Disclosure’s Effects: WikiLeaks and Transparency

Constitutional, criminal, and administrative laws regulating government transparency, and the theories that support them, rest on the assumption that the disclosure of information has transformative effects: disclosure can inform, enlighten, and energize the public, or it can create great harm and stymie government operations. To resolve disputes over difficult cases, transparency laws and theories typically balance disclosure’s beneficial effects against its harmful ones—what I have described as transparency’s balance. WikiLeaks and its vigilante approach to massive document leaks challenge the underlying assumption about disclosure’s effects in two ways. First, WikiLeaks’ ability to receive and distribute leaked information cheaply, quickly, and seemingly unstoppably enables it to bypass the legal framework that would otherwise allow courts and officials to consider and balance disclosure’s effects. For this reason, WikiLeaks threatens to make transparency’s balance irrelevant. Second, its recent massive disclosures of U.S. military and diplomatic documents allow us to reconsider and test the assumption that disclosure produces certain effects that can serve as the basis for judicial and administrative prediction, calculation, and balancing. For this reason, WikiLeaks threatens transparency’s balance by disproving its assumption that disclosure necessarily has predictable, identifiable consequences that can be estimated ex ante or even ex post. This Article studies WikiLeaks in order to test prevailing laws and theories of transparency that build on the assumption that disclosure’s effects are predictable, calculable, and capable of serving as the basis for adjudicating difficult cases. Tracing WikiLeaks’ development, operations, theories, and effects, it demonstrates the incoherence and conceptual poverty of an effects model for evaluating and understanding transparency.  UF Research Foundation Professor, Samuel T. Dell Research Scholar, Levin College of Law, University of Florida. Thanks for comments to Steven Aftergood, David Fontana, Lyrissa Lidsky, and Trysh Travis, and especially David Pozen. Thanks also to excellent, timely research assistance from Ariane Assadoghli and Stephen Bagge. This Article concerns a still-developing story and fast-evolving institution as it existed in December 2011 and will not reflect developments that occurred after that date. FENSTER_FINAL.DOCX (DO NOT DELETE) 2/13/2012 1:36 PM 754 IOWA LAW REVIEW [Vol. 97:753 INTRODUCTION 755 I. WIKILEAKS’ DISCLOSURES 758 II. WIKILEAKS’ THEORIES 769 A. DISCLOSURE AS LIBERAL REFORM 770 B. DISCLOSURE AS RADICAL RESISTANCE 774 III. DISCLOSURE’S EFFECTS: WIKILEAKS IN LAW AND ACTION 781 A. TRANSPARENCY’S BALANCE 782 B. THE CLASSIFICATION SYSTEM, THE ESPIONAGE ACT, AND DISCLOSURE’S EFFECTS 784 C. WIKILEAKS’ UNCERTAIN EFFECTS 788 1. WikiLeaks’ Direct Effects on Military Operations 789 2. WikiLeaks’ Direct and Indirect Effects on Diplomatic Relations 791 3. WikiLeaks’ Effects on Intra-Governmental Information Sharing 795 4. WikiLeaks’ Effects on the American Public 798 5. WikiLeaks’ International Effects 802 CONCLUSION: THE CONSEQUENCES OF DISCLOSURE’S UNCERTAIN EFFECTS 805 FENSTER_FINAL.DOCX (DO NOT DELETE) 2/13/2012 1:36 PM 2012] WIKILEAKS AND TRANSPARENCY 755