Title: Harvard Civil Rights-Civil Law Review Summer 2011.pdf

Release Date: 2014-03-20

Text: Westlaw,46HVCRCLLR31146 Harv. C.R.-C.L. L. Rev. 311PagelHarvard Civil Rights-Civil Liberties Law ReviewSummer 2011Article*3U A FREE IRRESPONSIBLE PRESS: WIKILEAKS AND THE BATTLE OVER THE SOUL OF THENETWORKED FOURTH ESTATEYochai Benkler [FNal]Copyright (c) 2011 the President and Fellows of Harvard College; Yochai Benkler[I]t is very necessary that we should not flinch from seeing what is vile and debasing. There is filth on thefloor, and it must be scraped up with the muck-rake; and there are times and places where this service is themost needed of all the services that can be performed. But the man who never does anything else, who neverthinks or speaks or writes, save of his feats with the muck-rake, speedily becomes, not a help but one ofthe mostpotent forces for evil.There are in the body politic, economic and social, many and grave evils, and there is urgent necessity forthe sternest war upon them. There should be relentless exposure of and attack upon every evil man, whetherpolitician or business man, every evil practice, whether in politics, business, or social life. I hail as a benefactorevery writer or speaker, every man who, on the platform or in a book, magazine, or newspaper, with mercilessseverity makes such attack, provided always that he in his turn remembers that the attack is of use only if it isabsolutely truthful. [FNIjWikileaks was born a century after President Theodore Roosevelt delivered the speech that gave muckrakingjournalism its name, and both hailed investigative Journalism and called upon it to be undertaken responsibly. In2010, four years after its first document release, Wikileaks became the center of an international storm surrounding the role of the individual in the networked public sphere. It forces us to ask how comfortable we are with theactual shape of democratization created by the Internet. The freedom that the Internet provides to networked individuals and cooperative associations to speak their minds and organize around their causes has been deployedover the past decade to develop new, networked models of the fourth estate. These models circumvent the socialand organizational frameworks of traditional media, which played a large role in framing the balance betweenfreedom and responsibility of the press. At the same time, the Wikileaks episode forces us to confront the factthat the members of the networked fourth estate tum out to be both more susceptible to new forms of attack thanthose of the old, and to possess different sources of resilience in the face of these attacks. In particular, commercial owners of the critical *312 infrastructures of the networked environment can deny service to controversialspeakers, and some appear to be willing to do so at a mere whiff of public controversy. The United States government, in tum, can use this vulnerability to bring to bear new kinds of pressure on undesired disclosures in extralegal partnership with these private infrastructure providers.The year of Wikileaks began with the release of a video taken by a U.S. attack helicopter, showing whatsounded like a trigger-happy crew killing civilians alongside their intended targets. It continued with two large-DEFENSE EXHIBITS I; for identificationPAGE OFFERED:PAGE ADMITTED:PAGEOfPAGES© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRC.LLRev311Page2scale document releases from Iraq and Afghanistan, about which Defense SecretaryRobert Gates wrote totheSenate,representing that ^^the review to datehasnot revealed any sensitive intelligence sourcesand methodscompromised by this disclosure.^^1^FN2^ The year ended withthe verycareful release ofafewhundred^as ofthis writing, it has risen to overl^OO)cables fromU.S.embassies in cooperation with five traditional media organizations. At the time of the embassy cable release, about two thirds of news reports incorrectly reported thatWikileaks had simplydumpedover2^0,000 classified cables onto the Net.1^FN3^ In fact,Wikileaks made thatlarge number of cables available only privately,to the NewYorkTimes,the Guardian, Der Spiegel,Le Monde,and El Pais,andlater toother inediaorganizations. Theseorganizationsputtheirown teams to work tosiftthrough the cables and selected onlyafew,often in redacted form,to publish.Wikileaks then published almostsolely those cables selected by these traditional organizations, and only in the redacted form released by thoseorganizations. lFN4^0fthisrelease,Secretary Gates stated: ^^lsthisembarrassing7 Yes. Isitawkward7 Yes.Consequences forU.S.foreign policy7Ithink fairly modest.^^IFN^^Despite the steadily more cautious and responsible practicesWikileaks came to adopt over the course of theyear, and despite the apparent absence ^313 of evidence of harm, the steady flow of confidential materialsthrough anorganizationthatwasnot part of thefamiliar^^responsiblepress^^wasmet by increasinglevels ofangry vitriol from the Administration,politicians,and media commentators.By the end of the year,U.S. VicePresident losephBiden responded to the quitelimited and careful release of the embassy cables by stating thatWikileaks founder lulian Assange is ^^morelikeahigh-tech terrorist than the Pentagon Papers,^^IFN^^leading topredictablecalls forhisassassination onthe model of targeted killings of Al Q^^daandTaliban leaders inAfghanistan-by Fox News commentators and likelyRepublican presidential candidate Sarah Palin.lFN7^ TheNewYorkTimes'flagship opinion author,Thomas Friedman,declared Wikileaks one of the two major threats toapeaceful world underU.S.leadership,parallel to the threat of an ascendant China. IFN^^The rhetorical framing ofWikileaks in the sociopolitical frame of global threat and terrorism,in tum,facilitated and interacted witharange of responses that would have been inconceivable in the more factually appropriate frame of reference,such as what counts as responsible journalism,or how we understand the costs and benefits ofthe demise ofmore traditional models ofjoumalistic self-regulation in the age ofthe networked publicsphere.Onthelegal front,thcDepartment of lustice responded to public callsfrom Senator DianneFeinsteinand others and began to explore prosecution of lulian Assange under the Espionage Act.The military held^andcontinues tohold as ofthis writing) the suspected source ofthe leak in solitary confinement forovereightmonths,while theleading Republican presidential candidate at that time,Mike Huckabee,called for his execution. IFN^^The sociopolitical framing makes more comprehensible the vigilante responses in other subsystems of theinformation environment. Responding to a call from Senate Homeland Security Committee Chairman loeLieberman,several commercial organizations tried to shut downWikileaks by denial of service of the basic systems under their respective controLWikileaks'domain name server provider, EveryDNS,stopped pointing at the^314 domain^^wikileaks.org,^^trying tomake it unreachable. Amazon, whosecloudcomputingplatform washosting Wikileaksdata,cutoffhostingservicesfor the site,andApplepulleda Wikileaks Appfrom its AppStore. Banks and payment companies, like MasterCard, Visa, PayPal, and Bank ofAmerica, as well as the Swisspostal bank, cut off payment service toWikileaks in an effort to put pressure on the site's ability to raise moneyfrom supporters around the world. These private company actions likely responded to concerns about being associated publicly with^^undesirables.^^Thereis no clear evidence that these acts were done at the direction ofagovernment official with authority to coerce them.The sole acknowledged direct action wasapublic appeal forand subsequent praiseoftheseactionsby SenatorloeLieberman. Inthat regard, theseactsrepresentadirect2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page3vulnerability in the private infrastructure system andapotential pathway of public censorship.It is impossible toignore the role that adiffuse, evenif uncoordinated, setofactsbygovernmentofficials—beginning with thephrasing ofHaroldKoh's letter toWikileaks on November 27,cited by PayPal as its reason for closure, and extending tonumerousother public statementsandorganizationalactions-playedintriggeringthecommercialservices'denial of-servicc attack. I^F^IO^ In combination, the feedback from public to private action presents therisk ofagovernment able to circumvent normal constitutional protections to crack down on critics who use thenetworkedpublic sphere. Thisoccursthroughthe influence of informal systemsof pressure andapprovalonmarket actors who are not themselves subject tothe constitutional constraints. This extralegal public privatepartnership allows an administration to achieve,throughamultisystem attack on critics,results that would havebeen practically impossible to achieve within the bounds ofthe Constitution and the requirements oflegality.Partsland 11 tell the story ofWikileaks,the release of the documents,and the multi-system attack on the organization,the site, and lulianAssangebybothpublic and private actors. Part lllexplains the constitutionalframework and why it is not, asamatter of law,sustainable to treatWikileaksorAssange any differently thantheNewYorkTimes and its reporters,for purposes of prior restraint or ex post criminal prosecution consistentwith the First Amendment's protection offreedom ofthe press.Prosecution ofWikileaks or Assange will almostcertainly falter under present First Amendment doctrine. In the unlikely event that prosecution succeeds, it willonly do so at the expense of making very bad First Amendment law from the perspective of freedom of the pressin the networked age. Part III concludes with what causes of action, if any, may be open for future members ofthe fourth estate against government officials who instigate extralegal attacks on critics, and what responsesinprivate law,against the private partners in the^3I^ public-private partnership, can to some extent replace theFirst Amendment protections available against direct action by their public partners.Part IVexplores the waysinwhichthe Wikileaks caseintersects with larger trends in the newsindustry.lt describes the economic chailenges faced by traditional media and the emerging pattern of the networked fourth estate.In particular,what wesee is that the new,networked fourth estate will likely combine elements ofboth traditional and novel forms ofnews media; and that ^^professionalism^^ and ^^responsibility^^can be found on both sides of the divide,as can unprofessionalism and irresponsibility.The traditional news industry's treatment ofWikileaks throughout this episode can best be seen as an effort by older media to preserve their own identity against the perceived threat posedby the new,networked model.Asapractical result, the traditional media in the United States effectively collaboratedwithpartsofthe Administration in paintingWikileaks and Assange in terms that made them more susceptible to both extralegal and legal attack. More systematically,this part suggests that the new,relatively moresociallypolitically vulnerablemembersofthenetworkedfourthestateareneedlessly beingputatriskby themore established outlets'efforts to denigrate thejournalisticidentityof the newkids on the block to preservetheir own identity.Aslwrite these words,the story is ongoing.It is too soon to tell how this specific debate will progress.Theexperience of the music industry suggests that the conflict over the shape of the fourth estate will continue wellintothecomingdecade.Itmay well impose serious collateraldamage on some citizenjoumalists. And it willlikely end up with an improved watchdog function, reaching some accommodation between the more traditionalrepresentatives of the fourth estate, like theNewYorkTimes,and the more edgy,muckraking elements of thenetworked environment. As we will see over the course oflooking at this one major event,each party will sometimes be responsible and sometimes irresponsible,sometimes professional,and sometimes not, each in its ownspecial way.I.The Provocation:Wikileaks Emerges asaNew Element of the Fourth Estate2013ThomsonReuters.NoClaimtoOrig. US Gov Works.46HVCRCLLR31146HarvCRCLLRev311Page4A. 2006-200^:AwardWinning Site Exposing Corruption and Abuse Around theWorldWikileaks registered its domain name in October of2006 and released its first set ofdocuments in Decemberof that year. IFNll^Thefirst two sets ofdocuments related toAfrica. l^FN12^In December 2006,the site releasedacopyof^3I^adecision by the rebel leader in Somalia to assassinate Somaligovernment officials.InAugust 2007,it released another document identifying corruptionbyKenyan leader Daniel ArapMoi. 1FN13^November of2007 was the first time that Wikileaks published information relating to theU.S.:acopyofStandard Operating Procedures for Camp Delta, exposing a formal source outlining the details of how theGuantanamo Bay detention camp was run.In 200^,Wikileaks releasedawide range of documents related to illegal activities of public and private bodies.On the private side,these includedaSwiss bank's Cayman Islandsaccount,intemaldocuments of the Churchof Scientology,and Apple'siPhone application developer contract,which had included an agreement not to discuss the restrictive terms.1^FN14^ On the public side,it includedU.S.military rules ofengagement in Iraq permitting pursuitof former members of Saddam Hussein'sgovernmentacross the border into Iran and Syria, l^FNl^^ an early draft of the Anti-Counterfeiting Trade Agreement(^^ACTA^^),lFN16^emailsfromSarahPalin's Yahoos accounts while she wasacandidateforVicePresident,andamembership list of the far-right British National Party.Most prominently,Wikileaks released documentspertaining to extra judicial killings and disappearances in Kenya, for which it won Amnesty International's NewMedia award in 200^. 1^FN17^ Wikileaks also received the Freedom of Expression Award from the Britishmagazine Index ofCensorship in the category ofnew media.IFNl^^ Wikileaks'activity increased in 200^.Thepattern of releasing information relating toarange of very different countries,and to potential corruption,malfeasance,or ineptitude continued,including oil-related corruption in Peru,banking abuses in Iceland, andanuclear accident in Iran. IFNl^^ Most prominent that year was Wikileaks'release of copies ofemail correspondence between climate scientists, which was ^317 the basisof what right-wing U.S. mediatried to tum into^^Climategate.^^ 1FN20^ What seems fairly clear from this brief overview of activities priorto 2010 is thatWikileaks was an organization that seems to have functioned very much as it described itself:aplace where documents that shed light on powerful governments or corporations anywhere in the world, or, in the case of the climate scientists'emails,onamatter of enormous global public concem,could be aired publicly.B. March 2010: Leaking the 200^ Pentagon Report on theThreat ofWikileaksThings changed in 2010.In March 2010,Wikileaks releaseda 200^ Pentagon report arguing that Wikileaksisathreat,while recognizing the site asasource of investigativejoumalismcriticalofU.S.military procurement and its conduct in war.l^FN211TheNewYorkTimes,describingWikileaks as ^^a tiny online source of informationanddocuments thatgovemmentsandcorporations around the world wouldprefertokeepsecret,^^1FN22^ reported that the Army confirmed the authenticity of the report. 1FN23^ The Pentagon Report providessignificantinsightintowhatWikileakswasdoingby 200^,andwhy the military was concerned about it.TheReport was dated about sixweeks afterWikileakshad published the document revealing the rules ofengagement and permission for cross-border pursuit. 1FN24^ The Executive Summary opens with the words:^^Wikileaks.org, apublicly accessible Intemet Website, representsapotential forceprotection,counterintelligence, operational security^OPSEC),and information security ^INFOSEC) threat to the US Army.^^1FN2^1Mixing its own assessments with Wikileaks self descriptions taken at face value, the Report describesWikileaks as founded by ^^Chinese dissidents,^31^ journalists, mathematicians, and technologists from theUnited States, China,Taiwan, Europe, Australia, and South Africa,^^l^FN26^ and dedicated ^^toexposling^unethical practices, illegal behavior, and wrongdoing within corrupt corporations and oppressive regimes in Asia, the^2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page^former Soviet bloc, Sub-Saharan Africa, and the Middle East.^^lFN27^ The Report clearly identified the potential status ofWikileaks as ajournalistic outlet protectedby the First Amendment, subject topotential legalthreats over privacy,disclosure ofclassified materials,orlibeL 1FN2^^ Asan example,the report identifiesasuit brought by the Cayman Islands branch of the Swiss bank lulius Baer that shut down U.S. access toWikileaks documents,whichajudicial order later lifted.In what would becomeaprescient statement,the 200^Pentagon Report states:Efforts by some domestic and foreign personnel and organizations to discredit the Wikileaks.org Website include allegations that it wittingly allows the posting of uncorroborated information,serves asan instrumentof propaganda,and isafront organizationoftheUSCentrallntelligence Agency ^ClA). Thegovernments ofChina, Israel, North Korea, Russia, Thailand, Zimbabwe, and several other countries haveblocked access toWikileaks.orgtypeWeb sites,claimed they have the right to investigate and prosecuteWikileaks.org and associatedwhistleblowers,or insistedtheyremovcfalse,sensitive,or classifiedgovernment information, propaganda, or malicious content from the Intemet. 1FN2^^The Report states that ^^Wikileaks.org supports the US Supreme Court ruling regarding the unauthorized release of the Pentagon Papers by Daniel Ellsberg,which stated that^onlyafree and unrestrained press can effectively expose deception in govemment.^^^1FN30^The recognitionofthejournalisticroleWikileaksplaysis clear inthe discussionofseveralexamples ofWikileaks publications,which the Report repeatedly describes as ^^newsarticlelsf^and in the description of lulian Assange as the organization's ^Toreign staff writer.^^l^FN31^In the process of describing what the Report's authorsconsiderariskofmisinformationcampaigns,they identify several articles that Wikileaks published thatrely on leaked Pentagon documents about equipment deployed in Afghanistan and Iraq.Amajor part of the concern is that opponents of the U.S. could use ^31^ some of this information, released in 2007, to plan attacks onU.S. troops. There is no mention of any evidence of such actual use or feasible action in the Report. Instead, theReport mentions several disclosuresandarguments about weapons systems deployedin Iraqandcritiquesoftheir high expense, low effectiveness, and in the case of chemical weapons, illegality.1FN32^ It is harder to imagineaclearer case ofinvestigative journalism critical of the Pentagon's procurement policy than when the reportsays:The author of the above-mentioned article incorrectly interprets the leaked data regarding the components and lieldingof the Warlock system,resulting in unsupportable and faulty conclusions to allegewar profiteering,price gouging and increased revenues byDoD contractors involved in counterlED development efforts.This article provides an example ofhow theleaked TOE information can be manipulated and misinterpreted to produce inaccurateinformation foranews article.^S^^F)The author of thearticle then argues that the US Army receivesapoor retum on its investment in counterlEDs.1FN33^Note that the claim carefully avoids stating that the documents or data are false. The complaint is over interpretation of facts accepted as true.The report follows up with other items it calls variously ^^newsarticlels^,^^or^^reportls^,^^ related to abuses in Guantanamo Bay, based on the leaked Camp Delta Operating Procedures, and inone case states:^^Avariety of newspapers,wire services,and other news and media organizations wrote numerOUS articles based on the original Wikileaks.org news article and actual classified document posted to their Website.^^lFN34^The 200^ Pentagon Report, then, sees Wikileaks asajournalistic organization whose structure and organization make it dangerous to theU.S.military.Areview of all news stories in the Lexis-Nexis database in 2007 and200^ reveals, however, that Wikileaks'analysis(as opposed to documents)was not reported on in media covered^2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page6by that dataset; instead, the roughly 400 reports present during that period referenced the materials themselves,with occasional references to the brief overview offered by the site.There are only lOmentions of Assange overthis period; none refer to the kind of writing the Pentagon Report identifies. 1^FN3^^ The absence of signilicantcontemporaneous news reports onWikileaks'or Assange's analysis, as opposed to the documents revealed,mayreflectalack of willingness of more traditional media to recognize the writing, but may also represent an overstatement in ^320 the Pentagon Report as to the importance ofthis aspect of the site's operation.The Report locates the danger that Wikileaks presents in its nontraditional organizational structure: Anyonecan post information to theWikileaks.org Web site,and there is no editorial review or oversight to verify the accuracy of any information posted to theWeb site.Persons accessing theWeb site can form their own opinionsregarding the accuracy of the information posted, and they are allowed to post comments.^^lFN36^ This makesthe siteparticularlysusceptibleto^^misinformation,disinformation,andpropaganda;or to conduct perceptionmanagement and influence operations designed to conveyanegative message to those who view or retrieve information from the Web site.^^1FN37^This characterization of the threat of excessive openness appears to be eitheramisunderstanding driven bythe^^Wiki^^part of the name or deliberate mischaracterization. Promiscuous publication by anyone of anythingwas not the model thatWikileaks adopted, although that model was far from unheard of at the time.Acontemporaneous report by the Los Angeles Times compares Wikileaks to another then-operating site, Liveleak:^^LiveLeakhasasimple editorial philosophy: Anyone can post anything that does not violate the site's rules.Essentially,no pornography and nothing overtly criminal.^^1^FN3^^ By contrast,^^Wikileaks...goes out of its waytomakesure the doeumentsit posts are authentic,saying fewer than l ^ o f itsnewlyposteddocuments ^failverification.^^^ ^FN3^^ Fromthe vantage point ofearly2011,this policy seems tohavebeenconsistently followed and remarkably successful. After over four yearsinoperation, Wikileaks hasbeencriticizedfor manyfaults, but none ofits significant postings were found to be inauthentic.The report concludes witharecommendation for attacking the site:cracking down very heavily on whistleblowers so as to make Wikileaks seem less safe asapoint of distribution:Wikileaks.org uses trust asacenter of gravity by assuring insiders,leakers,and whistleblowers whopass information to Wikileaks.org personnel or who post information to the Web site that they will remainanonymous.The identification, exposure,or termination ofemployment ofor legal actions against currentorformer insiders, leakers,orwhistleblowerscoulddamageordestroythiscenterofgravity and deterothers from using Wikileaks.org to make such information public.1FN40J^321 C.April-October 2010: Collateral Murder,Afghanistan,and IraqApril 2010marked the beginning ofaseries of four releases of documents embarrassing to theU.S.govemment.All four releases are thought to originate fromasingle major transfer of documents,allegedly provided byatwentytwoyear-oldPrivateFirstClassintheU.S. Army,BradleyManning. ^FN41^The first releasewasavideo entitled ^^CollateralMurder.^^On luly 12,2007,twoApache attack helicopters fired onagroup of individuals in Iraq, killing about twelve.Among the dead were two Reuters employees:aphotographerandadriver.Reuters tried to get access to the video footage from the helicopter itself, so as to investigate what had happenedand whether there was indeedathreat to the helicopters that would have explained the shooting.TheU.S.government successfully resisted information requestsfor recordings of the events. 1FN42^ Wikileaks made available both the full,raw video and an edited version on April ^,2010.1^FN43^ In it,and in its soundtrack, the heli^2013 Thomson Reuteis.NoClaimtoOrig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page7copter pilots exhibit triggerhappybehavior and sound as thoughtheytookpleasureinhuntingdown their targets,some of whom appear to be unarmed civilians.The video and its contents became front-page news in themajor papers.1^FN44^ The release ofthe video was swiftly followed by identification ofManning as the sourceof the leak, based on selectivelyreleased chat messages he allegedly wrote to Adrian Lamo,ahacker convictedof felony hackingin 2004,whohadlongstandingcontacts witha Wired Magazine reporter towhom he conveyed these chat messages.1FN4^^ As of this writing. Manning has been in solitary confinement for over eightmonths, denied pillows and sheets, and locked inacell for twenty-three ^322 hoursaday.1FN46^ The treatmentseems consistent withthePentagon Report's emphasis ondeterrenceagainstpotentialsources of leaks asthecore tactic to undermine Wikileaks.The Collateral Murder video was released atanews conference in theNational Press Club inWashington,D.C. This was the first move that Wikileaks made toward the cooperation with traditionalmedia that wouldmark its operation in the following eight months.At that early stage,however,Wikileaks was only using the established press asamechanism for amplifying its message.The second element of this episode wasaflirtationwithadvocacyjournalism. lFN47^The edited versionof the video came under attack; Fox News in particularemphasized the claim that the video was edited to highlight the killed journalists,but not the presence ofaperson witharocketpropelled grenade.lFN4^^Acareful review ofboth videos—the uncut original and the editedversion—side by side suggests that the editing primarily did three things. First, it excluded many minutes of irrelevant periods in which no action was taking place, just as any video journalist would do. Second, it added textslides that gave information about the Reuters photographer and driver, as well as contemporaneous quotationsfrom news reports,to give context to what was being seen. And third, it emphasized shots that made the pointaboutcollateraldamage—shots that highlight that the Reuters cameraman's cameras were clearly visible, or thatsuggest that the children who were injured in the helicopter attack were visible from the helicopter's gun camerathrough the side window of the van in which they were sitting,avan that the helicopter shot so as to prevent itsoccupants from evacuating an injured individual that the helicopter crew clearly saw was unarmed, 1FN4^^ possibly oneoftheReutersemployees. Boththeeditedanduneditedversionsshow,withsoundtrack, thattherewere at least two individuals who had AK 47s; both the edited and unedited versions show that the pilot thoughthe saw an RPGpeekingaroundacomer, and that is when he asked for permissionto shoot,although inbothversions it appears that the RPG may have been the zoom lens of one of the cameras used by the^323Reuterscameraman. IFN^O^ The editing did nothing to obscure any of this, or to highlight the possible mistake. Therewereseveraldamning parts of theuncutversionthatwerenotincludedintheeditedversion, IFN^ljandtwoambiguous references to the RPG that might confirm that there was indeed one, but not necessarily that it waswhere the pilot thought it was.1FN^2^In Iuly2010,Wikileaksreleasedanew cache of documents-war logs from the field in Afghanistan,Thetechnique here representedacompletely new model.l^FN^31Beforepublication,Wikileaks teamed up with threemajor intemational news organizations: theNewYorkTimes, the Guardian,and Der Spiegel.The major organizations were then given a period to verify the contents, analyze them, and prepare them for presentation.|^FN^4^ All four organizations published on the same day: Wikileaks,amuch larger portion ofthe full databaseof documents, and the news organizations, their analysis. IF^^^^ The reporting on these documents found nothing that, in broad terms,was not ^324 already publicly known: the degree to which the U.S.was deploying targeted assassinations againstTaliban leaders,and the large number of civilian casualties caused by drone attacksand other coalition activities.The drudgeryofwar,lowlevels of trust betweenU.S.and Afghanofficials andforces—all of this was on display. The precision and detail of the incident descriptions -such as the shooting ofeight children inaschool bus byFrench troops,or of fifteen civilians onabus byU.S.troops-added concrete^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page^evidence and meaning toabackground sense of futility and amorphous knowledge of civilian casualties.1FN^6^The Afghanistan war logsreleaseinitially included about 77,000 documents;another l^,OOOdocumentslaterfollowed after they were initially held back to allow time for Wikileaks to redact names ofpeople who might beput in danger. 1FN^7^ Therelease was treated with consternationby the Administration, and theNew YorkTimes'initial story quoted National SecurityAdvisor General lames lones as saying that theU.S.strongly condemns the disclosure ofclassified information by individuals and organizations whichcouldputthelivesof Americans and our partners at risk,and threaten our national security. WikiLeaksmade no effort to contact us about these documents the United States government learned from news organizations that these documents would be posted. IFN^^^Chairman ofthe loint Chiefs ofStaff, Admiral McMullen,was reported as having said that Wikileaks wouldhave blood on its hands.IFN^^^Followingafull review,however, and in response toadirect request from Senator Carl Levin,Chairman of the Senate Armed Services Committee,Secretary Gates later represented that ^^thereview to date has not revealed any sensitive intelligence sources and methods compromised by the disclosures^IFN^O^McClatchy later quoted anunnamed Pentagon source confirming that three months later there was stillno evidence that anyone had been harmed by information in the Afghan war logs released. 1FN61^^32^ In October,Wikileaks added one more major release.It consisted of war logs similar to those releasedin luly,this time pertaining to the Iraq war. Here, Wikileaks posted close to 400,000 field reports from Iraqinwhat the BBC described as ^^a heavily censored form.^^1FN62^ TheNewYorkTimes framed the documents ashaving relativelylowsignificance:^^Like the first release,some 77,000 reports covering six years of the war inAfghanistan,the Iraq documents provide no earthshaking revelations,but they offer insight,texture and contextfromthepeopleactually fighting the war.^^ 1FN^3^ Other newsorganizationsframedthereports quite differently. Der Spiegel entitled the reports A Protocol of Barbarity. 1FN64^ The BBC used the headline: HugeWikileaks release shows US^ignored Iraq torture.^IFl^^^j Regardless of framing differences,the organizationsagreed on the core facts established by the reports: Iraqi civilian casualties were higher than previously reported;the U.S. military was wellaware that Iraq'smilitary andpolice weresystematically torturingprisoners; andwhilediscreteunitsintervenedto stop suchtortureontheground, there wasnosystematicefforttostopthepractice.l^FN66j The Pentagon denounced the release asa^^travesty^^ and demanded the return of the documents.1FN67^ Secretary ofState Clinton was quoted as saying,^^We should condemn in the most clear terms the disclosureBl^FN^^^This round of document release was also done by release to media outlets first, but one way in which thisround was different wastheintroductionof personal attacks on lulian Assange.The day after therelease,theNewYorkTimespublishedaderogatory profile of Assange entitled,Wikileaks Founder on the Run,Trailed byNotoreity.lFN^^^ The opening paragraph conveys the tone ofthe piece:lulian Assange moves likeahunted man.Inanoisy Ethiopian restaurant in London's rundown Paddington district,he pitches his voice barely aboveawhispertofoiltheWestern intelligence agencies hefears.He demands that his dwindling number of loyalists^32^use expensive encrypted cellphones andswaps his own the way other men change shirts. He checks into hotels under false names, dyes his hair,sleeps on sofas and floors, and uses cash instead ofcredit cards, often borrowed from friends.1FN70^All the elements of the profile of an untrustworthy,shifty character are presented inabreathless tone.Hereperhaps is thefirsttextualevidence of the major transition inthe perceptionofWikileaksinmainstreamU.S.media. In March 2010, theTimes had described Wikileaks asThe Little EngineThat Could of new media muckraking journalism. lFN71^Bymid-December,Wikileaks would come to be described byTom Friedman on the2013Thomson Reuters.No Claim to Orig. US Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page^Times'op-ed page as one of two threatening alternatives toastrong,democratic America, alongside an authoritarianChina. lFN72^Inbetweenthese two descriptions of Wikileaks,theTimes'profile of Assange marks thetransition point.D.The Last Straw:The Embassy CablesNovember 2^,2010ushered in the next document release.This release was more careful and selective thanany of the prior releases.Apparently,the caution came too late.The release of the final batch was followed byamassive escalation of attacks onWikileaks as an organization and website and on Assange as an individual.It isthe mismatch between what Wikileaks in fact did in this final round and the multi-system attack on it that drivesthe need foradeeper explanation.The release of the State Department embassy cables^confidential internal communications from embassiesto Washington) was the most professionally-mediated,conservatively-controlled release Wikileaks had undertaken. The document set included 2^1,2^7 cables. 