Wikileaks Ethics in Journalism

In a recent OpEd in the New York Times, media ethicist Kelly McBride generally stands by the principle that journalists should not pay sources for information; but she also wants pardoxically to propose that sometimes the ends justify the means.  Specifically, she is referring to an initiative (ploy, stunt?) by Wikileaks to crowd fund a “bounty” for a leaker to provide the full text of the Trans Pacific Partnership agreement. But more broadly, McBride seems unaware that there can be no exception to this rule of journalistic standards, if it is to remain a rule at all.  Because in the course of investigating hard news, when don’t the ends appear to justify the means?  Surely, there are reporters out there risking their lives to uncover stories that are more grave and more time-sensitive than a trade deal, even a very big trade deal.

But that central contradiction is not the only reason I think McBride’s OpEd misses the point in its analysis. What she says is that, in general, paying for information is still wrong but that extreme situations call for extreme measures until some balance is restored between transparency and secrecy.  She writes, “Right now, the bounty may be the best shot we have at transforming the TPP process from a back-room deal to an open debate. But we need a better system to discourage unjustified secrecy, to protect sources and to encourage public-interest whistle-blowing.”  Although earlier in the piece, McBride acknowledges, “It’s true that trade deals, which are usually about tariffs and the price of goods, are traditionally negotiated in secret. But the TPP exceeds agreements like Nafta in scope and scale and involves far-reaching foreign policy decisions.”

The funny thing to me about the TPP kerfuffle is that everyone is complaining both about how bad it is and about how secret it is without noticing that the latter complaint casts considerable doubt on the former.  And thanks to the headline-rich, substance-poor nature of social media, even the tidbits of information out there are being manipulated by players with their own agendas, including such mundanity as just making click-bait.  As a result, many of my friends now take as gospel rumors about possible proposals or outcomes of this deal that are entirely unfounded.  For instance, McBride sets up her larger premise, establishing the TPP’s obvious badness with this almost parenthetical statement:  “Chapters already leaked suggest that the deal restricts fair use of copyrighted material, expands medical patents and weakens public policies that govern net neutrality.”  From such statements, we are left to wonder what other nefarious proposals lurk within the TPP and to conclude, yes, the ends justify Wikileaks’s means of offering to buy a leak.

But what if many of those highly publicized assumptions based on earlier partial leaks are false or at least very misleading?  Certainly, the statement about restricting fair use is fallacious, either by design or by ignorance, and we don’t need the full text of TPP proposals to know why.  For one thing, trade deals generally do not change domestic law in the U.S.; and to imply that ratifying the TPP might alter our application of fair use is inconsistent with history and with the process presently being applied.  Second, trading partner nations cannot necessarily apply U.S.-style fair use because (hold onto your hats) they have different legal systems. (I hear they speak different languages, too.)

But here’s the insidious detail in the big picture:  McBride writes what seems like a reasonable editorial with a premise that takes for granted a false assumption like this one about fair use, unaware perhaps that this widely-spread rumor is actually a modification of an Internet-industry-backed effort to “export U.S. fair use doctrine” through FTAs to our trading partners. These companies would favor replicating our liberal application of this doctrine and even imply that U.S. copyright holders are against such a provision, but this is a mischaracterization. It is more accurate to say that our trading partners don’t have the constitutional foundation to apply doctrine as we do.  I know that’s a too complex and wonky to make a good Facebook meme or grabby headline, but that’s the point.

So, even with this one tiny matter about which much corn has been shucked, we’re witnessing a giant game of Telephone.   Silicon Valley-funded organizations say “export fair use doctrine” to start the game, and this translates to “TPP will harm fair use” by the time the message comes full circle in the form of an OpEd in the New York Times.  So, is it really logical to believe that more leaked text about even more complex issues and filtered through even more vested interests will help us make more informed decisions?  I have more than a few doubts.

