Tuesday, December 14, 2010

An Ethicist Looks at Wikileaks

At first, the more I read and thought about Wikileaks, the more difficult I found it to know what was the ethical path to take with respect to it and its perpetrators. Ultimately, I landed in the unfamiliar position of agreeing with Hillary Clinton. As she said, Wikileaks is neither laudatory nor brave. On balance, it is a force for serious harm even allowing that it could entail some good. I will show why I believe that in this article.

As an ethicist, I find the Wikileaks moment in our history fascinating, if frustrating, because of the layers of difficult-to-answer questions it creates in our quest for ethical guidance. Some of these questions arise from the technoscience that makes Wikileaks possible as a global phenomenon. Others come from the compounding difficulty, though by no means impossibility, of finding a consensus on the ethics that should guide us in an era of ubiquitous moral relativism.

As the most basic level, though, they result from the simple fact that good facts are necessary for good ethics and we don't have all the facts needed to fully assess how much harm the leaks will cause. The possible consequences of the leaks have been the subject of intense disagreement. Predictions have ranged from the leaks having no serious consequences to their undermining "the functional integrity of the whole Western security apparatus… [on which] our very survival depends". At the further end of the spectrum of possible harms, our civilization itself is seen as being under attack by those who regard the leaks as "the 9/11 of international diplomacy" that may precipitate a world war. In between is the growing consensus that the leaks, at the very least, have the potential to cause serious harm to Western nations and their allies to the advantage of their enemies.

Working out the ethics of Wikileaks is also difficult because it makes a difference whether or not we see ends as justifying means. Julian Assange, the Wikileaks founder, obtained the leaked documents from a trusted person who had access and stole them. If we believe that this means of obtaining the information was fundamentally wrong, and that even good ends—let alone seriously harmful ones—do not justify using wrong means, then using that information would be unethical. If, on the other hand, we believe that laudatory ends can justify unacceptable means and we regard the Wikileaks as having such ends, we might see use of the information as ethical.

If we do regard Assange's conduct as evil and capable of causing catastrophic consequences, what of others who make use of the Wikileaks information? Are they complicit in the evil? Much depends on whether their use of the information is sufficiently disconnected from the evil such that it is not tainted by it. This is a distinction with real world antecedents and implications. It has been considered in relation to using medical information that resulted from the horrific Nazi human medical experimentation. But, assuming for the sake of argument that the Wikileaks conduct is evil, the media and web servers who are disseminating the information are not parties coming onto the scene after the evil conduct has been undertaken. They are playing a direct and active role in that conduct. They are co-evildoers. The ethical repercussions of this in our media-driven world could be staggering.

Layers of harm
In considering the ethics of Wikileaks, we must keep in mind that what is and isn't ethical can differ at different levels of analysis. These levels are the individual (micro), institutional (meso), societal (macro), and global (mega). All of them are relevant in the case of Wikileaks. Something that might pass ethical muster at one level might not do so at another. For instance, freedom of speech might justify disclosure of certain information at the level of individual rights. The harm that disclosure would cause at all the other levels would make it unethical at those levels, however.

We can also distinguish threats to individuals, which bring into play the criminal law, from threats to a whole society, which raise "war and peace" issues. Wikileaks presents both kinds of threats. Unlike the former, the latter threats are not decided within the limitations of a criminal code, nor on ethical grounds that pertain to persons as individuals. In undertaking analysis of situations that raise both these kinds of threats, as Wikileaks does, we must be careful not to confuse the State with the Person. To apply moral standards to the State that properly apply only to the individual, and sometimes even vice versa, is an error. In ethics, such distinctions are crucial. There are ethical principles that apply to secular government but they are not necessarily, and sometimes cannot be, the same as those that apply to individual persons.

As these considerations indicate, an enquiry into the ethics of Wikileaks might provide some insights about how we should handle the situations the leaks have created. So, here are some of the questions we could ask in undertaking an ethical analysis of Wikileaks.

The man at the centre
How should we characterize the ethics of Assange's conduct? That depends, first, on whether it is beneficial or harmful.

Assange says his goal is justice. He asserts that justice requires transparency and revelation of corruption, which is what he sees Wikileaks accomplishing.

