Protection of Information Bill and why WikiLeaks is so dangerous
- Ivo Vegter
- 14 Dec 2010 07:24 (South Africa)
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.
- Since when do we believe the tobacco industry?
- The blockchain: How Atlas will shrug
- The mafia bosses and the gambling cartel
- The planet is getting greener
- The tinfoil hat loonies were right all along
- ‘The cheque is in the mail’
- WWF report proves the sustainability of growth
- WWF alarmism raises even green eyebrows
- Chernodeal: Shopping for discount nukes
- Star Trek, 50 years on: A study in sexism
- Let me mansplain statistics to you
- Free the hippies! Don’t ban their drugs!
- Which principle: precaution or progress?
- How to kill a baby, naturally!
- Miserere mei, the Ebocalypse is here!
- Advanced technology or magic?
- Tourism: Still doing okay? Let’s fix that!
- Green-left messiah desperately seeking spin-doctor
- The gun genie and its bottle
- On energy, environment, and regulatory independence
- South Africa’s schools of witchcraft and wizardry
- Grab shale gas opportunity, but avoid opportunism
- It’s about who you don’t vote for
- Free markets as a moderate position
- Voting: there’s still time to change your mind
- Green tech is cool, but not because it’s green
- How Mmusi Maimane swindled a vote out of me
- The case to elect Malema to Parliament
- The intellectual gnome, Chomsky
- If Malema isn’t Pol Pot, is he still dangerous?
- Do Malema's followers understand ‘agrarian reform’?
- Look ma, I'm defending Shell's record in Nigeria!
- Any weather is evidence for global warming
- U-turn prof finds his fracking fears are avoidable
- Ramphele et al: The world according to angry feminists
- On HIV/Aids and scary-big numbers
- Cherry-picking ‘grey literature’ on rhino horn
- 350,000 reasons to kill a black rhino
- Eight myths about libertarians
- New Year’s resolutions for other people
- All I want for Christmas is a fire pool
- In defence of Donald Trump
- My old South African flag
- Fearful Fukushima fiction fatigue
- Do we tolerate private sector corruption?
- In defence of a lion killer
- Save the rare wine and endangered craft beer
- Forever blowing bubbles: shale gas economics
- Promotion and Protection of Investment Bill: When “certainty” means “wait and see”
- This land is my land: a revolution
- The launch of SA's Libertarian Party: herding cats in time for 2014
- The African case against the ICC
- The fossil fuel subsidy myth
- Think of the little fishies!
- The hilariously misunderstood libertarian
- The sickly history of sweeteners
- Pants on fire, but they’re not mine
- The obstructionism of shale gas activists
- How mind-numbing numbers whip up fear
- Why pick on Khanyi Dhlomo?
- Half-measures will fail the rhino
- Malema’s righteous anger... and naïve confusion
- Lottery licence to go to one lucky winner
- Vaccinations: when the state stabs the people
- Do reusable shopping bags kill people?
- The long walk to serfdom
- The Karoo desperately needs development
- The trials of Samson Shuttleworth
- The girl who kicked the hornet’s nest
- Raping the discourse about rape
- Who is the reasonable man?
- Fracking: Debating a big deal
- Who needs the Queen’s English?
- Electric cars: Taking from the poor to give to the rich
- Business Licensing Bill: An indefensible defence
- Red-tape tourism
- The Big Business Bribery Bill
- On Thatcher and society, Vavi and the market
- Extinction: Let’s make up numbers and panic!
- Feeding the world is getting easier
- Stop talking shit: Build your own toilet
- Climate change is pseudo-science
- Anti-competitive competition law
- The Department of Less Government
- An open letter to President Zuma
- In defence of Kim Kardashian
- The world’s weirdest wildlife sanctuary
- Boycott calls are simple-minded
- In defence of vegans
- The population explosion implodes
- Environmental backpedalling picks up pace
- How Mangaung can help and hinder entrepreneurs
- The elusive libertarian enclave
- The Gathering: Ivo Vegter
- The hidden overemployment crisis
- The case for constructive environmentalism
- Privatise the Western Cape's shacks
- Tenders: Not open to employees or their families
- Hurricanes fuel climate sensationalism
- Next: Gross-out warnings on food
- No new deal: The failure of Zumanomics
- Benoni has a bright idea
- Was I wrong about acid rain?
- Public food gardens: Where dumb ideas thrive
- Rethinking the costly food label madness
- Give hunting a chance
- Fracking gets green light, but here's the risk
- Socialists, bless 'em, visit Cape Town
- Buy a 1Time ticket now
- Give the ANC credit where credit is due
- The myth of the competent apartheid government
- It's a disaster that 'peak oil' is not a disaster
- No Gravy: a label for sustainable business
- This lightbulb's going to blow
- Smokers? Get 'em up against the wall!