1FN73^ Unlike the previous document releases, this timeWikileaks worked almost exclusively through established media organizations. It made the documents availableto the Guardian,Der Spiegel,LeMonde, and El Pais; the Guardian made the documents available to theNewYorkTimes.lFN74^ Wikileaks also sought advice from theU.S.State Department, just as theNewYorkTimeshad, to aid in redaction and to help it avoid causing damage. Unlike the State Department's response to the traditional media organizations,Wikileaks'letter was met withastrongly-worded letter from the Department's legaladvisor, Harold^327Koh, stating,^^We will not engage inanegotiation regarding the further release or disseminationof illegallyobtainedU.S.Government classified materials^^and demanding that Wikileakssimply notpublish anything, retum all documents, and destroy all copies in its possession.1FN7^^ This, despite the fact thatthe date of the letter is one day before revelation, and the text of the letter explicitly states that the State Department knewof and consulted withthe mainstream news organizations that were about to publishthe materials,and therefore that ifWikileaks were to return all the materials,the other media entities would have the freedomand professional obligation to publish the materials.The claim of illegality,coupled withademand for return ofthedocuments, appears to reflectdraftingthat is grounded inthe Espionage Act, which applies toone who^^willfully retains lany document which^lthe possessor has reason to believe could be used to the injury of theUnited States^and fails to deliver it on demand to the officer or employee of the United States entitled to receiveit.^^ 1FN76^ This legal strategy appears to have followed the model already set by the Pentagon during theAfghanwar logs release. lFN77^LaterreportsfromWikileaks'media partners support the observation that theObama Administration treated Wikileaks as though it were inafundamentally different category than it did thenewspapers. 1FN7^^ Wikileaksthenproceededtomakepublicly accessible onitsownwebsitecablesthat hadbeenpublishedbyatleastoneofthesemediaorganizations, in theredactedformthat those outletshadpublished.lFN7^^Despite the actual care and coordinated release model that Wikileaks in fact practiced, over 60^of print news reports at the time explicitly stated thatWikileaks had released thousands of documents (usuallyover2^0,000),andanother20^impliedthatitdidso. IFN^O^ lnfact,over the course of thefirst month andmore, the site releasedafew hundred documents, limited almost exclusively to those published and redacted byother organizations.Thecontentsoftheoverwhelmingmajority of released cables ranged fromthegenuinely important ^e.g.,Saudi and Gulf state support foraU.S.led attack on Iran to prevent proliferation; Yemeni acquiescence inU.S.^32^ bombing on its own territory;U.S.spying onUNstaff;U.S.intervention in Spanish,German,and Italianprosecution processes aimed atU.S.military and CIA personnelover human rights abuses of citizens of those^2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311PagelOcountries; the known corruption and ineptitude of Afghan President Hamid Karzai) to the merely titillating(Libyanleader MuammarGadaffi'sUkrainian nurse described as^^voluptuousblonde^^). Although none brokeground inaway that was likely to influenceU.S.policy inafundamental way,this was not always true of othercountries.IFN^l^The most ambitious speculations,in theNewYorkTimes and Foreign Policy,suggested thatWikileaks'cables'blunt descriptions of the corruption ofTunisian President Ben Ali helped fuel the revolutionthat ousted him in Ianuary2011.1FN^2^ Whether anything so fundamental can indeed be attributed to the embassy cables leak is doubtful, but the sheer range of issues and countries touched, and continuous media attention for two months,make it undeniable that theWikileaks U.S.embassy cable release wasamajor news eventthat captured headlines all over the world for weeks,providingasteady flow of smallto mid-sized revelationsabout theU.S.in particular and the world of high diplomacy more generally.It wasamajor scoop,or, as theGuardian put it proudly, ^^the world's biggest leak.^^1^FN^3^Despite the generally benign character of the cables,one cable,one response toacable,and one threat to release all raise particular concerns about potential damage.The cable that raised the greatest concem wasaFebruary 200^ eablelisting^^Critical Foreign DependencieslnitiativeList,^^ which listed specificfacilities whosedisruption wouldharm U.S. interests. 1FN^4^ TheserangedfromaManganesemine inGabonandunderseacommunications cables in China, toapharmaceutical plant in Melbourne, Australia andaDanish supplier of pediatric form insulin.l^FN^^^ Unlike the overwhelming majority of cables,this one appears to have been releasedinitially by ^32^ Wikileaks.1FN^6^ The argument against this release,made at the time by theU.S.govemment,was that it offeredatarget list for terrorists seeking to disrupt criticalglobal supplies by rendering criticaldependencies transparent.1FN^7^ The second cable,or rather response toacable,includedareference to ^imbabwe Prime Minister MorganTsvangirai's private support for sanctions against the Mugabe regime in Zimbabwe,providing an excuse for the Mugabe regime to explore prosecutingTsvangirai for treason.IF^^^^ It appears thatthiscable, like the majority of cables, waspublishedat the same time ^and likely incoordination with) theGuardian.IFN^^^ Furthermore,it is unclear whether use of the cable as an excuse byarepressive regime to prosecute or threaten itsleadopponent is equivalent torevealing names of unknown human rights workers, muchlessundercoveroperatives, who would nototherwisebeknowntotheregime. Finally, inanticipationof thepressure, arrest, andpotential threatsof assassination, lulian Assange threatened to release a^^poisonpill,^^alarge cache of encrypted documents that is widely replicated around the Net and that would be decrypted, presumably with harmful consequences to the U.S.,should he be arrested or assassinated.This latter of the threeevents is the one most foreign to the normal course of democratic investigation and publication.^FN^O^Depending on the contents of the file,it could beagenuinely distinct, threatening event, and publication of ^33^ the decryption key may be an appropriate target for suppression consistent with First Amendment doctrine that permitsconstrainingdisclosure of ^^thesailingdates of transports or thenumberandlocationof troops.IF^^l^ Itisdoubtful,however, that the contents ofthe insurance file would fall under that category,assuming that the entireset ofcables is not fundamentally different from those that were released and recognizing that none ofthe cableswere classified in top-secret categories.ILTheResponse:AMulti-System Attack onWikileaksThe response to the Wikileaks embassy cable release in the United States was dramatic and sharp. The integrated, cross-system attack on Wikileaks, led by the U.S. government with support from other governments,private companies, and online vigilantes, provides an unusually crisp window into the multi system structure offreedom and constraint in the networked environment and helps us to map the emerging networked fourth estate.The attack's failure provides us with insight into how freedom of action is preserved primarily by bobbing and2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Pagellweaving between systems to avoid the constraints of those subsystems under attack and harness the affordancesof those that are out of reach of the attacker.The response also highlights the challenges thataradically decentralized global networked public sphere poses for those systems ofcontrol that developed in the second half ofthe twentieth century to tame the fourth estate-to make the press not only ^^free,^^ but also^^responsible.^^ Doingso allows us to understand that the threat represented byWikileaks was not any single cable,but the fraying ofthe relatively loyal and safe relationship between theU.S.government and its watchdog.Nothing captures thatthreat moreironicallythanthe spectacle of ludithMiller,the disgraced New YorkTimesreporterwhoyokedthat newspaper's credibility to the Bush Administration's propaganda campaign regarding Iraq's weapons ofmass destruction in the run-up to the IraqWar,lFN^2^ using Fox News asaplatform to criticize lulian Assangefor neglecting the journalist's duty of checking his sources and instead providing raw cables to the public.1FN^3^ The criticism is particularly ironic in light of the fact that despite all the attacks on the cables'release,the arguments were never that the cables were inauthentic.It is important to emphasize that the myriad forms of attack onWikileaks thatldescribe in the coming pagesareunlikely torepresentasingle coordinated responseby an all-knowing Administrationbentoncensorship.Mostly,they appear to representaseries of acts by agents,both ^331 public and private,that feed into each other to produceaneffect that is decidedly inconsistent with the kindof freedomof thepressand freedomofspeechtowhichthe United Statesis committed.That no distinct attack pattemthatldescribe clearly violatesWikileaks' constitutional rights asagainst thestate isno salve; indeed, it isprecisely the vulnerability todestructive attacks, none of which is in itself illegal but that together effectively circumvent the purposes of constitutionality and legality that requires our attention.A.Sociopolitical Framing: Situating Wikileaks in the Frame of theWaronTerrorThe political attack onWikileaks as an organization and on lulian Assange as its public face was launchedalmost immediately upon release of the cables. Their defining feature was to frame the event not as joumalism,irresponsible or otherwise,but asadangerous,anarchic attackon the modelof the super-empowered networksof terrorism out to attack the U.S.The first salvowas fired by SecretaryofState Hillary Clinton,who stated,^^Let's be clear:This disclosure is not just an attack on America's foreign policy interests....It is an attack onthe intemationalcommunity—the alliances and partnerships,the conversations and negotiations,that safeguardglobal security andadvance economic prosperity.1FN^4^ The trope of anattackon the international community provided the backdrop foraseries of comments aimed at delegitimizingWikileaks and locating it in thesame comer, in terms of threats to the United States, as global terrorism. This was the backdrop for Vice President Biden's statement that Wikileaks founder lulian Assange is ^^morelikeahigh-tech terrorist than the PentagonPapers.^^lFN^^^ This assessment was not uniformly supported by the Administration. Defense Secretary RobertGates called the public response ^^overwrought,^^and concluded with: ^^Is this embarrassing7Yes.Is it awkward7Yes. Consequences for U.S. foreign policy71think fairly modest.^^lFN^^^ Echoing this sentiment, the GermanInterior Minister described the revelations as ^^annoying for Germany,butnotathreat.^^lFN^7^ These measuredvoices did not prevail in the first few weeks after the disclosures began.The invitation by Secretary Clinton and Vice President Biden to respond to dissemination of confidential information as an assault on our national pride and integrity, on par with terrorism, was complemented by calls touse the techniques that theU.S.has adopted in its ^^WaronTerror^^ against lulian Assange or Wikileaks asasite.Bob Beckel,the Fox News ^332 commentator who had beenaDeputyAssistant Secretary of State in the CarterAdministration and had been campaign manager toWalterMondale,said,^^^Adead man can't leak s t u f f . . . .^2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 12This guy'satraitor, he's treasonous,and he has broken every law of the United States.And I'm not for the deathpenalty,so...there's only one way to do it: illegally shoot the son ofabitch.^^^lFN^^^This proposal was metwith universal agreement by the panel on the program. IFN^^^ Republican Representative Pete King, thenincoming ChairmanoftheHouse Homeland Security Committee,sought tohaveWikileaksdeclaredaforeignterrorist organization. IFNIOO^ Right-wing commentators picked up this line. William Kristol wrote in theWeekly Standard:Why can't we act forcefully against WikiLeaks7 Why can't we use our various assets to harass, snatchor neutralize lulian Assange and his collaborators, wherever they are7 Why can't we disrupt and destroyWikiLeaks in both cyberspace and physical space,to the extent possible7Why can't we wam others of repercussions from assisting this criminal enterprise hostile to the United States71FN101^Heconcludes withtheremarkable statement:^^ Acting together to degrade,defeat,and destroy WikiLeaksshould be the first topic discussed at today'sWhite House meeting between the president and the congressionalleadership.1FN102^ Sarah Palin linkedtothiscommentary onherTwitterfeed,andonherFacebookpagestated that Assange ^^is an anti-American operative with blood on his hands. His past posting of classified documents revealed the identity of more than lOOAfghan sources to theTaliban. Why was he not pursued with thesame urgency we pursue AlQaeda andTalibanleaders7^^1FN103^ By the end of the first decade of the twentyfirst century,these statements show that we in the United States know quite well what to do to terrorists or SUSpected terrorists. Whether one uses the euphemisms of ^^targeted killings,^^extraordinary renditions,and^^enhancedinterrogations,^^orsimplycallsthingsby their names assassination,kidnapping,and torture—thesepractices have becomeastandard, i f controversial, part of the U.S.arsenal in its war on terror since the earlydays after September 11th. Whilethe^333 Obama Administration hasrenouncedtorture, ithasembracedtargeted killings asalegitimate part of its own war onterror,lFN104^ and chosen asamatter of stated policy toturnablind eye to the illegality of the Bush Administration's torture program.IFNIO^^ Asaresult, these continue to be options that can be publicly proposed by major public outlets and speakers.They remain part ofthe legitimate range of options for discussion.It is unthinkable that theU.S.will in fact assassinate Assange.But the range of actions open to both govemment and nongovernment actors isin important ways constrained byour understanding of the social frame,orsocial context inwhichwe find ourselves. IFl^lO^^Thelegaloptions that the lustice Department thinks aboutwhen confronted withacaseofajournalist who publishes sensitive materials are fundamentallydifferent thanthose it thinks about when it is developingaprosecution strategy against terrorism suspects.The pressure to cutoff payment systems flows is fundamentally different when considering whether to cut off payments toapoliticallyodiousgroupthanwhenconsideringcuttingoff payments toaterroristorganization. Itis verydifficulttounderstand the political and market dynamics that could have led to the decision by MasterCard and Visa to cutoff payments to Wikileaks except against the background of theframing efforts that located Wikileaks inthesame rubric as theTaliban,rather than the same rubric as theNewYorkTimes or the Progressive.1^FN107^B. Media Misinformation and MisdirectionTraditional media outlets provided substantial support for the Administration's framing by exaggerating thenumber of cables and implyingacareless approach to their release.Astudy of major print newspaper stories thatmentioned the quantity of cables during the first two weeks after the November2^th release shows thatasubstantial majority of newspapers stated as fact that Wikileaks had ^^released,^^^^published,^^or^^posted on its site,^^^^thousands^^or^^over2^0,000^^cables.lFN10^^ About 20^ of the stories in major ^334 newspapers were clear^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 13andaccurateonthequestionofhowmany cables were released at that time and how vetted and redacted thepublished cables were.Typical of this type of story are ChicagoTribune and Los AngelesTimes reports fromNovember 30,2010:^^WikiLeaks released 272 diplomaticcablesfromatrove of more than 2^0,000.Theremainder are to be dribbled out for maximum impact, group members say.^^IFNIO^^The existence ofasubstantial minority of accurate reports underscores the degree of misleading informationpublished in the majority of stories during the initial period after release,when public perceptions ofWikileaksand Assange werebeingframed. Reportscategorized asbeing unambiguously misleadingincludedsentencessuch as ^^WikiLeaks showed relatively little such discretion in its online posting of more than 2^0,000 diplomaticcables,^^ l^FNllO^or^^thousandsof StateDepartment cables,just releasedby WikiLeaks, wereprovidingaglimpse into what U.S. diplomatsreally thought.^^ I F N l l l ^ Sixty-eightoutof 111 storiescodedmade thesekinds ofclaims. Anothertwenty stories weremore ambiguous.These storiesusedcharacterizations that weretruthful but easily misinterpreted as describingafull release.1^FN1121Reporting of the events at the time suggests not so muchaconspiracy but confusion and lack of clarity aboutthe facts. Some papers published reports that contradicted each other from one day to the next, sometimes evenin the same edition.For example,on November2^,2010,the ChicagoTribune published three stories: in one itaccurately said that hundreds of thousands of cables were^^obtained^^ by Wikileaks,lF^113^in another it misstated ^^more than 2^0,000 U.S.diplomatic cables released Sunday by theWeb siteWikiLeaks,^^lFN114^ and inathird it ambiguously wrote:^^The online whistle-blower site WikiLeaksbegan publishing more than 2^0,000diplomatic cables from U.S. embassies around the world Sunday.^^IFNll^^ On November ^33^ 30th, the Christian Science Monitor misleadingly referred to ^^hundreds of thousands of cables released byWikileaks,^^ 1F^116^but in other stories usedamore ambiguous phrasing 1FN117^ and an accurate description.l^FNll^^Capturing the treatment oftelevision is less comprehensive and much can be missed. Conclusions made hereabout television coverage are thus more tentative. An identical search of transcripts available in the Lexis Nexisdatabase suggests that Fox News and CBS News consistently misreported the number ofcables released.For example,CBS EveningNewsineludedastatementthat^^Assangeand WikiLeaks deny that their publicationof2^0,000 StateDepartment cables putthe lives of spies ordiplomats at risk;^^ IFNll^^ the CBS News showSunday Moming stated,^^Aweek after publishing those thousands of secret U.S.diplomatic cables,WikiLeaksis struggling to stay online;^^l^FN120^ and The Early Show included the statement,^^Those classified cables overtwohundredandfifty thousandof them werereleased by the whistleblowing website WikiLeaks.Inamovethat White House calls reckless....^^lFN121^NBChadamore mixed record.NBC Nightly News stated: ^^Nowto the latest onWikileaks.One week after the release ofhundreds of thousands ofState Department cables,aftercompanies in this country and France took down the WikileaksWeb site,Sweden and Switzerland became themain access points. As for the man behind Wikileaks, he says he continues to receive death threats.^^1F^122^Threeweekslater,however,theTodayshowexplicitly stated that ^^WikiLeaks has sofar released lessthan 1percent ofthe classified documents it claims to have lobtaineda.1FN123^ ABC had fewer reports, but theDecember 1st episode of Good Moming America stated that ^^We'regonnatum now tomore fallout fromtheWikiLeaks release ofthousands ofdiplomaticcables.^^lFN124^ CNN had many more reports, and, like the printnewspapers, included descriptions regarding the number ^33^ of cables actually released, ranging from precisereports to claims of profligate release.FigureLFrequency of terms used in stories mentioning Wikileaks August 2010-Ianuary20112013Thomson Reuters.No Claim to Orig. US Gov.Works.46HVCRCLLR31146Har^CRCLLRev311Page 14TABULAR OR GRAPHIC MATERIAL SETFORTHATTHIS POINT IS NOT DISPLAYABLEAsecond dimension of media coverage that merits note is the relatively heavy emphasis on the sexualmolestation charges against Assange in Sweden. It is not difficult to understand why media outlets thatneed to sellcopy would add sex and violence to politics and diplomacy.The Swedish prosecution madeforasalacious story too reminiscent of what Bill Keller, executive editor of theNewYorkTimes,wouldlater call ^^a missing StiegLarssonnovel^^lFN12^j to pass up.One need not hold the position that therewasaconspiracy involved in reporting on the rape investigation to see that it is what formed the foundation for the depiction of Assange asa^^hunted man.^^1F^126^ At an aggregate level, it is possible to observe an interference pattern created by the rape or molestation charge in media coverage of Wikileaks.The interference pattem is neither perfectly matched nor completely effective, but is clearly identifiable inatimeline of the frequency,in twentyfive top mainstream media outlets in theU.S.,of the terms ^^Iraq,^^^^embassy,^^^^rape,^^ and ^^molestation^^ in stories that mention ^^Wikileaks^^ between August 2010andlanuary 2011.1FN127^^337 C. Direct Legal Action: Espionage Act, Computer Fraud and Abuse Act, and ConspiracyWithinaweek of the initial release of the cables,Democratic Senator and Chairman of the Senate Intelligence Committee DianneFeinstein called for Assange's prosecution under the Espionage Act of 1^17.1FN12^^The call forusingtheEspionage Actof 1^17 isaremarkableexerciseinhistoricalamnesia. It is consistent,however, with the wording ofboth the Pentagon's response in August and the State Department's letter inNovember. 1FN12^^ The Act wasthe primary legaltooldeveloped in what was^^one of themost fiercely repressive periods in American history.1FN130^ Efforts by judges, most prominently Leamed Hand in theMasses case, lFN131^to constrain its use to preserve press freedom failed, and courts of appeals followed theapproach that the govemment had the power to punish publication of materials that hada^^natural and probabletendency^^ to produce the result that the Act was intended to prevent.1FN132^ Under the Act, Rose Pastor Stokeswas convicted to ten years imprisonment for saying inapublicmeeting,^^! am for the people and the government is for the profiteers'^ ^FN133^; although her conviction was overturned on appeaLlFN134^0thers were notasfortunate.Afilmdirector, Robert Goldstein,receivedatenyeartermforproducingamovie about thcRevolutionaryWar that portrayed not only the Midnight Ride,the signing of the Declaration of Independence,andValley Forge,but also theWyoming Valley Massacre,showing British soldiers bayoneting women and children.1F^13^^ The trial court found that these depictions ^^mayhaveatendency or effect of sowing...animosity orwant ofconfidence between us and our allies.^^lFN136j Goldstein's ten-year prison term was not overturned, butwas later commuted byWoodrow Wilson.lF^137^EugeneV.Debs would have to wait for President Warren G.Harding to be released,alongside other ^^politicalprisoners^^ ^33^ prosecuted under the Act during WorldWar I.1FN13^^ Asamatter of law,parts of the Act are indeed on the books.Asamatter of constitutional culture,invoking the Espionage Act against an act of public expression is more akin to calling for the prosecution of dissenters under the Sedition Act ofl7^^.News reports suggest that the lustice Department is considering prosecution,but likely underatheory of conspiracy to violate one of several other provisions,like the Computer Fraudand Abuse Act. lFN13^^AsIdiscuss in Part III,this path of attack is effectively blocked by the First Amendment.Here, in painting the dimensions of the attack onWikileaks,Inote only the most obvious form of govemment action: prosecution, subject to the requirements of legality, due process, and constitutional protections forfree speech.D.Will no one rid me of this turbulent priest7Denial-of-Service Attacks by an Extralegal Public-Private Part-^2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Pagellnershipi.Technical Infrastructure Denial ofServiceBeginningafew hours after the release of the first embassy cables, theWikileaks site came underadistributeddenialofservice(^^DDoS^^)attack.l^FN140^Apattern of denial-of-service attacks continued over the nextfew weeks.It is difficult to pindown whether these attacks came from govemment bodies,and i f so,whetherfromoneofthecountriesfearingembarrassingrevelationsorfromtheUnitedStates. 1^FN141^ Newsreportsabout the initial set of attacks emphasized the self-congratulatory tweets ofahacker who took the name ^^lester^^and claimed responsibility for some of these attacks:becauseWikileaks is ^^attempting to endanger the lives ofour troops,mother assets'^foreign relations.^^1FN142^ The sheer scale of the attacks,on the one hand,and thetechnique adopted by the lester,which was not DDoS,on the other hand,suggest that the lester was merely taking responsibility for the acts of other sources of attack that have not been identified or reported upon,^33^ atleast intheearly stages, usingarelatively smallnumberofmachineslocatedinRussia,eastern Europe,andThailand. 1FN143^ In describingany DDoS attack, identifying the culprits is extremely difficult, i f not impossible. What is quite clear isthat oneresponse Wikileaks adopted wastomoveitsdatato Amazon's cloudhosting services,whereit would be safefrom such attacksbecause of the sheer size and sophisticationof thehosting site.1^FN144^ This move,in turn,made it vulnerable toanew threat.OnDecember l,2010SenatorIoeLieberman,Chairman of the Senate Committee on Homeland Security,launchedadifferent kind of denial-of-service attack.Lieberman releasedastatement in which he stated:Icall on any other company or organization that is hosting Wikileaks to immediately terminate its relationship with them.Wikileaks'illegal,outrageous,and reckless acts have compromised our national security andput lives at risk around the world. No responsible company-whether American or foreign-should assist Wikileaks in its efforts to disseminate these stolen materials.1FN14^^The response to Lieberman's call was swift andwide ranging. That same day, Amazon, whichhostedWikileaks' embassy cables on its cloud computing platform, removed Wikileaks' content. 1FN146^ Amazondenied that it had acted under government pressure,but its own denial notice clearly stated that it madeajudgment that the content did not belong toAmazon,was likelydamaging,could not have been properly redacted,and therefore violated the company's terms of service.lFN147^1n other words, Amazonwas making preciselythedeterminationthatagovernmentofficialmakingadecision to imposeprior restraint would havetomake.Because the company apparently^340 acted without direct order from the government, this decision is unreviewable byacourt.Given what we know of the materials as they have come out to this point, there is little likelihood that an official order to remove the materials would have succeeded in surmounting the high barriers erectedby First Amendment doctrine in cases of prior restraint. The fact that the same effect was sought tobeachieved throughapublic statement by an official, executed by voluntary action ofaprivatecompany,suggestsadeepvulnerabilityof the checks imposed by the First Amendment in the context ofapublic sphere built entirely of privatelyowned infrastructure.^FN14^JThe next private infrastructure to deny service toWikileaks was EveryDNS,the registration company thatprovided domain name service toWikileaks.The company ceased to point the domain name ^^wikileaks.org^^ tothe site. When EveryDNS removed service, Internet users who would type ^^www.wikileaks.org^^ into their URLbar, or users who clicked on online links to the mainWikileaks site would come up with nothing.The site wasquickly up and running again, however, using the Swiss domain name wikileaks.ch. The content itself was hosted on serversin Sweden and France.1FN14^^ EveryDNSissuedanotice claiming that they cut offWikileaks2013 Thomson Reuters. No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page 16because the sitewas subject tomassivcDDoSattacks that adverselyaffected its other clients. In an amusing^^protest too much^^moment, the company's notice ended with:^^Lastly,regardless of what people say about theactions ofEveryDNS.net,we know this much is true—we believe in our New Hampshire state motto,^Live FreeorDie.^^^ IFNl^O^ When it became clear that the materials were nowhosted by aFrench firm,theFrenchIndustry Minister, Eric Bresson, called upon Intemet companies to deny service and not to host the cables.lFNl^l^Twodayslater,the French company OVH,whichwas hosting the embassycables,went offline.Thecables were moved toaserver hosted by the Pirate Party in Sweden,apolitical party dedicated to digital copyright reform in Sweden. Beginning the next day, the party's server, on which the cables were hosted, came undermassive DDoS attacks.These were not,however,sufficient to disrupt service significantly.The last major distributton infrastructure company to deny service to Wikileaks content (albeit indirectly) was Apple, whichremoved an iPhone App,developed and sold byadeveloper with no connections toWikileaks,providing access tothe informationWikileaks made available free online.Apple's formal reason was the claimed illegality and harmcaused by the materials.1FN1^2^^341 ii.PaymentSystems DisruptionWikileaks isanonprofit that depends on donations from around the world tofund its operation. Asecondsystem that came under attack onamodel parallel to the attack on technical infrastructure was the payment system.The first platform to go was PayPal,which suspended service toWikileaks on Saturday,December4,2010.That Wednesday,the company's vice president of platform,mobile,and new ventures stated:What happened is that on November 27thlthe day beforeWikileaks began releasing cables^the StateDepartment, the U.S. government basically, wrote a letter saying that the Wikileaks activities weredeemedillegal intheUnitedStates. And so our policy grouphadtotakeadecisiontosuspendtheaccount....It was straightforward from our point of view.lFN1^3^Theletter was not necessarily evidence of direct pressure from the State Department on PayPal,however,but ratherareferencebyPayPaltotheletter sent byHaroldKoh to Wikileaks as evidence thatWikileaks engaged in illegality, and hence violated the company's terms ofservice.l^FN1^4^ That letter, however, stated thatthe materials were provided toWikileaks illegally,not that their publication by Wikileaks was illegal.It wasacareful piece oflawyering, insinuating,but not asserting, illegality on the part ofWikileaks itself.lFNl^^^ ThatPayPal would act so swiftly againstaclient, misstating the illegality and identifying the State Department as itssourceallstrongly suggest that even i f the action was notdirectlycoordinatedwiththeU.S.government,thecompanycertainly thought it wasimplementing the policy that SenatorLieberman had called for and was thecourse ofaction desired by the government.The other major payment systemsfollowedsoonthereafter.OnMonday,December 6th, MasterCard announced that ^^MasterCard is taking action to ensure thatWikiLeaks can nolonger accept MasterCard-brandedproducts.^^1^FN1^6^ That same day,the Swiss postal bank shut down lulian Assange's personal bank account because,the bank's announcement stated, he^^provided false information regarding his place of residence duringthe account opening process.^^1FN1^7^ The irony ofaSwiss bank shuttingabankaccount^342 because its owner provided lessthan-transparent information about his residential addressis practically more revealing thanafrank admission ofapoliticaldecision.Visa followed suit the next day,and Bank of America ten days after that.IFNl^^^The pattern of attack through the payment system was similar to the pattem of the attack on the technicalsystem.The initial impetus from the rhetoric equating Wikileaks with global terrorism was followed by Senator©2013 ThomsonReutersNoClaimtoOrig. us Gov. Works.46HVCRCLLR31146HarvCRCL.LRev311Pagel7Lieberman's express request that U.S.companies cutWikileaksoff.The companies then complied,and the U.S.government did nothing to distance itself from these acts. Indeed, when MasterCard came under attack for its actions, SenatorLieberman publiclycametoitssupport. IFNl^^^ If we were to consider what judicialprocesswould berequiredforthegovernment to exert this kindof force directly—cuttingofftechnicalinfrastructuresand excluding an organization from the payment systems—because of the content of information that organizationdisseminated,thebarriersin law would havebeen practically insurmountable.However,theimplicit aliiance—a public-private partnership between the firms that operate the infrastructure and the govemment that encourages them tohelpin its waron terror, embodiedby thisparticularly irritatingorganization—wasable toachieve extra-legally much more than law would have allowed the state to do by itself.iii. Organizational PowerOn December 3,2010, the Office ofManagement and Budget issuedamemorandum to the various government departments,emphasizing that theWikileaks documents were stillclassified, and that access to them remained subject to all the legal limitations appropriate to their classification.l^FN160jAsaresult,awide range offederal agencies prohibited or technically blocked their employees from reading theWikileaks materials onlinefrom their federal computers.Perhapsthemostsymbolicofthese was that patrons of theLibrary of Congress could not read materialsavailable everywhere else in the world ^^becauseapplicablelawobligates federal agencies to protect classifiedinformation.^343 Unauthorized disclosures of classified documents do not alter the documents'classified statusor automatically result in declassification of the documents.