Some people, including major media such as the New York Times and The Guardian newspapers, must see the leaks as beneficial, overall, despite their putting at serious risk the lives or safety of some identifiable people and, possibly, the present or future safety of some societies. Their statements indicate that they believe they've reduced any risk of harm to an acceptable level by redacting certain information in the leaked documents.

And, one assumes, they must also see Assange's and their own conduct as ethical, despite the documents having been obtained illegally. How else could they justify being complicit in his actions by facilitating the distribution of the Wikileaks information? Do they regard their assistance as an exercise of freedom of the press and freedom of speech? If so, moves to restrict the publication of Wikileaks documents would involve ethical considerations at institutional, societal and global levels.

At the other end of a spectrum, others see Assange's conduct as extremely harmful to the extent that they accuse him of treason, sedition, sabotage, espionage and terrorism. Canadian journalist David Warren neatly summed up this view of Assange when he called him "wiked". In considering what an appropriate response to Assange is, some commentators have even proposed that, given the stakes, assassination is not an outrageous consideration. Assange has spoken on the record to say that the people making such proposals "should be charged with the crime of incitement to commit murder".

Putting lives at risk
These commentators believe Assange's conduct has placed the lives of many innocent people at risk or already resulted in their deaths, and that it will continue to do so as he presses on with Wikileaks. They argue that "Assange and Wikileaks have advanced, and are continuing to advance, the interests of very evil regimes against the interests of (relatively) good ones" and conclude that "the consequences of emasculating the U.S. diplomatic and intelligence services are horrendous."

Even taking into account the differences that exist between individual level ethics and State level ethics, any order from a State authority to kill Assange could only, if ever, be ethically and legally justified if it came within the strict parameters of legitimate self-defence necessary to save human life. And that would only be the case, if Assange, himself, posed an immediate and direct threat to human life and if killing him were the only reasonable way to alleviate the threat. Assange's conduct does not fulfill the first requirement and even if it did, the threat can be eliminated other than by killing him. He is already in custody on allegations of sexual assault. He is available to be tried for any crimes he has committed with regard to Wikileaks.

Such a prosecution might not succeed, however. Attempts to prosecute Assange in connection with Wikileaks, at least in the United States, would likely fail because there would reportedly be "insurmountable legal hurdles".

Moreover, to accept that an order to assassinate Assange could be ethical would involve setting a precedent that we are justified in sidestepping the normal processes of justice and the rule of law. Such sidestepping would itself be a serious harm to society. As well, and not insignificantly, it would brush too close to the horrific practice of Muslim clerics issuing edicts to kill those considered guilty of blasphemy.

Brave new cyberworld
Might Assange's conduct also be characterized as a form of cyber-terrorism? The primary goal of terrorism is to disrupt the societies that are attacked and make them fearful. Wikileaks will result in the disruption of diplomatic exchanges that can be crucial to protecting our societies. It will provide information to those who would do us harm and could assist them in that goal. Finally, it could harm relationships with our allies, all of which could make many of us justifiably fearful. One problem here is that our laws on treason, sedition and so on, have not been updated to take into account possibilities such as Wikileaks that are opened up by the cyber-world.

A stark warning that Wikileaks delivers is the power of one person using the new technoscience to have enormous impact, whether for good or evil. This power is vastly augmented by convergence—the impact of the combination of various technoscience developments of which the Internet is a prime example. Assange's conduct shows the grave threat that just one individual can pose to societies, which is a valid fear in relation to terrorism, in general, and bioterrorism or the use of small nuclear devices, in particular. One terrorist working in his kitchen or home garage can create weapons with enormous destructive potential.

The destructive capacity of contemporary terrorist acts need not, however, involve the detonation of a bomb or use of other weapons of 21st century warfare. We must ask what threat Wikileaks poses to our general "social capital", the metaphysical entity that consists of the "norms, networks, and trust [that we rely on] for cooperation and mutual benefit . . . [and which] has enormous potential to enable people to act in solidarity for the sake of collective goals"? The clear answer is that it will likely damage every element of it.

Even giving Assange and his co-leakers the benefit of any doubt regarding their claim that Wikileaks is a force for good, instead of promoting collective good by augmenting social capital, then, Wikileaks promotes collective harm by depleting social capital. Keep in mind such harm is mainly, or only, to our Western democratic societies. It does not touch other societies that reject our systems of governance, values, and way of life. Indeed, Wikileaks is likely to assist them.

