the attack by the U.S. grand jury over a long period of time. And he’s been very brave in the Edward Snowden publications, and, you know, quite forthright. He left The Guardian, in part because of that reason, because The Guardian was censoring the material that he was trying to publish. But he entered into First Look. And unfortunately, First Look is not just Glenn. First Look is actually the big power. All the money and organization comes from Pierre Omidyar. And Pierre Omidyar is one of the founders—is the founder of eBay and owns PayPal and goes to the White House several times each year, has extensive connections with Soros, and can broadly be described as an extreme liberal centrist. So, he has quite a different view about what journalism entails. For example, he has said this year, and also in 2009, that if someone gave him a leak from a commercial organization, not from the government, then he would feel it was his duty to tell the police. So that’s a very different type of journalism standard that comes from Pierre Omidyar. And unfortunately, some of that, or perhaps a significant amount of it, has gone into First Look and created some constraints there. And that was seen most—seen most disturbingly when First Look knew from the Edward Snowden documents that all of Afghanistan was having its telephone calls recorded. The National Security Agency had corruptly installed mass surveillance inside Afghan telcos, saying to the Afghan government that they were doing—installing this monitoring just going after drug dealers, not mass surveillance but targeted surveillance after Afghan opium dealers, and in fact they were recording the phone calls of every single Afghan. And that’s as great an assault to sovereignty as you can imagine, other than completely militarily occupying a country, to record the intimate phone calls of every single Afghan citizen. And Afghanistan, as a country, and its people have the right to choose their own destiny, knowing what is actually happening to them. And First Look decided that they would censor the fact that Afghanistan was having all its telephone calls recorded.
Personally, I find it difficult to commit to one camp or the other. In the late 80's and early 90's, I was very much a member of the hacking scene. That part of my life ended up informing my choice in career, and I am deeply sympathetic to the members of that small group who have so often grown up to do amazing things. On the other hand, at university while studying for my Undergraduate degree I had the opportunity to learn from and argue with some very talented professors of legal philosophy. These arguments formed the basis of what is, at this point, a rather committed agreement with a good deal of what is called "libertarianism" in the US.
I do not agree with Assange's assessment of First Look. Regardless of Omidyar's financial role, Greenwald, Scahill and Poitras have time and again demonstrated themselves as journalists of the first rate. It would take quite a bit at this point to convince me that any of them have "sold out".
That said, I continue to follow and support Wikileaks as well as other Open Access advocates. The criminal indictment of Aaron Swartz, for example, strikes me as a horrifying return to criminalizing independent research; one that I fear will not die with Mr Swartz. The only crime that occurred in the case of Aaron Swartz was the criminal and irresponsible harassment of a very talented young man by a pack of amoral sadists masquerading as members of the Justice Department; unprincipled careerists lead by Carmen Ortiz, Stephen Heymann and Scott Garland (if ever there was an Orwellian title for a government agency, it is the Justice Department, which is as effective a magnet for human filth and depravity as has ever existed). Not surprisingly, Mr Swartz was not the first talented young man that Ortiz and her thugs have driven into the grave with draconian and evil prosecutorial misconduct. Hacker Jonathan James committed suicide at the ripe old age of 25 following an indictment by Heymann that would likely have landed James in prison for a longer period of time than most people convicted of 2nd degree murder or manslaughter.
What are you own views on what information is public and which is private? What is "fair game" and what should remain secret? On what basis and under which principles do we make these decisions? These are complex questions; the State would have us believe that the answers as simple and straight-forward. Anything that any government or corporation says is secret should be secret under the Computer Fraud and Abuse Act. What has followed is decades of abuse of the CFAA; abuse that has destroyed the lives of computer enthusiasts and open access advocates while protecting criminals in government and big business from exposure. Such is a road that leads to disaster. An intellectually honest public conversation, followed by an immediate course correction, is required - and, I believe, imminent.