And Caesar’s spirit, raging for revenge,
With Ate by his side come hot from hell,
Shall in these confines with a monarch’s voice
Cry “Havoc!” and let slip the dogs of war,
That this foul deed shall smell above the earth
With carrion men, groaning for burial.
Paul Lippe, in a post entitled “The Lessons of WikiLeaks for Lawyers (It’s Not What You Think)” over at the ABA Journal, writes:
“Last week’s shocking news that WikiLeaks published 250,000 confidential U.S. State Department cables showed the danger of social media. It is high time that government steps in to regulate this dangerous tool, and also that every company, law firm and government agency impose mandatory training on all employees to prevent these kind of disasters. Thank goodness Virtual LegalTech is hosting an event on the legal dangers of social media.
Or not …
In truth, nothing about the WikiLeaks mess has anything to do with social media, but it doesn’t take much effort to simulate the hubbub and hand-wringing if it did.”
The remainder of the post leaves very little to the collective imagination. After attacking the straw-man a.k.a. Julian Assange as an “opportunist” and “anarchist”, Lipp then pays lip service to the broader legal implications that are the real lessons WikiLeaks can teach lawyers, concluding:
Lawyers should get serious about protecting what matters (client confidences) and stop using straw-man fears of social media as a way to avoid learning something new.
Lawyers can certainly start using encryption on e-mails and managing secure information in the cloud, which would be more reliable than the current methods. But lawyers who can’t work in and among networks or distinguish between real risks and pseudo-risks will face big problems.
Competent lawyers already know what their professional and ethical obligations are. Client confidences are firmly etched into our professional psyches. The WikiLeaks #Cablegate (as the Twitter hashtag is used) is not an opportunity to shill the “benefits of social media”, or to remind lawyers that they should encrypt their emails. Data encryption and firewalls are Digital Security Basics 101. Most lawyers who don’t waste all of their time trying to gain SEO ranking ascendancy are probably savvy enough to understand the concept of a “password”. If you’re particularly risk-averse and safety conscious, then consider using deniable encryption, the “Rubberhose deniable encryption” version of which was co-written by Assange.
Rather than give readers something to think about, Lipp offers this gem:
The leak apparently came from Army Cpl. Bradley Manning, stationed in Baghdad. Not one sentence in WikiLeaks was created using social media, and none of it was stored in the “cloud.” WikiLeaks illustrates the vulnerability of all centralized IT systems, not the “dangers of social media.” [emphasis added]
There are real legal implications to explore as a Cyberwar pits WikiLeaks against national governments, with the public sitting idly in the stands.
For starters, consider the following:
The Rule of Law:
- “Police complaint filed over ex-Harper adviser’s ‘assassinate’ Assange comment” (montrealgazette.com)
- “Julian Assange’s lawyers say they are being watched” (guardian.co.uk)
Freedom of Speech:
- “WikiLeaks Cites New Woes for Site & Founder as Officials Warn US Workers & Students to Stay Away” (ABAJournal.com)
- “State Department Warns Students Against Discussing WikiLeaks on Facebook, Twitter” (news.yahoo.com)
Freedom of the press:
- “Charge The New York Times with Espionage? Sen. Lieberman Says, ‘Look Into It‘” (cbsnews.com)
- “Facebook Won’t Shut Down WikiLeaks Page” (Opinio Juris)
Professionalism and Ethics
Electronic Surveillance and Internet Security
Wikileaks under attack: the definitive timeline (guardian.co.uk)
Finally, as I said before on Twitter,
“The fulcrum balancing political transparency and diplomatic secrecy is democratic accountability, not plausible deniability.”
Western constitutional democracies are supposed to be representatives of the “people”. Ask not what you can do for your country, but what your government is trying to do to you.