2011-05-12 Leaked WikiLeaks Confidentiality Agreement: Neither 'Draconian' Nor 'Extraordinary'

A leaked confidentiality agreement that those doing “business” with WikiLeaks are expected to sign was obtained and published by the New Statesman. The New Statesman and other news organizations believe they have uncovered another aspect of the WikiLeaks organization that indicates it is unfit to be trusted by whistleblowers. But, for anyone who understands confidentiality agreements there may be nothing extraordinary or even draconian about the agreement.

A confidentiality agreement is essentially a non-disclosure agreement. Included are details noting the “owner of the information,” the “receiver of the information,” a definition of what it considers to be “information,” why the agreement is necessary, what information is covered by the agreement, a definition of the permitted use of the information, any exceptions to the agreement, and penalties that could be imposed if the agreement is breached.

What news organizations seem to be taking issue with, rather ridiculously, is the word “owner" and the idea that WikiLeaks might be marketing this information to media organizations.

The New Statesman and others consider the use of the word "owner" to be proof that the organization finds it has “commercial ownership over the information that has been leaked to it.” But, the word “owner” is the term that is used in these agreements. It is standard and may not be proof the organization sees itself as literally owning the information.

Clause by clause:

“A” stipulates the information that it finds to be covered by the agreement is defined.

“B” notes that it is in possession of documents that are “newsworthy.” It also notes that details on the workings of WikiLeaks are “newsworthy” as well. And, it defines “information” as the documents in the organization’s possession and “emails, written communications, meeting records, information exchanged in meetings or discussions and other newsworthy facts.”

“C” notes that news providers, publishers and broadcasters commercial and non-commercial may seek access to the information and WikiLeaks might make agreements—perhaps separate agreements from this non-disclosure agreement.

“D” delineates that if there is a breach the party in the agreement may lose exclusivity. (This suggests a form of this confidentiality agreement may be what it tried to get individuals or media organizations it sought to partner with to sign.)

“E” is why WikiLeaks wants others it works with to sign the agreement. A breach of this agreement, the agreement stipulates, could result in: loss of opportunity to sell the information to other news broadcasters and publishers, loss of reputation, loss of opportunity to execute future agreements with regard to the information, loss of value of the information, loss of opportunity to execute future agreements in relation to other information by reason of loss of reputation and possible legal proceedings against WikiLeaks for loss of value to parties to other agreements.

Fear of such losses is not unfounded. Recall that Daniel Domscheit-Berg, former WikiLeaks member, as Reuters reported, crippled "WikiLeaks's ability to receive new leaks" when he "unplugged a component which guaranteed anonymity to would-be leakers" before leaving the organization. Or, recall that he took a "backlog" of leaks that his new organization OpenLeaks could publish. (Clearly, he breached the terms of this agreement if he signed a confidentiality agreement.)

The New Statesman will fixate on the notion that WikiLeaks seeks to “sell” information to broadcasters and publishers. The organizations overlook the fact that the organization may deserve compensation for setting up the system, which allowed for a whistleblower or leaker to submit the information in such a way that would protect the source from damages or harm. They ignore the fact that the “selling” could be compensation for the operational expenses WikiLeaks incurs from staffing, etc. The organization may not be putting a monetary value on the documents themselves but may be seeking to charge broadcasters and publishers for the services it can provide through any partnership.

The organization goes on to note what parties agree to, which should be found to be fairly standard. It makes clear that that “nothing contained in this agreement shall be construed as giving you any license or other rights in the information.” The information will remain the “property of WikiLeaks and or its sources.”

Again, news organizations fixate on this term “property.” But, that is how it must be characterized in order for WikiLeaks to protect itself and ensure it can be safe in the event of breaching or sabotage. The agreement must treat the documents as “property,” whether it is something WikiLeaks truly owns or not.

Now, here’s what most peeves those covering this leaked agreement: WikiLeaks puts a value on how much a “significant breach” could cost the organization. The “typical open market valuation” is placed at twelve million pounds sterling or twenty million US dollars.

It is unclear how WikiLeaks came up with the number but referring to what the organization thinks could result from a breach of the agreement might lead one to better understand how WikiLeaks came up with the amount.

One should note, courts are not likely to ever award that much money. The valuation may be a starting point for coming up with an amount the organization could be awarded in the event of a breach. Courts typically would not find all those losses to be “consequential” of a breach of the agreement. So, the organization may still have to pay what it might consider a substantial amount of money for the breach.

If WikiLeaks truly considers itself to be a business out to make profit instead of an organization with a founder who is a true fighter for peace and justice, it certainly has failed to take many opportunities to make huge gains.

Why is the information free on its website? It could set up a paywall like the Wall Street Journal.

Why hasn’t it published the documents it has obtained in book form for people to purchase in bookstores or online?

Or, why hasn’t it sold the information to other governments so that they can have better intelligence on other governments? That could net them quite a bit of money.

The answer is because WikiLeaks is not an organization out to make profit. It is an organization that believes in a cause that, as Julian Assange says, is no more radical a notion than the idea that citizens have a right, indeed a duty, to scrutinize the state.

Coverage of this agreement is just the latest in a long line of attempts to delegitimize and further isolate the organization. They have been accused of endangering lives yet nobody has quantified or provided exact evidence that any persons have been endangered. In many cases, they have been told what they are doing is not journalism. The organization, instead, has had its staff members categorized by the media as a group of "sources," which means Assange is "a source" and Assange and all those linked to WikiLeaks are much more vulnerable to prosecution from governments especially the US government.

When WikiLeaks reveals information on despots, they are characterized as an organization that should be held accountable for a tyrannical government's decision to clampdown on its citizens. And, in this case, they are once again asked to have the secrecy and transparency standards they think government has or else publicly answer to the fact that they are an organization of hypocrites. The problem with that is WikiLeaks is not a government. People do not vote or elect individuals to run this organization.

New Statesman and others' coverage of this agreement affirms Assange's assertion that "WikiLeaks is the most scrutinized organization per capita in the world." It further indicates that most news organizations in the world still do not get WikiLeaks (and, perhaps, would rather scrutinize the organization than publish documents the organization has released).

WikiLeaks is an organization that makes a promise to whistleblowers that if they have the courage to act as a “hero” WikiLeaks will have the courage to be “merely decent human beings.” For WikiLeaks, this agreement is part of being a decent human being. It is about going to the nth degree to protect the “sources” it fights to keep anonymous and unknown to governments that could strike at them for providing the organization information.