Wikileaks, Hactivism, and Government: An Information War

Thomas Jones | School of Information Studies | Syracuse University

Wikileaks, Hacktivism, and Government: An Information War

Introduction
Generally speaking, we are all aware of our civil rights as we know them - since they are
experienced, exercised, and protected in real life. However, the emergence of the Internet
and evolving, advanced web technologies push the boundaries of whether these real life,
or “offline” rights can be exercised to the same extent, and respective context, “online”
within the Internet’s “digital domain.” Not only are the issues surrounding digital civil
rights in somewhat uncharted waters, this is a relatively new and emerging area of law in
comparison, and one where we are not privy to several hundred years of legal precedent.
This is an area of law that must redefine, or at least reconsider, real world laws in a
slightly different context - one aligned within the virtual world of the Internet. At times
traditional law has been upheld in its most absolute form, in other circumstances new
legislation has been introduced and passed into law, bridging the divide between the
online and offline environments. The results establish a new precedent for a new
environment - our digital (civil) rights on the Internet.

The issue at hand secondarily (indirectly) involves Bradley Manning, an Army soldier
arrested and accused of allegedly uploading 250,000 U.S. Government classified (Secret)
intelligence cables (messages), more commonly known as “diplomatic cables” to
Wikileaks - an international nonprofit whistleblower website founded in 2006. This event
was dubbed “Cablegate” by the media. At the time of this writing the case is ongoing, and
yet to be proven is if Private Manning was indeed the actor who released (uploaded)
classified cables to Wikileaks. Without such proof, subsequent assertions or accusations
of treason or espionage, mostly from the politically conservative right wing, are largely
irrelevant. Even with such proof, subject matter experts have opined its presence may still
render accusations irrelevant based on existing precedent.

It is beyond contestation that releasing classified information without authorization is
concretely illegal. While Private Manning is an alleged direct actor in the Wikileaks
Cablegate incident, his direct actions are not necessarily the forefront of the current
socio-technical movement, and thus not the foundation here.

This topic of discussion involves the affect and Manning’s alleged actions have had on
the Internet, journalism, digital (civil) rights, domestic and foreign policy. Because of its
unique nature, “Cablegate” has subsequently challenged the bounds of our First
Amendment rights. Undoubtedly, the information revealed by the publication of
classified cables has challenged the authenticity and validity of our own democracy,
while simultaneously inciting political action, democratic and undemocratic, in countries
around the world. The aforementioned issues are difficult to describe or categorically
qualify, but is best singularly described as a momentum, a culture movement, an ideal.



A single alleged act by Private Manning has transformed not only an entire discussion,
but the medium itself in which the discussion is held; it has challenged our most sacred
and coveted rights down to their core.

This war on information against Wikileaks takes place against an entity that has yet to be
“charged with a crime, let alone indicted or convicted.” Most importantly, this war on
information is occurring within a transnational medium that connects people and
governments across the world - the Internet.

The Conflict
The conflict surrounding Wikileaks mostly encompasses First Amendment rights. On one
side are non-State actors - the users of the Internet - both content creators and information
consumers. On the other side are State actors - the U.S. Government. Though these
parties can be extended further, neither content creation or consumption is bounded by
geographic location as the Internet is a transnational presence. This is a problematic
scenario for State actors whose jurisdiction does have geographically bounded limitations
of authority.

It seems vague and perhaps draconian to declare opposing parties of this war on
information between Internet users and the U.S. Government (USG); it has eery
connotations of Revolutionary War-esq sentiments. However, there is some truth to the
matter revolving around different mechanisms to silence or prevent access to information
for purposes of publication or consumption. The transnational nature of Wikileaks, let
alone the Internet, even further compounds this issue.

Wikileaks is not hosted in the United States, thus out of USG legal jurisdiction, but
readers of said website are located in the U.S., as are some of the Internet and financial
intermediaries that facilitate Wikileaks’ existence. As the case in warfare nearly since its
inception, the key to defeating nearly any enemy is to cut off its supply source. While the
USG is unable to legally force such an action, and unable to attack a transnational
presence directly, influencing opposing party’s intermediaries is initially the most
effective, and most logical way forward. This will turn out to be the pebble in the shoe for
Wikileaks, but a much larger thorn in the side for the USG as they will soon discover.

