Disclosure's Effects: WikiLeaks and Transparency

Author:Mark Fenster
Position:UF Research Foundation Professor, Samuel T. Dell Research Scholar, Levin College of Law, University of Florida
Pages:753-807
753
Disclosure’s Effects: WikiLeaks and
Transparency
Mark Fenster
ABSTRACT: Constitutional, criminal, and administrative laws regulating
government transparency, and the theories that support them, rest on the
assumption that the disclosure of information has transformative effects:
disclosure can inform, enlighten, and energize the public, or it can create
great harm and stymie government operations. To resolve disputes over
difficult cases, transparency laws and theories typically balance disclosure’s
beneficial effects against its harmful ones—what I have described as
transparency’s balance. WikiLeaks and its vigilante approach to massive
document leaks challenge the underlying assumption about disclosure’s
effects in two ways. First, WikiLeaks’ ability to receive and distribute leaked
information cheaply, quickly, and seemingly unstoppably enables it to
bypass the legal framework that would otherwise allow courts and officials to
consider and balance disclosure’s effects. For this reason, WikiLeaks
threatens to make transparency’s balance irrelevant. Second, its recent
massive disclosures of U.S. military and diplomatic documents allow us to
reconsider and test the assumption that disclosure produces certain effects
that can serve as the basis for judicial and administrative prediction,
calculation, and balancing. For this reason, WikiLeaks threatens
transparency’s balance by disproving its assumption that disclosure
necessarily has predictable, identifiable consequences that can be estimated
ex ante or even ex post.
This Article studies WikiLeaks in order to test prevailing laws and theories
of transparency that build on the assumption that disclosure’s effects are
predictable, calculable, and capable of serving as the basis for adjudicating
difficult cases. Tracing WikiLeaks’ development, operations, theories, and
effects, it demonstrates the incoherence and conceptual poverty of an effects
model for evaluating and understanding transparency.
UF Research Foundation Professor, Samuel T. Dell Research Scholar, Levin College of
Law, University of Florida. Thanks for comments to Steven Aftergood, David Fontana, Lyrissa
Lidsky, and Trysh Travis, and especially David Pozen. Thanks also to excellent, timely research
assistance from Ariane Assadoghli and Stephen Bagge. This Article concerns a still-developin g
story and fast-evolving institution as it existed in December 2011 and will not reflect
developments that occurred after that date.
754 IOWA LAW REVIEW [Vol. 97:753
INTRODUCTION ...................................................................................... 755
I. WIKILEAKS DISCLOSURES ..................................................................... 758
II. WIKILEAKS THEORIES ........................................................................... 769
A. DISCLOSURE AS LIBERAL REFORM ...................................................... 770
B. DISCLOSURE AS RADICAL RESISTANCE ................................................ 774
III. DISCLOSURES EFFECTS: WIKILEAKS IN LAW AND ACTION ..................... 781
A. TRANSPARENCYS BALANCE ............................................................... 782
B. THE CLASSIFICATION SYSTEM, THE ESPIONAGE ACT, AND
DISCLOSURES EFFECTS ..................................................................... 784
C. WIKILEAKS UNCERTAIN EFFECTS ...................................................... 788
1. WikiLeaks’ Direct Effects on Military Operations ............... 789
2. WikiLeaks’ Direct and Indirect Effects on Diplomatic
Relations ................................................................................. 791
3. WikiLeaks’ Effects on Intra-Governmental Information
Sharing .................................................................................... 795
4. WikiLeaks’ Effects on the American Public ......................... 798
5. WikiLeaks’ International Effects ........................................... 802
CONCLUSION: THE CONSEQUENCES OF DISCLOSURES UNCERTAIN
EFFECTS .................................................................................................. 805
2012] WIKILEAKS AND TRANSPARENCY 755
INTRODUCTION
The disclosure of government information must surely make a
difference. Myriad laws1 and a large international community of
transparency advocates2 presume so, as does most academic commentary on
the subject.3 Consider the following description of transparency’s promise:
“Publishing [leaked material] improves transparency, and this transparency
creates a better society for all people. Better scrutiny leads to reduced
corruption and stronger democracies in all society’s institutions, including
government, corporations and other organisations. A healthy, vibrant and
inquisitive journalistic media plays a vital role in achieving these goals.”4
This declaration appears on the About page of WikiLeaks, the website
whose project of leaking secret documents has recently brought it
international fame and notoriety. Asserting that it is “part of that media”
that spreads transparency, WikiLeaks contends that its publication of
authentic documents leaked from governments and powerful private entities
will expose “otherwise unaccountable and secretive institutions” that engage
in unethical acts, and thereby help establish “good government and a
1. See, e.g., Common Cause v. Nuclear Regulatory Comm’n, 674 F.2d 921, 928 (D.C. Cir.
1982) (explaining that Congress’s intent in enacting the Government in the Sunshine Act, 5
U.S.C. § 552b (2006), requiring open agency meetings, was to “enhance citizen confidence in
government, encourage higher quality work by government offic ials, stimulate well-informed
public debate about government programs and policies, and promote cooperation between
citizens and government. In short, it sought to make government more fully accountable to the
people”); H.R. REP. NO. 89-1497, at 12 (1966), reprinted in 1966 U.S.C.C.A.N. 2418, 2429
(stating that the legislative purpose for enacting the Freedom of Information Act, 5 U.S.C.
§ 552, was that “[a] democratic society requires an informed, intelligent electorate, and the
intelligence of the electorate varies as the quantity and quality of its information varies”).
2. See ALASDAIR ROBERTS, BLACKED OUT 107–11 (2006).
3. Some advocates make this claim in a direct and straightforward manner, asserting that
disclosure produces public knowledge. See, e.g., GEOFFREY R. STONE, TOP SECRET 2 (2007)
(asserting that public disclosure alerts the public to poor govern ment performance and allows
citizens to press officials to remedy the situation); Cass R. Sunstein, Government Control of
Information, 74 CALIF. L. REV. 889, 920–21 (1986) (summarizing competing First Amendment
theories of disclosure and finding that all of them assume that access to information necessarily
allows public deliberation and self-government). More sophisticated treatments of the concept
characterize the process in terms of access and potential. See, e.g., Peter Dennis Bathory &
Wilson Carey McWilliams, Political Theory and the People’s Right To Know, in GOVERNMENT SECRECY
IN DEMOCRACIES 3, 8 (Itzhak Galnoor ed., 1977) (arguing that the “people’s right to know
demands public access to “those facts necessary for public judgment about public things” and
allows “the greatest possible opportunity [for the public] to learn and mast er the art of political
judgment” (emphasis omitted)); Ann Florini, Introduction: The Battle over Transparency, in THE
RIGHT TO KNOW 1, 5 (Ann Florini ed., 2007) (defining transparency as “the degree to which
information is available to outsiders that enables them to have informed voice in decisions
and/or to assess the decisions made by insiders”). In both approaches, information and its
content either guarantee or necessarily allow for public enlightenment, knowledge, and
action—all of which are likely to occur, or else the enterprise would be unnecessary.
4. About WikiLeaks, WIKILEAKS, http://wikileaks.org/About.html# (last visited Dec. 24,
2011).

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