The Berkman Professor of Entrepreneurial Legal Studies and faculty co-director of the Berkman Center for Internet and Society, Yochai Benkler ’94 has written extensively on the “networked public sphere,” including his influential book, “The Wealth of Networks.” He spoke about his proposal for a defense of whistleblowers, his testimony in a trial of a well-known leaker of military documents, and a problem he calls a growing crisis in the country.
You’ve argued that Edward Snowden should be granted immunity. Why should we offer this protection to someone who revealed classified information related to national security?
One of the things that needs to be understood is that whistleblowers provide a critical checking function on the organizational dynamics of the national security system, which systematically and repeatedly makes mistakes. The basic point is not about free speech, not about public exchange, it’s about the fact that we have seen a significant spike in the number of national security prosecutions after 9/11 whose only equivalent was the period of the early ’70s at the height of the Vietnam War. What becomes very clear is that the two periods that really show spikes are periods where the panic response within the national security system led to actions that in hindsight seemed deeply wrong. The warrantless wiretapping program is a very clear example. The national security system, because of its secrecy, because of the extremity of circumstances and the potential consequences of failures, is more susceptible to these self-reinforcing error dynamics. What national security leakers do is to provide a moral compass that is sufficiently different from that of the organization. Under extreme conditions, when the organization goes really wrong, they’re like a pressure valve.
How would a public accountability defense, which you’ve proposed for national security leakers and whistleblowers, work?
It doesn’t mean a get out of jail free card, no matter what. It doesn’t mean that you don’t want to assure that there’s some significant level of risk associated with becoming a whistleblower, because obviously many times there is a legitimate reason for secrecy. The purpose of the defense is if in retrospect you look back at the revelations and you say, “You know what, the system really did go off-kilter, we really need to reform fundamentally,” then the whistle-blower can appeal to that defense and say, “I was right. Enough people in the world believe that the system has gone wrong. I shouldn’t be made to suffer the consequences when the real problem was the system not me.” In Snowden’s case, there are so many public sources of affirmation that the error was in the way the national security establishment interpreted its powers and extended its reach that the man who risked so much to correct that error should receive the benefit of such a defense. It would be a general defense in criminal law with sufficiently constrained requirements for assuring the reasonableness of the disclosure and the unreasonableness of the practice disclosed.
What did you learn from your experience testifying at Chelsea Manning’s trial as an expert witness on the issue of WikiLeaks?
I think Chelsea Manning got a very raw deal. I have no question based on the materials I saw in the trial that Manning’s motivation was very much to expose some unacceptable practices, most importantly cooperation with Iraqi authorities that killed and tortured opponents. But I also think it was clear how overwhelmingly difficult it is for a defendant in one of the cases to operate, because the prosecution through selective declassification and classification held all the cards about what evidence is or isn’t available for the defense, showing just enough to incriminate but not enough alternative materials. It was extremely difficult and time-consuming for the defense. The core problem in the case was the breathtaking overreach of the prosecution, to charge Manning with aiding the enemy. The theory of aiding the enemy would have essentially said that anyone who gives a news outlet secret information is aiding the enemy because the enemy can read the news outlet. That was the fundamental theory of the case. It basically means that any disclosure of national security materials to the press with the intent of being published is a death penalty offense. That was an overreach intended to terrorize whistleblowers.
How did growing up in Israel shape your personal perspective on these issues of national security?
Certainly as someone who was a soldier, I think those of us who have actually experienced the inside of one of these national security organizations understand that they’re all too human. This is not about evil people who want to take over the republic. This is about well-intentioned people living in a system that by its design, by its practice, by the complexity of the problems it has to deal with, makes mistakes all the time. And if you want to talk about the personal sense of it, it’s the sense of having been a soldier and seeing smart people and stupid people, brave people and cowardly people, successful people and unsuccessful people, just like there are in any other organization. It’s not fundamentally different from a university or a company or any other government agency. It’s a human system like any other, deeply imperfect and with the best of intentions needing consistent correction.
Technology has not determined and will not determine the level of inequality in society. What has always mattered, what will continue to matter, are the political choices we make about the institutions we live with, about the organizational strategies we use. We need to push harder on the political choices, the institutional choices, the social and cultural and personal choices people make to make sure that we don’t spend the next 40 years with an equally continuous line of the top 0.1 percent capturing more and more of the total share of income, and the majority of people stagnating and hoping for a better day.Yochai Benkler
You’re involved with the Media Cloud Project, which examines the emerging news ecosystem. What do you hope to accomplish with the project?