^^lFN161^0ne wonders whether this meant that congressionalstaffortheCongressionalResearchService, too, weredisabledfromreaching the cables tomaketheir own independent judgment about the events. At least asironic was the result that employeesintheU.S.DepartmentofDefensewerenotpermittedtoreadcablesavailabletoevery terrorist andforeignintelligenceanalyst withacomputerandaterminal. 1FN162^ Plainly,these blocks could not possiblydo anything tolimitfurther leakage of already leakeddocuments.lt also seems highly implausible that these blocks represented aneffort to prevent federalemployees from seeing the paucity of the threat and the exaggerated nature of the response— for themselves. Muchmore likely is that these were uncoordinated acts intendedaspublic performances of allegiance in the face of threat to the national pride.More than most other acts we have seen, these publie announcements suggestafutile panic response.The internal moves within the government translated through other organizational systems into constraintson reading and accessing the materials elsewhere.Most clearly,these are represented inaseries of memorandathat university offices ofcareer services throughout the country sent to their students, waming them that readingthe Wikileaks cables couldendanger their fiiture employment prospectsintheU.S.government. l^FN163^Thisbecomesaserious exercise of power over speech through the power of the government to hire or refuse to hire.As such,it isadirect and effective constraint on reading publicly available truthful information with clear political import. And, as with the case of the companies,here universitycareer services offices provided accreditation and dissemination services to the initial move by the government, so that the chilling effect was amplifiedthrough the organizational power ofrecruitment and hiring in the country's institutes ofhigher education.One particularly interesting source of accreditation was theWashingtonPost,whichpublishedacareer advice column on the threat that reading the cables presented to one's eligibility to getagovernment job.1FN164^The article, ^344 authored by the Post's leading expert on federal career placement, 1^FN16^^ opens with the following sentences:©2013 Thomson Reuters. NoClaimtoOrig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311PagellYou have always had an interest in theU.S.government and the missions of the agencies that dealwith national security and international affairs. You even hope to work for the feds or serve in the militaryone day. Then you find yourself- an avid reader and seeker of knowledge face to face with theWikiLeaksWeb site.This rare look inside government operations could also cost youapotential securityclearance.1FN166^It is hard to imagineamore effective way to prevent young people aspiring toacareer in politics or publicservice from reading the materials that the govemment would prefer they not read.iv. Indirect Legal AssaultThemultisystem attackon Wikileaks employsthelegalsystemontwodimensionsthatarenot directlyaimed at the actions of Wikileaks in leaking the cables. Each attack is likely to put pressure on the continuedability ofthe organization to function.The first ofthese is the actual legal action against the soldier who is accused ofhaving leaked the materials:a22-yearold army intelligence analyst named Bradley Manning.As of this writing, little is known about Manning or his motivations beyondaseries of articles inWired Magazine,based on materials provided by the hacker who turned Manning in, Adrian Lamo. lFN167^That Manning can be prosecuted under militaryor civiliancriminal law is certainly true.It is clear, however, from what littleis available,that while Manning was understress and self-medicating, he was operating at least inpart from motives that we would normallyconsider theparadigm case of whistleblowing: moral and political disagreement with the course of action of the state.1FN16^^ Whether the actions exposed inthe documents areindeedillegalorimmoralinamanner that wouldjustifyblowing the whistleis not obvious. After almostayear of revelations fromthissetof materials,theyseem moreabroad affirmation of what is widely believed to be the case than offering any new smoking guns.Their disclosure largely serves to confirm readers'views—both positive and negative ofU.S.policy.The contours of what protection, if any,is due federal employees generally,and military personnel in particular,who engage in whistleblowing under these^34^ circumstances or where unambiguousillegality is exposed is beyondthe scope of this article.lFN16^^From the perspective of the assault onWikileaks,the important aspect ofManning's treatment is the effort to use him to deter future whistleblowers and the question of whether his culpability could serve to anchor conspiracy liability against Assange and Wikileaks.Given the Pentagon Report's focuson disrupting the trust of whistleblowers inWikileaks by exposing them, 1^FN170^ Manning's long-term solitaryconfinement seems clearly intended asawarninglFN171^and possibly asalever to obtain his cooperation inbringingaconspiracy charge against Assange.However, the long confinement may undermineacourt's willingness to credit his testimony in suchacase.The second dimension of indirect legal attack onWikileaks is the Swedish investigation into accusations ofsexualassaultby lulian Assangeagainst two womenduringan August 2010 visit toSweden. On August 20,2010,after release ofthe Collateral Murder video and the Afghanistan documents,the Swedish prosecutor's office issued an arrest warrant against Assange in an investigation of allegations of rape stemming from accusations by two women whom he had met ataconference in Sweden on Augustl4thandl7th.The accusations andissuance of the arrest warrant were leaked to the press.The next day,the arrest warrant was withdrawn,andachief prosecutor inthe Swedishprosecutor's office stated,^^Idon't think thereisreasonto suspect that he hascommitted rape.^^1^FN172^ On Septemberlst,the Director ofProsecutions decided to overturn the investigatingprosecutor's decision, and reopen the rape investigation. 1FN173^ On November l^th, three weeks after releaseoftheIraqdocuments,theDirectorofProsecutionsobtainedawarranttodetain Assange for questioning. Assange,then in the United Kingdom,offered to come to the Swedish embassy or ScotlandYard for the interview.© 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311PagellOnNovember20th,Sweden issued an internationalarrest warrant. OnNovember30th, Interpol issueda^^rednotice^^against Assange,and on December7th,Assange gave himself up toLondon police and was denied bailuntil ^34^ the extradition hearing. 1FN174^ While the U.K. government did not comment on the arrest, U.S. Secretary of Defense Robert Gates responded that it was ^^good news,^^1FN17^^ lending support to concems raisedby observers from the moment of the initial issuance of the arrest warrant and its retraction that the charges werepart ofacampaign to undermine Wikileaks.1FN176^ On December 14th, the judge awarded bail,but the prosecution appealed the grant ofbail so that Assange's release was delayed. 1FN177^ The decision to appeal may havebeen requested by the Swedish prosecutor's office. 1FN17^^The facts underlying the effort to extradite Assange before charging him raise questions about the relationship betweenthe aggressive pursuit of the extradition request and appeals over bail and the general assault onWil^ileaks. According toareport in the Guardian,based on police reports leaked to the newspaper, 1FN17^^ theaccusers suggested that Assange behaved aggressively with at least one of the two accusers, and inconsideratelywith both.IFNl^O^ It is entirely possible that under Sweden's definition of rape and sexual molestation laws,reOeetingsignificantrespect for women'srighttorefuseat any point inthe interaction, IFNl^l^ that Assangecommitted an offense.1FN1^2^ The treatment ofthe case issuance ofthe warrant, its retraction and reissuance,the leaks to the press, and most importantly the issuance ofan international arrest warrant,requesting extraditionwithout consenting to an initial interview at the embassy or ScotlandYard,and repeated efforts to seek denial ofbail and appeal of the bail decision-suggests that the manner of pursuit wasapolitical act, rather than purelystandard procedure in suchacase.1^FN1^3^ Whether the politics were about Wikileaks or simply using the namerecognition of the accused to makeapoint about sexual assault law in Sweden^347 is unclear. 1FN1^4^ Certainly,it created the materials for the media interference pattern described above.E.Sources ofResilience ofthe Networked Fourth Estate,and Their LimitsDespite the multi system assaults it sustained, Wikileaks continued to operate throughout the period following release of the cables,and its supporters continued to function and indeed respond to the attack along manydimensions, lust as the attacks provideinsightintothewaysinwhichhumanpracticeinvolves action in andthrough multiple intersecting systems, so, too, do the responses.lurisdictional arbitrage.The first and most obvious feature of the operation ofWikileaks is its presence outside the jurisdiction of the affected country the United States. Even ifU.S.law were to permit shutting downthe site or arresting lulian Assange, that alone would be insufficient. The fact that the actors and servers are inother countries, and in particular, in countries with strong rights protecting whistleblowers—initially Iceland andlater Sweden- provided Wikileaks withadegree of robustness against the most predictable legal attacks.Thedefense is,ofcourse,only as strong as the self-imposed limits ofpotentially offended countries on applying extra territorial jurisdiction, and the degree to which the host countries are, or are not, susceptible to legal processor diplomatic pressure.Shifting to redundant backup technical systems. When EveryDNS,aCalifomia company, cut off domainname service, Wikileaks used a Swiss domain name service, Switch, and a Swiss domain name-Wikileaks.ch to remain reachable. DespiteU.S.and French pressure to shut down the Swiss domain name, theSwiss DNS registrar refused to do so. l^FNl^^^ Wikileaks then usedTwitter to disseminate the new URL.Theredundancy of naming platforms, and the availability of uncontrolled pathways to disseminate information necessary to coordinate on the alternative platform, meant thatWikileaks was again available within hours.Com-2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev.311Page 20bining jurisdictional arbitrage with technical system redundancy, Wikileaks quickly set up fourteen domain servers, in multiple countries, to respond to searches for its domain. lFN1^6j Similarly, when Amazon deniedWikileaks service,the organization was able to quickly shift to copies hosted on servers provided by OVHinFrance; and when the French government cracked down on that backup ^34^ system, Wikileaks moved to pointing at copies hosted in Sweden,which has stronger press freedom and whistleblower protection laws.Shifting to backup payment systems. When payment systems were denied toWikileaks by PayPal,MasterCard, and Visa, several pathways remained. These included a German bank, an Icelandic bank, Datacell ^aSwiss-Icelandic online payment system processing money transfers from banks in several European countries),as well as simply using PayPal to paylulian Assange's U.K. lawyer directly (instead of sending the payments toWikileaks'account).lFN1^7^ Unlike the technical backup solutions,these are obviouslyless efficient avenues,and the need to resort to them inflicted real damage onWikileaks.IFNl^^^Socio political framing as journalism. Throughout the events, Assange and Wikileaks emphasized their roleas journalists.Inverting the practices of those who sought to analogizeWikileaks to terrorists,some commentators and reporters emphasized the basic argument that Wikileaks isareporting organization,fulfillingareportingfunction. In particular, Glenn Greenwald of Salon provided the most detailed and systematic coverage in supportofWikileakslF^l^^^Backup organizational systems.Perhaps the most important strategic choice ofWikileaks in this case was torelease through several established news sites in differentjurisdictions and markets. This approach achieved several things. First, it provided accreditation for the materials themselves. Second, offering the materials to severalorganizationsmeantthatnosingleorganizationcould, actingalone, suppress thecables. Competitionfbrthescoop drove publication.Third,it located Wikileaks squarely within the^journalist,^^andeven^^responsibleestablishedmedia^^ rubric.This effort failed,at least in the public framing of the release,although it may yet playarole in the decision as to whether to prosecute anyone atWikileaks.By hamessing the established fourth estateto its materials,Wikileaks received accreditation and attention, and was able to exercise power over the publicsphere well beyond what it could have commanded byasingle document dump on its own site,or an edited setof its own.By releasing anexclusivescooptomajoroutletsindifferent global markets,it was able to createenough exclusivity tomakepublication commercially valuableto each of the^34^ news organizationsintheirrespective markets, and enough competition to prevent any organization from deciding, in the name of responsibility,not to publish at all,or, as theTimes did in the case of the NSA eavesdropping report,to delay publicationforayear. IFNl^OJ Doing soalso solved theproblemof how to sift throughthese vast amounts ofdatawithout having to hamessalarge army of volunteers,thereby defeating the purpose of releasing carefully so asnot to harm innocent bystanders. IFNl^l^DDoS attacksby supporters. Inthe daysfollowing the denial-of-service attacksby the payment systemscompanies,anetwork of online activists called Anonymous launchedaseries of DDoS attacks against PayPaLlFN1^2^The group knew that its combined power was insufficient to cause substantial damage, and its membersresponded in an interview that they were mounting the attacks ^^to raise awareness,^^^^to show the prosecutor thatwe have the ability to act.^^l^FN1^3^The attacks were investigated by the FBL ^nd they lead toabacklash concemed with anarchic protests aimed at major components of the market system.1FN1^4^ Rather than providingsupport toWikileaks,as they clearly were intended to do,these attacks helped to underscore and legitimate theframing ofWikileaks asadangerous and anarchic actor. Participants rapidly abandoned this strategy.IFNl^^^Threat of major embarrassment: the ^^insurance^^ file. In anticipation of arrest or assassination, Assange pos-i20I3ThomsonR6uters No Claim to Orig u s Gov Works.46HVCRCLLR31146HarvCRCLLRev311Page21ted onWikileaks as early as I u l y a l . 4 G B file,much larger than all the available materials,which was availablefor download. It was also made available asatorrent peer-to-peer sharing tile. lFN1^6^Thefile is encrypted,apparently with sufficiently secure encryption^3^0 to assure that it will not be broken.1FN1^7^ The threat wasclear: if Assange is arrested or harmed, or Wikileaks attacked, the decryption key will be released. Of all the actions by Wikileaks or Assange,this was the one that most conformed to the profile ofadangerous activist.Thefile remains at large; the decryption code remains secret; it was not released despite Assange's arrest.Mutation and replication. On the larger, longer term scale, another important response during the first monthfollowing the release ofthe embassy cables was mutation and replication.Some former Wikileaks members announcedcreationofaparallelorganization,OpenLeaks, intendedtoreceive leaksandrelease themsolely tosubscribing NGOs and media organizations.IFNl^^^Acompletely separate organization, Brussels Leaks,waslaunched to provide leaks specifically regarding the EU Commission. IFNl^^^ Both organizations plan to institutionalize in their structure the strategy that Wikileaks rapidly evolved over the course of2010—the dedicationto release through the mediation of^^legitimate^^ real world organizations,both media and NGOs. Amonth later,Allazeeralaunched(and theNewYorkTimes was considering launching) its own copy ofWikileaks,asecureplatformfor decentralized submissionof leaked documents. 1FN200^ AlIazeera'sTransparencyUnitlFN201^waslaunchedwiththeleaked^^PalestinePapers.^^lFN202^Tothe extent that the campaign against Wikileakswas intended not to quash the specific documents, but to tame the beast of distributed online systems providingavenues for leaking documents outside of the traditional responsible media system, the emergence of these newsites suggests that the social and culturalphenomenonofdistributed leaking is too resilient to be defeated bythis type of attack.lust as the closure ofNapster was merely the invitation for the development of morelitigation-proofsystems like Gnutella and Ka^aa, so,too,here it appears that even the destruction ofWikileaks itselfis unlikely to lead to the abandonment ofthis new model ofprovisioning one important aspect ofthe fourth estate. Reporting based on documents leaked securely online and using multiple overlapping systems to reach thepublic and evade efforts at suppressing their publication is here to stay.^3^IF.The Response toWikileaks:Wrap Up.The response toWikileaks was dramatic,extensive,overwrought,and ineffective.If the purpose was to stopaccess to the cables,it failed. If the effort was to castadoubt on the credibility of the cables,it failed.If the purpose was to divert attention from the cables, it failed. And i f the effort was to prevent the future availability ofdecentralized dissemination of leaked documents outside of the confines of the responsible press, it failed. Indeed,it is possible that, had Secretary Clinton adopted the same stance as Secretary Gates and shrugged off theevents as embarrassing, but not fundamentally destructive,ameasured response toWikileaks could have significantly advanced the State Department's Internet freedom agenda by allowing the United States to exhibit integrity and congruence between its public statementsin support of Intemet freedom and its actions. lFN203^Theactual response will createavisible incongruity should the State Department continue to assert Intemet freedomasamajor policy agenda.Part III will be dedicated to outlining the constitutional limits on the State's ability to prevent such dissemination directly through law,and the legal avenues open to constraining the capacity ofthe State to use extralegalavenuestoachieve what itcannotdo directly withinthoseconfines. Part IV will usetheevent to outline theemerging shape of the networked public sphere, the emerging structure of the networked fourth estate, and thenew challenges it faces and affordances it has relative to those of the mass mediated fourth estate.2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page 22III. The Legal FrameworkA.Baseline: Freedom ofthe Press and the National InterestToanchor our understanding of theWikileaks case,it is useful first to provideabaseline of what law is relevant for more traditional media.Consider the release of the embassycables by theNewYorkTimes and theGuardian.Each of these newspapers receivedacache of classified cables it^correctly) believed to be authentic.Each spent time negotiating the details of receipt and publication of these documents with its source(Wikileaks). Each ultimately released over one thousand cables, some in redacted form, others without redactionwhere it deemed release in full to be safe. What is the legal framework governing the govemment's response tothe actions ofthese organizations in this very case7Thebasic frameworkforthis questionisprovidedby New YorkTimes v. United States, 1FN204^ thePentagon Papers case.TheUnited States was at war. ^3^2DanielEllsberg,aDefenseDepartment employee,leakedtotheNewYorkTimesacopy of aforty-seven volume internal study commissionedby Robert McNamarainl^67 on the VietnamWar, including details of military operations and secret diplomatic negotiations.1FN20^^ AssoonastheTimesbeganpublishingthepapers, the Attomey Generalof theUnitedStates,lohnMitchell, sent a telegram to the New York Times worded very much like the letter Harold Koh sent toWikileaks, claiming that publication would ^^cause irreparable injury to the defense interests ofthe UnitedStates,^^ and demanding that theTimes show that it had ^^made arrangements for the return of these documents tothe Department of Defense.^^1FN206^ The govemment sought an injunction against publication. Within seventeen days of the original publication,the case reached the Supreme Court and was decided in favor of theTimesand freedom of publication. As lustice Stewart,withwhomlusticeWhite joined to provide thefifth and sixthvotes for the decision, put it:Weare asked, quite simply,to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published.Iam convinced that the Executive iscorrect with respect to some of the documents involved.Butlcannot say that disclosure of any of themwill surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so,there can under the First Amendment be but onejudicial resolution ofthe issues before us.1FN207^It isparticularly pertinent tothe questionofWikileaksthatlusticeStewart was wellaware of the consequences of disclosure.Writing as though for the Wikileaks cable embassies case itself, lustice Stewart writes:ll^t is elementary that the successful conduct of intemational diplomacy and the maintenance of aneffective national defense require both confidentiality and secrecy. Other nations can hardly deal with thisNation inanatmosphereofmutual trust unlessthey canbe assuredthattheirconfidenceswillbekept.And withinourownexecutive departments,the development of considered and intelligent internationalpolicies wouldbe impossibleif those chargedwiththeirformulationcouldnotcommunicatewitheachother freely, frankly, and in confidence.1FN20^1Indeed, lustice Stewart opened his opinion by emphasizing that in areas ofnational defense and internationalrelationstheExecutivehasrelatively^3^3uncheckedpowers,bycomparisonto other areas of policy whereCongress and the ludiciary are more closely engaged, makingarobust, critical,free press all the more importantas theonly foundationforacritical andenlightenedpublic thatcouldactas acheckonabuseof Executivepower. 1FN20^^ This very powerful executive had theresponsibility of maintaining its own operations withenoughsecurity and wisdomtomake sure thatonly what needsclassilyingisindeedclassified,andthat that2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 23which isclassifieddoesnotgetleaked. But itcouldnot,consistentwiththeFirst Amendment,call uponthecourts to enjoin publication ofleaked materials. That messy balance between the administration's need forsecrecy and the public's right and need to know,while far from perfect, means that the administration continuestofunetionundernormalconditions,subject to occasionaldisclosures to keepit honest. lFN210^Therareexceptions would requireacombination ofhigh likelihood,magnitude,and immediacy ofharm to justify suppression.In the area of national defense,this is captured by the phrase,^^the sailing dates of transports or the numberand location of troops.1FN211^ Or, as lustice Stewart put it, tojustify suppression, the publication must^^surely result in direct, immediate, and irreparable damage to our Nation or its people.^^lFN212jBut the Pentagon Papers case concerned prior restraint,which the Court recognized as requiring extraordinary care. What of prosecution ex post7 In the first instance,imagine what would have happened had the lusticeDepartmenttumed aroundandbroughtcriminalchargesagainsttheeditorsandjournalistsof theNew YorkTimes and theWashington Post after publication of the Pentagon Papers.Do we think thatacourt that held thatthe First Amendment requires that the newspapers be permitted to publish them would have simply allowed thegovernment to charge and imprison the journalists after the fact7 That would makeamockery of the protectionand imposeamuch greater chill on publication than the risk of an injunction.The long history from the Massescase, l^FN213^Schenckv.United States,1FN214^ and the ^^badtendency^^era to Brandenburgv.Ohio'slFN21^^overturning of Whitney v.Califomia 1FN216^ to embrace the^^clear and present danger^^frameworkended uprequiringasimilar combination ofhigh damage,high probability,and immediacy for prosecutions,as well as forprior restraints.As the Supreme ^3^4 Court put it in the context of considering criminal liability ofabroadcasterwho had broadcast illegal materials, the First Amendment does not permit prosecution ofajoumalist transmitting tmthful information of public interest ^^absentaneed of the highest order.^^lFN217^ The distinction,then,isminimal in practice. The standard for prior restraint and the standard for criminal prosecution over the publication oftruthful materials ofpublic concem seems to be largely the same,and exceedingly stringent.1FN21^^ Onthe background ofthis extremely high barrier to both prior restraint and to criminal prosecution,it is perhaps notsurprising that efforts by theBushAdministrationto prosecute theNew YorkTimesforitsrevelations of theNationalsecurity Agency's program ofdomestic eavesdropping, andthe Washington Post for its reportingonthe existence ofClA-operated black sites in Eastem Europe, were abandoned. 1FN21^^Against the background ofthis legal regime,and what we know ofthe contents ofthe embassy cables eightweeksafter their initialpublication, it isforallpracticalpurposesimpossibletoimaginethat theNew YorkTimes would be prosecuted, or that i f such an ill-advised prosecution were to be brought, that it could survivejudicial scrutiny under prevailing First Amendment doctrine.Now,what of the Guardian7 Could it be thatU.S.statutory law—say, theEspionage Actor theComputerFraud and Abuse Act—extendstononeitizens'actionsoutside of the United States, but the protections afforded by the First Amendment do not apply to such defendants7 In that case,non-U.S. defendants whopublish materialsthatharm theinterestsofthe United States inways that arelegal in their own jurisdiction could be prosecuted under U.S. law without either legal system'sprotections.That noncitizens are ^^persons^^covered by the substantive guarantees of the Bill ofRights is longsettled law.l^FN220^Thatarange of provisions ofUnited States criminal law can apply extra-territorially is similarlysettled,lF1^221^and that the extensionofconstitutionalprotections and limitations does not necessarilytravel with the extra territorial reach of the criminal law is also quite clear. The intuition, and the area ofprimary application, is criminal procedure: ^3^^ questions such as how to deal with thecriminalprocedureowedforeignnationalsintrialscarriedout abroad. 1FN222^ lnthepastdecade,post-^^ll detentionofenemycombatantshasplaced significant pressureby the executive,oncourts,tolimitextra-territorialapplicationofconstitutionalguarantees.The Supreme Court, however, has not taken theformalist path argued t o i l ^thatthe©2013 ThomsonReuters.NoClaim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCL.LRev311Page24Constitution stops at theborder),holdinginsteadthateven non-citizens designated as enemy combatantsandheld in Guantanamo can assert habeas corpus. lFN223j The Court reemphasized that ^^le^ven when theUnitedStates acts outside its borders, its powers are not ^absolute and unlimited^ but are subject ^to such restrictions asare expressed in the Constitution.^^^1FN224^Ahypotheticalsuit against the Guardianor,for that matter, Assange,for publishing the embassycableswould be vastly simpler than the post^^ll cases.First, it would proceed within theUnited States,not abroad.Even the absolutist version would not deny protection in trials conducted here. Second, the rights to be assertedare those involving the First Amendment's freedoms of expression and of the press. Over one hundred years agothe Supreme Court, in one of the most important precedents limiting the extension of constitutional protectionsbeyond theborders ofthe United States, nonetheless specifically stated that ^^freedom of speech and of thepress^^ were among those rights so ^^indispensable toafree governments^ that they would apply abroad. 1FN22^JDo we imagine,for example,that if the Guardian were to publishareport making revelations aboutaU.S.political figure, that person could sue the Guardian for libel in the United States without having to comport with theconstraints ofNewYorkTimesv.Sullivan71FN226^ Indeed,Congress is pushing to have our own constitutionalconstraints protect our citizensfrom libel suits in perfectlydemocratic countries that givelessdeferencetopress freedom in the area of libeLlFN227^ It seems highly unlikely,then, that the mere fact ofapublisher beingacompany or person who is notaU.S.citizen or resident,or of the publication being disseminated outside theUnited States,as would be the case were the government to prosecute the Guardian,would entailalower levelof First Amendment protectionthantheNewYorkTimesitself would receive.This conclusion ismade evenclearer when we remember that the core purpose driving freedom of the press is the democratic necessity of aninformed citizenry,to avoid the^^farce,or tragedy,orboth^^ that lames Madison wamedof.lFN22^^ Functionally,whether the American public leams of official misconduct fromaU.S.based publication^3^^oraforeignpublication is immaterial to the real beneficiaries of robust First Amendment freedom of the press—these are always and foremost the American public and American democracy.Looking at both the Guardian and the NewYork Times,then, any effort on the part of the U.S.governmentto prosecute either of these two publications for their publication of the embassycables would founder on thebulwarks ofthe First Amendment. What, i f anything, would make Wikileaks sufficiently different from theGuardian or theTimes to justify treating its publications underadifferentstandard7B.Does the First AmendmentTreatWikileaks and lulian Assange as Less Protected than theNewYorkTimesand Its Editors and Reporters7The most obvious difference betweenWikileaks and the more traditional media outlets is the organizationalidentity. The latter are culturally familiar as major media outlets; they have established editors and boards, andwe haveageneral cultural assumption about their organizational culture: they care about getting the facts right,and being ^^responsible^^ in presenting the news. Perhaps, then, the important dividing line is between establishedmedia andjoumalists,on the one hand, and the decentralized,informal,and quasi-formal culture of speech onthelntemet7What might account for suchadifference7 The intuition would likely take the form of what lonathan Kleinsaidjust before takingover as president of CNN^U.S.: that ^^you couldn't haveastarker contrast betweenthemultiple layersof checks andbalances, andaguy sittinginhis livingroom inhis pajamas writing what hethinks.^^lFN22^^He was speakingof the bloggers whohadexposedthe fact thata60MinutesreportbyDan2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 2^Rather on President George Bush's military record was based on inauthentic documents. While Klein no longerleads CNN^U.S.,1FN230^ the disdainful treatment of the blogosphere by traditional media has not disappeared.The New York Times' own coverage ofWikileaks paired coverage of the substance of the materials thatWikileaks made public with unflattering portraits of lulian Assange, describing him variously asa^^huntedman^^who ^^checks into hotels under false names, dyes his hair, sleeps on sofas and floors, and uses cash instead ^3^7of credit cards,often borrowed from friends,^^lFN231^or^^likeabag lady walking in off the street,wearingadingy,light-coloredsportcoatandcargopants,dirty white shirt,beat-up sneakers and filthy white socks thatcollapsed around his ankles. He smelled as ifhe hadn't bathed in days.^^^FN232j These descriptions seem to representadeep anxiety and identity crisis of the traditional media; perhaps they exhibit existentialfear that theglory days of their profession are past, perhaps simple envy over the fact that the biggest scoop of2010,ascoopthat dominated thefront pages of allthemajoroutletsfor weeks, wasgenerated by someone whowasnotamember of the club.Whatever the reason for this unflattering portrait, it cannot form the basis ofaconstitutionalprinciple.IfManning had walked offamilitary base in Oklahoma and handed the disc with the files to the editor ofatiny local newspaper ofasmalltownlOO miles away,and that newspaper had published the materials,we wouldnot conceivably have treated that local newspaper, even i f i t wereatwo-person operation,as categorically different from the NewYorkTimes.Indeed,we lionize the local newspaperman asabulwark against local corruption.lF1^233jThe Progressive does not have the organizational heft of theNewYorkTimes,but this lack doesnot affect its constitutionalprotections. AstheSupreme Court put it,^^Libertyofthepressistherightof thelonely pamphleteer who uses carbon paper oramimeograph just as much as of the large metropolitan publisherwho utilizes the latest photocomposition methods.^^lFN234^ Organizationally, the tiny local newspaper cannotpossibly institute the kinds of institutionalprocedural^^checks andbalances^^ that Klein spoke of.Their presenceor absence cannot sustainadistinction that makesaconstitutionaldifference i f we are not willing to leave thesmall local newspaper out of the protective umbrella of freedom of the press.The difference between the constituents ofthe networked fourth estate and the mass media cannot, then, beorganizational size or complexity. Functionally, it is more important to provide robust constitutional protectiontotheweakermembersofthefourthestate, whohaveless public visibility and wherewithaltowithstand pressure from govemment officials, than it is to emphasize the rights of the organizationally and economicallystrongermembersofthepress.WhenSenatorBunningandRepresentativeKingcalledtheNew YorkTimes'disclosure of thcNSAdomestic eavesdropping agenda^^treason,^^lFN23^1 there was little risk that theTimescould successfully be prosecuted criminally, or that its editor would find himself under house arrest wearing anankle bracelet.The sheer economic,social,and cultural^3^^ power of theTimes meant that the constitutionallimitations will not have tokick into prevent such aneventuality.The sameis not necessarily true ofamanwhom theVice President of the United States describes asa^^high-techterrorist,^^l^FN236^ and whom the NewYorkTimes publiclydescribesas^^a hunted man,^^1FN237^ while its executive editor emphasizes that he seeshim as^^a source,^^emphatically notapartner, and not reallyajoumalist. 