And what does Wikileaks reveal about the moral and social consciences of its participants? Relatively recent research shows that moral intuition and appropriate emotional responses play a role in making decisions that are ethically sound. Might Assange have undeveloped moral intuition and immature emotional responses? Might the same be said of those, including in the media, who have assisted him? Are they morally and ethically retarded? In Assange's case, might this be associated with his being a "computer nerd"? He has a background as a "hacker." That—purposely breaking and entering by electronic means—is where someone steps over the line into truly criminal behaviour. It is thus also where "moral intuition" comes to an end, assuming it was present initially.

Although, we work from a basic presumption that openness and transparency are morally and ethically sound (governments and bureaucracies should keep this presumption more clearly in mind and act accordingly), that is not always the case. At the very least, we need to question whether the very openness and transparency promoted by Wikileaks is, in fact, morally and ethically sound. In doing so, we should keep in mind that just because something is ethically acceptable in one situation, does not mean it is acceptable in another. A nude man at a nude beach is acceptable; a man who exposes himself to children in playgrounds is not. Both are showing the same "equipment". But, as the example shows, context can determine criminality and the presence or absence of breaches of ethics.

An ethical analysis
So, where on the spectrum from ethically justified acts to acting criminally, even evilly, does Wikileaks belong? That depends on answers to such questions as: Are the Wikileaks democratic progress, or just old-fashioned gossip in cyber form? Are they something much more heinous? Is there any ethical rationale to justify revealing what was meant to be kept private? Certainly, just the capacity of new technology to make these disclosures possible is not ethical justification. Avoiding serious harm that can't be avoided in any less harmful way would justify breaching privacy. But the breach of privacy involved in Wikileaks does not avoid harm. It inflicts it.

And might Wikileaks be an extreme example of trends that are now ubiquitous in our Western societies? We are societies largely based on moral relativism. This is the concept that there are no absolute truths with respect to what is right or wrong. Rather, that all depends on the circumstances and, not infrequently, personal preferences.

Both as individuals and societies we espouse "intense or selfish individualism". Priority is given to individual rights, to autonomy and self-determination, even in some cases when serious harm to the community could result from doing so. Obligations to the community, if they are recognized at all, are seen as weak. Such imbalance between individual rights and community obligations reflects a climate of individual and societal level narcissism—the world revolves around just me or my society.

What happens when we apply these concepts to Assange, and to the media that have assisted him? In all probability, they believe they are doing good in releasing Wikileaks. They are informing people. As they see it, such information will augment those people's power to choose (the right to choose is the first, and sometimes the only, commandment of intense individualists). And it's possible they are, indeed, doing good in the case of some of the revelations. But it seems apt to bring to mind an old saying in human rights: "Nowhere are human rights more threatened than when we act purporting to do only good." The reason is that we overlook the harms that are also unavoidably inflicted.

So, one important question in deciding on the ethics of the Wikileaks is whether the world is a better and safer place because of them, or a worse and more dangerous one. Here is where I find myself agreeing with Hillary Clinton's assessment. For while we do not yet know the full harm that may come from the leaks, there is no evidence at all to show how they will contribute to a countervailing good. Indeed, we have seen how the one good they are overtly intended to achieve—an augmented state of openness and transparency—is not in itself necessarily ethically justified. Worse, neither Assange nor his Wikileaks colleagues have shown publicly any concern to balance harms against goods which, at the very least, is recklessness—that is, conscious unjustified risk-taking—if not intentional wrongdoing.

And Assange is not the only person whose ethics should be scrutinized. Frequently, as in Wikileaks, there's still an old-fashioned transgressor involved. In this case, it's the person who stole these documents. What breaches of ethics did he commit? I've already queried the ethics of the media, who are "associate leakers", in relation to Wikileaks, but what about their ethics, more generally? Ethical responsibility is like a cake not a football: one person cannot throw it away and have someone else catch it; everyone can have a slice and not all the slices might be the same size or have the same icing or taste.

Let me end as I began: As I continued to read and think even more about Wikileaks, I found it easier to know what was the ethical path to take with respect to it and its perpetrators. I believe that, overall, Wikileaks involves grossly unethical conduct, some of which is also illegal.

Margaret Somerville is the Samuel Gale Professor of Law, Professor in the Faculty of Medicine, and Founding Director of the Centre for Medicine, Ethics, and Law at McGill University. This was first published on Cardus.

From here.

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