The second wave of anti-WikiLeaks measures has recruited the private sector in a manner that calls for an urgent re-think of constitutional safeguards for civil liberties. The global hunt for WikiLeaks in the past few months has taken an interesting turn. It is no longer limited to placing pressure on governments around the world to join Washington in condemning the leaks as harmful to national (and global) security.
The second wave of anti-WikiLeaks measures recruited the private sector. WikiLeaks was axed from Amazon's cloud servers after Amazon received some public calls from the US Senate Homeland Security Committee. The Chair of the Committee, Senator Joe Lieberman, praised Amazon for making the right decision which, "should set the standard for other companies." PayPal was second, announcing that it froze WikiLeaks' account, which was used for collecting donations. PayPal's Vice President, Osama Bedier, told a European audience that PayPal’s decision was influenced by the request of the US State Department.
Cutting off WikiLeaks was not just a spontaneous patriotic outrage of lawful citizens against a "traitor". Nor was there evidence that it was a business response to a market demand. Rather, it was a demonstration of an unholy alliance between government and large private corporations. This (in)visible handshake between the government and the market enables the government to stay behind the scenes while extending a long arm to silence our speech. The government does not have to face a constitutional challenge in court. Not even a phone call is necessary. A governmental wink is sometimes sufficient. Companies that are regulated and benefit from government procurement know what to do.
The Invisible Handshake between government and the private sector is becoming an important tool of governance in the twenty-first century. In a global information network that has no geographical boundaries, law enforcement agencies are increasingly facing difficulties in gathering intelligence, finding suspects, controlling activities and generally, enforcing the law. The collaboration with large, often global corporations might be very useful for law enforcement agencies. We first detected this new governance model in the aftermath of the 9/11 terror attacks. In the US, the USA PATRIOT Act created a handshake that bypassed constitutional guarantees of privacy. Now this cooperation extends to bypass freedom of expression. The Invisible Handshake is especially effective in cases such as WikiLeaks, where the US government is standing on shaky legal ground: while it is surely illegal to leak the confidential cables, it might be perfectly legal under US law for a passive receiver of the information to disseminate it to the public. WikiLeaks and others enjoy the freedom to speak, especially about core political issues. This kind of expression, harmful as it may be in the eyes of Government and surely many citizens, is protected by the American Constitution. This is the clear lesson of the Pentagon Papers case and long and rigorous free speech jurisprudence.
Government-market cooperation enables governments to bypass the constitutional constraints. Private bodies are not subject to the Constitution and are under no duty to respect another's free speech. They can also claim they themselves have the right not to speak. By cooperating with the government - always a good thing to do - the private companies are de facto recruited to serve the government's needs.
The co-operation of governments and large corporations creates a new threat to civil liberties. As citizens of liberal democracies we put our trust in the separation of powers and in the Bill of Rights. If governments can easily bypass constitutional restraints by co-opting the private sector, perhaps it is time for thinking of new safeguards to secure civil liberties in the twenty-first century.
The Invisible Handshake requires a fresh re-think of constitutional safeguards for civil liberties. The WikiLeaks events, from the decisions on publication to the cyber-attacks on WikiLeaks detractors, demonstrate the power of the unorganized crowd of individuals acting together ad-hoc to promote a particular cause. Such distributed collective action, which is not dependent upon any particular business model or political structure, offers a new source for checks and balances. It can act as a counterforce to governmental threats on civil liberties. At the same time, however, illegal behaviour and cyber-attacks cannot be an ongoing solution.
The WikiLeaks event is not only an American issue. The leaked cables reveal highly important aspects of people’s lives around the globe. Neither is free speech limited to the shores of the United States. Democracies around the world and people all over have been looking up to the US and its First Amendment as a model that serves liberty, the well-functioning of democracy and the flourishing of humanity. Is the beacon on the blink?
Michael Birnack is Professor of Law, Tel Aviv University Law Faculty, Israel and a Visiting Fellow at the Institute of Advanced Legal Studies, University of London
Niva Elkin-Koren is Dean, and Professor of Law at Haifa University Law Faculty, Israel