1FN23^J Recallthat inthis case,thesource,Manning, is insolitary confinement precisely becausehe isasource. 1^FN23^^ It ispossiblethattheTimes' efforts to distance itself from Assange were driven by aconcern to insulate itself from prosecution,should theDepartmentof lustice decide toproceedonaconspiracy theory.But,the emphatic rejectionof theidea ofapartnershipwithWikileaks is equally likely to be an assertion of identity by the flagship of an industryand profession that feels itself to be under threat. Whatever the reason, it increases the threat level to membersof the networked fourth estate.The emphatic denial of membership in the club does not makeaformal constitutional difference,but, asamatter of constitutional culture,it puts the practitioners of the networked fourth estate2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 26at greater risks than fringe journalists have been in the United States for almostacentury.The difference is not organizational complexity or formal membership in the Press Club, but the differencealso certainlycannot be technology.The portions of theNewYorkTimes that are published onlyonline are noless protected from those published in print; nor would anyone argue that the online-only publication launchedbylegendary magazine editorTina Brown,The Daily Beast,or Glenn Greenwald's coverage of Wikileaks overthe course of2010in the online-only publication,Salon,count for less,constitutionally,than does the NewYorkTimes. Repeatedly,over the course of this past decadc,wehave seen Internet-only publications,primarily inwhat we currently see as the blogopshere, take on investigative reporting and critical opinion-writing and evaluation that are at the very heart of the function of the fourth estate.1FN240^ Whether it is the role that bloggersplayed in exposing Dan Rather's error, the central role that loshMarshall'sTalking Points Memo played in exposing theU.S. Attorney scandal, 1FN241^ orSheri Fink's Pulitzer-^3^^Prize-winning workforProPubliea,lFN242^it is by2011beyond cavil that these outlets deserve as much First Amendment protection as do traditional media.In law,the area where the efforts to define the line between ^journalist^^ and ^justaguy in his pajamas^^ havecome toahead has been in the definition ofeligibility for thejoumalist's privilege under state laws.Here,theneed foradefinition is obvious,because law offers much more than the First Amendment's core protection fromcriminalprosecution for whatonehaspublished. In vonBulow v. vonBulow,theCourtof Appeals fortheSecond Circuit held that ^^the individual claiming the privilege must demonstrate...the intent to use material-sought, gathered or received to disseminate information to the public and that such intent existed at the inception ofthe newsgathering process.1FN243^ ^^The intendedmannerof disseminationmay be by newspaper,magazine, book, public or private broadcast medium, handbill or the like, for ^It^he press in its historic connotation comprehends every sort of publication which affordsavehicle of information and opinion.l^FN244^Thecourt concluded by emphasizing that membership in the club of established joumalists is not required for protection:Although prior experience asaprofessionaljoumalist may be persuasive evidence of present intent togather for the purpose ofdissemination, it is not the sine qua non. The burden indeed may be sustained byone who isanovice in the field.Further,the protection from disclosure may be sought by one not traditionally associated with the institutionalized press because ^^It^he informative function asserted by representatives of the organized press...is alsoperformed by lecturers, political pollsters, novelists, academic researchers, and dramatists.^^1^FN24^^In following the Second Circuit, and integrating it with the Ninth Circuit,lFN246jtheThird Circuit in In reMadden summarized: ^^Wehold that individuals are journalists when engaged in investigative reporting,gathering news,and have the intent at the beginning of the news-gathering process to disseminate this information tothe public.^^lFN247^ The critical definitional element here is intent at the time of gathering and function, the intent togather for publicdissemination,not mode ofdissemination. Theresimply cannot^3^0betheremotestdoubt that the entire purpose of Wikileaksis the gathering of information for public dissemination.The use oftraditional media outlets as the primary pathway emphasizes this fact,although it is not constitutive oranecessary element of the defense. The professionalism, niceness, or personal hygiene of the reporter are not germaneto the inquiry. The interest concemed is not individual, but systemic; it is ^^society's interest in protecting the integrity ofthe newsgathering process,and in ensuring the free flow ofinformation to the public.^^1FN24^^Perhaps, though, there is nonetheless something about the ^^intent^^ test required by the courts ofappeal in the^2013 Thomson Reuters. No Claim to Orig. US Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page 27journalists'privilege cases that allows us to separate Assange and Wikileaks fromTalking Points Memo's role inexposing theU.S.Attomey's scandal,or from Free Republic 1FN24^^ and Power Line,1FN2^0^ the main moversof the Dan Rather scandaL Most relevant here isamemorandum apparently authored bylulian Assange in 2006,whichwaspostedbyCryptome,amucholderwebsitethat was already publishing materialuncomfortabletosomeoneinpoweradecadebefore Wikileaks wasfounded. Assange opens the 2006 paper,StateandTerroristConspiracies,withaquotefromTheodoreRoosevelt:^^Behind the ostensible government sits enthroned an invisible government owing no allegiance and acknowledging no responsibility to the people.Todestroy this invisible govemment, to befoul this unholy alliance between corrupt business and corrupt politics is the first taskof statesmanship.^^lFN2^1^The core of the paper's claim includes three elements: ^l)authoritarian regimes depend on secret internalcommunications to organize their functioning suppressionofopposition;^2) secrecy isnecessary fortheseregimes tofunctionbecause iftheseinternalcommunications werepublicly known, theywould inducemoreresistancethanthe regime caneffectivelydeal with; and ^3) exposing theinternalcommunieationsofauthoritarian regimes will drive these regimes to clamp down on their internal communications, andby slowing internal communications, will lead these regimes to function less effectively and weaken them.1^FN2^2^ The purpose of transparency,in this ideological framework, is to decrease the effective functioning ofitstargets,not throughthe criticismthatsunlight will induce,but throughthe decline ininternalinformationflows caused by the effort to evade that sunlight. Now, nowhere in the essays does Assange say that the^^conspiratorial regime^^ he is talking about is the U.S.government.lFN2^3^ At the time of this memorandum,recall fromthe PentagonReport,^36I 1^FN2^4^ Wikileaks was focusedonprovidingaplatformforexposingcommunications of regimes whose designation as authoritarian or at least non-democratic and oppressive wouldbe mainstream.Yet the quote from Roosevelt, and the current context of disclosure ofU.S.documents,certainlylends itself toareasonable interpretation that the secret functioning of theU.S.government, and the powerfulrole that corporate interests are seen to play in definingU.S.policy,all out of the public eye,fall under the umbrella oftargets ofthis strategy.So,imagine that we were satisfied by these essays from 2006,in the context ofthese revelations,that Assange's primary purpose for exposing the embassy cables was to force the administration to limit the sharing ofinformation across agencies and increase the difficulty ofinformation spreading into and across the government,and that the ultimate motivation is specifically to make the government's functioning less effective, so that it canoppress its own people less.lFN2^^^Would that motivation change the constitutional analysis-particularly given the role of^^intent^^ in defining who isajournalist7 The answer seems to be quite clearly not.The ^^intent^^entailedby theconstitutionalanalysis isintenttoacertainaction: disseminationtothe public,as distinguishedfrom research for private use.The purpose ofprotecting the press is systemic and functional—to serveamore enlightened public,which isapreconditiontoawell functioning democracy.The motivation driving any given individual to advance that goal is entirely irrelevant to the core question. Ajournalist is not measured by whethersheinvestigates and publishesinorder to serve democracy,aggrandizeher name,or make money;Fox Newswould be no less deserving of freedom of the press if we were tofindaset of internal memos revealing that itsprime motive were to undermine the capacity ofPresident Obama to govem, rather than to inform the public.Inquiring into the political or personal motivations ofspeakers opens the door to the most pernicious form of censorship—the definition ofsome political motivations as legitimate bases for speech and others as illegitimate andnot eligible for protection. The intent has to focus on the intended action: public dissemination. By this measure,irrespective ofthe political theory underlying the investigation and publication,Horace ^362 Greeley is no moreand no less protected thanWilliam Randolph Hearst or Upton Sinclair.Areporter operating out of political conviction is every bit as protected asareporter out to makeabuck,becomeacelebrity,or humbly serve the publicinterest.2013 ThomsonReuters NoClaimtoOrig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page2^Wecome, then,to the conclusion that asamatter ofFirst Amendment doctrine,Wikileaks is entitled to theprotection available toawide range of members of the fourth estate,from fringe pamphleteers to the major pressorganizations of the industrial information economy.Asamatter ofFirst Amendment values,what is being protected by this refusal to privilege theNewYorkTimes over Wikileaks is the continued access of the public toasteady flow of truthful, publicly relevant information about its government's inner workings. As the networkedfrom individual bloggerslikeInstapundit,lFN2^6^ topublicspheredevelops,asamorediversesetofactorsnonprofits like the Sunlight Foundation, 1^FN2^7^ small commercial online publications like Talking PointsMemo,1F^2^^^ and large decentralized groups of political activists like Daily Kos orTownhall.com 1FN2^^^-come to play an ever larger role in the construction of the public sphere, 1FN260^ the functional importance ofdivorcing the constitutional protection from the degree to which the actor isafamiliar part of the twentieth century model of mass media increases.Wecannot afford asapolity to create classes of privileged speakers and press agencies,and underclasses ofnetworked information producers whose products we take into the public sphere when convenient, but whom wetreat as susceptible to suppression when their publications becomeless palatable.Doing so would severely undermine the qualityofour public discourse and theproductionofthefunctionofthefourthestateinthenetworked information society. Fortunately, clarifying that this freedom extends to ^^every sort of publication whichaffordsavehicle of information and opinion^^and that ^^ll^iberty of the press is the right of the lonely pamphleteer who uses carbon paper oramimeograph just as much as of the large metropolitan publisher^^ is notamatterof policy discretion or moral belief.l^FN261^0ur ^3^3 constitution requires it, and the Supreme Court's jurisprudence has made this clear.C.The Prospects ofProsecution:The Espionage Act, the Computer Fraud and Abuse Act, and Conspiracy.Senator DianneFeinstein,Chairman of the Senate Intelligence Committee, called for Assange's prosecutionunder theEspionage Act of 1^17. 1FN262^ News reports suggest more specifically that the lustice Departmentconsidered,and perhaps continues to consider as of this writing,conspiracycharges associated either withtheEspionage Act, the Computer Fraud and Abuse Act, oradifferent provision pertaining to publication of classifiedmaterialsasinchoateliabilitypredicatedontheprimary liability of BradleyManning. l^FN263^The intuition behind such an approach is fairly obvious.Imagine thatareporter suspects that the Governor of the State ofRuritania is corrupt, and is selling mining rights in the state for large personal payments. The reporter could notbreak into the house of one of the contractors, looking for documentation of the payments, and hope to defendagainstaburglary charge by claimingajournalist's privilege.The same would be true of vicarious liability if thejournalist were to hireaprofessional burglar to do the job.These laws of general applicability apply to journalists asto others,and theincidentaleffectonfreedomofspeechputstheminthemorerelaxedframeworkofUnited Statesv.O'Brien review.1FN264JThere islittle doubt that the govemment has the power to prosecute its own employees,particularly thosewhoseemploymentrelatestonationalsecurity and whohave access to classifiedinformationby dint of theirpublic employment,for revealingclassified materials. 1FN26^^ Specifically,one could imaginePfc. Manningbeing charged underavarietyofprovisions,lFN266^rangingfrom^7^3(e)ofthe Espionage Act, which prohibits any person from willfully communicating ^^any document...relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage ofany foreign nation;^^l^FN267^ to l^U.S.C. ^^^2,which specifically prohibits disclosure ofdiplomatic cables,1FN26^^ to the provisions ofthe Computer Fraud and Abuse Act ^364 ^^^CFAA^^),which would appear to cover2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 2^Manning's having exceeded his authorized access to government computers willfully intending to transmit classified information that ^^could be used to the injury of the United States,or to the advantage of any foreign nation^^toaperson not authorized to receive it.1FN26^^ That Manning can be prosecuted, or that anyone who hadhacked in to government computers from the outside could be,1FN270^ even if the intent is to publish and deliver the material to the press,lFN271^is not legally controversial.What is controversial is the idea that this initialliability can form the basis ofliability for thejournalist or publisher who publishes the information.It is well settled thatajoumalist who passively receives illegally obtained information is privileged to publish it.Both NeilSheehan,theNew YorkTimes reporter whoreceived thePentagon Papers from Daniel Ellsberg,1FN272^ and FredVopper, the radio commentator whose broadcast of illegal telephone intercepts pertaining to local school and union negotiations was the basis for the Supreme Court's holding in Bartnickiv.Vopper,1FN273^ clearly received materials from someone whoviolatedcriminallaw inthe acquisition andtransfer ofthe materials.If the^^receipt of stolen goods^^rationale were applicable,or i f inchoateliability (such as aidingandabettingorconspiracy) weretriggeredby suchpassivereceipt,thejoumalistsinthese cases wouldhavebeen liable.Passive receipt of illegally obtained materials is, then, not subject to prosecution.1^FN274^ What, then, arewetomake of the spacebetweenhiringaburglar,orbribingapublicemployeetobreach her obligations ofsecrecy,on the one hand, and passive receipt ofabrown paper envelop in the mail,on the other hand7 What arewe to make ofajournalist who is contacted byapotential source,meets her inacafe once or twice; hears herout;listenstoher complaints,fears,and anxieties;promises her anonymity,and arrangesfor another meetingwhen the materials can be delivered7 What of the journalist who receives one set of documents in the mail, andthen isrequiredby the sourcetomeet that sourceagaintoreceivefurther caches ofdocuments7 What if thejoumalist sees the source wavering, believes that publication itself would be legal and politically significant, andencourages the source: ^^1 know this ishardto do,but you're doing theright thing; what you'veuncoveredisreally important and the public hasaright to know^^7 Casting the shadow of potential criminal liability on thesekinds of conversations would createasignificant chilling effect on joumalists and journalism,and, as ProfessorStone has argued against the background of theNew YorkTimes case conceming NSAeavesdropping, likelycauses too greataloss of press^36^freedom tojustify except under extremelylimited conditions that includethe joumalist knowing both that the information would cause imminent harm and that it did not have high publicvaluelFN27^1Tobuildaprosecutionof Assange onthefoundationofthisgrayareawouldpresentgraveriskstopressfreedom. As we have seen, distinguishing between Assange and other joumalists is not feasible without effectively excluding core pillars of the emerging networked public sphere and the networked fourth estate. The kindof gray area that would have to be probed to expand liability throughaconspiracy theory would cover behaviorsthat areadaily part of journalists'lives as theycontact and cultivate sources. As Glenn Greenwald explains,itwould cover contacts that NewYorkTimes reporters developed while reporting on the NSA eavesdropping program,during which they promisedadozenofficials anonymity,as well as the Washington Post's communications with sources about the CIA black sites.1FN276^ Moreover, buildingaconspiracy claim on the testimonyof Manning,who would be consideredaco-conspirator, after thelatter had spent over eight months in solitaryconfinement, should give pause to any court adjudicating suchacase. If journalists who cultivate sources andpromise anonymity,or who appealtotheir sources that transmitting theinformationtheyaretransmitting isapublic service,canbe prosecuted criminally underaconspiracy theory,on the testimonyof sources held underconditions ofextreme duress,then the only real protectionjournalists have is the political clout oftheir employers. That is insufficient to secure the press freedom necessary for an informed and engaged public that is at the^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 30very foundation ofthe First Amendment's distinct protection ofthe institution ofthe press.D.Legal Responses to Extralegal Public-Private Actions to RestrainWikileaksWhat the govemment could not achieve through law within the boundaries ofthe Constitution,it arguablytried to achieve through extralegal avenues,1FN277^ in particular, through pressure on skittish private companies more concerned with preserving their public image with consumers than preserving their customers'continued accesstotheir facilities. Asystemthat depends on privately-ownedcriticalcommunicationssystems andprivately-run payment systems is clearly susceptible to an indirect violation ofcivil rights.^FN27^J This is not,fundamentally,anew threat. Blacklisting during McCarthyismwasaparticularly extreme form of economic persecution of political undesirables, achieved not directly by government, but throughapublic-^36^ private partnership between Senator McCarthy's hearings,the House Un American Activities Committee,privatelist compilers,andtheprivateemployers whoadhered tothem.Therest is an all-too-familiar story of repression andpersecution overadecade that was not one of the finest hours in the annals of American political freedom.Mostrecently,the resort to an extralegal public-private partnership was used asameans to circumvent constitutionalprivacy protections and became the subject of litigation in Heptingv.AT^TCorporation,l^FN27^^ where customers sued AT^Toveritseollaboration with the federal government inimplementingillegal wiretaps. Thecompany was given retroactive immunity by Congress in the FISA Amendments Act of200^,lFN2^0^ and thecase against it was subsequently dismissed.1FN2^1^The basic framework is clear.What makes the networked public sphere generally,and the networked fourthestate in particular, especially democratic, open, and diverse, is the relatively large role that decentralized, nontraditionalspeakers andjoumalists canplay. 1FN2^2^ These online media and citizen speakers arenewlyenabled by the widespread availability oflow-cost machines and platforms for speech.The susceptibility of the basic infrastructure,or platform providers,to public pressure of the kind we saw developing around theWikileaksembassy cablesreleasethereforerepresentsathreat not tothe fourthestateingeneral,but specifically tothepolitically weak, technically-dependent on widespread information, communications, and payment utilities elements of the networked economy. Inthe print environment,accessibility to the mails asacommoncarrier wascentral;inthephysical,soapboxworld,accesstostreetsandparksindispensable. What the Wikileaks cablescase emphasizes is the extent to which the networked environment is made up of private speech spaces, and inparticular the susceptibilityofthesekinds of spacestoademonizationattackpatternby the opponents of thespeaker—both within the govemment and outside it.i. Suits against officialsBecause the pressures involved in this kind ofpublic-private partnership need not be forceful or explicit, butrather can act subtly and indirectly, it would be extremely difficult to bring action against the govemment or itsofficials.ABivens action against this kind of subtle request toathird party ^367 provider would be all but impossible,1FN2^3^ particularly given the attitude that the right wing of the Court exhibits toward the continuedexistence ofaprivate right of action against federal officials for civil rights violations.lFN2^4^Moreover,thefew cases that havelooked at ^^regulation by raised eyebrow^^or^jawboning^^suggest that the barrier for courtstreating informal government pressure on private actors as state action sufficient to trigger First Amendment review, even where it is intended to achieve results that could not be achieved directly by the regulator, is far fromtrivial.1FN2^^^ Amore likely,but still difficult,avenue might be suit for tortious interference with contractualrelations against the participating government officials themselves, in this case, perhaps against Senator Lieber-2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page31man.lFN2^6^Here,aplaintiff must show that^l)the defendant knew of the contractual relationship, ^2) intentionally and ^3)improperly interfered withthe relationship,^4)thatinterventioncausedthepartycontractingwith the plaintiff to terminate or impair the contractual relations, and^^) the plaintiff suffered damage.1^FN2^7^It would be trivial to establish elements one, two, and five. Determining whether scolding companies about theirpatriotic duty would be ^^improper,^^ and whether indeed it was the intervention that ^^caused^^ EveryDNS,Amazon, MasterCard,Visa, or PayPal to terminate their contracts withWikileaks or Assange,would be the difficult part. However, action along these lines, however tentative, appears to be the primary legal avenue available to disrupt the extralegal avenues of enforcement that we observe in theWikileaks event and others like it.Moreover,aslongasthe actioncansurviveamotionto dismiss,sothat the parties canreachdiscovery, thethreat of public disclosure of govemment pressure on companies to deny service to members of the networkedfourth estate could provide a measure of deterrence to improper extralegal efforts to circumvent the FirstAmendment requirements for obtaining an injunction by hamessing private companies to shut down the undesirable speakers.Nonetheless, it seems that legal avenues against the govemment itself, barringadirect^^smokinggun^^ type communication from the Executive to the private actors, would be diflrcult to sustain.ii. Suits Against the Private PartnersOne potential path to temper the threat of extralegal action from service providers of critical platform services—like DNS service, datahosting,orpayment systems—is tobringsuit against thecommercial firms forwrongful denial of service.Clarifying the existence ofalegal duty to customers to ^36^ continue service absentaclearcontractualviolation on the part of the customer orasignificantnecessityonthe part of the providerwould give service providers the cover they need to resist government requests for aid in extralegal suppressionof inconvenient publications, and provide an adequate public explanation for continued service to an unpopularcustomer that would avert the market pressure to comply.Afirm asked to stop pointing its DNS server to the offending material or to remove it from its cloud hosting service can answer both the govemment official and thecomplaining public: ^^Tmsorry;lhavealegal obligation to continue to provide this service unlesslgetacourtorder telling me to stop providing the service.That is an answer that is complete and adequate legally, politically,and culturally.Recognizingalegal duty would not mean that suits would be forthcoming left and right; recognizing the right would by itself, in large measure,prevent the harm to begin with.The most direct path to suchacause of action would be to argue an implied contractual obligation not to unreasonably,or without good faith,withhold service.The services we are speaking of are all in consumer markets, subject to standard contracts. Amazon's hosting service contract, for example, includes termination provisions, both for cause and at wilL Most pertinent here would be provisions for termination for cause, that give thecompany the right to terminate service effective immediately if ^^(vii) we receive notice or we otherwise determine,in our sole discretion,that you may be usingAWS Services for any illegal purpose or inaway that violatesthelawor violates,infringes,or misappropriates the rights of any third party;^viii) we determine,incur solediscretion,that our provision of anyof the Services to you is prohibited by applicable law, or has become impracticalor unfeasiblefor any legalor regulatory reason.^^1^FN2^^^ The termswere changed on December 6,2010, the week following termination ofWikileaks's services; copies of earlier versions in thelntemet Archiveareunreachable. lFN2^^^Thevagueness of the combination of ^^inour sole discretion^^and ^^impracticable orunfeasibleforany legalor regulatory reason^^essentially invite thekindofgovemment pressure that SenatorLieberman apparently applied to Amazon. This is precisely the kind of contract of adhesion that provides roomforacourt to exercise its judgment as to whether the term should be applied.At least where the Restatement isconcerned, these terms should be construed against the drafting party,1FN2^0^ and are subject to an obligationof good faith.lFN2^1JIt is hard to imagineacourt striking this kind of provision down as,in general,uncon-2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page32scionable,lFN2^2^ but the obligation^36^ of good faith may provide sufficient basis foracourt to review andconstrainaservice provider from cutting off critical services toaclient,when it is done to suppress their speechrather than because there is genuine illegal behavior. Asamatter of public policy,it is conceivable that sucharight would be tailored to denial of service that undermines the facilities of the press, although one suspects thatsuch special treatment of the press under generally applicable law,like contract law,would not beaparticularlyattractive path. 1FN2^3^An alternative approach may be to developatort claim modeled ontortious interference with prospectiveeconomic advantage.1FN2^4^ In the case of volunteer organizations likeWikileaks,the economic advantage orcontractualrelation aspect maybe somethingofastretchinasuit against the provider, as opposedtoasuitagainst the government official.1F^2^^^ The other elements ofthe tort can, under the right facts, be present: intent to bring about an interference,arelationship ^between the networked journalists and their readers) that theproviderseekstointerferewith—indeed sever and which is advantageous to the journalist. For members of thenetworked press who are of the small commercial type,there is no difficulty in establishing this.It might beamild stretch to argue thatadonation-dependent organization like Wikileaks,which depends on reaching its audience,hasapecuniary interest in continued access to its materials and website.Intentional efforts to prevent thatcommunication, and thus to harm the network journalists'pecuniary advantage, are sufficient. No actual malice,in the sense of ill will toward the party interfered with, is required. 1FN2^6^ Certainly such an effect would betrivial to establish in the case ofMasterCard,Visa,and PayPal,whose denial ofservice was clearly intended toprevent Wikileaks from using their payment services to receive donations that sustain the organization. The hardpart here would be to establish the intent requirement, and that the claims of violation of terms of service werepretextual.Despite the difficulty, this kind of factual dispute would make discovery necessary and,with it, thesalutary effects of shining a light on back channel communications between government and private actorsaimed to ^^disrupt and degrade^^ the operations ofmembers ofthe networked fourth estate.1FN2^7^The private law solutionsloffer here are small steps in the direction of solvingabasic problem: core facilities and infrastructure necessary to communicate^37^ effectively in the networked environment can be arbitrarilydenied by their private owners.By looking at currently available means in tort and contract lawlaim to underscore the necessity of achievingabasic outcome—the introduction ofaright to communicate and not tobe unreasonably excluded from services critical to achieving that end. In the early republic and since, basic mailingprivileges overacommon carrier mail system playedafoundational role in the development of the fourth estatein the United States. 1F^2^^^ As capitalcosts of production rose, carriage was transposed into public interestobligations for radio and television. But when privately deployed cable and satellite met the neoliberal revival ofthe Reagan era, the concept ofcommon carriage began to fall out offavor, and ^^the public interest^^ found itselfon the defensive. Most recently, even where the case for common carriage of Internet service was most clearlyindicated legally and economically,in the last mile to the home, the FCC shied away from treating broadbandcarriage to the home as common carrier service. 1FN2^^^ The basic problem presented by the denial-of-serviceattacks onWikileaks is that some of the core facilities necessary to enable precisely those actors who make thenetworked environment open, participatory,and available for critical insight are susceptible to arbitrarydenialof service by private providers.This power that private actors have, given these actors'incentives to avoid offending thepublicat large,createsanewversionofthemucholder vulnerability of speechto ostracism andboycott, one that is particularly effective against the new players that depend on these critical infrastructures. Tocounterthis vulnerability, weneedamenuoflegalconstraintsthatwillpreserve the ability to communicateagainst unreasonabledenials of service. Inan environment where light-weight, lowcost, lowretummodels,both commercial and nonprofit, play an important role, we leam from this case that private payment systems are^2013ThomsonReuters.NoClaimtoOrig. us Gov Works.46HVCRCLLR31146HarvCRCLLRev311Page33alsoacorecomponentofthenew infrastructure, alongsidehosting services, logicaladdressing,andcarriage.Given the range and diversity ofessential facilities, it is possible that these very humble foundations in contractsand tort law willofferamore general basis for developingasystem of legalconstraints that will be robust tomanipulation and control by govemment actors in particular, and less susceptible to shut down by skittishprivate actors more generally.Part IV. From Mass-Mediated to Networked Fourth EstateThe constitutional analysis of theWikileaks case must be informed by an understanding of the emergingshape of the networked fourth estate.The attack onWikileaks,in particular the apparent fear of decentralizationthat it represents, requires us to understand the current decline ofthe traditional ^371 model ofthe press and theemergence of itsnew,networkedform. At core,themulti-system attackon Wikileaks,including massmediacoverage and framing, is an expression of anxiety about the changes that the fourth estate is undergoing. Thisanxiety needs to be resisted, rather than acted upon, i f we are to preserve the robust, open model of news production critical to democracy in the face of economic and technological change.A.The Crisis ofthe Mass-Mediated Fourth EstateThe American fourth estate is in the midst ofaprofound transformation,whose roots are in the mid-l^^Os,but whose rate, intensity,and direction have changed in the past decade.1FN300^ The first element of this transformation includes changes intemal to the mass media increasing competition for both newspapers and television channels,and the resulting lower rents to spend on newsrooms,and the fragmented markets that drove newstrategies for differentiation.Many of the problems laid at the feet of the Intemet-fragmentation of the audience and polarizationof viewpoints,in particular—have their rootsinthis element of the change.The secondelement oftransformation was the adoption ofthe Intemet since the mid-l^^Os.The critical change introducedby the network was decentralized information production, including news and opinion, and the new opportunities for models based on neither markets nor the state for financing to playanew and significant role in the production ofthe public sphere.1FN301^As Paul Starr showed inThe Creation of the Media, the middle of the nineteenth century sawafundamentalshift inthe cost structureof journalism. 