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.

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