Meanwhile, the TPP isn’t classified; it’s embargoed.  Journalists committed to their principles are familiar with the need to embargo a story, perhaps to ensure someone’s safety prior to publication, and it would be a shame if that kind of judgment call were inappropriately reclassified as censorship just because we now have these machines that confuse our right to know with our right to know right bloody now.  The scale and scope of the TPP are unprecedented, but the level of secrecy is not. Negotiating trade deals through real-time public referendum would be like trying to play poker while everybody’s kid brothers run around the table shouting out who’s holding which cards.  What is also unprecedented (and frankly fascinating) is that the TPP is the first trade deal to be negotiated in the age of social media, which provides what I will continue to insist a fairly opaque form of transparency at best.

In fact, I suspect one of two outcomes would be the result of Wikileaks’s brand of un-alloyed “transparency” in this case:  one would be a collapse of trade deals altogether, but the other would be truly unprecedented secrecy indeed.  As journalist Christopher Dickey points out in this 2010 piece about State Department leaks by Wikileaks, “To avoid this kind of massive leak in the future, documents will get higher classification and less distribution, and a lot of the most important stuff may not be committed to the keyboard at all.” Oversight through the filter of  representation and principled journalists is imperfect, but a much bigger question than the one McBride is asking is whether we want to be a nation that does imperfect things as a republic or a nation that doesn’t do anything because we choose to embrace the near anarchy of direct democracy?

To be sure, I feel, as many of my fellow progressives do, that we have ceded far too much power to corporations overall, allowing deregulatory trends to foster wealth consolidation, poor environmental policy, weaker labor rights, and downgrades in education, medicine, infrastructure, and other foundational enterprises.  If we hope to address any of these issues, we need to find the political will to do so through domestic policy, investment, and the representation we choose to elect. In the meantime, it doesn’t seem helpful to perpetuate confusion about what trade deals can and cannot do to our domestic laws, let alone to cite that confusion as a reason for serious journalists to abandon their hard-won principles.  Frankly, I think we have enough hacks.

© 2015, David Newhoff. All rights reserved.

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  • David;

    I get your point…some deals need to be made in secret…I guess…

    That being said, what you seem to be saying is that the people making this particular deal have a right to say, “Trust us…” and you’ll go along with that. I take the position that, based on past performance, I do not trust them. I do not trust anything about them. I do not trust that their agenda is focused on doing good for anyone but themselves. If it happens to benefit other people, that’s just an unintended consequence. It is not what they are about.

    If a deal is so good for everyone, it should be obvious to everyone…therefore, if the deal is open to the light of day, it would garner even more support. But that is not what’s going on.

    Possibly someone can come up with an example of a deal that was made in secret that had great public benefit and garnered wide public support after the fact. I can’t think of even one…

    • Overviper:

      You’re making a case for not engaging in such things as trade deals, which is a perfectly fine debate to have, if people want to consider the pros and cons of that decision. I’m not advocating blind trust so much as a more realistic view of what is happening and even more sober assessment of the idea of transparency through social media. The one thing I’ll say though about blind trust is that it ends up happening whether we believe it or not. We elect representative while we ourselves do not have time to track every bill and every issue. There’s always an element of blind trust in representative governance.

    • The point that seems to escape just about everyone who talks about TPP – and, while we’re at it, the TTIP that’s being negotiated with the EU – is that the full text will be published, once the negotiations are done.

      It’s like dealing with goldfish, really. Remember ACTA? The other Big Secret Deal. It so happens I’d read a draft of that one two years before it was signed – through no artifice other than following the news. It was available for anyone to read when all the hooplah about ratification erupted (in my neck of the woods too, I regret to say) and even so everyone was making all kinds of noise about “secrecy” – despite the fact that it had only been “secret” because they couldn’t be arsed to go and read it.

      Sadly, expecting a society that has access to unprecedented amounts of information at its fingertips to actually, y’know, be informed can only be a source of heartache.

      My advice: relax and take opportunity of the time whilst the agreement is hammered out to read up on how trade agreements actually work. You’ll learn something and also realise you’ll have plenty time to get worked up about it – and shoot it down, as was the case with ACTA – when it arrives.