1FN302^ Starrhademphasizedtherise of thelarge,professionalizednewsroom.1FN303^ lames Beniger, identifying the same trend, emphasized the high capital costs ofthe electricpress,automated setting, and paper folding machines.1FN304^ Regardless ofthe relative importance and causalrelations between organizational and technical innovations,it is quite clear thatacomhination of technologicalandorganizationalchangesbeganadynamicthat, withinafewdecades,cametoreplacetheparty pressandpostal service patronage systems that preceded it.The modelof high physicalcapital and high fixed-cost laborinvestments created the basis for the rise of major advertising-supported dailies that typified the first half of thetwentieth century.These high costs, coupled with the relatively high proportion of the cost related to physicaldistribution,created significant barriers to entry in local news markets.Over the course ofthe twentieth century,local newspapers had become local monopoly businesses.1FN30^^ By 1^^4,the average market share ofthe topand in medium-sized cities just over ^3^. By 2006, the mar^372 newspaper in small towns was close toket share of thelargest newspapers insuchtowns wasover^7^. Inlargecities, that share was around60^throughout this period.lFN306JThe absence of competition, in turn, sustained unusually high rents. 1FN307^This ability to extract rents and use them to subsidize newsrooms had begun to change just before the emer-^2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page34gence of the Internet into widespread use.As early asl^^O,Warren Buffet's annual letter to Berkshire Hathawayshareholdersstated withregard tohismediaholdings: ^^Whilemany mediabusinesses willremaineconomicmarvels in comparison with American industry generally,they will prove considerably less marvelous than I , theindustry,or lenders thought would be the case onlyafew years ago.^^1FN30^^ The main cause of this change,which he saw as part ofalongterm secular trend rather thanaeyclical downturn,was that ^^the number ofbothprint and electronic advertising channels has substantially increased. Asaconsequence,advertising dollars aremore widely dispersed and the pricing power of ad vendors has diminished. These circumstances materially reduce the intrinsic value of our major media investments....^^lFN30^^Ayear later he explained further: ^^Thefact is that newspaper,television, and magazine properties have begunto resemble businesses more than franchises in their ^373 economic behavior.^^lFN310^ What he called an^^economicfranchise^^is what we wouldsometimes callpossessing market power:being able to demand and obtain high prices for its product, gettinghigh rents, and being relatively free of competitive pressures on the quality of the product or the management.lFN311^He concluded:Until recently,media properties possessed the three characteristics ofafranchise and consequentlycould both price aggressively and be managed loosely. Now, however, consumers looking for informationand entertainment ^their primary interest being the latter) enjoy greatly broadened choices as to where tofind them....The result is that competition has intensified,markets have fragmented, and the media industry has lost some—though far from all of its franchise strength.1FN312^His conclusion foreshadows the media industry woes in the years that followed them:cost cutting,often atthe expense of newsrooms, and failures of management and financing deals, like those of theTribune company.^^In contrast,^^continues Buffet,^^abusiness^^eams exceptional profits only if it is the low-cost operator or if supply of its product orserviceistight.Tightnessinsupply usuallydoes not last long. With superior management,acompanymay maintain its status asalowcost operator foramuch longer time, but even then unceasingly faces thepossibilityofcompetitive attack. Andabusiness,unlikeafranchise,canbe killed by poor management.1FN313^The dispersionof attention and increasingcompetitionthat Buffet observed before thelnternet age meantthat there weremore outlets that consumers couldgotothatsimplydid not provide news.Thetelevision sixo'clock news was no longerafixture; nor was the front page of the local paper.The ease with which Americansneed not confront news at all,together withthe incentives to provide news that would attractalessinformed^374 and politically engaged audience, likely contributed to the observed decline in the level ofknowledge ofAmericans exposed primarily to, say, moming broadcast news shows or local television news about public affairs. 1FN314^ Audience dispersion alsomeant that there was an opportunity to capture narrower market segments than were most profitable during the more concentrated period.Where there is only one outlet, providingcontent that is highly mobilizing t o 3 0 ^ of the audience but alienates70^isabad strategy. You gain strongcommitment to 30^,but i f you arealocal monopoly,those 30^ have no realoptions and would have boughtyour product anyway,while the70^who might have boughtabland informative media product will be tumedoffby,say,ahighly partisan screed. lFN31^^Thesameisnot true whenoneisfacedwithafieldof.for example,seven media outlets of roughly similar coverage.Now,if one outlet is able to mark itself as uniquely representative of asignificant minority of the population, it can generate for itself anaudience segment withinwhich itcan enjoy thekindsoffranchiseeconomicsBuffethaddescribedthemediaindustry as losing. This^together with the contemporaneous elimination of the faimess doctrine) 1FN3161 is why Rush Limbaugh'sshow,launched in 1^^^,became not onlyeconomically viable,but economically advantageous,astrategy fol-2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page3^lowed with enormous success by Fox News eight years later.In combination,these changes within the industrial organization of American mass media were leading todisinvestment in newsrooms, audience fragmentation, and the emergence of right-wing media that used polarization asadifferentiation strategy.The two major criticisms of the networked public sphere fragmentation andpolarization—are at least as muchtheproductof industrial structure changesinternaltothe commercial massmedia as they are the product of an asserted ^^DailyMe^^ Internet culture, lFN317^the extent of whose actualempirical existence continues tobe amatter for investigation, not assertion. Boththe disinvestment and theniche targeting placed significant pressure on the will and ability of many outlets to commit to and pursue serious journalism consistent with professional norms.At the same time, the Internet rapidly shifted from being primarilyaresearch and education platform toacore element of our communications and information environment.The defining characteristic of thcNet wasthe ^37^ decentralization of physical and human capital that it enabled. 1FN31^^ In l^^^,acute observers of thedigital economy saw Encarta as the primary threat to Britannica in the encyclopedia market, and the epitome ofwhat the new rulesfor the digitaleconomy required. lFN31^^Thataradicallydecentralized, non-proprietaryproject, in which no one was paid to write or edit and that in principle anyone could edit,would compete withthe major encyclopedias was simply an impossibility. And yet, ten years later,Wikipedia was one of the top sixorsevensiteson thenet, whileEncartahadclosed itsdoors. Peerproductionandotherformsofcommonsbased,non-market production becameastable and important component of the information production system,1FN320^ an observation not lost on business writers, lFN321Jand,increasingly,govemments.lFN322^ lust asfree and open source software became an important complement to and substitute for some proprietary softwaremodels; just as photography,lFN323^cookbooks,lFN324^ travel guides,lFN32^^restaurant and consumer reviews, 1^FN326^ and video 1FN327^ came to develop important components of their industrial organization thatwere based on peer production and social production more generally, so too has been the case with news reporting and opinion.Ifthe first GulfWar was the moment ofthe twenty-four-hour news channel and CNN,then theIranianReformmovementof200^ was the moment of amateur videoreportage,as videostakenby amateurswere uploaded toYouTube, and from there became the only significant source of video footage of the demonstrations available to the major intemational news outlets.Most recently,theTunisian revolt was in part aidedby amateur videos of demonstrations,^376 uploaded toaFacebook page of an activist, LotfiHajji,and then retransmitted around the Arab world byAlIazeera;lFN32^^ and video taken by protesters was mixed with thattaken by professional joumalists to depict the revolt in Egypt. But the networked public sphere is constructed ofmuch more, and more diverse, organizational forms than ad hoc bursts of fully decentralized activity.B. The Emerging Networked Fourth EstateAs of the end of the first decade of the twenty-first eentury,it seems that the networked public sphere is constructed of several intersecting models of production whose operation to some extent competes with and to someextent complements each other.One central component of the new environment is comprised of core players inthe mass media environment. However, these now haveaglobal reach and have begun to incorporate decentralized elements within their own model.It is perhaps not surprising that CNN,the NewYorkTimes,NBC NewsandMSNBCNews,the WallStreet lournal,Fox News,the Washington Post, and theLos AngelesTimes areamong the top-ranked news sites on the Internet. 1^F^32^^ But alongside these are major international sites. Thepublicly-funded BBC and theU.K.nonprofit the Guardian playalarge role alongsideU.S.commercial media.The Guardian's editor-in-chiefclaimed to have 36 or 37 million readers per month, in comparison to the paper's2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page 36daily circulation of about 2^3,000.l^FN330^These major players are,in tum, complemented by the online presence of smaller traditional media platforms and sources from other countries,accessed by U.S.readers throughYahool and Google News, both among the top news sites in the world.TheWikileaks case presents quite wellhow central these large, global online news organizational players are, but it also shows how, because they areall in the same attention market, it is harder for any one of them to control access to the news. One of the strategically significant moves that Assange made was precisely to harness these global mass media to his cause byproviding them with enough exclusivity in their respective national markets to provide them with economic benefits from publishing the materials, and enough competition in the global network to make sure that none ofthem could,if they so chose,bury the story.The^377 global nature of the platform and the market made thisstrategy-byasmall player withasignificant scoop both powerful and hard to suppress.Alongside the broader reach of these traditionaloutletsinanew medium,we are seeing the emergence ofother models of organization,which were either absent or weaker in the mass media environment. Remaining,foramoment,within the sites visible enough to make major Internet rankings lists, the Huffington Post,acommercial online collaborative blog, is more visible in the United States than any other news outlet except for theBBC,CNN,and the NewYorkTimes.l^FN331^There are, of course, other smaller scale commercial sites thatoperate on advertising, like the Drudge Report,Pajamas Media, orTalking Points Memo.These formasecondelement in the networked public sphere. Talking Points Memo, for example, has an Alexa reach and rank somewhere between the Baltimore Sun and the Atlanta loumal Constitution, 1FN332^ although it hadastaff of onlyeleven people as of mid-200^.1^FN333^Athird model that is emerging to take advantage of the relatively low cost of distribution, and the relativelylow capital cost of production,of news is the nonprofit sector.Here,Ido not mean the volunteer, radically decentralized peer-production modek but rather the ability of more traditionally organized nonprofits to leveragetheir capabilities in an environment where the costs ofdoing business are sufficientlylower than they were inthe print and televisionerathat they cansustaineffective newsrooms staffedwithpeoplewho,like academicfaculties,are willing to sacrifice some ofthe bottom line in exchange for the freedom to pursue their professionalvalues.One example is ProPublica,afoundation-supported model for an otherwise classic-style professionalnewsroom. lFN334j Asimilarapproachunderlies thejournalistie awardwinninglocal reporting workof theCenter for Independent Media, founded in 2006 and renamed in 2010the American Independent News Network.This organization,as of this writing, fundsanetwork of localindependent nonprofit media in Colorado,Iowa,Michigan, Minnesota, and New Mexico.lFN33^^Arelated model is the construction of university-based centersthatcanspecializein traditional media roles. Aperfect example^37^ofthis isFactCheck.org,basedin theAnnenberg Public Policy Center at the University of Pennsylvania, which plays a crucial watchdog role inchecking the veracity ofclaims made by political figures and organizations.1FN336^Alongside these professional-journalism-focused nonprofits,we are seeing other organizations usingacombinationof standard nonprofit organization with peer production to achieve significant results in the publicsphere.An excellent example of this model is offered by the Sunlight Foundation,which supports both new lawsthat require government data to be put online, and the development ofweb-based platforms that allow people tolook at these data and explore government actions that are relevant to them.l^FN337^LikeWikileaks did beforethe most recent events. Sunlight Foundation focuses on making the raw data available for the many networkedeyes to read.UnlikeWikileaks,its emphasis is on the legal and formal release of government data and the construction of technical platforms to lower the cost of analysis and construct collaborative practices,so as to makeit feasible for distributed social practices and people with diverse motivational profiles, embedded in diverse organizational models, to analyze the data.^2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page37In addition to the professionals based in large-scale global media, small-scale commercial media, high-endnational andlocal nonprofit media outlets,and other nonmedia nonprofits,we also see emerginganew partypress culture.OverlO,000 Daily Kos contributors have strong political beliefs,and they are looking to expressthem and to search for information that will help their cause.1FN33^^ So do the contributors toTownhall.comon the right, although the left-wing of the blogosphere uses large collaborative sites at this point in history morethan the right.lFN33^^For digging up the dirt onyour opponent's corruption,political ambition and contestation isapowerful motivator, and the platforms are available to allow thousands of volunteers to work together,with the leadership and support ofatiny paid staff^paid, again,through advertising to this engaged community,or through mobilized donations, or both).Finally,although less discretely prominent than the large collaboration platforms like Daily Kos or Newsvine,^FN340^ and much more decentralized than any ofthe other models,individuals play an absolutely criticalrole in this new information ecosystem. First, there is the sheer presence of millions of individuals with the ability to witness and communicate what they witnessed over systems that are woven into the normal fabric of networked life. This is the story of the Iranian reform videos, and it is of course the story of much more mundanepolitical reporting,from lohn McCain singing ^^Bomblran^^ ^37^ tothe tune ofaBeach Boys song to GeorgeAllen's Macaca. Second, there is the distributed force of observation and critical commentary,as we saw in theexposure of the error inthe CBS^Dan Rather expose.Third,there are the experts.For instance,academic economists like Brad DeLong, on the left, andTylerCowen, on the right, playedamuch greater role in debates overthe stimulus and bailout^which can be observed by looking at traffic pattems to their individual blogs during thedebates over thebailout)thanthey could haveamere decade ago. Collaborative websitesbyacademics, likeBalkinizationlFN341^or Crooked Timber, 1^FN342^ provide academics with much larger distribution platformsto communicate, expanding the scope and depth ofanalysis available to policy and opinion makers.The Wikileaks events need to be understood in the context of these broad trendsin the construction of thenetworked fourth estate. Like the Sunlight Foundation and similar transparency focused organizations,Wikileal^s isanonprofit focused on bringing tolight direct,documentary evidence about govemment behaviorso that many others, professional and otherwise, can analyze the evidence and search for instances that justifypubliccriticism. Liketheemerging party presses, it actsout ofpoliticalconvietion. Andlikesomany otherprojects on the Net,it usesacombination of volunteerism,global presence,and decentralized action to achieveits results.As such,Wikileaks presents an integral part ofthe networked fourth estate—no less than the protesterswho shoot videos on the streets ofTehran,Tunis, or Cairo and upload them to theWeb,or the bloggers who exposed the Rather^CBS story. Whatever one thinks about the particular actions ofWikileaks in the particular instance of the release of the embassy cables,the organization and effort put forth byWikileaks to bring to lightactual internal govemmentdocumentsbearingonquestionsofgreat public import isessentiallyanetworkedversionof thePentagonPapers and Roosevelt'sManwiththeMuck Rake. 1FN343^ Anattackon Wikileaks-legalor extralegal,technicalor commercial—needs to be assessed from that perspective,and allows us to explore the limitations and strengths of the emerging networked fourth estate.C. Mass Media Anxiety over the New Neighbors in the Networked Environmentln 200^-2010,thestateofmassmedianewsreporting—newspapers in particular—and the financial future ofthese organizations became a matterof substantial public debate. The Senate held hearings onthe future ofjournalism,lFN344^andtheFederalTrade Commission launchedaseries of public^3^0 workshops under thetitle How Will lournalism Survive thelnternet Age7 1F^34^^Arange of publications tried to understand what^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 3^was happening to journalism, and what its future would look like. The New Republic, for example, ran athoughtful cover on the end ofthe age ofnewspapers,lFN346^NPR's On the Media carefully explored the senseofcrisis,lFN347^ and academics weighed in as welLlFN34^JMany treatments,like those cited, were careful and thoughtfuLMuch of the debate, however,involvedname-calling ofthe ^^guy in his pajamas,^^ ^^echo-chamber ofthe blogosphere^^ variety.The core ofthe critique ofthe networked forms ofthe press has been the same since Klein's memorable quote: the concem that the Intemetand the blogosphere provide misinformation, while the traditional media are necessary to provide reliable investigative reporting. An event study that does not involveWikileaksoffersabaselineportrayalof what is,in fact,the much more complex interaction between the traditional and networked components of the fourth estate, andthe distributionof responsible and irresponsiblejournalismonboth sides of that divide. It turns out that beingpart of the mass media is no guarantee ofhigh quality and effective journalism; nor is being onlineaguaranteeof falsehood andecho-chamber effects.Thenewsystemwillhavehigh quality,effective participants ofeachtype,and low quality rumormongers on either side ofthe traditional^networked media divide.Understanding thisfact, as well as the dynamic that seems to lead serious writers on the traditional side to discount it, provides important insight into the ways in which theWikileaks case,in tum,has been perceived.On Novemberl7,2010the NewYorkTimes published an oped byThomasFriedman,Too Good to Check,whose opening beautifully explains the whole:On Nov.4,Anderson Cooper did the countryafavor. He expertly deconstructed on his CNNshowthe bogus rumor that President Obama's trip to Asia would cost ^200 millionaday.This was an important^story.^It underscored just how far ahead ofhis time MarkTwain was when he saidacentury before theInternet, ^Aliecantravel halfway aroundthe world while the truth isputtingon its shoes.^ But it alsoshowed that there is an antidote to malicious joumalism—and that's good joumalism.^3^1 In case you missed it,astory circulated around theWeb on the eve of President Obama's trip that itwouldcostU.S.taxpayers^200millionaday....lFN34^^The quote tells the whole of the story. The villain is ^^thelnternet,^^ which enables the lie traveling halfwayaroundtheworld—in this case,from India to the U.S.public sphere—where it circulates around ^^theWeb.^^ Thehero is the expert journalist in an established news outlet who exposes the lie,airs his expose onamass mediaoutlet, and thereby administers the antidote.There is only one problem with this story: it wasn't quite so. The initial source of the 200 million dollar perday story was an established media outlet, the PressTrust of India; it was primarily followed by the right-wingmass media in theUnited States,with one bloggerplayingakey importation role.^^Thelnternet,^^on the otherhand, was actually the first place where investigative joumalism occurred to debunk the falsehood.A t l l : 2 ^ am ESTon November 2,2010, New DelhiTelevisionlFN3^01postedastory with the byline of thePressTrust of India, India's equivalent of the AP and Reuters,entitled US to spend ^200 mnaday on Obama'sMumbai visit. 1FN3^1^ This story was linked to within the next twohoursby the Drudge Report, 1FN3^2^MichelleMalkin'ssiteat 1:^3 pm, 1F^3^3^ as wellas three otherlower-visibility,right-wingblogs. 1FN3^4^The afternoon and evening belonged to the mass media. That aftemoon. Rush Limbaugh repeated it on his radioshow.lFN3^^^ The story was repeated in the British Daily Mail 1FN3^6^ at about ^:00 ^3^2 pmEST,and thatevening, Mike Huckabee repeated the story on Fox News election coverage.1^FN3:^7^By the end ofNovember 2nd,astory had been created by some oflndia's most respected news outlets, im-^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvC.RCLLRev311Page3^ported to the United States by two highly visible right-wing blogs, and then repeated and amplified by two majorright-wing mass media outlets—Fox News and Rush Limbaugh. Limbaugh's story actually revived and combinedthe new 200 milliondollars meme with an earlier one: claiming that thepresident was taking40 airplanes.1^FN3^^^ This story was picked up two days later by the same Doug Powers who later posted Michelle Malkin's200-million-dollars-a-day story on his own blog.1FN3^^^ His post was picked up in an opinion column for theWashingtonTimes on October 2^th,lFN360jbut this part of the story did not take off until combined with the200 million dollars claim made by Limbaugh.On November 3rd, the right-wing mass media propagation continued. Fox News'program Follow the Moneycreatedawhole segment, by Eric Boiling, repeating the claim with vivid images and the tag ^^TheObamas:TheNewAmerican Royalty7^^1FN361^That same evening, Sean Hannity's program repeated the claim and conductedapaneldiscussion around its inappropriateness given the election results and the financial condition of thecountry.lFN362j Afew hours later. Representative Michele Bachmann repeated the accusation in an interviewon Anderson Cooper 360; the interview that ultimately led Cooper to investigate and refute the claim, on CNNtwenty-four hours later, on his November 4th show.1FN363^ But that refutation, the one to which Friedman paidsuch high respects,was by no means the first.The initial refutation, on November3rd,was not in mainstreammediabuton theNet. FactCheck.orgprovidedaclearbreakdownofthe sourceandflowof ^3^3 thestory.1FN364^ Media Matters for America postedalong story in the afternoon ofNovember3rd,providingasimilarflow and debunking of the story.lFN36^^Snopes.com also provided enough debunking either on November 3rdor early November4th 1FN366^ tobelinkedtoby aNovember4th, 3:16pm Wall Street lournalblogpost.1FN367^ By the end ofNovember 3rd, only Internet-based reporting was doing the ^^goodjournalism^^ work; theonly established media working thestorywereeither purposefully repeating themisstatement—inthecase ofFox News—or being used by right-wingpoliticians to propagate the slander, as in Bachmann's interview onCooper's show.ByNovember4th,the tide of the story was turning.Glenn Beck started the day by repeating the slander.1FN36^^ But an increasing number of blogs and mainstream outlets were picking up the White House andPentagon denials.Over the course ofthat day,the Media Cloud database identified thirteen blogposts within thepoliticalblogosphere that continued to support and propagate the story,and fourteenblogposts that pointed tothe critique and refutations of the story. 1FN36^^ Interestingly,severalof theblogpostsunderscoring anddisseminating the debunking reports were right-wing blogs: HotAir,lFN370^InstapunditlFN371^^although thesesites framed the debunking with: it's not our fault we believed this bunk given Obama's reputation for extravagance), and Outside the Beltway.1FN372^In the mainstream,USAToday,theWashington Post, theWall Street loumal, and the Kansas City Star allhad various versions ofthe refutation ^3^4 in their web-based versions. At 10:00pm that night, AndersonCooper airedalong segment that specifically emphasized the vacuity of the sources,and the central role that theright-wingconservatives Limbaugh, Beck, Don Imus, and Michael Savage—played in repeating and amplifyingthelie. 1^FN373^ Itwas indeedagood pieceof joumalism. Its story capturedtheright tone of how thestoryemerged,why it was unreliable,and who repeated thelie.Cooper then went to his ^^databoard^^and explainedhow the 200-million-dollar claim could not possibly be true, given what we know from public sources about thedaily cost ofthe war in Afghanistan and what we know based on an old GAO report about the costs ofBill Clinton's Africa trip in 1^^^. All of these pieces of evidence, down to the comparison to the1^0-million-dollar-a-day cost of the Afghan war and the GAOreport on Clinton's trip,had already been reportedover twenty-four hours earlier by FactCheck.org. Cooper played an enormously important role in giving voice toand amplifying the excellent research that was done by FactCheck.Given the continued importance of mass me-2013 Thomson Reuters. No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page40diaoutlets in reaching very large audiences,that isindeed an important rolefor someone withamassmediavoice to play.It is certainlyanecessary counterweight to the kind of propagandist reportage that Fox News andtalkradioemploytosolidify their brand and retaintheir franchise,as well as perhapsto support the owner'spolitics. But the story is emphatically not one where ^^thelntemet^^ spreads lies and professional joumalism combats them.The story of these three days in November 2010offers some insight into the emerging stmcture of the global,networked fourth estate.It identifiesamore complex relationship than simply either ^^good professionals vs.bad amateurs^^or ^^pure-hearted, net-basedjournalists vs.acorrupt mainstream media.^^Itrevealsanetworkedalternative to the more traditional model of media checks and balances. Here,publication by an Indian outletwasglobally visible; ^^thelnternet,^^orratheroneentrepreneurialright-wingblogger,movedthat informationquickly, and the network and its relationship to mass media created and elevated the memes. But the networkedenvironment also included nonprofit academic and professional groups ^FactCheck.org; Media Matters), as wellasasmall commercial professional publisher ^Snopes),all of whom were able to check the reporting and criticize it. And theNet included over two dozen sites that sifted through the original and the refutation.The massmedia, in tum, took both the false and the correct story lines, and in each case amplified them to their respectiveaudiences.^3^^D. MassMedia Anxiety Playedout inthe WikileaksCaseEndangerstheNetworked Fourth Estate visavis the State,and Makes CooperativeVentures Across the Divide ChallengingThe concern that the incumbent news industry has exhibited in the past two years over the emerging compelitors in the networked information environment, played out in the way Friedman ascribed blame for the200 milliondollaraday story,was also on display in the way that American newspapers dealt withWikileaksafter the release of the embassy cables.This anxiety has two practical consequences.The first is that the kind ofcooperative venture that Wikileaks entered into with the major newspapers was clearly difficult to manage. Thecultural divide between established media players and the scrappy networked organizations that make up important parts of the networked fourth estate makes working together difficult, as the published reports from the media partners in this enterprise clearly reveakThe second practical consequence is that, in seeking to preserve their uniqueness and identity,the traditionalmedia are painting their networked counterparts intoacorner that exposes them to greater risk of legal and extralegal attack.As we saw in the analysis of the legal framework, fromaconstitutional law perspective,the wayinwhichthetraditional media respondto,andframe, Wikileaks or other actorsinthe networked fourthestatedoes not matteragreat deal.But from the practical perspective of what is politically and socially feasible foragovernment to do, given the constraints ofpublic opinion and the internalized norms ofwell-socialized elites indemocratic countries,the more that newspapermen,in their effort to preserve their own identity,vilify and segregatetheindividuals and nontraditionalcomponents of the networked fourth estate,the more they put thoseelements at risk ofsuppression and attack through both legal and extralegal systems.i.ADiffieult RelationshipTwo major pieces in the NewYorkTimes exemplify the effort to assert the identity of the traditional mediaas highly professional,well organized, and responsible by denigrating the networked alternative.The first wasaTom Friedman op-ed piece published on Decemberl4,2010.In it, Friedman wrote:^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page41The world system is currently being challenged by two new forces:arising superpower, called China,andarising collection of superempowered individuals, as represented by theWikiLeakers, among others.What globalization, technological integration and the general flattening of the world have done is to superempower ^3^^ individuals to such adegree thatthey canactually challenge any hierarchy—fromaglobal bank toanation state—as individuals.1FN374^He explains:Asfor the superempoweredindividualssomeare constructive,some are destructive. IreadmanyWikiLeaks and learned some useful things. But their release also raises some troubling questions.Idon'twant to live inacountry where they throw whistle-blowers in jaiLThat's China.Butlalso don't want tolive inacountry where any individual feels entitled to just dump out all the internal communications ofagovernment orabank inaway that undermines the ability to have private,confidential communicationsthat are vital to the functioning of any society.That's anarchy.1FN37^^Asafactual matter,^^acountry where they throw whistleblowersinjail^^ is, infact, the United States.l^FN376^^^They,^^read^^we Americans,^^ have been keeping BradleyManning,the only whistleblower involvedin this case,in solitary confinement for months. lFN377^But the important insight from this op-ed is the expressed fear of anarchy and the fear that the decentralized network,with its capacity to empower individuals tochallenge their govemments or global banks, is not democracy, but anarchy. The fact that the individual in question did not in fact ^^dumpoutall the internal communications ofagovemment,^^butratherpartneredwithmajortraditional news outlets,including theTimes,to do so,is eliminated from the oped.By mischaracterizing whatWikileaks in fact did and labeling those imagined actions ^^anarchy,^^ Friedman is able to paint it as the dangerOUS ^^other^^;just like China,adecentralized, open network isadangerous threat to what he concludes is the onlything standing between us and either anarchy or authoritarianism: ^^a strong America.^^lFN37^^More revealing yet is an ^,000-word essay by NewYorkTimes executive editor Bill Keller inaNewYorkTimes Magazine cover storyonlanuary 26, 2011. lFN37^^Parts of the essay, particularly around its middle,seem intended to emphasize and legitimate the fourth estate function of theTimes itself against critics who argue that theTimes should not have published the materials.Keller writes,for example:Afree press inademocracy can be messy.But the altemative is to give the governmentaveto overwhat its citizens are allowed to ^3^7 know. Anyone who has worked in countries where the news diet iscontrolled by the government can sympathize withThomasIefferson's oft-quoted remark that he wouldrather have newspapers without govemment than govemment without newspapers.1FN3^0^But any close reading ofthe essay makes crystal clearthat acentral purpose it serves is to separateWikileaksfromtheTimes,andtoemphasize the Times'professionalism, care, andorganizational rationalitywhile denigrating the contribution and reliability ofWikileaks.Immediately in the first paragraph,Keller refersto^^an organization called WikiLeaks,asecretive cadre of antisecrecy vigilantes.