The recent controversy over Wikilinks‘ online posting of internal war documents (aka the Afghan War Diary) pertaining to the Afghan War have reminded some commentators of the similar debate surrounding Daniel Ellsberg’s leaking of the Pentagon Papers. Last week, NPR‘s On the Media discussed Wikileaks with Yochai Benkler, the Jack N. and Lillian R. Berkman Professor for Entrepreneurial Legal Studies at Harvard Law School and Co-Director of Harvard’s Berkman Center for Internet and Society, who described Wikileaks as a new system, compared to journalism’s traditional methods of public disclosure of “secret'” documents.
But when the New York Times posted the War Diary, it reassured readers that, unlike Wikileaks, it had rigorously investigated the authenticity of the documents, rather than put them online without any vetting. In essence, the Times was attempting to reinforce the perception that online media journalists – if they can even be called that – are looser than the mainstream media. The Times seems more willing to engage in a balancing test of sorts – weighing national security against the desire for public disclosure. This became strikingly clear when the Times withheld publication of the warrantless wiretapping story for a year prior to finally publishing it, at the behest of the Bush Administration. Only when it became clear that the Bush Administration was considering seeking a Pentagon Papers-style injunction against the Times did the paper decide to publish the story.
Legally, Wikileaks and its “editor-in-chief”, the Australian activist and journalist Julian Assange, are taking no chances with this type of legal action. Wikileaks servers are located internationally in various countries to make it essentially “uncensorable,” as described in a recent New Yorker profile. Indeed, the New Yorker observed that “even though [Wikileaks] has received more than a hundred legal threats, almost no one has filed suit.” Assange himself has told litigants to “go to hell,” as the New Yorker noted. Compared to the reticence of media outlets like the New York Times to be that daring, perhaps online media sources like Wikileaks are carrying Daniel Ellsberg’s legacy more effectively than traditional outlets who fear legal action.