What we’ve trying to do with Media Cloud is to build instruments that allow us to study empirically what’s going on on the Net. There is a real possibility of decentralized network mobilization, even in the teeth of highly concentrated well-funded interests on the other side. Certainly one of the biggest threats to my mind to American democracy is the outsized and continuously strengthening power of money to shape our country. So to find that there is a mechanism for people to come together and overcome major moneyed interests on areas of significant strategic importance like intellectual property regulation or net neutrality regulation is very optimistic. At the same time I think our findings suggest that this success is far from assured. There’s no perfect technology of democracy where we suddenly see people of good intentions coming together and winning against some evil other side. It does not replace on-the-ground social organization. It’s neither utopia not dystopia. But what I’m very happy about with what our research is doing is that we are building a platform that is already available to researchers to give an evidenced-based handle on how these debates unfold, who is influencing them, with what sort of tactics, in a way that allows for quantitative and qualitative research.
Your book “The Wealth of Networks” talked about how the Internet changed society. What developments are most notable since the publication of the book in 2006?
The core claim I made there was that the openness of the Internet enabled a series of commons-based social and economic practices that diffused power in society and allowed a much larger number and more diverse set of people to participate in the production of culture, in the production of economic and information goods, and in the participation in democracy. The question remained open whether we would see the Internet open or whether it would close up. There are three primary challenges that are new since 2006. One has to do with the adoption of the hand-held—essentially the smart phone and the tablet. We’ve seen a series of technical and market-adoption patterns that make the core information infrastructure more controllable by someone. These are making network communications more centralized, more readily available for control and less decentralized. It’s a new set of battles that’s different from the set of battles we had to fight 10, 15 years ago, which were more about copyright and telcos and 20th century companies trying to tame the Internet, and this is really more about 21st century companies trying to take control. The second major change is the catch-up of the state. The state used to be slow, bumbling and coming from behind. I’d say the state, the U.S. particularly in national security, Russia, China, to some extent some of the European countries, is now playing at a level of insight, control and understanding of the way power is at stake in a way that wasn’t there 15 years ago. So there’s a much bigger sense of state control over what was before a much more common-based decentralized platform. Essentially the state took 15 years to get wise to this Internet thing but is now a major player with its own interests, and these are not always aligned with open democracy. And the last of the three is the integration of the data algorithms and the surveillance by companies to create evermore refined platforms that are able to observe people’s behavior and then roll these observations back into the platform. Essentially we see platforms capable of shaping people’s knowledge and choices more than was ever feasible before. With the risk of exactly the inverse of what I was hoping for 10 years ago when I talked about the increasing possibility of autonomy. In fact, now we’re seeing the increasing undermining of autonomy.
You spoke about the “commons,” this idea of communities of people sharing resources, including digital resources. What’s the status of the commons today?
The idea of people self-organizing in the commons is enormously powerful and in many senses has shaped practices for millions of people, trying to build for themselves communities that are free of the pressures of the market, free of the pressures of the state, self-governing, creating the potential for a mode of production in which people engage and cooperate and build things like newspapers, software, video, you name it. The challenge that commons-based peer production faces today is how to move from a stable, growing but still peripheral part of much of the economy into a genuinely alternative model of sustained living for ideally many millions of people. The idea of the commons has offered both a framework for thinking about how a well-governed shared resource like the Earth we live on can be managed in a sustainable way without being caught in the continuous growth model that necessarily puts pressure on the global system as a whole, and on the other hand it has provided a framework for thinking about how people can self-organize under conditions of fair sharing, of burdens and benefits, in a way that is not utopia but actually describes the lives of people actually producing stuff like software or an encyclopedia. But there are limits. We haven’t seen in a substantial way a translation to people also being able to make a living. I think that’s one of the most interesting challenges to look at today.
Understanding the relationship between the technological transformation of the last 40 years and the massive uptick in economic inequality. I think it’s a real crisis, the inequality problem. A lot of my emphasis now is trying to parse the arguments about how technology either has been a cause of inequality or that robots in the future will cause the elimination of work for most people except the most highly educated. Technology has not determined and will not determine the level of inequality in society. What has always mattered, what will continue to matter, are the political choices we make about the institutions we live with, about the organizational strategies we use. We need to push harder on the political choices, the institutional choices, the social and cultural and personal choices people make to make sure that we don’t spend the next 40 years with an equally continuous line of the top 0.1 percent capturing more and more of the total share of income, and the majority of people stagnating and hoping for a better day.