^^l^FN3^1^Compare this to theTimes'own characterization ofWikileaksamere ten months earlier as ^^a tiny online source of information anddocuments that governments and corporations around the world would prefer to keep secret,^^lFN3^2^ or to the200^ Pentagon Report's detailed analysis of Wikileaks asawebsite dedicated to ^^exposl^ing^ unethical practices,illegal behavior, and wrongdoing within corrupt corporations and oppressive regimes,^^or the Pentagon Report'sclaim that ^^Wikileaks.org supports the US Supreme Court ruling regarding the unauthorized release of thePentagon Papersby Daniel Ellsberg,which stated that^onlyafree and unrestrained press caneffectivelyexpose deception in government.^^^lFN3^3^Afew paragraphs later, Keller then emphasizesWikileaks'mistake inreleasing the editedversionof the Collateral Murder video,writing:^^ll^n its zealtomake the videoaworkofantiwarpropaganda, WikiLeaks alsoreleasedaversionthatdidn'tcallattentiontoanlraqi who wastotinga^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146Harv.CRCLLRev311Page42rocket-propelled grenade and packaged the manipulated version under the tendentious rubric ^CollateralMurder.^^^ ^FN3^4^ This sentence repeats the Fox News accusation against the edited version, ignoring the factthat the opening slide of the edited footage states,^^Although some of the men appear to have been armed, thebehavior of nearly everyone was relaxedl,^^^lFN3^^^ and the interpretive disagreement at the time about whether what the pilots thought was an RPG was in fact so.1FN3^6^ Later, Keller writes: ^^TheTimes was never askedto sign anything or to pay anything. For WikiLeaks, at least in this first big venture, exposure was its own rewardl,^^^ implying that perhaps, in the long term,Wikileaks'intentions were to profit from its relationships withthe ^3^^ press.Atadifferent point, Keller implies,without pointing to any evidence, that Wikileaks volunteershacked into theTimes'computers duringarocky period of the relationship.1FN3^7^Beyond Wikileaks as an organization, it is clear that Assange and theTimes hadavery bad relationship, andKeller peppers the essay witharange of what reads more like gratuitous name-calling than substantive criticism.Inthefirst paragraph, Keller introduces Assange as ^^aneccentricformer computer hacker of Australian birthand no fixed residence.^^lFN3^^^ Keller then introduces and frames Assange by describing the impressions ofthe first Times reporter who met him:Assange slouched intoThe Guardian office,aday late....^^He was alert but disheveled, likeabaglady walking in off the street,wearingadingy,light-colored sport coat and cargo pants, dirty white shirt,beat-up sneakers and filthy white socks that collapsed around his ankles.He smelled as ifhe hadn't bathedindaysBlFN3^^1Afew paragraphs later, Keller recounts:Schmitt told me that for all Assange's bombast and dark conspiracy theories,he hadabitofPeter Paninhim. Onenight, whenthey wereallwalkingdownthestreetafterdinner,Assangesuddenly startedskipping ahead of the group. Schmitt and Goetz stared, speechless. Then, just as suddenly, Assangestopped, got back in step with them and returned to the conversation he had interrupted.1FN3^0^Bycomparison,theGuardian, which had as difficult and stormyarelationship with Assange as did theTimes, introduced Assange in its editor's equivalent ofKeller's overview essay very differently: ^^Unnoticed bymost of the world,lulian Assange was developing intoamost interesting and unusualpioneerinusing digitaltechnologies to challenge corrupt and authoritarian states.^^ lFN3^1j As Der Spiegel put it, inreporting onKeller's essay: ^^For some time now,lulian Assange has been sparring with NewYorkTimes Executive EditorBill Keller.Assange claims the paper didn't publish the ^3^^ material in its entirety and made too many concessions to the White House before going to print. Now,Keller is fighting back.^^l^FN3^2^These kinds of jabs make separating out the personal animosity from aspects of the essay that reflect structural,systemic concems difficult.Nonetheless,it is possible to observe in the pieceaclear core theme: assertingacategorical distinction between the NewYorkTimes as an institution and organizational form and the decentralized, networked form represented by Wikileaks.Keller says,^^Weregarded Assange throughout asasource,not asapartner or collaborator.^^ lFN3^3^He later concludes by repeating what appears to beacentral argumentof the essay: ^^Throughout this experience we have treated Assange asasource.Iwill not say ^asource, pure andsimple,^because as any reporter or editor can attest,sources are rarely pure or simple,and Assange was no exception.^^ lFN3^4j Further, even when asserting that First Amendment values require that Wikileaks not be suppressed,Keller prefacesby restating: ^^Idonotregard Assange asapartner,andl would hesitateto describewhatWikiLeaks does as joumalism.^^1FN3^^^ By contrast, the Guardian frames its own account of its relationship quite differently: ^^IT^he fruit ofDavies'eager pursuit of Assange would result in an extraordinary,if sometimes strained, partnership between a mainstream newspaper and WikiLeaks: a new model of co operation^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page43aimed at publishing the world's biggest leak.^^lFN3^6^It is certainly possible that the difference in framing reOectsjurisdictionalsusceptibility andthe advice ofcounsel;theTimes maybe trying to preempt possible COconspirator charges against it should the Department oflustice decide to proceed against Assange and Wikileakson suchatheory.lt seems more likely,however, that the difference reflects the Guardian's strategic embrace ofthe networked models ofjournalism,on the one hand,and theTimes'continued rejection of the model.The professional^reliable vs. unprofessional^unreliable dichotomy is repeated throughout Keller's essay inmore contextspecific instances. At one point he describesacertain problem theTimes reporters had with displaying the data: ^^Assange, slipping naturally into the role of office geek, explained ^3^0 that they had hit thelimits ofExcel.^^lFN3^7^ By contrast to Assange,who was merely like ^^the office geek,^^ Keller later describesthechallengeof organizing thedataandexplainshow,^^lw^ithhelpfromtwo of TheTimes'sbest computermindsltheleadreporters^figured out how to assemble the material intoaconveniently searchable and securedatabase.^^lFN3^^1When discussing the redaction efforts,Keller writes of theTimes'efforts:Guided by reporters with extensive experience inthefield,we redacted the names of ordinary citizens,localofficials, activists,academics and others who had spoken to American soldiers or diplomats.Weedited out any details that might reveal ongoing intelligence-gathering operations,military tactics orlocations ofmaterial that could be used to fashion terrorist weapons.1FN3^^^KellerdoesrecognizeWikileaks'effortstoavoidharminginnocents,but thetoneis quite different. Hewrites: ^^In the case of the Iraq war documents, WikiLeaks applied a kind of robo redaction software thatstripped away names(and rendered the documents almost illegible),^^andthere were instances in whichWikiLeaks volunteers suggested measures to enhance the protection ofinnocents....WikiLeaks advised everyone to substituteadozen uppercase ^'s for each redacted passage,no matter howlong or short.. ..WhetherWikiLeaks's^harm minimizations is adequate,and whether itwillcontinue, is beyond my power to predict or influence. WikiLeaks does not take guidance fromTheNewYork Timesl^FN400^When writing about responsible joumalism, Keller again focuses on differentiating between the traditionalmedia participants in the disclosure, and the networked elements, this time explicitly using Wikileaks as an anchor for denigrating the networked fourth estate more generally:IW^efelt anenormous moral and ethicalobligationto use the material responsibly. While we assumed we had little or no ability to influence what WikiLeaks did,let alone what would happen once thismaterial was loosed in the echo chamber of the blogosphere, that did not free us from the need to exercisecare in our own joumalism.1^FN401^The essay was written two months afterthe initial release. Keller, by this point, knew full well thatWikileaks in fact did not release materials irresponsibly. Nor did anyone else in what he calls ^^the echo chambero f t h e ^ 3 ^ I blogosphere.^^ The assertionofdifference doesnot reflect an actualdifferencein kind relativetowhat was disclosed by one or another ofthe traditional media players.Instead,the aside largely seems to expresstheTimes'own anxieties about Wikileaks and the more general genre that it represents for Keller.This sense of self appears to have been complemented and reinforced by the Obama Administration. Comparing the Obama Administration'sresponse to Wikileaks tothat of theBush Administration's response to theNSA eavesdropping story, Keller recounts:l^T^he Obama administration's reaction was different. It was, for the most part, sober and professionaL^2013 Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page44TheObamaWhiteHouse, while stronglycondemningWikiLeaksfor making the documents public,didnot seek an injunction to halt publication.There was no OvalOffice lecture.On the contrary,in our discussions before publication of our articles. White House officials, while challenging some of the conclusions we drew from the material, thanked us for handling the documents with care.1FN402^This basic story line repeats itself in the Der Spiegel recounting. In describing their meetings with the Administration, Rosenbach and Stark state quite clearly: ^^The official fury ofthe us government was directed atthepresumed source, BradleyManning, and, most of all, WikiLeaks. The govemment wasnot interested inquarreling with the media organizations involved.^^l^FN403^1t appears as though the Administration either reallydid not fear disclosure, as long as it was by organizations it felt were within its comfort zone, or it was using thedistinction and relative socialcultural weakness ofWikileaks to keep the established media players at the tableand, perhaps, more cooperative with the Administration's needs.It is precisely in these descriptions of the relationship with the Administration, from both theTimes and DerSpiegel, that we see the danger that mixing the press'own identity anxiety with reporting on the press presentsfor the networked fourth estate.As one observes the multi-system nature of the attacks onWikileaks,as well asits defenses, it becomes obvious that law is but one dimension in this multidimensional system of freedom andconstraint.As we saw in Part III,law,at least First Amendment law,is largely on the side ofWikileaks; no lessso than it is on the side of the NewYorkTimes or Der Spiegel.Law,however, is not the only operative dimension.The socialpolitical framing of the situation,alongside the potential constraints the govemment feels on itslegal chances and political implications ofattempting to prosecute, as well as the possibility ofusing the variousextralegal avenues we saw used in this case, haveareal effect on how vulnerable an entity is to all these variousforms of attack. Keller writes:^3^2 As one of my colleagues asks:If Assange were an understated professorial type rather thanacharacterfromamissingStiegLarssonnovel,andifWikiLeaks were not suffused with suchglib antipathy toward theUnited States,would the reactiontotheleaksbe quite soferocious7 And would moreAmericans be speaking up against the threat of reprisals7 1FN404^The question, of course, is what role traditional media players in the United States played in creating thatperception of Assange,and with it the license for what Keller described as the^^ferocious^^responses.CompareKeller's ^^dirty white shirt^^ or ^^filthy white socks^^ description to Der Spiegel's description of Assange as^^wearingawhite shirt and jacket and sportingathree-daybeard,was even paler thanusual and hadahackingcough. ^Stress,^ hesaid,by way of apology.^^1^FN40^^ Similarly,Rosenbach and Starkdescribe Assange asaman who is very difficult to work with but one with whom, after extensive interactions involving lawyers, dinner, and long negotiations over wine,adealcould be, and was, reached.Keller's vignettes describe someonewhowas only marginally saneand certainly malevolent. ElPaiseditorlavierMorenoclaimedthatthemanyhours ofameeting with Assange were insufficient toformarigorously-researchedprofile,but he could attestthat the discussion was purely focused onacommon publication calendar and on how critical it was to protectnames,sources,and dates that could put people at risk. 1FN406^ Keller and theTimes,then, are not innocentbystanders in the perceptions ofAssange that made the response to him so ferocious, but primary movers. It wastheTimes,after all,that chose to runafront page profile of Assangeaday after it began publishing the Iraq warlogs in which it described him as ^^a hunted man^^who^^demands that his dwindling number ofloyalists use expensive encrypted cellphones and swaps his own the way other men change shirts,^^and^^checksinto hotels under false names, dyes his hair, sleeps on sofas and floors, and uses cash instead of credit cards, often borrowedfromfriends.^^l^FN407^What responsibility does the established press have toward the newcomers in the networked fourth estate not2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page4^to paint them in such terms that they become fair game for aggressive, possiblylife-threatening, and certainlydeeply troubling pressures and threats of prosecution7 There isadirect intellectual line connecting Klein's ^^youcouldn't haveastarker contrast ^3^3 between the multiple layers of checks and balances, andaguy sitting in hislivingroominhispajamaswritingwhathethinks^^lFN40^j toKeller's^^bag lady walking in off the street,^^1FN40^^ twice denied as^^a source,not asapartner.^^lFN410^ Incombinationwiththe Administration's cleardeferencetothe traditional media, on theonehand,and itsrepeateddenunciationsof, threats to,andmultisystems attacks onWikileaks and Assange on the other, the need of the incumbent media organizations to asserttheir identity and shore up their own continued vitality threatens emerging elements of the networked fourth estate.^^Multiple layers of checks and balances^^are merely one way of creating accountability; the social relationsamong elite players that make these meetings feasible and that allow Keller to present cables to the administration are central aspects of what both the govemment and the incumbents of the fourth estate value, and it is theabsence of such relations in the new organizational forms run by social outsiders that is so threatening. The riskis that the government will support its preferred media models, and that the incumbent mass media players will,inturn,vilify and denigrate the newer models in ways that make them more vulnerable to attack and shore upthe privileged position of those incumbents in their role asamore reliable ally-watchdog.This threat is particularly worrisome becauseit comes as the economics of incumbent media forceustolook for newand creativenetworked structures to fill the vacuum left by the industrial decline of mid twentieth century media models.ii.Collaboration Between Networked and Incumbent Models oflournalismThe events surrounding Wikileaks mark the difficulties with what will inevitably becomeamore broadly applicable organizational modelfor the fourth estate.This new modelwill require increased integration betweendecentralized networked and traditional professional models of information production, and concentration of attention.On the production side,even looking narrowly at the question ofleaks,whatever else happens,spinoffs fromWikileaks—OpenLeaks or BrusselsLeaks, efforts by established news organizations like Al lazeera and the NewYork Times to create their own versions of secure, online leaked document repositories-markatransition awayfrom the model of the leak to one trusted joumalist employed byawell-established news organization.The advantages of this model to the person leaking the documents are obvious.Aleak to one responsible organizationmay lead to non-publication and suppression of the story.The NewYorkTimes famously delayed publication of^3^4itsstoryontheNSAdomestic eavesdropping programforayear. 1FN411^ Wikileaks has shownthat byleaking to an international networked organization able to deliver the documents to severaloutletsin parallel,whistleblowers can reduce the concern that the personal risk they take in leaking the document will be in vain.Major news organizations that want to receive these leaks will have tolearn to partner with organizations that,like Wikileaks, can perform that function.Leaking is,ofcourse,but one ofmany ways in which news reporting can benefit from the same distributedeconomics that drive open source development or Wikipedia.The usercreated images from the LondonUnderground bombing in 200^ broke ground for this modeLThey were the only source of images.During thelranianreformmovementprotestsin 200^, videos and images created by users ontheground became the sole videofeed for international news outlets, and by the time of theTunisian and Egyptian uprisings in early2011,the integrationofthesefeedsintomainlinereportinghadbecomeallbut standard.lust asinopensourcesoftware^^given enough eyeballs, all bugs are shallow,^^l^FN412^adistributed population armed with cameras and videorecorders,andadistributed population of experts and insiders who can bring more expertise and direct experience to bear on the substance of any given story,will provide tremendous benefits of quality,depth, and context^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page46to any story.But the benefits are very clearly not only on the side oftraditional media integrating distributed inputs intotheirownmodel.Lookingspecifically at Wikileaks and the embassy cables shows that responsible disclosurewas the problem created by these documents that was uniquely difficult to solve in an open networked model.The problem was not how to release them indiscriminately; that is trivial to do in the network.The problem wasnot how to constructasystem for sifting through these documents and identifying useful insights.Protestationsof the professional press that simply sifting throughthousands of documents and identifying interesting storiescannot be done by amateurs sound largely like protestations from Britannica editors that Wikipedia will never bean acceptable substitutefor Britannica. At this stage of our understanding of the networked informationeconomy,we know full well that distributed solutions can solve complex information production problems.It wasthe decisionto preserve confidentiality that made the usual approachto achieving largescale tasks inthe networked environment—peerproduction, largescale distributed collaboration unavailable. One cannot harnessthousands of volunteers on an open networked platform to identify what information needs to be kept secret. Toget around that problem,^3^^ Wikileaks needed the partnership with major players in the incumbent media system, however rocky and difficult to sustain it tumed out to be.Another central aspect of the partnership betweenWikileaks and its media partners was achieving salienceand attention. There is little doubt that mass media continues to be the major pathway to public attention in theUnited States,even as the role oflntemet news consumption rises.lFN413^Debates continue as to the extent towhich the agenda set through those organizations can, or cannot, be more broadly influenced today through nonmainstream media action. 1FN414^ Both the Wikileaks case and the brief event study of the200-million-dollar-a-day story suggest that, ataminimum, ultimate transmission to the main agenda of the population requires transmission through mass media.However importantasubject, i f it cannot ultimately make itsway to mainstream media, it will remain peripheral to the mainstream of public discourse, at least for the intermediate future. 1^FN41^^ Networked organizations needapartnership model withtraditionalorganizations inlarge part to achieve salience.As more mature sectors in which collaboration across the boundary between traditional organizational models and new networked models show,creating these collaborations is feasible but not triviafOpen source software is the most mature ofthese, and it shows both the feasibility and complexity ofthe interface between morehierarchical and tightly structured models and Oat, networked, informal structures.1FN416^ The informality ofloose networks and the safety of incumbent organizations draw different people, with different personalities andvalues; working across these differencesis not always easy.In looking at the Wikileaks case,it is difficuh toseparate out how much of the difficulties in the interface were systemic and how muchafunction of interpersonal antipathy,Assange's personality,and the ^3^6 Times'ambivalence about working withWikileaks.1^FN417^ Inthinking of the events asacase study,it is important not to allow these factors to obscure the basic insights: collaboration is necessary,it is mutually beneficial,and it is hard.The networked fourth estate will be made up of such interaction and collaboration, however difficult it maybe initially. The major incumbents will continue to play an important role as highly visible, relatively closed organizations capable of delivering much wider attention to any given revelation, and to carry on their operationsunder relatively controlled conditions.The networked entrants,not individually,butasanetwork of diverse individuals and organizations, will have an agility, scope, and diversity of sources and pathways such that theywill,collectively,be able to collect and capture information onaglobal scale that would be impossible for anysingle traditional organization to replicate by itself. Established news outlets find this partnership difficult to ad-^2013 Thomson Reuters.No Claim to Orig. US Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page47just to.Bloggers have beencomplaining for years that journalists pick up their stories or ideas withoutgivingthekind of attributionthey would normallygivetojournalistsinotherestablishedorganizations. Butjust assoftware companies had to leam to collaborate with open source software developers,so too willthis industryhave to developits interactions. We already see outletslike the Guardian well ahead of the curve, integratingwhat are effective expert blogs into their online platform as part of their menu of offerings.Wesee the BBC successfully integrating requests for photographs and stories from people on the ground in fast-moving news situations-although not quite yet solving the problem of giving the sourcesapersonality and voice ofacollaborative contributor.One would assume that the networked components of the fourth estate will follow the same arcthatWikipedia has followed: from something that simply isn't acknowledged, toajoke,toathreat, to an indispensable part oflife.ConclusionAstudy of the events surrounding theWikileaks document releases in 2010providesarich set of insightsabout the weaknesses and sources of resilience of the emerging networked fourth estate. It marks the emergenceofanew model of watchdog function, one that is neither purely networked nor purely traditional,but is ratheramutualistic interaction between the two. It identifies the peculiar risks to, and sources of resilience of, the networked fourth estate inamultidimensional system of expression and restraint, and suggests the need to resolveamajor potential vulnerability-theability ofprivate infrastructurecompaniestorestrict speech withoutbeingbound by ^3^7 the constraints oflegality,and the possibility that government actors will take advantage of thisaffordanceinanextralegalpublic-privatepartnership forcensorship. Finally, itoffersarichly detailedeventstudy of the complexity of the emerging networked fourth estate, and the interaction, both constructive and destructive,betweenthesurvivingelements of the traditional modelandtheemergingelements of thenew. Itteaches us that the traditional,managerialprofessional sources of responsibility inafree press function imperfectly under present market conditions,while the distributed models of mutual criticism and universal skepticalreading, so typical ofthe Net, are far from powerless to deliver effective criticism and self-correction where necessary.The future likely is, as the Guardian put it,^^a new model of co-operation^^ between surviving elementsofthe traditional, mass-mediated fourth estate, and its emerging networked models. 1FN41^^ The transition tothis new model will likely be anything but smooth.IFNal^. lack N. and Lillian R.Berkman Professor for Entrepreneurial Legal Studies, Harvard Law School; Faculty Co-Director, Berkman Center for Internet and Society,Harvard University.lam grateful to Bmce Ackerman, Marvin Ammori, lack Balkin, David Barron, Fernando Bermejo, David Isenberg, Susan Landau, Micah Sifry,Ionathan^ittrain, and Ethan tuckerman for comments and criticisms.l^FNl^. TheodoreRoosevelt, Address of President Rooseveh at theLayingof the Corner Stone of the OfficeBuilding of the House ofRepresentatives:The Man with the Muck-Rake^Apr. 14,1^06),available atVoiees ofDemocracy,http:^^voicesofdemocracy.umd.edu^theodore-roosevelt-the-man-with-themuckrake-speech-text.1FN2^.Adam Levine, Gates: Leaked Documents Don't Reveal Key Intel, But Risks Remain, Cnn^0ct.l6, 2010,^:2^AM),http:^^articles.cnn.com^2010-10-16^us^wikileaks.assessment l^ulian-assange-wikileaks-documents.lFN3j.See media analysis infra, text accompanying noteslO^ 124.^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page4^1FN4^. See detailed description and sourcing infra, notes ^3^^.IFl^^^. U.S. Dep'tofDefense,NewsTranscript,DODNewsBriefingwithSecretary Gates and Adm. MullenfromthePentagon(Nov.30,2010),availableathttp:^^www.defense.gov^Transcripts^Transcript.aspx7TranscriptID^472^. GatessaidataPentagonpressbriefingon the day ofthe release:Now,I've heard the impact of these releases on our foreign policy described asameltdown,asagamechanger, and so on.Ithink—I think those descriptions are fairly significantly overwrought.The fact is,governments dealwith theUnited States because it's in their interest,not because theylike us,not because they trustus,and not because they believe we can keep secrets.Manygovernments—some governments deal with us because they fear us,some because they respect us,most because they need us.Weare still essentially,as has beensaid before, the indispensable nation. So other nations will continue to deal with us. They will continue to workwithus. Wewill continue to share sensitive information with one another. Is this embarrassing7Yes.Is it awkward7Yes.Consequences forU.S.foreign policy7Ithink fairly modest.Id1FN6^.Biden Makes Case ForAssangeAsA^HighTechTerrorist,^The Huffington Post ^Dec. 1^,2010,3:^1PM),http:^^www.huffingtonpost.com^2010^12^1^^joe-biden-wikileaks-assange-high-tech-terroristn7^^^3^.html ^^^If heconspired,to get these classified documents,withamember of theUSmilitary,that'sfundamentallydifferentthan if somebody drops in your lap,^Here David, you'reapress person, here is classified materials ....^Iwouldargue that it's closer to beingahigh tech terrorist than thePentagonPapers.^^).1FN7^.See infra, notesl01103^describing comments ofBobBeckel,William Kristol,and Sarah Palin).IFN^^. Thomas L. Friedman, Op Ed., We've Only Got America A, N.Y. Times, Dec. 1^,2010, at A31, availableat http:^^www.nytimes.com^2010^12^1^^opinion^l^friedman.html; see infra, notes 33^-37^.l^FN^^. Haroon Siddique ^ Matthew Weaver, US Embassy CablesCulprit Should Be Executed, Says MikeHuckabee,guardian.co.uk,Dec.1,2010,http:^^www.guardian.CO.uk^world^2010^dec^01^us embassy cables executed mike huckabee; Nick Collins, WikiLeaks:GuiltyParties^ShouldFace DeathPenalty,^TheTelegraph,Dec.1, 2010, http:^^www.telegraph.CO.uk^news^worldnews^wikileaks^^l72^16^WikiLeaks-guilty-parties-shouldfacedeath-penalty.htmLl^FNlOj.See infra section II.A,II.D.2,II.D.3.See infra Koh,note7^;as well as organizational attack.IFNll^. See WikiLeaks, Wikipedia,http:^^en.wikipedia.org^wiki^Wikileaks^lastvisitedFeb. 23, 2011). 1 usethis source advisedly; following the citation lists in the article suggests that it isaparticularly good entry pointinto the history ofWikileaks.1^FN12^WikiLeaksTimeline,TheGlobeandMail,Decwww.theglobeandmail.com^news^technology^wikileakstimeline^articlel^37131.14,2010,http:^^^FN13^IdlFN14^.SeeWikiLeaksTimeline,supra note 12,at 200^tab; see alsoThomasClabum, Apple's Controversial2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCL.L.Rev311Page4^iPhone Developer Agreement Published, InformationWeek (Oct. 2^, 200^, 3:^0 PM), http:^^www.informationweek.com^news^personaltech^smartphones^showArticle.jhtml7articlelD^211601121.IFNl^^.Eric Schmitt^MichaelR. Gordon, CrossBorder Chases From Iraq O.K.,Document Says, N.Y.Times,Feb 4,200^,atA101FN16^. MikeMesnick, DebunkingThe Faulty PremisesOfThePirate BayCriminalizationTreaty, Techdirt^May 23 200^,6:21PM),http:^^wwwtechdirtcom^articles^200^0^23^1203101212 shtmL1FN171. Amnesty Announces Media Awards 200^ Winners, Amnesty Int'l UK (lune 6, 200^), http:^^amnesty.org.uk^news details.asp7NewslD^1^227.IFNl^^. Winners of Index on Censorship Freedom of Expression Awards Announced, Index on Censorship^Apr22,200^),http:^^www.indexoncensorship.org^200^^04^winners-of-index-on-censorshipfreedom-of-expression-award-announced.IFNl^^.WikiLeaksTimeline,supra note 12,at 200^ tab.Thelist includes: in lanuary,telephone intercepts ofPeruvianpoliticians andbusinessmeninvolvedinanoil scandal; inFebruary, 6,7^0Congressional ResearchService reports; in March,aset of documents belonging to Barclay's Bank; in luly,areport relating toanuclearaccident at thelranianNatanz nuclear facility;andinSeptember,intemaldocumentsfromKaupthingBankofIceland,showing what appeared to be self-dealing ofbank owners.lFN20j. See Ben Dimiero,FO^LEAKS: Fox Boss Ordered Staffto Cast Doubt on Climate Science, County Fair^Media Matters for America) ^Dec. 1^,2010,^:0^ AM), http:^^mediamatters.org^blog^2010121^0004; AndrewC Revkin, Climategate Fever Breaks, Dot Earth (N Y Times) (luly 7, 2010, ^:02 AM), http:^^dotearth.blogs.nytimes.com^2010^07^07^gate-fever-breaks.l^FN21LThe report was originally availableon Wikileaksitself. lulian Assange,U.S. IntelligencePlannedtoDestroyWikiLeaks,WikiLeaks ^Mar. 1^,2010).Since the assault onWikileaks has made access to the site difficult,that particular report can more easily be accessed elsewhere as ofFebruaryl^,2011:MichaelD.Horvath,U.S. Army Counterintelligence Ctr., Wikileaks.org-An OnlineReferencetoForeignlntelligenceServices,Insurgents, or Terrorist Groups7 2 ^Mar. 1^, 200^) l^hereinafter Pentagon Reports, available at http:^^www.scribd.com^doc^2^3^^7^4^UslntelWikileaks,orinPDFformatathttp:^^www.wuala.com^WikiLeaks^new^us-intel wikileaks.pdf.1FN22^.Stephanie Strom,Pentagon SeesaThreat from Online Muckrakers,N.Y.Times,Mar.l7,2010, a t A l ^ .lFN23LId1^FN24^.That report was apparently an early instance of collaboration betweenWikileaks andamajor news outlet; Assange explains that the report was published in collaboration with NewYork Times reporter Eric Schmitt.Annotationsby lulian AssangetoFeb. ^,2011 draft ofthis Article(Mar 10, 2011)^onfile withauthor)l^hereinafter Assange Annotations^.1FN2^^.Pentagon Report, supra note21,at 2.1FN26^.Id.at^.These are descriptions that largely appear to take Wikileaks'own self-description as true.^ 2013 ThomsonReuters.NoClaimtoOrig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page^O1FN27^ ld at2lFN2^jIdat3lFN2^^Id^FN30^1dat6^quotingNcwYorl^ Times C o v U n i t e d States, 403 CS713.717^1^71))1FN31^.Id.at^^^^The foreign staff writer for Wikileaks.org,lulian Assange,wrote several news articles,coauthored other articles, and developed an interactive data base for the leaked documents. In addition, otherWikileaks.org writers and various writers for other media publications wrote separate news articles based on theleaked information posted to theWeb site.