- Inflating the obesity scare
- Bring a Shotgun to School Day
- GMOs: Hacking genes to feed the world
- The hidden dangers of charity
- Fracking: the unread paper debated
- Fracking: The “U-turn” paper nobody has read
- Eco-cronyism is as dangerous as any other
- SKA: Be grateful Karoo residents didn't object
- Energy: Get cracking on fracking
- Fair trade, unfair trade-off
- Casual labour is only bad for Vavi's unions
- 'Externalities', the catch-all justification for regulation
- 'Externalities', the catch-all justification for regulation
- How do we fix our dismal education?
- Barter: the rebirth of sound money
- Rights are not entitlements
- Debunking 'limits to growth' inanities
- Tax: Why align with "most other countries"?
- Newspaper sensationalism doesn't help rhinos
- Rolling Stone reprises Gasland's fracking fantasies
- Cosatu's manipulative march move
- Why do 16 million people not constitute an economy?
- The age of smear politics
- Does fracking cause earthquakes?
- The Chinese model is morbidly obese
- Green tech: doubling down on a losing bet
- Rape, pornography, and hell's grannies
- Petrol taxes won't hurt the poor
- Jailtime mooted for bad weather warnings
- Let's ban bans, and start with CITES
- In defence of overpaid sport stars
- On the death of Kim Jong-Il
- COP17: Let's ban fire
- Cancer gets you when nothing else can
- COP17: The 'party on' agenda
- COP17: The Blue Line of Death
- New seven natural inanities
- Occupiers' anger is all that makes sense
- The Luddites and Technocrats live on
- Malema marches for economic slavery
- Profitable purveyors of pudendal prettiness
- Sense? Us?
- If they want rhino horn, let's sell them some
- "Stimulate" economy by ending telco abuses
- Executive pay makes nobody poorer
- Malema's real persecution
- Mogoeng: Lock up your daughters
- Don't mandate insurance, deregulate healthcare
- I sympathise with Malema's persecution complex
- Short selling: panicked pols ban proof of failure
- Don't blame those who saw it coming
- What's obscene about profit?
- In defence of Bombela
- Dear president Zuma, you are not above the law
- The economics of love
- Treasure the Karoo? Ban the SKA!
- Malema is right, you know
- Gautrain's PPP: political patronage profiteering
- Kumi Naidoo is no hero
- LeadSA fails to lead when it matters
- No logo means carte blanche
- The drug war: dopey but dangerous
- A response to fracking critics
- Don't vote. It's your right.
- Welcome Walmart
- If you're happy and you know it clap your hands
- Buy local, support poverty
- Ubuntu, the free-market way
- Karoo fracking scandal exposed!
- I'm ashamed for my profession
- The bill of bunkum
- Being gay: a brand new concept!
- Who's afraid of the nuclear wolf?
- The nationalisation canard
- Ogilvy should grow a spine
- The new robber barons
- A classy revolution: Why we cared
- Bombastic Bombela balks
- Liberty is more than mere democracy
- Gautrain has a law unto itself
- The irony of 'services for all'
- How to hire a hitman in SA
- Arrive alive and neurotic
- The oppression of taxis
- Protection of Information Bill and why WikiLeaks is so dangerous
- Fifa, Russia and Qatar deserve each other
- One day, we'll all hate WikiLeaks
- The cycling mafia strikes again
- What Julius got for Christmas
- Let's return the beads
- Away with fascist seat belt laws
- Tintin Mbeki in the Sudan
- How the ANC can make everyone happy
- Currency: the race to the bottom.
- Hurrah for national healthcare!
- Give Zimbabweans citizenship
- Carte Blanche has no carte blanche
- That finger-licking, lip-smacking taste
- Bomb the barbaric lot already
- Green tax: another raid is coming
- Do strikers deserve anything?
- The media will lose this battle
- Global warmism needs a fisking
- A glass half-full
- Go ahead, have a baby
- Stop the handouts - end xenophobia
- The right to fire
- FIFA's heart of darkness
- Have some self-respect
- I ordered an orange skirt
- Secretly, Match blames South Africa
- The stupendous Gautrain: a rare marvel!
- The Fifa conquistadors are coming!
- What's wrong with everyone?
- Leave poor BP alone
- The destructive power of government
- The bonsai economy
- The darkness of Africa
- Who is ripping off whom?
- Anatomy of a whitewash
- While FIFA takes over, we fight
- The pointless pretence of Earth Hour
- Ten reasons to reject climate alarmism
- Really, boycott the FIFA farce
- The climate dominoes fall
- Lessons in ethics from Dick Cheney
- Screw the consumer
- In defence of bankers
- Break the banking cartel
- Julius Malema, the walking contradiction
- Boycott FIFA
- Climate clarity
- In defence of Boney M
- Pray Copenhagen fails
- Capitalism is not unkind
- Climate fraud kills people
- Pop goes the hot air balloon
- Peace, love and schadenfreude
- The irony of the left
- Too late to cool it?
- Going cold turkey