      • David Newhoff

        Exactly right, Faza. I hope readers understand that’s what I meant when I say the text is “embargoed,” but perhaps not. The full text must be made available, and certainly our Congress will debate its ratification publicly for at least a couple of months. At that time, I have little doubt citizens and corporate interests will seize the opportunity to try to kill the deal, perhaps still for the wrong reasons; but at least the secrecy nonsense can stop.

  • I’m sorry…are you suggesting that if a deal is signed, and THEN we get to learn what’s in it, and we decide we don’t like it…that anyone will be held accountable? Because in the last 30 years, it doesn’t seem as if ANYONE has been held accountable for anything in Washington (except of course for Benghazi…endlessly).

    Today in the LA Times op-ed is a letter from Janice Hahn, Representative from San Pedro…The first point she makes is that”fast tracking” ties the president’s hands for such things as climate change, human trafficking, immigration…and negates her role (as a member of Congress) to merely one of an up or down vote on something that is complex enough to warrant complex negotiations. Then she points out that NAFTA resulted in the loss of 800,000 American manufacturing jobs. She would like a trade deal that does not hurt American workers. Who, in these secret negotiations, is looking out for them? The same corporations pushing to “fast track” this deal?

    The next letter (from Paul Koretz – City Council) points out that Exxon and Dow Chemical have launched hundreds of lawsuits against governments who try to enforce provisions in trade agreements that might eat into their profits…So that’s one obvious strategy…agree to the trade agreement, then tie up any enforcement in the courts. And by the way, the courts are not even US courts…they are International “Trade Tribunals”.

    I have heard that one provision of this deal ALSO allows those corporations to sue for any infringement of their “potential” profits. Not having seen the Trade Agreement, who knows if this is true or not? It seems to come from a reliable source, but these days with the Internet the way it is, who can be sure? But let’s assume that it’s 50% true. Is that a reason to allow this deal to be negotiated in secret?

    Nope…I call bullshit. If you don’t show me exactly how this is good for me, I don’t want it.

    • Oviper says ” But let’s assume that it’s [a parade of unsubstantiated horribles] 50% true. Is that a reason to allow this deal to be negotiated in secret?”

      The way I look at it is, if ANYone argues this agreement over ANYthing “supposedly” contained within, I immediately tune that person or group out… as their agenda is to spread fear, uncertainty, and panic.
      Think about it rationally for half a sec: no one knows the content, so EVERYONE commenting on the actual content is full of shit.

    • David Newhoff

      I’m saying that trade negotiations are always secret by necessity, then the negotiated package becomes public and debated by Congress, at which point it can still be killed. Again, it’s our right to decide, “if it has to be secret, then no more trade deals,” but I personally have no idea what the result of that would be or how we put the globalization genie back in the bottle. Regardless, that is not the debate that’s happening. Instead, a lot of utter bullshit is being scattered all over the Web, including by the Internet industry spreading nonsense about IP provisions.

      I don’t favor anything that hurts people over corporations; yet, even as I say that, I must concede that most people work for corporations, so the lines are not really quite so bright red. And on that subject Representative Hahn is naturally concerned for her district, which happens to be one of the largest ports in the country and cares a great deal about trade. Though I cannot find the OpEd you mention, she seems to saying that she would like a kind of line-item veto rather than an all-or-nothing vote on the whole package; but that’s a completely absurd thing to say about a trade deal, and she probably knows it. As such, assuming she and her staff have reviewed the text of the proposals, she’s applying public pressure on the White House now for reasons she can’t really state publicly. I’m just guessing; I don’t know what she wants, and neither do you. BTW, this is how everything gets done — even laws we like.

      BTW, here’s a piece that contains a more realistic description of companies “suing” over potential profits. It doesn’t mean the Exxons of the world don’t do some nasty things, only that we shouldn’t chase our tails for the wrong reasons.