^^).1FN321 I d a t l ll^FN33^1dlFN34^1datl^1F1^3^^. A search in the Lexis-Nexis ^^News, All^^ database forarticles published fromlanuary 1, 2007 untilDecember31,200^ using the term^^Wikileaks^^ yielded 407 results.A^^focus^^search for ^^Assange^^ yielded tenresults.1FN36L Pentagon Report, supra note21,at 2.lFN37^1d1F^3^^.David Sarno,Burst ofLeaks Getting Slippery,L.A.Times,Apr. 16,200^,atEl.1FN3^^.Pentagon Report,supra note21,at 3.Assange notes that this is an overstatement of inaccuracy; his annotations suggest that l ^ o f received documents fail verification and are not posted,while no documents postedto date onWikileaks have failed verification.Assange Annotations,supra note 24.1^FN40^.Pentagon Report, supra note21,at3.1^FN4I^. Wikileaks itselfhas provided no public statement about the source.Manning was charged by the Armyonly with the first release.Glenn Greenwald of Salon makesapowerful case that the evidence against Manningoriginates in ahighly unreliable source. Glenn Greenwald, The Strange and Consequential Case of BradleyManning,AdrianLamoandWikileaks, Salon^lune1^,2010,^:20AM), http:^^www.salon.com^news^opinion^glenn greenwald^2010^06^1^^wikileaks Ihereinafter Greenwald, Strange andConsequentialL For the background story,see Chris McGreal,HackerTums in US Soldier over WikiLeaks IraqVideo,TheGuardian,lune^,2010,at1^,availableathttp:^^www.guardian.co.uk^world^2010^jun^07^hacker wikileaks-iraq-video-manning. The underlying materials Greenwald discusses include Kevin Poulsen ^ Kim better, Suspected Wikileaks Source Described Crisis of Conscience Leading to Leaks, Threat Level ^Wired) ^lune10, 2010, ^:41 PM), http:^^www.wired.com^threatlevel^2010^06^conscience.lFN42j.Elizabeth Bumiller,Video Shows U.S.Killing ofReuters Employees, N.Y.Times, Apr. ^,2010, atA13,available at http:^^www.nytimes.com^2010^04^06^world^middleeast^06baghdad.html7hp.2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146Har^CRCLLRev311Pagell1FN43^. Collateral Murder, WikiLeaks (Apr^, 2010). Full version available at http:^^www.youtube.com^watch7v^lS^sxRfU-ikl^hereinafter Collateral Murder, full versions. Edited version available at http:^^www.youtube.com^watch7v^^r^PrfnU3G0 1hereinafter Collateral Murder, edited versions.lFN44^.SeeChrisMcGreal, Wikileaks Reveals Video ShowingUS Air Crew Shooting Down Iraqi Civilians,TheGuardian,Apr.6,2010,at2,availableathttp:^^www.guardian.CO.uk^world^2010^apr^0^^wikileaksus-army-iraq-attack;WikiLeaksPostsVideoof^US Military Killings'in Iraq, BBC^Apr. 6, 2010), http:^^news.bbc.co.uk^2^hi^americas^^603^3^.stm.1FN4^^.Greenwald,Strange and Consequential,supra note41.1FN46^. GlennGreenwald,The Inhumane Conditions of Bradley Manning's Detention,Salon (Dec. 1^,2010,1:1^ AM), http:^^ www.salon.com^news^opinion^glenn greenwald^2010^12^14^manning^index.html IhereinafterGreenwald,InhumaneConditions^;IoshuaNorman,Bradley Manning, Alleged WikiLeaks Source,inSolitaryConfinement, CBS News ^Dec 1^,2010), http:^^www cbsnews com^^301^03^43 162 2002^724^03^43 htmLlFN47j. SeeRadioBerkman 171: Wikileaks and tbeinformation Wars,BerkmanCtr. forlnternet^Soc'y atHarvardUniv(Dec^,2010),http:^^wilkins.law.harvard.edu^podcasts^mediaberkman^radioberkman^files^2010-12-0^004I^LESSIGTRANSCRlPTpdf(transcriptofpodcast)l^FN4^^.Iustin Fishel, Military Raises Questions About Credibility of Leaked IraqShootingVideo, Fox News^Apr7,2010),http:^^www.foxnews.com^politics^2010^04^07^military-raises-questions-credibility leaked iraq shooting video.1FN4^^.The helicopter circled the struggling,injured man,as one of the pilots is heard saying,^^Come on buddy,all you gotta do is pick upaweapon.^^ Collateral Murder, full version, supra note 43,at 6:^^7:03.IFN^Oj.Collateral Murder,fullversion,supra note 43,at 2:30-2:42;CollateralMurder,edited version, supranote43,at4:0^4:17IFl^^lL The edited version excludes the moment when the pilot hears that the ground troopshave found awounded girl and says,Ah, damn, oh well,^^ in an aural shrug. Collateral Murder, full version,supra note43,at17:11. Similarly,anunrelatedincident,fifteenminuteslater and caught as part of thefullcut,clearlydisplaysthe same gunship's crew shootinghellfiremissiles into abuildingjust as an unarmed civilian walks by thehouse,and again describesin conversation among the pilots another missilehitting the same building as threeapparently unarmedcivilians walkthrough the rubble looking forsurvivors. Collateral Murder, full version,supra note 43, at 34:00. At least some individuals walking into the building before that point appear unarmed.These much more damning images were not part ofthe edited version, presumably because they were not part ofthe story about shooting the Reuters crew. An advocacy piece aiming to besmirch the U.S. military wouldclearly have highlighted those unambiguous examples ofcallous disregard for human life by the same gun crew,minutes after they had seen that they shot and injured two children in the course of trying to prevent the evacuation of an unarmed person they had injured in their prior volley.lFN^2j.At minutel6:00 of the full video,the pilot reiterates seeing the RPG as the reason to ask for permissiontofire; at minute 1^:22 26 of that video,one of the ground troops is heard saying,^^I got one individual lookslikehe'sgotanRPGroundlayingundemeathhim.^^CollateralMurder,full version,supranote43,at 16:00,2013 ThomsonReuters.NoClaimtoOrig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page ^21^:22 26.lFN^3j. SeeDavid Leigh, Afghanistan WarLogs: Howthe GuardianGotthe Story, TheGuardian,Iuly 26,2010, at 2,available at http:^^www.guardian.CO.uk^world^2010^jul^2^^afghanistanwar-logs-explained-video.1FN^4^. SeeDavidLeigh^LukeHarding, WikiLeaks: Strained Relations, Accusations-andCrucialRevelations.TheGuardian,Feb.1,2011,at16,availableathttp:^^www.guardian.CO.uk^world^2011^jan^31^wikileaks-embassy-cables-publieation; Bill Keller, Dealing withAssange and theWikiLeaks Secrets,N.Y.Times,Ian.26,2011,at MM32,later online version of article available at http:^^www.nytimes.com^2011^01^30^magazine^30Wikileakst.html7r^l^pagewanted^all; MarcelRosenbach^HolgerStark, An InsideLook at Difficult Negotiations with lulian Assange,SPIEGEL,Ian.2^,2010, available at http:^^www spiegel.de^international^world^0,l^l^,742163,00.htmLIFN^^j. Assange explains that posting thematerialsincluded removing about onefifth of thematerials to prevent potential harm to individuals mentioned in them,processing to provide distribution and statistical analyses,and in particular that he himself identified the documents relating to one of the most significant finds, the description ofTaskforce 373,aforce that undertook targeted assassinationsin Afghanistan. Assange Annotations,supra note 24.Forapublication of this story,see Nick Davies,AfghanistanWarLogs:Task Force 373—SpecialForces Hunting Top Taliban, The Guardian, luly 2^, 2010, at 4, available at http:^^www.guardian.CO.uk^world^2010^jul^2^^taskforce 373 secretafghanistan-taliban.1^FN^6^.C.I.Chivers etal.,View is Bleaker than Official Portrayal ofWar in Afghanistan,N.Y.Times, Iuly2^,2010, atAl,available at http:^^www.nytimes.com^2010^07^26^world^asia^26warlogs.html; Nick Davies^DavidLeigh, AfghanistanWar Logs: Massive Leak of Secret Files ExposesTruth of Occupation,The Guardian,luly26,2010,ati,available at http:^^www.guardian.CO.uk^world^2010^jul^2^^afghanistan-war-logs-military-leaks.1FN^7^.Eric Schmitt, In Disclosing Secret Documents,WikiLeaks Seeks^Transparency,^N.Y.Times,luly26,2010, at A l lIF^^^^. Terence Burlij, The Moming Line: Leaked Afghanistan Field Reports to Shape Political War Debate AtHome,TheRundown^PBSNewshour)^luly26,2010,^:30AM),http:^^www.pbs.org^newshour^rundown^2010^07^themoming-lineleaked-afghanistanfieldreportsto-shapepolitical-war-debate-at-home.html.IFN^^j Adam Brookes, Huge Wikileaks Release Shows US ^Ignored Iraq Torture,^BBCNews^Oct 23, 2010),http:^^www.bbc.co.uk^news^world-middle-east-1161131^.lFN60^.Levine, supra note 2.1FN61^. Nancy A. Youssef,OfficialsMay be Overstating the Danger from WikiLeaks,McClatchy^Nov. 2^,2010),http:^^www.mcclatchydc.com^2010^1L2^^104404^officials-maybe-overstating-the.htmLlFN62j.See Adam Levine,TopMilitary Official: WikiLeaks Founder MayHave^Blood^on His Hands,CNN(Iuly2^, 2010), http:^^www.cnn.comi^2010^US^07^2^^wikileaksmullengates^index.htmLABBC report attributedasimilar statement to Defense Secretary Robert Gates.Brookes,supra notel^FN63^The Iraq Archive: The Strands ofaWar,NYTimes,Oct 23,2010, a t A l .^2013 Thomson Reuters. No Claim to Orig. US Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page ^31FN64^.Hans Hoyng etal.,TheWikiLeaks Iraq Logs:AProtocol of Barbarity,Spiegel Online, Oct. 2^,2010,http:^^www.spiegel.de^international^world^O,l^l^,724026,00.html.1^FN6^^. Brookes, supra note1FN66^.For an example, see SabrinaTavemise^AndrewW.Lehren, Detainees Fared Worse in Iraqi Hands,Logs Say,NYTimes,Oct 23, 2010, at A^l^FN67^.^^Mr.Morrell, of the Pentagon, told the BBC that the leak wasa^travesty^ which provided enemies oftheWest with an^extraordinary database to figure out how we operated.He said the cache of documents contained ^nothing new^ with regards to fundamental policy issues. And he once again asked Wikileaks to removethe documents from the web and return them to the Department ofDefense.^^ Brookes,supra notel^FN6^^Id.lFN6^^.IohnF.Burns^RaviSomaiya,WikiLeaks Founder on the Run,Trailed by Notoriety,N.Y.Times,Oct.23,2010, available at http:^^www.nytimes.com^2010^10i^24^world^24assange.html.lFN70^1d1FN7I^.See Strom, supra note 22 (^^l^A^ tiny online source ofinformation and documents that governments andcorporations around the world would prefer to keep secret.^^).1FN72^. Friedman, supra note ^.1FN73^ Scott Shane, Keeping Secrets WikiSafe,NYTimes, Dec 12, 2010, at WK1;US Embassy Cables: TheBackground, BBC News (Nov.2^,2010), http:^^www.bbc.co.uk^news^world-us-canada-11^62320.1FN741. Shane, supra note73; David Leigh, How2^0,000 US Embassy CablesWereLeaked,The Guardian,Nov.2^,2010, at 2,available at http:^^www.guardian.co.uk^world^2010^nov^2^^ow-us-embassy-eablesleaked.1FN7^^. Letter from Harold Hongju Koh, Legal Advisor, U.S. Dep't of State, to lennifer Robinson, attomey forlulianAssange(Nov27,2010),availableathttp:^^media.washingtonpost.com^wpsrv^politics^documents^Dept of^State Assange letter.pdf.1^FN76^ l^L^SC^7^3(d)^2006)1^FN77^.Pentagon spokesman GeoffMorrell used language very similar to that which would be used by the StateDepartment's legal counselafew months later, claiming that the documents threaten our forces and Afghan civilians, and demanding their retum.U.S.Dep't of Defense, NewsTranscript,DODNews Briefing with GeoffMorrellfromthePentagon^Aug.^,2010),availableathttp:^^www.defense.gov^transcripts^transcript.aspx7transcriptid^^3001.1F1^7^^. See infra note 14^; Keller, supranote ^4; Marcel Rosenbach ^ Holger Stark, Lifting the Lid onWikiLeaks: An Inside Look at Difficult Negotiations with lulian Assange, Spiegel Online, Ian. 2^, 2011, http:^^www.spiegel.de^intemational^world^0,l^l^,742163,00.htmLl^FN7^^.BrettI.Blackledge^IameyKeaten,RespectedMedia Outlets Collaborate with WikiLeaks, ABC News(Dec.3,2010), http:^^abcnews.go.com^Business^wireStory7id^l2302107;Shane, supra note73.2013Thomson Reuters.No Claim to Orig. us Gov.Works.46 HVCRCLLR 31146 Harv. C.R.-C.L. L. Rev. 311Page 54[FN80]. See infra text accompanying notes 108-124.[FN81]. Lists of the relevant cables are maintained by several news organizations. One that tracks releases by awide range of organizations is the Guardian. See WikiLeaks Embassy Cables, The Key Points at a Glance,guardian.co.uk,Dec.7,2010,http://www.guardian.co.uk/world/2010/nov/29/wikileaks-embassy-cables-key-points. A shorter list is maintained bythe BBC. See At a Glance: Wikileaks Cables, BBC News (Dec.18, 2010), http://www.bbc.co.uk/news/world-us-canada-l 1914040.[FN82]. Elizabeth Dickinson, The First WikiLeaks Revolution7, Foreign Policy (Jan. 13, 2011), http://wikileaks.foreignpolicy.com/posts/2011/01/13/wikileaks_and_the_tunisia_ protests; Scott Shane, Cables fromAmerican Diplomats Portray U.S. Ambivalence on Tunisia, N.Y. Times, Jan. 16, 2011, at A14.[FN83]. Leigh & Harding, supra note 54, at 16.[FN84]. See, e.g.. At a Glance: Wikileaks Cables, supra note 81; Cable 09STATE15113, WikiLeaks, 15113.html #par 15 (last visited Feb. 19, 2011).[FN85]. In his annotations to the February 8, 2011 draft of this article, Julian Assange explained that the "[n]ewsvalue of this cable was two fold 1) to further show that US diplomats were being illegally used to conduct foreign spying (it is explicitly stated in the cable to keep such inquiries secret from the host government), and to reveal 'assets' the US might fight a war over or otherwise use its diplomatic muscle to control." Assange Annotations, supra note 24.[FN86]. In his annotations to the February 8, 2011 draft of this article, Julian Assange reports that this releasewas done in coordination with the Times of London, rather than with one of the five main organizations that collaborated on the release. Id.[FN87]. WikiLeaks Publishes List of Worldwide Infrastructure 'Critical' to Security of U.S., MSNBC.com(Dec. 6, 2010), http://www.msnbc.msn.com/ id/40526224/ns/us_news-wikileaks_in_security.[FN88]. David Smith, Morgan Tsvangirai Faces Possible Zimbabwe Treason Charge, guardian.co.uk, Dec. 27,2010, http:// www.guardian.co.uk/world/2010/dec/27/wikileaks-morgan-tsvangirai-zimbabwe-sanctions.[FN89]. The cable was posted to the Guardian on December 8, 2010 at 21:30 GMT. See US Embassy Cables:Tsvangirai Tells US Mugabe Is Increasingly 'Old, Tired and Poorly Briefed,' guardian.co.uk, Dec. 8, 2010, http:// www.guardian.co.uk/world/us-embassy-cables-documents/241595. It was posted to Wikileaks that sameday, apparently about an hour later. See Cable 09HARARE1004, WikiLeaks (Dec. 8, 2010, 22:31 GMT), Assange confirms that the release was coordinated andsimultaneous. Assange Annotations, supra note 24. The release appears to fall within the practice of followingthejudgment of the mainstream media organizations rather than releasing independently.[FN90]. In his annotations to the February 8, 2011 draft of this article, Assange explains:This is absolutely false. I have never used "poison pill," nor ever made a threat. I have stated on manytimes that we have distributed backups, to insure that history will not be destroyed. I f we are not in a position tocontinue publishing ourselves, we, in understanding the significance of history, will release the passwords tothese backups of future publications to ensure that others can take up the work. The disincentive is not of aI 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146Harv.C.R.CLLRev311Page 55threatening nature,but rather tomakemassarrests,sabotage or assassinationspointlessexercisesinprior restraint.Assange Annotations, supra note 24.This annotation suggests no misunderstanding.The term "poison pill"impliesameasure taken byapotential target of hostile action(originally,ashareholder plan intended to dilutethe holdings of the winner inapotential hostile corporate takeovers battle in the 1980s)to make itself toxic tothe predator consuming it.This appears to be the implication ofthis explanation as welLlFN91^NearvMinnesota,283 CS 697,716 (1931)1FN92L See JackShafer,TheExorcismof theNew YorkTimes, Slate (Oct 20,2010,6:52 PM), http://www.slate.com/id/2128429.1FN93^.Judith Miller Criticizes Julian Assange For NotVerifying Sources,Video Cafe (Jan.2,2011,7:59 AM),http://videocafe.crooksandliars.com/scarce/judith-miller-criticizesjulianassangenot.lFN94j. Glenn Kessler, Clinton, in Kazakhstan for Summit, Will Face Leaders Unhappy over WikiLeaks Cables,Wash.Post,Nov.30,2010,availableathttp://www.washingtonpost.com/wpdyn/content/article/2010/ll/30/AR2010113001095 htmL1F1^95^.Biden Makes Case For Assange AsA'HighTechTerrorist,'supra note 6.lFN96^.DODNews Briefing, supra note5.lFN97j.Holger Stark^MarcelRosenbach,'WikiLeaks Is Annoying, But NotaThreat,'Spiegel Online, Dec.20,2010,http://wwwspiegel.de/intemational/germany/0,1518,735587,00.htmL1FN98^.Fox News'Bob Beckel Calls For'Illegally'Killing Assange:'ADead Man Can't Leak Stuff (VIDEO),TheHuffingtonPost(Dec7,2010,5:50PM),http://www.huffingtonpost.com/2010/12/07/fox news-bob-beckel calls n 793467.html.lFN99^SeeidI^FNIOO^ Michael O'Brien, Republican Wants WikiLeaks Labeled As Terrorist Group, The Hill (Nov 29,2010,8:38AM),http://thehill.com/blogs/blog-briefing-room/news/130863-top-republican-designate-wikileaks-as-a-terrorist-org.IFNIOI^. William Kristol, Whack Wikileaks, The Weekly Standard (Nov 30, 2010, 8:25 AM), http://www.weeklystandard.com/blogs/whack wikileaks 520462.htmLlFN102^Id1FN103^. Peter Grier, WikiLeaks' Julian Assange, Does Sarah Palin ThinkCIA Should 'Neutralize' Him7,ChristianSciMonitor,Nov.30,2010,http://www.csmonitor.com/USA/Politics/TheVote/2010/1130/WikiLeaks-Julian-Assange-Does-Sarah-Palin-thinkClAshouldneutralize-him.^1FN104^.Harold Koh, Legal Adviser,U.S.Dep't ofState, Address at the Annual Meeting of the American Society oflntemational Law (Mar. 25,2010),available at http://www.state.gOv/s/l/releases/remarks/139119.htm.2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 561FN105^. As the President put it explicitly, in response to questions about investigating the torture of Spanishcitizens at Guantanamo: "Tmastrong believer that it's important to look forward and not backwards,and to remind ourselves that we do have very real security threats out there."Sam Stein, Obama On SpanishTorture Investigation: I Prefer To Look Forward, The Huffington Post (Apr. 16, 2009, 11:51 AM), http://www.huffingtonpost.com/2009/04/16/obama-on-spanish-torture_n 187710.html (reporting onaCNN en Espanol interview with President Obama on April 15, 2009).1FN106^.See, e.g.,ErvingGoffman, Frame Analysis(1974).1FN107^ United Statesv Progressive, liic,467 FSupp 990 (WD Wis 1979); Howard Morland,TheHbombSecret,The Progressive, Nov.1979,at3,available at http://www.progressive.org/images/pdf/1179.pdf.1FN1081.The data was collected from the LexisNexis database on January 29,2011.The date range searchedwas November 28,2010 to January 14, 2011.The dataset was "Major Newspapers."The search string was purposefully broad: "wikileaks w/25 ((thousands or 250,000)/7 cables)."The resulting 353 reports were manuallycoded to exclude non-U.S.publications,and then identified as"thousands"or"250,000"released;"correct"or"ambiguous."1FN109^. Paul Richter, U.S. Tries to Contain Damage; WikiLeaks Cables Reverberate in Global Hot Spots, Chi.Trib,Nov 30, 2010, atC12;USRushes to Reassure Edgy Allies,LATimes,Nov 30, 2010, a t A lIFNllO^.Editorial, Undiplomatic Tales; On the WikiLeaks Revelations, S.FChron.,Nov.30, 2010, atA17.l^FNlll^.ClintonTreads Carefully in Leading Massive Damage-Control Campaign,Wash. Post, Nov.30, 2010,atA131FN112^. The Associated Press in particular was careful not to say that 250,000 cables were released, but rathersaid that Wikileaks "began publishing" the 250,000 documents.This was true at the time, but was coded in thisstudy as "ambiguous"relative to the much clearer stories explaining the limited nature of the release.See,e.g.,David Stringer, British Court Grants Bail toWikiLeaks'Julian Assange,San Jose Mercury News,Dec. 14,2010.lF^113^.KristenSchorsch, Leak: Afghan President's Brother Loves Lakeview,Chi.Trib.,Nov.29,2010, at C3(correctly categorized in the data set).1FN114^. CableLeaks: U.S. UrgedtoHit Iran; Latest WikiLeaks Release Also SaysU.S. EnvoysSpiedonCounterparts, Chi.Trib.,Nov.29,2010, atCl (incorrectly categorized in the dataset as "thousands").1FN115^.Return of WikiLeaks;White House Says New Round of Document Releases Puts Lives at Risk,Chi.Trib.,Nov.29,2010, at3(categorized as ambiguous).1FN116J. Marisa L. Porges, 'We Cannot Deal with These People': WikiLeaks Shows True Feelings onGuantanamo,ChristianSci.Monitor,Nov.30,2010,http://www.csmonitor.com/Commentary/Opinion/2010/1130/We-cannot-deal-with-these-people-WikiLeaks-shows-true-feelings-on-Guantanamo.|^FN117^. Sara MillerLlana, Ecuador and VenezuelaCompetetoPraiseWikiLeaks'JulianAssange,ChristianSci. Monitor,Nov. 30,2010 ("The Venezuelanpresidentseemsto seize every chancetocriticizetheUnitedStates, and he didn't missabeat by praising the'bravery'of controversial websiteWikiLeaks-which is releas-^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 57ingacache of250,000 classified us diplomatic cables—and calling for the resignation ofUS Secretary of StateHillary Clinton.").That is. Christian Science Monitor continued to use the "this hurts America"frame.1FN118^ Ariel 2^irulnick,WikiLeaks: What the World is Saying, Christian Sci Monitor,Nov 30, 2010 ("ThelatestWikiLeaks trove of 250,000 diplomatic cables,obtained in advance by five news outlets,has generatedenough fodder in the US alone to occupyAmerican readers.But people all over, from Germany toLebanon toAustralia, are alsotalking about the sometimestroubling, sometimes mundane cablesthatWikiLeaksfounderlulian Assange is gradually releasing for public consumption.").1FN1191.CBS Evening News, Saturday Edition(CBS television broadcast Jan8, 2011).1FN120^ Sunday Morning(CBS television broadcast Dec. 5,2010).lFN121^The Early Show(CBS television broadcast Nov 29,2010)1FN122^ NBC Nightly News (NBC television broadcast Dec 5, 2010).l^FN123^Today (NBC television broadcastDec 24, 2010)1FN124^. Good Moming America(ABC television broadcast Dec.1,2010).1FN125^ Keller, supra note 54lFN126^.Bums^Somaiya, supra note 69.1FN127^. Data collected and analyzed using Media Cloud. See Media Cloud, http://www.mediacloud.org.1FN128^. DianneFeinstein,Op-Ed., Prosecute Assangeunder the Espionage Act, Wall St. J.,Dec. 7,2010,available at http://online wsj com/article/SB100014240527487039890045756532806263351FN129^. See supra, notes 76 77 andtext accompanying notes (describing how thelanguage used in boththePentagon and State Department documents,concerning threat toU.S.forces,illegality of origin, and demand forretum are consistent with laying the foundations of the elements of an offense under the Espionage Act againstaperson possessing documents).lFN130^.GeoffreyR. Stone,PerilousTimes: FreeSpeechin Wartimes FromtheSedition Actof 1789 totheWar onTerrorisml53 (2004)lFN131^Masses Publ'gCovPatten,244 F 535,542 43 ( S D N Y 1917)lFN132^SeeStone,supranote 130, atl71 (quoting ShaffervUnited States, 255 F 886 (9th Cirl919))lFN133^1datl71-72lFN134^StokesvUnitedStates.264F18,26(8thCirl920)^FN135^.Stone, supra note 130, atl73.1FN136^ ld(citing United StatesvMotion Picture Film "The Spirit of'76." 252 F 946, 947 48 (DCal 1918))^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 5811N137^ Revive "Spirit of '76," Film Barred in 1917, N Y. Times, July 14, 1921, available at http://querynytimescom/mem/archivefree/pdf7res^F50D14FD3C5AlB7A93C6A8178CD85F458285F9;seealso Timothy Noah, The Unluckiest Man in Movie History, Slate (June 13, 2000, 10:13 AM), http://www.slate.com/id/1005493.1FN138^ Harding Frees Debs and 23 Others Held for War Violations,NY Times, Dec 24, 1921,available athttp://query.nytimes.com/mem/archivefree/pdf7res^9B0DE2D71539E133A25757C2A9649D946095D6CF.1^FN139^ Charlie Savage, BuildingACase For Conspiracy By Wikileaks, N.Y.Times, Dec. 16, 2010, a t A l .|^FN140^.Charles Arthur, WikiLeaksUnderAttack:TheDefinitiveTimeline,guardian.co.uk, Jan.8,2011,http://www.guardian.co.uk/media/2010/dec/07/wikileaks-under-attack-definitive-timeline.1^FN141^. The 2008 Pentagon report identified China, Israel, and Russia as having developed and deployed denial-of-service attack capabilities against terrorist or dissident websites.Pentagon Report, supra note21,at21.Inhis annotations to the February 8,2010version of this article,Assange expresses the belief that the scale of theattack, together with the fact that "It^here is almost no-one in the capable computer underground that is opposedtoWikiLeaks on political or philosophical grounds" supports the inference that the attacks were statebased. Assange Annotations,supra note 24.1FN142^. Nathan Olivarez-Giles, 'Hacktivist' Takes Credit for WikiLeaks Attacks via Twitter, L.A. Times(Nov30,201L^^1^PM),http://latimesblogs.latimes.com/technology/2010/ll/hacktivist-takescreditfor-wikileaks-attacks-via-twitter.htmL1FN143^. Craig Labovitz, Wikileaks Cablegate Attack, Arbor Networks (Nov. 29, 2010, 1:17 PM), http://asert.arbornetworks.com/2010/ll/wikileakscablegate-attack;Craig Labovitz, Round 2 DDoS againstWikileaks,ArborNetworks(Nov30,2010,4:51PM),http://asert.arbornetworks.com/2010/ll/round2 ddos versus wikileaks; Ethan tuckerman. If Amazon Has SilencedWikileaks. ,MyHeart'sinAccra(Dec.01, 2010,6:38PM), http://www.ethanzuckerman.com/blog/2010/12/01/if-amazon-has-silenced-wikileaks,l^FN144^.Zuckerman, supra notel43.lFN145^.Arthur,supra note 140.1FN146^. EwenMacAskill, WikiLeaks WebsitePulled by Amazon afterUSPolitical Pressure,The Guardian,Dec.2,2010,at11,availableathttp://www.guardian.co.uk/media/2010/dec/01/wikileaks-website-cables-servers-amazon.Most readers will knowAmazon from its e-commerce site; Amazon is alsoamajor provider of consumergrade cloud computing platform services,and Wikileaks was using its platform to host the cables.lFN147^.AmazonWeb Services, http://aws.amazon.com/message/65348:It's clear that WikiLeaks doesn't own or otherwise control all the rights to this classified content. Further, it is not credible that the extraordinary volume of250,000 classified documents that WikiLeaks is publishing could have been carefully redacted in suchaway as to ensure that they weren't putting innocent peopleinjeopardy.... IW^hen companies or people go about securing and storing large quantities of data that isn't rightfully theirs,and publishing this data without ensuring it won't injure others,it'saviolation of our terms of ser-^2013Thomson Reuters. No Claim to Orig. us Gov.Works.46HVCRCLLR31146Har^CRCLLRev311Page59vice....1FN148^. SeeMichaelD.Bimhack^NivaElkin-Koren,ThelnvisibleHandshake: TheReemergenceoftheState in the Digital Environment,8Va.lL^Tech 6,48 53 (2003).1^FN149^. Arthur, supra note 140.lFN150^1d.1FN151^.Josh Halliday^AngeliqueChrisafis,WikiLeaks: France Adds to US Pressure to BanWebsite, guardian.co.uk, Dec. 3,2010, http://www.guardian.co.uk/media/2010/dec/03/wikileaks-france-ban-website.1FN152^. Andy Greenberg,AppleNixesWikileaks iPhone App. Will Google Follow7,Forbes (Dec.21,2010,6:33AM),http://blogs.forbes.com/andygreenberg/2010/12/21/apple-nixes-wikileaks-iphone-app-will google-follow (quoting anApple spokesperson as saying that the app was removed because"la^pps must comply with alllocal laws andmaynotputanindividualortargetedgroupinharmsway");AlexisTsotsis,AppleRemoves Wikileaks AppfromAppStore,TechCrunch(Dec.20,2010),http://techcrunch.com/2010/12/20/apple-removes-wikileaksappfromappstore.1FN153^.Arthur, supra notel40(alteration in original) (internal quotation marks omitted).1FN154^.See Letter from Harold Hongju Koh, supra note75.1FN155^.See infra. Part IV.The demand made in the letter, coupled with the assertion of injury,mayitselfhavebeen crafted to createapotential violation of the Espionage Act.See supra notes 76-77 and accompanying text.1FN156^. Arthur, supra note 140.lFN157^Id1^FN158^. Tom Murphy, Bank ofAmerica Stops Handling WikiLeaks Payments, Yahool Finance (Dec. 18,2010), http://finance.yahoo.com/news/Bank-of-America-stops-apf-3526927234.htmLAstatement from the banksaid that "It^his decision isbased upon our reasonable belief thatWikiLeaks may be engaged in activities thatare,among other things,inconsistent with our internal policies for processing payments."Id.In the case of Bankof America, since it was rumored at the time to be the potentialtarget of leaked materials held by WikiLeaks,the other financial institutions'decision probably gave cover to the bank's own need to seeWikiLeaks deterredand shut down, rather than response to pressure.l^FN159^.RyanSingel,KeyLawmakersUpPressureonWikiLeaksand Defend Visa and MasterCard,ThreatLevel(Wired)(Dec9,2010,3:27PM),http://www.wired.com/threatlevel/2010/12/wikileaks-congress-pressure.1FN160^.David deSola,U.S.AgenciesWamUnauthorized Employees Not to Look atWikiLeaks,CNN (Dec.4,2010,3:05 AM),http://edition.enn.com/2010/US/12/03/wikileaks.access.warning/index.htmL1FN161^.Id.(quoting Library ofCongress spokesman Matthew Raymond).1^FN162^.Id.('"Wehave put outapolicy saying Department ofDefense military,civilian and contractor person-^2013 Thomson Reuters. No Claim to Orig. US Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page60nel should not access theWikiLeaks website to view or download the publicized classified information,'Department ofDefense spokesman Maj.Chris Perrine told CNN.").1FN163^. EmanuellaGrinberg, WillReading WikiLeaksCostStudents Jobs WiththeFederalGovernment7,CNN(Dec8,2010),http://articles.cnn.com/2010 12 08/justice/wikileaks.students 1 wikileaks-security-clearance-students.|^FN164^ See DerrickTDortch, Job Hunters Should Steer Clear ofWikiLeaks Site, WashPost,Dec9,2010,available at http://www.washingtonpost.com/wp dyn/content/article/2010/12/08/AR2010120806796 htmL1FN165^.OurLeadership:DerrickT.Dortch,President,Thetp://www.diversagroup.com/DerrickTDortchBio.html(lastvisitedFeb.l9,2011).DiversaGroup,ht-1FN166^.Dortch, supra notel64.1F^167^.Kevin Poulsen^KimZetter,ICan't Believe What I'm Confessing toYou, Threat Level (Wired)(lune10, 2010, 9:01PM), http://www.wired.com/threatlevel/2010/06/wikileakschat.lFN168^Seeidl^FN169^.See,e.g.,GeoffreyR.Stone,First Amendment Ctr.,Govemment Secrecy vs. Freedom of thePress1-10(2006), available at http://www.firstamendmentcenter.org/PDF/Govt.Secrecy.Stone.pdf.1F^170^.See Pentagon Report, supra note21.1FN171^.See Greenwald, Inhumane Conditions, supra note 46; see alsoThe Law Offices of David E.Coombs,Manning Case, http:// www.armycourtmartialdefense.info/search/label/Manning^20Case (providing updatesfrom Manning's counsel); Jeffrey L.Meltzner^JamieFellner, Solitary Confinement and Mental Illness in U.S.Prisons:AChallengeforMedicalEthics,38J Am.Acad. Psychiatry^L 104, 104 (2010) ("Solitary confinement is recognized as difficult to withstand; indeed, psychological stressors such as isolation can be as clinicallydistressing as physical torture.").On the psychological effects, seeP.S.Smith,The Effects ofSolitary Confinement on Prison Ininates:ABriefHistory and Review of the Literature,34Crime^lust.441(2006).1^FN172^. Timeline: Sexual Allegations Against Assange in Sweden, BBC News (Dec. 16, 2010), http://www.bbc.co.uk/news/world-europe-11949341.1FN173^. Sweden Reopens Wikileaks Founder Rape Investigation, BBC News (Sept. 1, 2010), http://www.bbc.co.uk/news/world-europe-11151277.1FN174^. Wikileaks Founder Juliantp://www.bbc.co.uk/news/uk-1 1937110.AssangeRefusedBail,BBC News(Dec.7,2010),htlFN175^ld1^FN176^. See,e.g., Alan Nothnagle,SwedesOuestion Rape Accusations Against WikileaksFounder,Lost inBerlin(Aug21,2010,1:13PM),http://open.salon.com/blog/lost in berlin/2010/08/21/swedes question rape accusations against wikileaks founder.1FN177^. Wikileaks Founder Assange Bailed, but Release Delayed, BBC News (Dec. 14, 2010), ht2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page61tp://www.bbc.co.uk/news/uk-11989216.1^FN178^ Wikileaks Founder Julian Assange Freedtp://www.bbc.co.uk/news/uk-12005930.on Bail,BBC News (Dec16, 2010), ht1FN179^.Nick Davies, lOdays in Sweden:The Full Allegations Against Julian Assange, guardian.co.uk, Dec.17,2010, http://www.guardian.co.uk/media/2010/dec/17/julian-assangesweden.lFN180^SeeidlFN181^1d1FN182^. See Wikileaks: Julian AssangevSweden's Broad Sexual Laws, BBC News (Dec. 8,2010),http://www.bbc.co.uk/news/world-europe-11946652.lFN183j.The only statisticslhave been able to obtain state that in 2009-2010,Sweden madeatotal of six extradition requests from the United Kingdom underaEuropean Arrest Warrant,which is not the same as an InterpolRedNotice.NickHerbert,HouseofCommonsWrittenAnswers: European ArrestWarrants,Parliament of theUnitedKingdom,Nov.9,2010,http://services.parliament.uk/hansard/Commons/ByDate/20101109/writtenanswers/part004.htmL1FN184^.The accusers'lawyer isaSwedishpoliticianwhosesignatureissueisgenderequality.lt was apparently he who advised the accusers that they could challenge and reverse the prosecutorial decision not to pursueAssange.See David Leigh^Luke Harding,WikiLeaks: Inside Julian Assange'sWar on Secrecyl62-63 (2011).1FN185^.Josh Halliday,WikiLeaks Site's Swiss Registry Dismisses Pressure toTake it Offiine, guardian.co.uk,Dec.4,2010,http://www.guardian.co.uk/media/2010/dec/04/wikileaks-site-swiss-host-switch.1FN186^ Jane Wakefield, Wikileaks' Struggle to Stay Online, BBC News (Dectp://www.bbc.co.uk/news/technology 11928899.7, 2010), ht1FN187^. For a time-sensitive snapshot, see Arthur, supra note 140; see also WikiLeaks - Donate, http://wikileaks.ch/support.html (last visited Jan.11,2011).1FN188^. Assange notes that it is tme that the back-up payment systems did function, "but by knocking out themost popular payments systems,some 80 t o 9 0 ^ o f revenue stream was lost,at least ^5Mdollars. Wehavesince worked around this, and can now take PayPal, Visa and Mastercard through the appropriate proxies, butthe Bank of America interdiction remains."Assange Annotations,supra note24.1FN189^.See,e.g.,Glenn Greenwald,Attempts to ProsecuteWikiLeaks Endanger Press Freedoms,Salon (Dec.14, 2010, 6:15 AM), http:// www.salon.com/news/opinion/glenn_greenwald/2010/12/14/wikileaks/index.htmlIhereinafter Greenwald,Attempts to Prosecuted; Clint Hendler,TheWikiLeaksEquation:Secrets,Free Speech,andtheLaw,Colum.JournalismRev.(Dec.28,2010),http://www.cjr.org/behind the news/the wikileaks equation.php; Shane,supranote73.lFN190LP^ul Farhi, At theTimes,aScoopDeferred,Wash. Post, Dec. 17,2005, at A7,available at http://www.washingtonpost.com/wpdyn/content/article/2005/12/16/AR2005121601716.htmL2013ThomsonReuters.NoClaimtoOrig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page621FN191^.Of less importance, but worth noting nonetheless,was the role of thePirate Party in Sweden,whichhosted the data, and the Swiss Pirate Party, which had registered wikileaks.ch months earlier and made it immediately available as the backup domain name that has provided access since the shutdown by EveryDNS.Thesepartiesareregisteredintheir national systemsaspoliticalparties; the SwedishPirateParty actually has twomembers ofparliament in the European Parliament.They refiect the beginnings ofthe institutionalization oftheanti-authoritarianculture of peer-to-peer file sharing and its conversion into amore establishedpart of theEuropean political system.1FN192^ B G , The 24 Hour Athenian Democracy, The Economist (Dectp://www.economist.com/blogs/babbage/2010/12/more wikileaks.8, 2010, 11:48 AM), htlFN19311d1FN194^. FBI in Hunt for Pro-WikiLeaks Hackers: Report, Agence France Presse, Dec. 31, 2010, available at12/31/lOAgenceFrPresse 19:50:53 (Westlaw)1FN195^.B.G., supra note 192. Assange's annotations to this article suggest that at least Assange disagrees withmy assessment of the effect, and he believes that "li^t appears that the supportive attacks won us more popularsupport than we lost and possibly also asa'social discipline'mechanism, these'online protests'may be valuablein policing future extrajudicial censorship attacks."Assange Annotations,supra note24.1^FN196^.Kim ^etter,WikiLeaks Posts Mysterious'Insurance'File, Threat Level (Wired) (July 30, 2010, 3:09PM),http://www.wired.com/threatlevel/2010/07/wikileaks-insurance-file.1^FN197^ Ashley Fantz, Assange's 'Poison Pill'File Impossible to Stop, Expert Says, CNN (Dec.8, 2010), http://articles.cnn.com/2010-12-08/us/wikileaks.poison.pill l_iulian-assange-wikileaks-key-encryption.l^FN198^.0ssiCarp,"ANewWikiLeaks"Revolts Against Assange, DN.se, Dec. 9,2010(MajsanBostrom,trans.),http://www.dn.se/nyheter/varlden/a-new-wikileaksrevolts-against-assange-l.1224764.1FN199^. Id.