Enter the Electronic Frontier Foundation (EFF), a non-profit civil liberties organization
dedicated to civil rights in the digital domain. The EFF subsequently represents Wikileaks
against many Tactics, Techniques, and Procedures (TTPs) of State (and non-State) actors
inflicting its power upon a digital presence. Other forms of support in defending
Wikileaks (Anonymous’ various operations) are discussed later in this document.

The EFF has been involved in many cases surrounding the defense of Wikileaks on the
basis that “Wikileaks has highlighted important issues about government transparency on



the free expression rights of online publishers and the unimpeded flow of information on
the Internet. While there is heated controversy about its tactics and publication choices,
EFF supports the fundamental right of Wikileaks and similar websites to publish truthful
political content — and the fundamental right of users to read that content.”

We must remember that Wikileaks is a whistleblower website, and its function existed
long before Private Manning and the famous Cablegate issue at hand. In February 2006,
Wikileaks released leaked documents of banking transactions of Bank Julius Baer
customers. The bank sued Wikileaks and its domain name registrar, Dynadot LLC, which
is located in the United States. Shortly after the lawsuit was filed, a federal court issued a
permanent injunction disabling the Wikileaks.org domain name - effectively removing
the website from the Internet. This isn’t usually terribly restrictive given the number of
domain name registrars in the world, however the court also prevented that domain name
from being transferred to any other registrar. This completely paralyzed the
organization’s ability to publish information or operate in any capacity. After EFF and the
American Civil Liberties Union (ACLU) engaged the court on First Amendment grounds,
the judge dissolved the previous order and the Wikileaks domain was active once again.
The bank subsequently moved to dismiss the case. Unfortunately this was only the
beginning of such TTPs.

As the EFF lists, Wikileaks has since published much more controversial and sensitive
information regarding the U.S., specifically:

"Collateral Murder" - a video depicting a United State Apache helicopter firing on
civilians in New Baghdad in 2007 killing several people including two employees of the
news agency Reuters.

The Afghan War Diary - over 91,000 field reports from the war in Afghanistan ranging
from 2004 to 2010.

The Iraq War Logs - 391,832 field reports from the war and occupation in Iraq.

United States Embassy Cables - also known as Cablegate — a collection of cables
exchanged between the State Department and U.S. diplomatic embassies worldwide.
Over 250,000 cables are slated to be release in small batches over several months”

In response to unofficial government pressure from the publication of Cablegate,
financial intermediaries like VISA, MasterCard, and Paypal shut down electronic
donations to Wikileaks, yet oddly continued to allow donations to well known hate-
groups like the Ku Klux Klan and the Black Panther Party. Neither have they taken
similar action against professional news organizations such as the New York Times or
The Guardian which have released many more classified diplomatic cables than
Wikileaks.



The difficulty to understand here is that our First Amendment, as surmised and titled in
an autobiography of the First Amendment by Anthony Lewis - a Pulitzer Prize winner
and renowned Supreme Court journalist - is measured by “The Freedom for the Thought
That We Hate.” In other words a disdain for one’s speech, and even further ideals, are not
grounds for censorship or legal recourse by State or non-State actors. However, it does
not entitle nor ensure participation of others, like the intermediaries aforementioned, from
furthering your cause. The result, through analytical logic, is that said intermediaries have
made a cognizant and targeted effort to selectively inhibit the fiscal stability of Wikileaks.

Similarly, financial services were also cut off to the legal defense team of Julian Assange,
the founder of Wikileaks, by the same organizations, which as a result froze existing
funds.

Introducing Anonymous
In response to the discriminatory actions of these financial intermediaries, Anonymous, a
loose knit but well organized and extremely talented hacktivist organization, launched
Operation Payback - a not all inclusive dedicated denial of service attack (DDoS) on
VISA, MasterCard, Amazon, and PayPal among others rendering their websites useless.
As John Perry Barlow, founding member of the EFF described it, these attacks were “the
shot heard round the world - this is Lexington.” It was as if the USG and financial
intermediaries awakened a sleeping giant - what seems to be the representative soul and
spirit of the Internet.