      • It’s the first letter in the op-ed comments…and by the way, the LA Times came out in favor of TPP. I think what Janice Hahn is saying is that she would like a discussion of the trade agreement before she has to vote up-or-down. She would like to see what it is. She would like to know if it creates more job loss for America. I’m not exactly sure why you seem to be defending this when you don’t know what’s in it either…

      • David Newhoff

        Well, my post doesn’t defend TPP as such. But that aside, debate will still happen in Congress once the trade partners reach an agreement. That’s just normal process. Just because the USTR says “here’s what we’ve agreed to,” that does not mean Congress has to ratify it. Still, I’m not defending the TPP (you’re right, I don’t know what it says), but I am sure that many of the claims out there are false. And just to be really cynical, MOC don’t always care so much about American jobs across the board, they care about the jobs in their districts, which is what they’re supposed to do. So, if a deal might create jobs in one sector and harm them in another, what do we conclude about the votes of each representative? It’s just sausage-making, and there’s a reason they say not to look. If more semi-slave labor in Asia means more stevedore jobs in San Pedro, where does Rep Hahn come down on a deal? I don’t know the answer, but that’s trade — devil and the deep blue sea. Meanwhile, Rep Hahn’s strange bedfellows on TPP in Silicon Valley don’t care about jobs at all and aren’t big job creators.

        Frankly, if we want American jobs, I think we ought to invest in American infrastructure, which is in shit condition and due for an upgrade. But that’s not what we’re focused on it seems.

        Does all that mean I trust Obama and the USTR absolutely? No. I’m just not going to delude myself into thinking that the web is providing me with some sort of effective oversight, least of all from Wikileaks.

  • Maybe it’s just my cynicism…but Obama seems to think that America can have an economy based on “You cut my hair, I’ll fix your car…” That will not work. It’s not a sustainable economic model. If you look at all the third world countries, that’s how their economies function, and that’s where we’re headed if we don’t bring back the concept of making stuff here that we can sell. Fixing the infrastructure is fine, but manufacturing will not just show up once we do. It’s a complex system involving labor, raw materials, transportation, education, many factors…

    All commerce is some kind of trade-off and Ms. Hahn is right to look out for her district. My fear is that no one is looking out at the big picture. This trade agreement, which we have not seen, has been reported as being something that is supposed to level the playing field because we will only import goods made by workers who are paid adequately, have healthcare, etc. In other words, it’s being sold as a way to raise living standards in places where workers are exploited in order to bring them up.

    But anyone who has actually been to some of those places understands that child labor does not come merely from exploitation…it arises out of poverty so extreme that you can’t stand to look at it. They want those jobs, because without them, their situation becomes even more dire.

    The thing that I do not trust is that the countries we are getting into business with under this agreement will not cheat. We know they will…we know exactly what they’re about. They will sign this agreement and then do whatever the hell they want and no one will hold them accountable. I see Neville Chamberlain waving his white paper and crying, “Peace in our time…”

    Maybe I’m just a cynic…

    • David Newhoff

      Much of what you say may be true, and I share your cynicism in general. I really just meant that infrastructure in the broadest sense (i.e. domestic investment) cannot by nature export jobs. But of course I believe in making things or I wouldn’t write a blog defending the creative industries against the interests of Silicon Valley. And who knows, maybe the progressives who just voted against fast track in the House really do see a new way to approach trade. Hard not to be cynical about that, too, though.

    • “Fixing the infrastructure is fine, but manufacturing will not just show up once we do.”

      One American engineering company was telling me the other year that 70% of skilled manufacturing engineers are due to retire in under 10 years. Many large companies are desperately trying to capture skilled process with software.

      • This is a very interesting AND important point. A couple of years back I was interviewing people for a documentary about science and technology. A couple of the people I talked to worked for NASA and JPL. They told me that they did not believe that America could ever put people in space again. The vehicle (that Obama killed) that was supposed to be in between the Shuttle and the Mars program was supposed to provide continuity. But if we needed to bring back the shuttle, there would not be anyone who knew how to glue the tiles on it for re-entry…they are all dead or retired. Right now we’re hitching rides on Russian rockets, and Elon Musk, for all his bluster, has never put up a payload of any significance.