(describing OpenLeaks); BrusselsLeaks About, http://brusselsleaks.com/about (last visited Feb.22,2011)1FN200^. Michael Calderone, NY Times Considers Creating an 'E^ Pass Lane for Leakers,' The Cutline(Yahoos)(Jan25,2011,8:38AM),http://news.yahoo.com/s/yblogthecutline/20110125/tsyblog_thecutline/nytimesconsiderscreating-an-ez-pass-laneforleakers.1FN201^.About theTransparency Unit, AlJazeeraTransparency Unit, http://www.ajtransparency.com (last visitedFeb 19,2011)1FN202^. The Palestine Papers, Al Jazeera, http:// english.aljazeera.net/palestinepapers (last visited Feb. 19,2011)11N203^. Hillary Rodham Clinton, Sec'y ofState, Remarks on Intemet Freedom at theNewseum (Jan. 21,2010), available at http://wwwstate.gov/secretary/rm/2010/01/135519.htm.1^FN204^ 403 L^S713(1971)2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page631FN205^.See generally NeilSheehan etal.,The Pentagon Papers: As Published by the NewYorkTimes(1971).1FN206^.Stone, supra note 169,at 11; see also Hedrick Smith, Mitchell Seeks toHalt Series onVietnam, butTimesRefuses,N.Y.Times,June15,1971,http://www.nytimes.com/books/97/04/13/reviews/papers-mitchell.htmLlFN207^^cwYork Times. 403 U S a t 730 (emphasis added)lFN208^.Id.at 728.1FN209^.Id. at 727-28 ("In the absence of the governmental checks and balances present in other areas of ournational life, the only effective restraint upon executive policy and power in the areas ofnational defense and intemationalaffairsmaylieinanenlightenedcitizenry in aninformed and criticalpublicopinionwhich alonecan here protect the values of democratic government.For this reason,it is perhaps here thatapress that is alert,aware,and free most vitally serves the basic purpose ofthe First Amendment.For without an informed and freepress there cannot be an enlightened people.").1FN210^ See Stone, supranote 130lFN211JNearvMinnesota,283 US 697,716 (1931)lFN212^NewYork Times, 403 U S a t 729lFN213^MassesPubl'gCovPatten,244 F 535 ( S D N Y 1917)1FN214^249 US47(1919)1FN215^ 395 CS 444(1969)1^FN216^ 274 CS 357 (1927)lFN217^.Bartnickiv Voppei,532 US 514, 528 (2001)(quotingSmithvDaily Mail Publ'gCo,443 U S 9 7 ,103 (1979)).1FN218^ See,eg,Landinark Commc'ns, Inc v Va,435 US 829 (T978); Worrell Newspapers o f l n d v Westhafer,739 F2dl219,1223 (7thCir 1984), affd 469 US 1200 (1985j;GeoffreyR Stone, Perilious Times:Free Speech inWartime From the Sedition Act of 1798 to theWar onTerrorism (2004); Stone,supra notel69,at 14 (citing David A. Strauss,Freedomof Speech andthe Common-Law Constitution, in Eternally Vigilant:Free Speech in the Modem Era 32, 57-59 (Lee C.Bollinger^GeoffreyR. Stone ed.,2002)(arguing that "it isdifficult to believe that the Court would have allowed newspaper editors to be punished, criminally, after theypublished the IPentagon^Papers").1FN219^. See Mary-Rose Papandrea,Lapdogs, Watchdogs and Scapegoats, 831nd.L.1.233,234-35 (2007); seealso Stone, supra notel69,at 27 n.2.lFN220^YickWovHopkins,118CS 356, 374 (1886); seealsoBoumedienevBush,553 US 723 (2008)1FN221^ See GeraldLNeuman, Whose Constitution7 100YaleLJ 909 (1991); see also JoseACabranes, OurImperial Criminal Procedure: Problems in the Extraterritorial Application ofU.S.Constitutional Law, 118 Yale^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page64LJ 1660 (2009)lFN222^IdlFN223^Boumediene,553 US723l^FN224^1dat 765 (quotingMurphyvRainsey,114CS 15,44 (1885))lFN225^DownesvBidwelL182US 244,282 83 (1901)1FN226^ 376 US 254(1964)1FN227^.See SecuringThe Protection Of Our Enduring And Established Constitutional Heritage ("SPEECH")Act of2010,28 CSCA^^41014105 (West 2010)1FN228^. JamesMadison, Letter to W. T. Barry (Aug. 4, 1822), i n 9 The Writingsof James Madison 103,103-09 (Gaillard Hunt ed.,1910)(1822)("ApopularGovemment,without popular information, or the means ofacquiring it,is butaProloguetoaFarceoraTragedy; or, perhaps both.Knowledge will forever govem ignorance: Andapeople who meantobe their ownGovernors,must armthemselves withthe power which knowledge gives.").1FN229^.Special Report w/Brit Hume: How the BlogosphereTook on CBS'Docs (Fox News television broadcast Sept. 14,2004), available at http://www.foxnews.com/story/0,2933,132494,00html(transcript).1FN230^ Brian Stelter, Jonathan Klein to Leave CNN, Media Decoder (N Y Times) (Sept 24,2010,10:12AM),http://mediadecoder.blogs.nytimes.com/2010/09/24/jonathankleintoleave-cnn;CatherineTaylor, WithJonathan Klein Dismissal, CNN Finally Pushes the Panic Button, bNet (Sept 27, 2010), http://www.bnet.com/blog/new-media/with-jonathan-klein-dismissal-cnn-finally-pushes-the-panic-button/6204.l^FN231^.Burns^Somaiya, supra note 69.lFN232^ Keller, supranote 541FN233^.Paul Starr,Goodbye to the Age ofNewspapers (Hello toaNewEra of Corruption),The New Republic,March4,2009,at28,availableathttp://www.tnr.com/article/goodbye-the-age-newspapers-hello-neweracorruption.lFN234^BranzburgvHayes,408 US 665,704 (1972)1F^235^.Stone, supra note 169,atl.1FN236^. Meet the Press (NBC televisiontp://www.msnbc.msn.com/id/40720643 (transcript).broadcastDec.19,2010),l^FN237^.Burns^Somaiva, supra note 69,atAl.l^FN238^ Keller, supranote 54^FN239^.Greenwald,Strange and Consequential,supra note41.2013 Thomson Reuters. No Claim to Orig. US Gov. Works.availableatht46HVCRCLLR31146HarvCRCLLRev311Page651FN240^.See, e.g.,Yochai Benkler,TheWealthofNetworks: How Social ProductionTransforms Markets andFreedom ch.7 (2006); see generally Clay Shirky,Cognitive Surplus (2010); Dan Gilmore,Wethe Media: Grassroots Journalism by the People,for the People (2006).1FN241^. Paul McLeary, How TalkingPointsMemo Beat the Big Boys on the U.S. Attorney Story, Colum.JoumalismRev(Mar15,2007,1:53PM),http://www.cjr.org/behind the news/how talkingpointsmemo beat the.php.1FN242^. Pulitzer Prize in Investigative Reporting: Deadly Choices at Memorial, ProPublica, http://www.propublica.org/awards/item/pulitzer-prize-in investigative-reporting-deadly-choices-at-memorial (lastvisited Feb 19,2011)1FN243^ vonBulowv vonBulow,811F2dl36,144(2dCir 1987)lFN244^Id(alterationinoriginal)(emphasisadded)(quotingLovellvGriffin,303 US 444,452 (1938))TheThird Circuit, in In re Madden,interpreted this as "the Supreme Court's recognition that the'press'includes allpublications that contribute to the free fiowofinformation."151F.3d 125,129 (3dCii,1998).1FN245^.von Bulow.811F.2d at 144 45(alteration in original)(quotingBranzburgv.Hayes,408 U.S 665,705(1972), and later quoting Branzburg language on the lonely pamphleteer).lFN246^SeeShoenvShoen,5F3d 1289. 1293 (9th Cir 1993)l^FN247^Madden,151F3datl301FN248^ ld atl281FN249^. Free Republic, http://www.freerepublic.com (last visited Apr. 3, 2011).1^FN250^. Power Line, http://www.powerlineblog.com (last visited Apr. 3, 2011).1^FN251^. Julian Assange, State and Terrorist Conspiracies, iq.org, Nov. 10, 2006, available at http://eryptome.org/0002/ja-conspiracies.pdf.lFN252^Id1FN253^.The closest he comes toit is the implication,in the second version of the essay,that the Republicanand Democratic parties would fit his definition of'conspiracy."See Julian Assange,Conspiracy as Governance,iq.org, Jul. 31, 2010, available at http://cryptome.org/0002/ja-conspiracies.pdf.1FN254^.See supra notes21-40 and accompanying text.1F1^255^. If that was the purpose, it is hard to tell whether it was successful in the long term. Initial public statements suggest that the responseisless oriented towardlimiting information sharing,andmoretoward tightercontrols on how easy it is to copy information,on identifying patterns ofleakage,and on identifying individualsat risk for disaffection.See,e.g.,DOD News Briefing,supra note5.The primary available formal action knownpublicly isamemorandum from the Office ofManagement and Budget detailing appropriate agency efforts thatseemtobefocusedonpreventing leakage,bothtechnicalandhuman,ratherthaneffortstolimit informationsharing. How these will be implemented remains, of course, to be seen. See Memorandum for the Heads of Ex^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page66ecutive Departments and Agencies,from JacobJ.Lew,Director,Office of Management and Budget,re:lnitialAssessments of Safeguarding and Counterintelligence Postures for Classified National Securitylnformation inSystems(Jan.3,2011),availableathttp://msnbcmeAutomateddia.msn.com/i/msnbc/sections/news/OMB Wiki memo.pdf.1FN256^. lnstapundit.com, http://pajamasmedia.com/instapundit (last visited Feb. 23, 2011).1FN257^.Sunlight Foundation, http://sunlightfoundation.com (last visitedFeb.23,2011).1FN258^. Talking Points Memo, http://www.talkingpointsmemo.com (last visited Feb. 23, 2011).1^FN259^.Daily Kos, http://www.dailykos.com (last visited Feb.23,2011);Townhall.com,http://townhallcom(last visited Feb. 23, 2011). Note, however, that it appears that these kinds ofengaged, larger scale participatoryplatforms are more typical of the lefi wing of the blogosphere than the right wing.SeeYochaiBenkler^AaronShaw,ATaleofTwoBlogospheres: Discursive Practices on the Left and Right 23 (Berkman Ctr. for InternetsSoc'yatHarvardUniv.,Apr27,2010),availableathttp://cyber.law.harvard.edu/sites/cyber.law.harvard.edu/files/Benkler Shaw Tale of^Two Blogospheres Mar2010.pdf.lFN260^.SeeYochai Benkler, Giving the Networked Public SphereTime to Develop, inWill the Last ReporterPleaseTurn Out the Lights:The Collapse of Journalism and What Can Be Done to Fix It (Robert McChesney^Victor Packard, eds.,forthcoming 2011); Benkler, supra note240.lFN261^BranzburgvHayes,408 US 665, 704 (1972).l^FN262^.Feinstein, supra notel28.1FN263^.Charlie Savage, Building Case for Conspiracy by WikiLeaks,N.Y.Times,Dec.16, 2010, atAl,available at http://www.nytimes.com/2010/12/16/world/16wiki.htmL1^FN264^.United StatesvO'Brien,391US 367 (1968)(draft card burning case)1FN265L See,eg,SneppvUnited States, 444 US 507 (1980); P i c k e r i n g v B d o f E d u c , 3 9 1 U S 563,568(1968); Stone, supranote 169,at 14181FN266^.For an overview of sources ofliability,see StephenLVladeck,The Statutory Framework, in GeoffreyR.Stone, First Amendment Ctr.,Govemment Secrecy vs.Freedom of the Press 35 (2006), available at http://www.firstamendmentcenter.org/PDF/Govt.Secrecy.Stone.pdf.1^FN267^ 1 8 U S C ^ 793(e)(2006)1^FN268^ 1 8 t ^ S C ^ 952 (2006)1F1^269^ 18USC^1030(a)(l)(SuppIlI2010)1FN270^ 1 8 U S C ^ 1030(a)(5)(SuppIII2010)lFN271^SeeUnitedStatesvMorison,844 F2d 1057 (4th Cirl988)2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page671FN272^.See generally Sheehan, supra note 205;see also Stone, supra notel30, at 500-16.1FN273^ 532 US 514(2001)1^FN274^ Stone, supranotel69,at2123.lFN275^Idat231FN276^. GlennGreenwald, Gettingto AssangeThrough Manning, Salon(Dec 16, 2010, 8:17 AM), http://www.salon,com/news/opinion/glenn_ greenwald/2010/12/16/wikileaks Ihereinafter Greenwald, Getting toAssange^.1FN277^.See supra. Parts II.D.lIl.D.3(describing the multi-system attack onWikileaks).1^FN278^ See Birnhack^ElkinKoren, supra note 148, at 25.lFN279^439 F S u p p 2 d 974 ( N D C a L 2006), superseded by statute, FISA Amendments Act of2008. Pub LNo 110 261, 122 Stat 2436, as recognized in H e p t i n g v A T ^ T C o r p , 5 3 9 F3d 1197(9th Cir 2008)(remanding in light of the FISA Amendments Act).Foracolleetion of documents from the case, see Heptingv.AT^T,Electronic Frontier Found.,http://www.eff.org/cases/hepting^242 (last visited Apr.l,2011).lFN280^FISAAmendmentsActof2008,PubL No 110 2 6 1 ^ 802,122 Stat 2436, 2468 70 (codified asamendedat50CSC^ 1885a(Supplll2010))lFN281^1nieNat'l Sec AgencyTelecommRecordsLitig,633 FSupp2d 949 ( N D C a L 2009)lFN282^Benkler, supra note240, at c h 7l^FN283^SeeWilkievRobbins.551US 537 (2007^1FN284^.See id.at 568 (Thomas!.,concurring in part).1FN285^ See,eg,Writers Guild of A i n , W , l n e v Am Broad Co,609 F2d 355. 365(9th Cir 1979)(describing and citingawide range of cases on regulation by raised eyebrow,or jawboning).lFN286^Restatement (Second) ofTorts^ 766 (1979)lFN287^.ProsserandKeetononTorts^ 129(W.PageKeetonetaLeds.,5thed.law).1984)(citing extensive caselFN288^.AWSCustomer Agreement, Amazon WebServices, http:// aws.amazon.com/agreement (last visitedFeb. 6, 2011). These terms were superseded by terms updated on February 8, 2011, but purported to apply to actions at the time of the events described here.l^FN289^AttemptsonJan.29,201L1FN290^ Restatement (Second) ofContracts^ 206(1981)lFN291^Idat^205^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page68lFN292^1dat^2081FN293^.See United Statesv.Associated Press, 326 U.S. 1 (1945) (refusing to createaspecial antitrust law forthe press).lFN294^Restatement(Second)ofTorts^ 766B(1979)lFN295^ Seesupranotes 290 2921FN296^ Restatement(Second)ofTorts^ 766 cmts rs(1979)1^FN297^.Kristol, supra note 101.It is worth noting that organizations,likeWikileaks, that depend on bobbingand weaving hetweenjurisdictions may not choose to employ this technique,so as not to risk jurisdictional exposure.On the other hand, corefacilities the organization needs like DNS service and hosting-are subject tothe jurisdiction, so bringing action may not be seen as fundamentally increasing the organization's exposure.1FN298^.Paul Starr, The Creation of the Media: Political Origins ofModern Communication 88 90 (2004); 1thieldeSolaPool,TechnologiesofFreedom 75 80 (1984)1FN299^ Preserving the Open Internet, 25 FCC Red 17905, ^ IV (F C C. 2010), available at http://wwwfccgov/Daily Releases/Daily Business/2010/dbl223/FCC 10 201Al pdf1^FN300^.See generally Benkler, supra note240,at chs.67.1FN301^ See generally id.at chs.24,71FN302^. See generally Starr, supra note 298.lFN303^Idl^FN304^1amesRBeniger, The Control Revolution(1986)lFN305^.Benkler,supranote240,atchs.6.1^FN306J.Eli M.Noam,Media Ownership and Concentration in America 377 Tablel5.4(2009).1^FN307^.Warren Buffet explained this most clearly inaletter to shareholders ofBerkshire Hathaway inl984:The economics ofadominant newspaper are excellent, among the very best in the business world.Owners,naturally, would like to believe that their wonderful profitability is achieved only because they unfailingly turnoutawonderfulproduct.Thatcomfortabletheory wilts before an uncomfortable fact. While firstelassnewspapers make excellent profits, the profits of third rate papers are as good or better as long as either class of paperis dominant within its community. Of course, product quality may have been crucial to the paper in achievingdominance.Webelieve this was the case at the News, in very large part because of people such as Alfred Kirchhofer who preceded us.Once dominant, the newspaper itself, not the marketplace, determines just how good or how bad the paperwill be.Good or bad,it will prosper.That is not true of most businesses: inferior quality generally produces inferior economics.But evenapoor newspaper isabargain to most citizens simply because of its "bulletin board"value.Other things being equal,apoor product will not achieve quite the level of readership achieved byafirstclassproduct.Apoor product, however,will still remain essential to most citizens, and what commands their at^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page69tention will commandtheattentionofadvertisers. Sincehighstandardsarenot imposedby themarketplace,management must impose its own.Letter fromWarrenBuffett,Chairman, Berkshire Hathaway,Inc.,to Shareholders ofBerkshire Hathaway,Inc.(1984),available at http://www.berkshirehathaway.com/letters/1984.htmL1^FN308^.Letter fromWarrenBuffett, Chairman, Berkshire Hathaway,lnc.,to Shareholders of Berkshire Hathaway,Inc.(1990),available at http://www.berkshirehathaway.com/letters/1990.htmLlFN309^Id1FN310^.Letter fromWarrenBuffett, Chairman, Berkshire Hathaway,lnc.,to Shareholders of Berkshire Hathaway,Inc.(1991),available at http://www.berkshirehathaway.com/letters/1991.htmllFN311^Buffetputit:An economic franchise arises fromaproduct or service that: ( l ) i s needed or desired; (2) is thought byits customers tohave no close substitute and;(3)is not subject toprice regulation.The existence of allthreeconditions will be demonstrated byacompany's ability to regularly price its product or service aggressively andthereby to earn high rates of retum on capitaL Moreover, franchises can tolerate mis-management. Inept managers may diminishafranchise's profitability,but they cannot infiict mortal damage.IdlFN312^ldlFN313^Id1FN314^.Summary ofFindings, Public Knowledge ofCurrent Affairs Little Changed by News and InformationRevolutions: What Americans Know: 1989-2007,PewResearchCenter for thePeople^thePress (Apr. 15,2007),http://people-press.org/report/319/public-knowledge-of-current-affairs-little-changed-by-news-and-information-revolutions.lFN315^.Foramore detailed analysis of this phenomenon andareview of the literature,see generally Benkler,supra note 240, at chs. 5-6.1FN316^.Inquiry into Section73.1910of the Comm'n'sRules^Regulations Concerning the Gen.Faimess Doctrine Obligations of Broad. Licensees, 102F.C.C 2d 142,246 (1985)(declaring that the Fairness Doctrine wasno longer in the public interest).1FN317^. See generally Cass R.Sunstein, Republic.com (2001).1FN318^.See generally Benkler,supranote240,at chs.2-4.1FN319^.Carl Shapiro^HalR.Varian, Information Rules:AStrategic Guide to the Network Economy 19-27(1999)1^FN320^.See, e.g.,Benkler,supra note 240, at ch.3;see generally Clay Shirky,Here Comes Everybody (2008);Siva Vaidhyanathan, Anarchist in theLibrary: HowtheClashBetweenFreedomandControlisHackingtheRealWorld and Crashing the System (2005).2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page 701FN321^. See, e.g., Don Tapscott ^ Anthony Williams, Wikinomics: How Mass Collaboration ChangesEverything (2006); RobertDHof, The Power ofUs, Business Week, June20, 2005,at 74 82, available at http://www.businessweek.com/magazine/content/05 25/b3938601.htm.1FN322^. For example, the peer-to-patent initiative, developed by Beth Noveck as an academic, seeks to hamessdistributed knowledge to improve the quality of patents granted.SeePeerto-Patent,Open Government Initiative,The WhiteHouse,http://www.whitehouse.gov/open/innovations/PeertoPatent. Onthelocal level,effortsrange from very practical strategies to improve services through harnessing distributed citizen reporting systems,like Boston's New Urban Mechanics initiative, see The Mayor's Office of New Urban Mechanics, http://www.newurbanmechanics.org, toa widerangeofeffortstoengagecitizensinparticipatory budgetingorplanning,see Jennifer Shkabatur,Cities^Crossroads:DigitalTechnology and Local Democracy in America,76BrookLRev(forthcoming2011).lFN323^.Flickr,http://www.fiickr.com (last visited Feb. 22, 2011)1FN324^. allrecipes.com, http://allrecipes.com (last visited Feb. 22, 2011).lFN325^.TripAdvisor, http://www.tripadvisor.com (last visited Feb. 22, 2011).1FN326^. Yelp, http://www.yelp.com (last visited Feb. 22, 2011).1FN327^. YouTube, http://www.youtube.com (last visited Feb. 22, 2011); Revver, http://www.revver.com (lastvisited Apr. 19,2011); metacafe,http://www.metacafe.com (last visited Feb.22,2011).lFN328^.RobertF.Worth^DavidD.Kirkpatrick,SeizingaMoment,Aljazeera Galvanizes Arab Frustration,N.Y.Times,Jan.27,2011,atAl,availableathttp://www.nytimes.com/2011/01/28/world/middleeast/28jazeera.html.1FN329^, Top Sites, Alexa, http://www.alexa.com/topsites/category/Top/News (last visited Jan. 28, 2011)lhereinafterAlexaRankingsj(ranking the most popular news websites).1FN330^.David Reid^TaniaTeixeira, Are People Ready to Pay for Online News7,BBC Click (Feb 26, 2010),http://news.bbc.co.Uk/2/hi/programmes/click online/8537519.stm.It is difficult totranslate exactly from dailysubscriptionnumbers which may include multiple readers per household and need to be multiplied to reachamonthlyfigure—andto know what 36 million online readers really means. The numbers should therefore be readfor illustration purposes only.1^FN331^. Alexa Rankings,supra note 329.lexcludehereTheWeather Channel andYahool News from whaticonsider to be "news outlets."Both are ranked ahead ofthe Huffington Post, however.1FN332^.SeeTalkingpointsmemo.com, Alexa, http://www.alexa.com/siteinfo/talkingpointsmemo.com (last visited Apr. 1,2011).TocompareTalking Points Memo with theBaltimore and Atlanta newspapers,click onthe"TrafficStats"tab,type http://www.baltimoresun.com and http://www.ajc.com into the"Compare" boxes,andclick"Compare."The"TrafficRank" tab describes the sites'Alexa traffic rank, and the"Reach" tab describesthe percent ofglobal Intemet users who visit the sites.1FN333^.Noam Cohen, Now Hiring atTalking Points Memo, N.Y.Times,July 12,2009,at B5,available at http://www.nytimes.com/2009/07/13/business/media/13marshall.htmL2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page711FN334^. See About Us, ProPublica, http://www.propublica.org/about (last visited Apr. 3, 2011).1FN335^.See About, The American Independent, http://tainews.org/about (last visited Apr.3,2011).1FN336^.See About Us,FactCheck.org, http://factcheck.org/about (last visitedApr. 3,2011).1FN337^. See About Us, Sunlight Foundation, http://sunlightfoundation.com/about (last visited Apr. 3, 2011).lFN338^.Benkler^Shaw,supranote 259,at4.lFN339^Idat23lFN340^.Newsvine, http://www.newsvine.com (last visited Apr. 3, 2011).lFN341^.Balkinization, http://balkin.blogspot.com (last visited Apr. 3, 2011).1FN342^.Crooked Timber, http://crookedtimber.org (last visited Apr.3,2011).1FN343^.See supra noteland accompanying text and Part III.A and accompanying text.1FN344^. Chris Lefkow,CORRECTED: Future of Joumalism Debated inUS Senate, Agence France Presse,May 7,2009,available at 5/7/09 AgenceFrPressel8:16:00 (Westlaw)1FN345^. See How Will Journalism Survive the Intemet Age7, Fed. Trade Comm'n, http://www.ftc.gov/opp/workshops/news/index.shtml(last visited Apr. 1, 2011); Fed.TradeComm'n,Staff Discussion Draft: Potential Policy Recommendations to Support the Reinvention ofjournalism (2010), available atwww.ftc.gov/opp/workshops/news/junl5/docs/new-staffdiscussion.pdf.1^FN346^. Starr, supra note 233.1FN347^. Govemment Intervention to Save Journalism (WNYC radio broadcast July 16, 2010), available at http://www.onthemedia.org/transcripts/2010/07/16/02.1FN348^.See generally,e.g.,RobertW.McChesney^JohnNichols,The Death and Life of American Journalism(2010); LeonardDownie,Jr.^MichaelSchudson,TheReconstructionof American Journalism,Colum.Journalism Rev.,Oct.l9,2009,http://www.cjr.org/reconstruction/the reconstruction of^american.php.1FN349^ Thomas Friedman, OpEd,Too Good to Check,NY Times, Nov 17,2010, at A33,available at http://www.nytimes.com/2010/ll/17/opinion/17friedman.htmL1FN350^.Amajor Indian news outlet that Forbes Magazine described ina2006 article as "India's top-rated English-languagenews channel."NaazneenKarmali,NewsDelhiTV,Forbes.com(Sept. 18,2006),http:// membersforbescom/global/2006/0918/034htmL1FN351^ Press Trust oflndia, US to Spend ^200 mnaDay on Obama's Mumbai Visit, NDTV (Nov 2,2010,8:54 PM IST), http://www.ndtv.com/article/india/us to spend-200-mn-a-day-on-obama s-mumbai-visit-64106.1FN352^TheDrudgeReportwww.drudgereportarchives.com/data/2010/ll/02/20101102(Nov2,2010),http://155942.htm (precise timestamp unavailable).^2013 Thomson Reuters. No Claim to Orig. us Gov. Works.46HVCRCLLR31146HarvCRCLLRev311Page 721FN353^.Doug Powers, Obama to See India on ^200 MillionaDay,MichelleMalkin(Nov.2, 2010, 1:53 PM),http://michellemalkin.com/2010/ll/02/india.lFN354^2ndUPDATE Obama IndiaTrip: 34 Warships^lkmLong AC BombProofTunnell, Daily Paul(Nov. 2, 2010, 1:21 PM), http://www dailypaul.com/node/148219; Joe Biden Making His Move on Obama,LameCherry(Nov2,2010,11:22AM),http://lamecherry.blogspot.com/2010/ll/joe-biden-makinghismoveon-obama.html;Obamas'IndiaTrip CostingUSA ^200 Million PER DAY, KatABlog (Nov 2, 2010, 12:28 PM), http://wwwkatablogcom/displayblogcfm7bid^0E0FDD3CB83EF4FC82ElFA3F39F534A81FN355^ Stack of Stuff Qi^i^k Hits Page, The Rush Limbaugh Show (Nov 2, 2010), http://www.rushlimbaugh.com/home/daily/site ll0210/content/01125104.guest.htmll^hereinafter Rush LimbaughShow^.1FN356^ James White,'^200maDay'Cost ofBarack Obama's Trip to India Will Be Picked Up b y U S Taxpayers.MailOnline(Nov.2,2010),http://www.dailymail.co.uk/news/article-1325990/Obamas-200m-day-India-visit-pickedUS-taxpayers.htmL1FN357J.The Media Desk, Election Night:LiveBlogging the Media Coverage, Media Decoder (N.Y.Times)(Nov2,2010,11:26PM),http://mediadecoder,blogs.nytimes.com/2010/11/02/electionnightwatching-the-media-coverage/^carter-on-fox-huckabeeputs-a-price-tag-on-a-state-visit ("On FoxNews,one of the potential futureRepublicanpresidentialcandidatesonthe network's payroll,Mike Huckabee,said that the president was about to takeahuge entourage tolndia thisweek that would cost the American people ^200 millionaday-but that was less than the government spent eachday in the United States, so the people were probably gettingabreak.").1FN358^.Rush Limbaugh Show,supra note 355.1FN359^.Doug Powers, Details of Obama's Big'Carbon Footprint Felt 'Round theWorld'Tour,ThePowersThatBe(Oct29,2010),http://dougpowers.com/2010/10/29/details-of-obamas-bigcarbonfootprintfeltround-the-world-tour.1FN360^.Robert Knight, Pulling Back the Curtain on Obama's Audacity,WashingtonTimes, Nov. 1,2010, atBl,availableathttp://www.washingtontimes.com/news/2010/oct/29/pullingbackthe-curtainonobamas-audacity.1FN361^. EricBolling,Follow theMoney(FO^ Business televisionbroadcast Nov. 3,2010),available at http://mediamatters.org/mmtv/201011030048.1FN362^Hannity, (FO^ NEWS televisiontp://mediamatters.org/mmtv/201011030052.broadcastNov3,2010),availableatht1FN363^.Anderson Cooper 360 (CNN television broadcast Nov.4,2010) Ihereinafter Anderson Cooper 360^.1FN3641.TriptoMumbai,FactCheck.orgfactcheck.org/2010/ll/ask-factcheck-trip-to-mumbai.(Nov.3,2010),http://1FN365J.Sarah Pavlus,White House Debunks "Wildly Infiated"S200MperDayPriceTag for Obama's India2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Trip,CountyFair(Media Matterstp://mediamattersorg/blog/201011030032Page 73forAmerica)(Nov3,2010,4:31PM),htIFN.366^.Foreign Currency,Snopes.com,http://www.snopes.eom/politics/obama/india.asp (last updated Nov.5,2010). The precise time of the original Snopes.com post has been obscured by the November 5th update of thatsite's analysis.lFN3671.JonathanWeisman, Fuzzy Math Dogs Obama's AsiaTrip,WashingtonWire (The Wall Street Joumal)(Nov.4,2010,3:16PM), http://blogs.wsj.com/washwire/2010/ll/04/fuzzy-math-dogs-obamas-asia-trip.1FN368^. Details on Obama Trip Remain Unclear, Glenn Beck (Novtp://www.glennbeck.com/content/articles/article/198/47729.5, 2010, 12:53 PM), ht1FN369^. See Media Cloud, http://www.mediacloud.org (last visited Apr. l,2011)(results of analysis on filewith author). Media Cloud isaresearch platform developed at the Berkman Center for Internet and Society atHarvard University.The lead developer ofthe project is Hal Roberts.The development team includes David Larouchelle,CatherineBracy,and associated researchersincludeEthanZuckerman,BruceEtling, John Palfrey,Urs Gasser,Rob Faris,andYochai Benkler.1FN370^ No, Obama's Not Taking 34 Navy Ships to India with Him, Hot Air (Nov 4, 2010,7:02 PM),http://hotair.com/archives/2010/ll/04/no-obamasnottaking34-navy-ships-to-indiawithhim.1FN371^.Glenn Reynolds, Debunking:No,Obama'sNotTaking34Navy Ships tolndia with Him, Instapundit.com (Nov. 4, 2010, 8:21PM), http://pajamasmedia.com/instapundit/109224.^FN372^.Doug Mataconis, Obama's India Trip CostingS 200MillionADay7 Don't Believe It, Outside the Beltway(Nov4,2010),http://www.outsidethebeltway.com/obamasindia-trip-costing-200-million-adaydontbelieve-it.1FN373^. Anderson Cooper 360, supra note 363.1FN374^. Friedman, supra note 8.lFN375^Id1FN376^. See, e.g., Greenwald, Attempts to Prosecute, supra note 189.1F^377^.See Greenwald,Strange and Consequential,supra note41;see also Greenwald,Inhumane Conditions,supra note 46; Greenwald, Getting to Assange, supra note 276.1FN378^. Friedman, supra note 8.1^FN379^ Keller, supra note 54lFN380^IdlFN381^Id1FN382^. Strom, supra note 22.2013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page 741FN383^.See Pentagon Report, supra note21,at 2,6.lFN384^Keller,supranote541FN385^. See Open Secrets: WikiLeaks, War and American Diplomacy, N.Y. Times, http://www.nytimes.com/projects/2011/video/opensecrets/edited.html (last visited Apr. 2, 2011) (containing theedited version ofthe footage).1FN386^. Ironically, given the general concern about distributed editorial platform, among the better sources colleeting and providing an objective overview of the competing interpretations of the edited volume is theWikipedia article on the subject. See luly12, 2007 Baghdad Airstrike, Wikipedia, http://en.wikipedia.org/wiki/July 12, 2007 Baghdad airstrike (last visited Apr.2,2011).1^FN387^.Keller, supra note 54 ("Atapoint when relations between the news organizations and WikiLeaks wererocky,at least three people associated with this project had inexplicable activity in their e-mail that suggestedsomeone was hacking into their accounts."). In his annotations to this article, Assange stated: "This allegation issimply grotesque."Assange Annotations,supra note 24.lFN388^Keller,supranote54lFN389^IdlFN390^Id1FN391^. AlanRusbridger, WikiLeaks:The Guardian's RoleintheBiggest Leak in theHistoryof the World,guardian.co.uk,Jan.28,2011,http://www.guardian.co.uk/media/2011/jan/28/wikileaks-julian-assange-alan-rusbridger.1FN392^.Rosenbach^Stark,supra note78. Assange,in his annotations tothis article,explained that the disagreement with Keller was over Keller's decision tokillapieceonTask Force 373,the targeted assassinationsquad, authored by national security reporter Eric Schmitt, and widely considered by other papers to be one ofthemost important revelations in the Afghan War logs. Assange Annotations, supranote 24. A Lexis-Nexissearch of the NewYorkTimes suggests that,indeed,Task Force 373is mentioned only once,inabrief, highlysanitizedversion:"SecretcommandounitslikeTaskForce 373—a classified group of Army and Navy specialoperatives—workfroma'capture/kill list' ofabout 70 topinsurgent commanders.Thesemissions, whichhavebeen stepped up under theObama administration, claim notable successes, but have sometimes gone wrong,killing civilians and stoking Afghan resentment."C.J.Chivers etal.,The Afghan Struggle: ASecret Archive,NYTimes, July 26, 2010, a t A llFN393^Keller,supranote54lFN394^IdlFN395^IdlFN396^.Leigh^Harding, supra note 54.lFN397^Keller,supranote542013Thomson Reuters.No Claim to Orig. us Gov.Works.46HVCRCLLR31146HarvCRCLLRev311Page 75l^FN398^1dlFN399^IdlFN400^IdlFN401^ Id (emphasis added)lFN402^1dlFN403^.Rosenbach^Stark, supra note 781^FN404^ Keller, supranote 54.lFN405^Id1FN406^. Javier Moreno, Lo Q^^ de Verdad Ocultan los Gobiernos, El Pais, Dec. 19, 2010, http://www.elpais.com/articulo/intemacional/verdad/ocultan/Gobiernos/elpepuint/20101218elpepuint23/Tes ("Perosibastanteparadartestimoniodequelounicoquesediscutioentodoslosencuentrosfuelaconvenienciadeacordaruncalendariocomundepublicacionylaexigenciadeprotegernombres,fuentesodatosquepudiesenponerenriesgolavidadepersonasenpaisesenlosquelapenademuertesiguevigente,oenlosquenorigeelEstadodederechocomosedisfruta en Occidente."). My thanks to Fernando Bermejo for the pointer and translation.l^FN407^.Burns^Somaiya,supra note 69.1FN408^.Special Reportw/Brit Hume, supra note 229.lFN409^ Keller, supra note 54l^FN410^1d1^FN411^ Paul Farhi, supranote 190l^FN412^.EricRaymond,The Cathedral and the Bazaar: Musings on Linux and Open Source by an AccidentalRevolutionary19,30(TimO'Reillyed,reved2001),availableathttp://www.catb.org/-esr/writings/cathedralbazaar/cathedralbazaar/ar01s04.htmL1FN413^.See Internet Gains onTelevision as Public's Main News Source,PewResearch Center for the People^thePress(Jan4,2011),http://people-press.org/2011/01/04/intemet gains on-television-as-publics-main-news-source. Although the Internet is gaining asadelivery vehicle,much of what is used ontheNet is the online version of major traditionalmedia outlets.See Matthew Hindman,The Myth ofDigital Democracy 58-67 (2009).1FN414^.See generally Benkler, supra note 240,at212-73;DanielW.Drezner^HenryFarrel,The Power andPolitics ofBlogs,134 Pub.Choicel5 (2007);KevinWallsten,Agenda Setting and the Blogosphere: An Analysis of theRelationshipbetweenMainstream Media and Political Blogs, 24Rev. Pol'y Res. 567 (2007); KevinWallsten,Political Blogs:Transmission Belts,Soapboxes,Mobilizers,or Conversation Starters7,4J.Info.Tech.^PoL19(2008)©2013Thomson Reuters. NoClaimtoOrigUS Gov. Works.46I1VCRCLLR31146HarvCRCLLRev311Page 76|^FN415^.See, e.g.,Ethan Zuckerman,Tunisia, Egypt, Gabon70ur Responsibility toWitness, My Heart's In Accra(Feb9,2011,1:40PM),http://www.ethanzuckerman.com/blog/2011/02/09/tunisia-egyptgabon-our-responsibility-to-witness(discussingdifficultyof getting Gabon's revolution covered by GlobalVoices,throughthe media focus on Egypt andTunisia);Ethan tuckerman. The AttentionDeficit: Plenty of Content, Yet an Absence ofinterest, NiemanRep. (Fall2010),http://www.nieman.harvard.edu/reports/article/102448/The-AttentionDeficitPlentyofContent-Yet-an-Absenceoflnterest.aspx(describingmoregenerally the difficultiesfaced by Global Voicesintranslating the excellenton the ground reporting its journalists were performing throughout Africa into attention in U.S. media outlets).1FN416^.See generally SiobahnO'Mahony^Beth A.Beehky,Boundary Organizations: Enabling CollaborationAmong Cnexpected Allies, 53 Admin Sci 0 422 (2008).1FN417^. Assange notes thatWikileaks had been working with individual Times reporters since 2007. AssangeAnnotations,supra note 24.This is,perhaps,not surprising,atatime whenWikileaks was less well known andplayeda role that fit muchmoreclosely the traditional perceptionof "source." Bythe timeofthe embassycables, Wikileaks was no longer playing that role, and the relationship was no longer up to the individual reporter writing the story.|^FN418^.Leigh^Harding, supra note 54.46HarvCRCLLRev311ENDOFDOCUMENT^20l3Thomson Reuters.No Claim to Orig. us Gov.Works.


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