The WikiLeaks controversy offers an opportunity to inform the discussion about what South Africa's Protection of Information Bill should and should not try to achieve. Sadly, it is likely to give governments ammunition to promote ever-greater secrecy instead.
As a journalist who favours freedom of speech, and a free-market capitalist who favours limited government, my condemnation of the publication by WikiLeaks of a massive archive of confidential diplomatic cables has surprised many readers.
Many have asked whether I therefore support the right of government officials to unilaterally classify information and keep if from citizens, or whether I condemn whisteblowing. Some questioned how WikiLeaks differs from investigative journalism, and if my opposition to WikiLeaks extends also to the Guardian, the New York Times and other newspapers lucky enough to have been given the leaked documents. A few wondered whether I support the Protection of Information Bill as it currently stands.
As attractive as it is to adopt binary for-or-against positions, reality is more complex that this. The alternative to placing arbitrary power of classification in the hands of unsupervised officials is not a complete lack of confidentiality.
To put it in the context of South African law, the problem with the Protection of Information Bill is not what it seeks to do, but how it seeks to do it.
I've already made the argument, in my previous column on WikiLeaks, that there is some information that governments are entitled to keep confidential or secret.
The most obvious example is information about military strategy or tactics. It would be absurd to entrust a government with the duty of common defence – often the most basic of reasons why a government exists in the first place – and then withhold the very powers that make effective military action possible.
Domestically, a similar argument goes for protecting lives and property. It is a primary purpose of government, and a duty with which almost everyone (barring true anarchists) would agree. It would be absurd to expect governments to fight crime if they first had to tip off criminals about their infiltration plans. It would be counter-productive if citizens who report crimes could not count on the protection of secrecy or anonymity, if their lives would be endangered by the information they provide to the police or the courts.
When governments conduct foreign policy, whether it serves to promote trade, fight corruption, establish defensive alliances, or negotiate peaceful settlements to conflicts, the same holds true. When diplomats ask dissidents, civil servants, politicians, journalists, and business leaders to speak with them, in the hope of informing their country's foreign policy, those sources have a right to expect as much protection as the diplomats can reasonably offer.
Already, there are calls for the opposition leader in Zimbabwe, Morgan Tsvangirai, to be brought up on charges of treason, for comments he made in confidence to US diplomats. Even in countries that aren't subject to such harshly authoritarian regimes, sources may be compromised politically or in their jobs if their candid assessments are disclosed publicly. Many citizens in Kenya, Mozambique, Uganda and South Africa will likely end up in very deep water for having spoken in confidence with diplomats.
If you argue that a government is there to serve taxpayers, and that therefore it should do everything in the open, you withhold from them the powers they need in order to perform the service taxpayers have a right to expect.
Worse, you risk withholding from them the information they need to make informed decisions. Many smart dissidents, politicians or journalists will propably cease speaking to diplomats on whose foreign policy they used to pin their hopes, for fear of losing their jobs, property, family, liberty or even life.
It is hard enough to conduct foreign policy even with the best available information. Is less informed foreign policy really an improvement on the status quo? You can't blame the Americans for intelligence failures prior to 9/11 or in the run-up to the Iraq war, and then deny them the very tools they require to be better informed in future.
Once you grant governments legitimate claims to confidentiality, the question then becomes why, when and how governments are granted the power to classify documents as secret or confidential.
In an interview with Voice of America, the executive director of the Open Democracy Advice Centre, Alison Tilley, offered a splendid critique of the Protection of Information (POI) Bill in South Africa. There's no need to repeat her comments here. I largely agree with her views.
Here's what a POI Bill (or Act, as it will be called once it is signed by the president) should do.
It should narrowly define what kind of information should be protected. The current definitions of national or economic interests are far too broad and vague – in fact, one could argue that they cover any information the government could possibly produce.
It should limit the number of people in the executive arm of government who can classify documents. The current Bill allows even mere managers of state-owned companies to classify ordinary business documents.
It should subject those classification decisions to a range of oversight procedures – by the legislature, by the courts, and by independent institutions as contemplated in Chapter 9 of the Constitution of South Africa. Although these are not foolproof, they do work most of the time. More importantly, they strike a reasonable balance between accountability and the need for confidentiality.
It should create effective means for citizens to appeal and overturn classifications, along the lines of the Promotion of Access to Information (PAI) Act. As it stands, the POI Bill appears to contradict the purpose and substance of the PAI Act.
It should also protect bona fide whistle-blowers, if they can show that their breach of the POI Act was in the public interest, by exposing corruption, fraud, harm to citizens or the environment, or other wrongdoing on the part of government officials.
Once information has been released, it should certainly not criminalise mere possession or further dissemination. Once information is in the public domain, whether it got there legally or otherwise, its publication should not be prohibited. Doing so would criminalise investigative journalism, which as a matter of principle attempts to filter information, including confidential information, with the goal of placing before the public anything that can stand up to a public-interest defence in court.
This, incidentally, is why WikiLeaks is not journalism. It does no such selection, and happily breaches legitimate claims to confidentiality just for the sake of doing so. The vast majority of what it publishes will not survive a public-interest defence, and much of it tramples indiscriminately on the rights of people whose conversations were compromised. Moreover, unlike with the media, those who feel wronged by WikiLeaks disclosures do not have any legal recourse.
As Tilley suggests, when governments focus on protecting only the really important information, this will go a long way toward preventing wholesale disclosures. Furthermore, the public to whom governments should be accountable will be less likely to applaud disclosures if they can be reasonably confident that official confidentiality is not arbitrarily abused to cover up wrongdoing.
Unfortunately, the genie is out of the bottle. It doesn't matter whether those who leak information to WikiLeaks do or do not have an axe to grind. It doesn't matter whether the information is what it purports to be, and was not selectively edited, redacted, modified or seeded with disinformation. It doesn't matter whether WikiLeaks founder Julian Assange is responsible and virtuous, acting only in the public interest.
If he doesn't do it, some other unelected, unaccountable person, operating entirely on their own initiative and without any accountability, will spring up in his place, pretending that they're merely disclosing what the public has a right to know.
There is a grave danger that WikiLeaks, instead of initiating a discussion on how to achieve a more open society of the kind Tilley envisions, will instead motivate governments to extend secrecy laws and deal more harshly even with citizens who merely receive or propagate leaked information. They may also commit much less to paper if they fear leaks, which will result in less control over officials and will reduce the ability of courts, legislatures or the media to hold officials accountable to the public.
If WikiLeaks is the reason why an overbroad, authoritarian Protection of Information Bill makes it into law, we'll have seen the first signs of a society of ever-greater secrecy, not ever-greater openness. This is why WikiLeaks should not be celebrated, but should be viewed with extreme scepticism by anyone who values their rights and their freedom.
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