        These people are an irreplaceable resource. Likewise people who build things like bridges and highways. In order to learn how to do things like that, one must serve an apprenticeship with people who know the job. You don’t just get your engineering degree and go build a bridge. It’s a recipe for disaster. And it’s happening across our whole manufacturing/industrial sector. Today I read that they’re closing the Boeing plant in Long Beach that builds military aircraft.

      • David Newhoff

        You raise a subject I think about often. The big American achievements in the 20th century began with the unfettered capitalism of the Robber Barons, who built a lot of the infrastructure we still use on the backs of underprivileged labor. Then, there was the likely-never-to-be-repeated socialism of The New Deal. And of course we do continue to innovate or build if there is a military component to the initiative, which isn’t always a bad thing. But given where the investment money is now, namely in so much short-term, high-tech bubble ventures, it doesn’t seem as though anyone is interested in building, say, the next-gen power plant or taking on the challenge of better rail systems. And we can’t do that stuff with public dollars without it being politicized into an inefficient mess.

        I’m not surprised that we may be losing certain types of experts, though I am reminded that the Erie Canal was built by a bunch of guys who never built a canal before; and the Mercury program was flown on a proverbial wing and a prayer. America has a long tradition of winging it, but of course, through most of the 20th century, we could afford to wing it. And I think more leaders looked to build for the long haul, satisfied with steady growth. Today, business is too driven by quarterly reports to shareholders, I think, and everyone is looking to get rich fast, even on the most dubious business prospects. Uber is worth more than United Airlines?

      • David Newhoff

        On the subject of economics in general, I recommend this piece:

        Repeats itself a bit but makes some excellent points I think.

  • The common wisdom used to be “Sell to the masses, eat with the classes”…that has been flipped on it’s head. If I could figure out a way to invest in it, I would put a big chunk of money into the “Concierge” sector, because I believe that in the coming years (until the next “French” Revolution and we start cutting off the heads of the aristocracy in the streets) that sector – however you define it – will show unprecedented growth.

    Why, you might ask? Because people are getting more impatient, more self-indulgent, and lazier.

    Why call a restaurant for a reservation when you can have an app do it for you? Or have an assistant do it and you can scream at them if they get it wrong. Most jobs that pay these days, pay big. The middle-sector jobs are vanishing, the middle class is vanishing…we all know this…but combined with the fact that more people are moving into urban areas and leaving rural areas, the skill sets that are important to have are, again, turned upside down.

    We live in a so-called “Information Age”, but you can also term it a “Bullshit Age” because so much of what passes for information is really spin and marketing. At a certain point, all the people you see staring into their iPhones all day will suddenly realize that there’s no one left to harvest their food or truck it to market…and that 200K marketing job is going to be useless once people get tired of paying $100 for some fish & chips and a couple of drinks at some new, trendy “hot-spot” because they’ve been to that spot, and the one last week, and the one last month…and the thrill is just gone…and you realize it’s a bad deal.

    We are already in that “Servitude” economy. My wife teaches at a film school whose business model is to get students to sign up because the government guarantees their loans. They come in, hundreds of them, all wide-eyed and bushy-tailed and think that they will get jobs in the movie business when they graduate. One out of fifty will get a job…and eventually that bubble will have to burst…and they’ll be working at Starbucks.

    If you are going to give student loans and have the taxpayers guarantee them, it won’t be much longer until someone gets the idea that those loans should not go to people who want to study bongo-drumming, but should go to people who want a career in engineering.

    The young people I know who are in the workforce and have a good paying job, they do not seem to be interested in either investing or saving money. I’m sure there are many exceptions to this, but my own observation is that they are the one’s funding the $100 fish & chips joints (I’m not making this up – I went to one of these places last night). People in the Boomer generation, who are looking at retirement are much more concerned about their ability to earn in the coming years…so they have become more reticent to spend.

    That does not bode well for the people who need to sell to them. It likely means that there will be some sort of deflation as the economy contracts.

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