The USG and aforementioned corporations just picked a fight with a transnational cyber
organization - a fight that remains to be seen if the USG can win. According to “A
Declaration of the Independence of CyberSpace,” Anonymous succinctly warns the USG
that:

We have no elected government, nor are we likely to have one; therefore we address you
with no greater authority than that with which liberty it always speaks... You have no
moral right to rule us, nor do you possess any methods of enforcement we have true
reason to fear... Governments derive their just powers from the consent of the governed.
You have neither solicited nor received ours. We did not invite you. You do not know us,
nor do you know our world. The Internet does not lie within your borders.

As for any recourse against Anonymous, Evgeny Morozov, an internationally renowned
scholar of the socio-political impacts of the Internet and technology, offers this
commentary:



I seriously doubt that U.S. authorities would be able to effectively go after Anonymous,
in part because there are too many people involved, they are scattered all over the globe,
and attributing cyber-attacks to them would be impossible...

As far as long-term developments are concerned, I think that much depends on whether
the WikiLeaks saga would continue being a debate about freedom of expression,
government transparency or whistle-blowing or whether it would become a nearly-
paranoid debate about the risks to national security. Anonymous is playing with fire, for
they risk tipping the balance toward the latter interpretation -- and all the policy levers
that come with it.

That said, I don't think that their (Anonymous) attacks are necessarily illegal or immoral.
As long as they don't break into other people's computers, launching DDoS should not be
treated as a crime by default; we have to think about the particular circumstances in
which such attacks are launched and their targets. I like to think of DDoS as equivalents
of sit-ins: both aim at briefly disrupting a service or an institution in order to make a
point. As long as we don't criminalize all sit-ins, I don't think we should aim at
criminalizing all DDoS...

The danger here is obviously that if the narrative suddenly becomes dominated by
national security concerns, we can forget about DDoS as legitimate means of expression
dissent -- that possibility would be closed, as they would be criminalized.

Back to the Conflict
Other TTPs were also noted - a seemingly State-sponsored DDoS attack on the
Wikileaks.org website. A denial-of-service attack occurs when groups of computers
known as “bot-nets” comprised of hundreds, thousands, or hundreds of thousands of
computers all attempt to access a website at once, ultimately suffocating the web servers
ability to display the website to each computer request, in effect making the website
inaccessible. Such an act to take a website offline is clearly an attempt to silence the
freedoms of press, speech, and expression, as well as secondarily, the right to organize.
This resulted in a rapid, mind-boggling mirror (copy) of the Wikileaks site on
approximately 750 domains (other websites) in just a few short days. This makes attacks
on the availability of the information on Wikileaks, now hosted across the world,
exponentially more difficult if not impossible.

Aside from Wikileaks fighting to sustain its own operations against Internet and financial
intermediaries, we observed this assault on information spill over directly into the public
sphere. Columbia University’s School of International and Public Affairs (SIPA) went so
far as to warn their students not to mention, access, or link to Wikileaks if they hope to
have a chance of obtaining a job with the State Department, or other forms of government
service. Columbia quickly reversed its previous guidance on the back of SIPA Professor



Gary Sick, the prominent Middle East expert who served on the National Security
Council under Presidents Ford, Carter, and Reagan. He repudiated that, “If anyone is a
master’s student in international relations and they haven’t heard of WikiLeaks and gone
looking for the documents that relate to their area of study, then they don’t deserve to be a
graduate student in international relations.”

Another example involves an astonishing display of what I can only describe, figuratively
and literally, as a ponzi scheme of stupid. Lawyers from the U.S. Air Force’s Material
Command sent a memo outlined by Wired.com stating, “Airmen who read the purloined
classified cables on their home computers — not even government owned or issued
devices — could be prosecuted for “dereliction of duty.” And that’s just for starters.
WikiLeaks viewership could mean “prosecution for violation of espionage under the
Espionage Act.”

But as Wired.com noted, it didn’t stop there. The same lawyers also said, “[I]f a family
member of an Air Force employee accesses WikiLeaks on a home computer, the family
member may be subject to prosecution for espionage under U.S. Code Title 18 Section
793 ... The Air Force member would have an obligation to safeguard the information
under the general guidance to safeguard classified information.”

