Especially when a prepared talk is being given in the midst of a difficult controversy, most of what matters is in what is not said. For that reason, I think Secretary Clinton’s speech on Net Freedom yesterday was actually quite encouraging about the State Department’s attitude toward Wikileaks. In this I seem to differ with many of my friends and colleagues. (See, for example, this thread from the Berkman mailing list. See also Mathew Ingram. Ethan Zuckerman posts his overall reaction, plus a brilliant draft speech he’d suggested Clinton deliver. Yochai Benkler has posted a draft of a paper [pdf] that — with Yochai’s accustomed astounding command of facts, law, argument, and moral insight — assails the claimed grounds for prosecuting Wikileaks) [Disclosure: I am a Franklin Fellow at the State Dept., attached to the group that works on the internal use of social media. This is a non-paying fellowship, and I feel no obligation to make nice, although I’m human.]

Secretary Clinton spent a substantial portion of her talk discussing Wikileaks.

The Internet’s strong culture of transparency derives from its power to make information of all kinds available instantly. But in addition to being a public space, the Internet is also a channel for private conversations. For that to continue, there must be protection for confidential communication online.

Think of all the ways in which people and organizations rely on confidential communication to do their jobs. Businesses hold confidential conversations when they’re developing new products, to stay ahead of their competitors. Journalists keep the details of some sources confidential, to protect them from retribution.

And governments also rely on confidential communication—online as well as offline. The existence of connection technologies may make it harder to maintain confidentiality, but it does not change the need for it.

Government confidentiality has been a topic of debate during the past few months because of Wikileaks. It’s been a false debate in many ways. Fundamentally, the Wikileaks incident began with an act of theft. Government documents were stolen, just the same as if they had been smuggled out in a briefcase.

Some have suggested that this act was justified, because governments have a responsibility to conduct all of their work out in the open, in the full view of their citizens.

I disagree. The United States could neither provide for our citizens’ security nor promote the cause of human rights and democracy around the world if we had to make public every step of our most sensitive operations.

Confidential communication gives our government the opportunity to do work that could not be done otherwise. Consider our work with former Soviet states to secure loose nuclear material. By keeping the details confidential, we make it less likely that terrorists will find the nuclear material and steal it.

Or consider the content of the documents that Wikileaks made public. Without commenting on the authenticity of any particular documents, we can observe that many of the cables released by Wikileaks relate to human rights work carried out around the world. Our diplomats closely collaborate with activists, journalists, and citizens to challenge the misdeeds of oppressive governments. It’s dangerous work. By publishing the diplomatic cables, Wikileaks exposed people to even greater risk.

For operations like these, confidentiality is essential, especially in the Internet age, when dangerous information can be sent around the world with the click of a keystroke.

Of course, governments also have a duty to be transparent. We govern with the consent of the people, and that consent must be informed to be meaningful. So we must be judicious about when we close off our work to the public and review our standards frequently to make sure they are rigorous. In the United States, we have laws to ensure that the government makes its work open to the people. The Obama Administration has also launched unprecedented initiatives to put government data online, encourage citizen participation, and generally increase the openness of government.

The U.S. government’s ability to protect America — to secure the liberties of our people — and to support the rights and freedoms of others around the world depends on maintaining a balance between what’s public and what should remain out of the public domain. The scale will always be tipped in favor of openness. But tipping the scale over completely serves no one’s interests—and the public’s least of all.

Let me be clear. I said that we would have denounced Wikileaks if it had been executed by smuggling papers in a briefcase. The fact that Wikileaks used the Internet is not the reason we criticized it. Wikileaks does not challenge our commitment to Internet freedom.

One final word on this matter. There were reports in the days following the leak that the U.S. government intervened to coerce private companies to deny service to Wikileaks. This is not the case. Some politicians and pundits publicly called for companies to dissociate from Wikileaks, while others criticized them for doing so. Public officials are part of our country’s public debates, but there is a line between expressing views and coercing conduct. But any business decisions that private companies may have taken to enforce their own policies regarding Wikileaks was not at the direction or the suggestion of the Obama Administration.

Now, one way to read this is to imagine what you wish Clinton had said, or what you would have said if given the opportunity. That certainly has its uses. But it’s essentially a daydream, for it acts as if high-visibility political speeches occur outside of political consequences and negotiations. (Ethan’s imagining, noted above, was within a pragmatic context, attempting to provide a vision for the talk.) If instead we take this speech as the result of a political struggle, then we have to hear not just the daydream, but the nightmare: Forces within the government must have been urging Clinton to take a hard line against Wikileaks and to use Wikileaks as a justification for constraining the Internet. When you consider all that Clinton does not say about Wikileaks, this speech is actually, in my view, quite encouraging. Indeed, in saying that “It’s been a false debate in many ways,” she does not narrow the criticism to the media’s participation; we are left to assume that she is also scolding elements of the government.

You say “Pshaw!” to the idea that this is a pretty enlightened speech? I understand that reaction, since this address is coming from a government that has reacted overall quite poorly to the Wikileaks leaks. (See especially Yochai Benkler’s comments in the Berkman thread and his comprehensive article.)( But that’s exactly why we ought to view the speech as a sign of hope that at least some elements of the government are catching on to what the Net is about, what it’s for, and what it can and cannot do. (“What the Net can and cannot do” is, from my point of view, pretty much the theme of the entire speech, which by itself is encouraging.)

Here’s an example of what I mean by reading the speech in light of what it does not say. Secretary Clinton does say that the Wikileaks incident “began with an act of theft.” But, she is careful not to say that Wikileaks was the thief. Instead, she refers to Wikileaks as making the documents public, as releasing them, and as publishing them. You can imagine the pressure on her to characterize Wikileaks as the source of the documents — as the thief — rather than as the recipient and publisher of them. (She does slip in an ambiguous phrase: “we would have denounced Wikileaks if it had been executed by smuggling papers in a briefcase.”)

Overall, I read the Wikileaks section of the speech as a refusal to blame the Internet, and as a refusal to issue threats against Wikileaks (and against the next Wikileaks-like site). True, Secretary Clinton “condemns” the leaks, but given the range of options for a Secretary of State, what else would you expect? That she would condone the indiscriminate leaking of confidential information? It’s confidential. Of course she’s going to condemn leaks, and in no uncertain terms.

The question is what follows from that condemnation. What followed were not threats against Wikileaks, not a clamping down on State Department security to ensure that “this never happens again,”not a retreat from Clinton’s emphasis on building a “need to share culture” within State, and not support for new policies that would put “reasonable” controls on the Internet to “ensure” that such “illegal acts” never recur, for “a free Internet does not mean a lawless Internet.” (All items in quotes are phrases I’ve made up but that I can imagine some in the government insisting be inserted.) The only statement about policies to address such leaks says that the Obama Administration did not “coerce” private companies to act to shut down (or shut off) Wikileaks; the clear implication is that the government should not engage in such coercion.

Now, we can imagine our own preferred words coming out of Secretary Clinton’s mouth, and we certainly can and should compare her statements with the actual behavior of State and the government overall. There was room for her to have gone further; I would have liked it better if she had, as per Yochai’s suggestion, acknowledged that State initially over-reacted in some chilling ways. But, in the context of the political debate, I think Secretary Clinton’s remarks on Wikileaks are encouraging, and her explicit rejection of limiting Internet freedom because sometimes leaks happen is hopeful.

Categories: berkman, censorship, policy dw