The Air Force then blocked web access to Wikileaks on its network after threats of
courts-martial to prevent further information dissemination regarding Wikileaks or
Cablegate. Confusingly enough, it has also blocked web access to the New York Times
which has published [sanitized] classified cables from Wikileaks. But ironically, the Air
Force has not banned the sale of the New York Times newspapers on its bases, nor
confiscated the papers from Airmen in possession of the paper at work or home. Perhaps
what makes the least sense is the general position of the Pentagon - our enemies can read
Wikileaks, but our troops cannot.

Experts weighed in specifically on guidance released by the Air Force Material
Command lawyers, most notably William K. Bosanko, Director of the Information
Security Oversight Office saying, “That has to be one of the worst policy/legal
interpretations I have seen in my entire career.” Other legal experts vigorously reject the
premise and legitimacy of Assange, Wikileaks, or any reader of publications thereof
being charged under the Espionage Act given the legal precedent set by the “Pentagon
Papers,” defending the freedom of press and the right to publish truthful political content.

In a shocking (and thankful) return to reality, the U.S. Air Force Material Command
subsequently reversed its position on the Wikileaks matter, even conceding that military
computers won’t get wiped due to accessing the site - a fairly ludicrous reaction in the
first place.



In a similar circumstance, Daniel Ellsberg, the source of the “Pentagon Papers” - the
largest disclosure of U.S. Government classified documents prior to Wikileaks - also
began republishing documents from the Iraq and Afghan wars, originally published by
Wikileaks. After direct pressure from Sen. Joe Lieberman (I-CT), Amazon.com cloud
hosting services began censoring Mr. Ellsberg’s website, which garnered further public
support for Mr. Ellsberg, and ultimately backfired against Amazon. Senator Lieberman
has since introduced Anti-Wikileaks legislation into Congress.

We have observed various disproportional aggressions toward civil rights protections and
how they apply, in any extent, to the Internet. At a minimum, there are governmental
parties that want to challenge how these protections apply to the Internet. We must ask
ourselves “what makes websites on the Internet any different than print news or media
organizations?” “Why censor the web, but not print when the web is an extension of
print, and an extension of a voice, let alone a collective voice?”

Ultimately, the fact remains that it is not the job of the press to protect corporations or
government from embarrassment. The press, by virtue and vehicle of the Internet,
balances the distribution of power by way of access to information. For hundreds of years
these rights have been vigorously protected offline, what remains to be seen is if they will
be protected as equally online.

Laws and Precedent
A noninclusive list of legal precedent relative to Wikileaks publication of Cablegate,
revolves around the “Pentagon Papers,” the United Nations Universal Declaration of
Human Rights, and the Espionage Act of 1917.

We must realize that our First Amendment rights not only protect the freedom of the press
- the freedom to write, to speak, to exercise expression - but inversely protects the right to
read, thus the complication with removing a website by any method from the Internet.

The protection of a free press and other first amendment rights were concretely
established in the “Pentagon Papers” case, a lawsuit between the New York Times and the
U.S. Government. The U.S. Government sued the New York Times for publishing
classified documents relating to the U.S. political-military involvement in Vietnam from
1945-1967. The papers revealed that the Johnson Administration had lied to the public
and Congress on a subject of national interest. The Supreme Court stood by right of the
press to publish the information in a 6-3 majority vote.

Article 19 of the United Nations Universal Declaration of Human Rights addresses the
transnational nature of the issue at hand. It declares the right to information as an
inalienable right stating, “Everyone has the right to freedom of opinion and expression;



this right includes freedom to hold opinions without interference and to seek, receive, and
impart information and ideas through any media and regardless of frontiers.”

The Espionage Act has become a rather sharp thorn for most opponents of Wikileaks. The
EFF was able to post a memo by the Congressional Research Service (CRS). The CRS’
role is to provide policy and legal analysis to committees and members of both the House
and Senate, regardless of party affiliation. Within the topic at hand, CRS’ role was to
“provide comprehensive discussion of the laws under which the Wikileaks publishers —
or anyone else who obtains or publishes the documents, be it you or the New York Times
— might be prosecuted and the First Amendment problems that such a prosecution would
likely raise.” The summary of the memo states:

“This report identifies some criminal statutes that may apply [to dissemination of
classified documents], but notes that these have been used almost exclusively to prosecute
individuals with access to classified information (and a corresponding obligation to
protect it) who make it available to foreign agents, or to foreign agents who obtain
classified information unlawfully while present in the United States. Leaks of classified
information to the press have only rarely been punished as crimes, and we are aware of
no case in which a publisher of information obtained through unauthorized disclosure by
a government employee has been prosecuted for publishing it. There may be First
Amendment implications that would make such a prosecution difficult, not to mention
political ramifications based on concerns about government censorship.”

The Political Compass
It is difficult to identify whether the conflict is based on different ideological or
normative views. The publication of truthful political content is unquestionably critical to
the success and longevity of a diplomatic and democratic government. But most
opposition to Wikileaks has come from the conservative right wing as it sees publication
of national secrets a threat to national security - economically, diplomatically, and
militarily - rightly so in many ways.

However, the Cablegate messages didn’t just exploit our intelligence operations, it also
did so of other countries which include our allies and enemies. This can be advantageous
to the conservative right wing if accepted as a military advantage, yet one cannot take a
singular position both for and against this issue - the duplexity conflicts with logical
consistency. In other words we, cannot have our cake and ice cream, too. At this point we
see the paradox created when our diplomatic stability is made vulnerable by
constitutional protection. A tangled web we weave indeed.

The concept of rights, specifically the Utilitarian view of rights, is the fundamental
backbone of why this case is so central to every American. The right to information as
considered by the United Nations are deemed inalienable, and are applicable to everyone



in the world. These “negative” or “forbearance” rights can only be ensured by placing a
restriction on other actors. This ensures your ability to live and exercise your rights
without encroachment from other actors.

Manipulating the ability to access information is clearly an encroachment on an
individual’s rights, and depending on the type of government, it can extend to a nation’s
rights. Our First Amendment guarantees public access to information, and thus enables
the public to leverage the reach, and severity of any encroachment of Government
actions. This not only enables, but supports the concept of a limited government.

Food for Thought
How does one resolve a war on civil liberties that extends transnationally through a
medium such as the Internet? We as a Government and as a people must begin by
accepting that we cannot control persons determined to release information. Technology,
its security, and lifecycle are always evolving in a never-ending game. We cannot rely on
technology alone, and we cannot rely on people alone. We must in turn rely on a balanced
framework that defines and protects digital rights under existing constitutional
protections. We must find a way to balance the framework of government with that of
governance - certainly a difficult task.

We must begin with education and access to the content that educates. The people of a
mature, civil, and democratic society cannot afford for senior judiciaries, senators, or
elected representatives to make decisions based on subject matter they clearly do not
understand, comprehend, or have the desire to do so. The future talent of this country
must be cultivated with an understanding of how central and immersive the Internet is to
the daily operation of government, governance, and lives of its constituents.

We must recognize that information warfare by way of “leaks” are tactically
advantageous, and help leverage a distribution of power between polar opposites, even
within the balance of our own government. This is one of the underlying premises of the
Whistleblower Protection Act of 2007.

We must accept that minimizing our sensitive information footprint, while not disclosing
State secrets or reducing our information standards, reduces both the risk of a leak and
the diplomatic effects of its impact. We must rethink how we classify our information,
and how our information helps to balance our diplomatic, political, economic, and
military posture around the world.

We must rethink how we approach information and redefine how information contributes
to governmental transparency; this is a critical underpinning and fundamental obligation
of a responsible democratic society. We must accept that transparency in information



enables checks and balances, the spirit upon which our governmental structure was
founded and work diligently to protect it.

The Internet is a medium that allows for the right of a free people to communicate,
organize, speak, listen, and read. Failure to protect this institution and the rights of those
who access it suppresses the voice of a free people, and the more wars waged on
information - whether to create or consume - will suppress these people, and if we have
learned anything from the history of our country, our people will rise and rise again until
lambs become lions, this is our spirit, it is who we are.

There is nothing more powerful for any government than the strength and conviction of
its people, and it begins by protecting the Internet.


Wikileaks, Hactivism, and Government: An Information War

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