Watching Me, Watching You: Surveillance, the Media and the Law

Media & Arts Law Review 
Call For Papers
 The Editors of the Media and Arts Law Review are preparing a Special Issue of the journal focusing on legal issues regarding surveillance, journalism and the media. Articles should be between 6,000- 8,000 words and may address any area of law that is relevant to any aspect regarding surveillance of, or by, the media. The special issue will be published in September 2016.
 Proposals for an article of 500 words and a brief author bio should be sent to law-cmcl@unimelb.edu.au.
The proposal is due 30 November 2015 and acceptance of the proposal will be advised by 14 December 2015. If the proposal is accepted, a full article suitable for blind double peer review must be submitted by 30 April 2016.
 Please contact Jason Bosland (j.bosland@unimelb.edu.au) if you have any questions.

Peter Carey's Amnesia: what does it tell us?

After reading the hype regarding Peter Carey's Amnesia being a book focused on hacking, cyberspace, and politics I could not resist reading it at once. The back cover indicates that the novel will address the pressing question: "How did a young woman from suburban Melbourne become America's Public Enemy number one?": sound familiar? with a different gender are we talking about Assange here? Add to this the rumours (since denied) that Carey had been 'sounded out' about writing Assange's biography, and it sounds like we have a novel that will address these big questions of our time.

It starts out in a promising tone, placing the story of Gaby Baillieux in the hands of a journalist who has just endured a defamation trial, the 'famously shmabolic' Felix Moore,  jaded, faded and channelling to not a small degree of one of my favourite voices of doom, Bob Ellis. A worm has entered the computerised control systems of Australian (and American) jails and detention centres, opening the doors and freeing the prisoners and detainees, announcing itself with the words 'THE CORPORATION IS UNDER OUR CONTROL. THE ANGEL DECLARES YOU FREE'. Unlike the other journalists and commentators, the  narrator recognises this act for what it truly is: an attack on the US, and more conclusively, an act in retaliation for events begun in 1975, when the US (read CIA) removed the democratically elected Whitlam government.

If this all seems fairly far fetched, even for a self-declared conspiracy theorist you would be right.
We are taken on a journey through Melbourne, specifically Carlton and Coburg of the last couple of decades, recounting Gaby's childhood and her introduction through the enigmatic Frederic, to computers, online games, phreaking and eventually hacking. There are some fun moments, such as the drone disguised as a magpie, but ultimately I found the story deeply unsatisfying. For much of the book it is not clear just how unreliable the narrator has become, and how many levels of conspiracy are at work. It is nicely done, lots of references to technology, but lots of inconsistencies too. In the end we don't really answer those big questions, nor really gain any true understanding if Gaby is Public Enemy number one, and we certainly don't get any clear sense of her motivations, beyond being fairly pissed off with her parents.

This is not the novel of the internet generation and at worst makes the work of online activists seem childish and petulant. Further, although it skirts round the complexities of the Australian media landscape, it does not tackle important questions of old versus new media.

Some other reviews may be found at:
Amnesia by Peter Carey review – turbo-charged, hyper energetic, Andrew Motion, The Guardian
Amnesia by Peter Carey, book review: Echoes of Assange as author turns his sights on hacktivism

See also the 7.30 Report Interview with Carey.

Julian Assange: When Google Met WikiLeaks

Julian Assange's latest book When Google Met WikiLeaks is partially a response to Eric Schmidt and Jared Cohen's The New Digital Age, published on the eve of the Snowden revelations in 2013. The disclosure that that the US government was collecting massive amounts of user data via the major US tech companies somewhat undermined the techno-utopianism of the Google sponsored manifesto. The New Digital Age featured (along with a range of various 'The Future Of ...' topics) some discussion of WikiLeaks and Assange, including some loose logic connecting hackivism with terrorism, questioning the role of WikiLeaks (and Assange in particular) in providing a leaking platform, and vague, untrue assertions about the harm caused by various leaks, and Assange now seeks to correct the record.

When Google Met WikiLeaks consists primarily of a transcript of the long discussions/ interview that took place while Assange was staying at Ellingham Hall whilst under house arrest. Schmidt and Cohen asked Assange to expound on a number of topics, noting that the views would be incorporated in their future book. The book also includes context, Assange's response to claims made in The New Digital Age, and a timeline of events.

This short book is well worth a read, as is Assange's other book Cypherpunks, if you want a chilling view of the future of the internet. Rather than couching everything in pseudo-management speak, Assange spells out the potential threats to the open internet, privacy and free speech.

As Assange notes early on, the involvement of Google in routine metadata harvesting should not come as a surprise to anyone. Google's corporate mission after all is to collect and "organise the world's information and make it universally accessible and useful" and Google obtained NSA funding to develop search tools to make sense of the data it was collecting (39).

The book is an essential read for anyone attempting to understand Assange's philosophy regarding secrecy, leaks and whistleblowing, correcting as it does some of the quotes attributed to him in The New Digital Age.

Both Cypherpunks and When Google Met WikiLeaks will remain largely unread by a public that remains far too blasé about the revelations regarding what is being done with our data. However, they provide thoughtful and knowledgable insights into the challenges of data and surveillance and should be given greater prominence in public analysis of the Big Data issue. Assange is at the forefront of the analysis of these issues and his insights should be given greater prominence given his first hand experiences with whistleblowing, surveillance and the media. Recommended reading for anyone who cares about the 'future of the internet'.

CFP: Media & Arts Law Review: Law and Law Breaking in Game of Thrones

The Editors of the Media and Arts Law Review are preparing a Special Issue of the journal which will consider various issues of law and regulation that arise in the HBO TV Series Game of Thrones and the George RR Martin books, upon which the series is based.

Articles should be between 6,000- 8,000 words and may address any area of law that is relevant to an aspect of Game of Thrones. The special issue will be published mid-2015.

Proposals for an article of 500 words and including a brief author bio should be sent to Melissa.dezwart@adelaide.edu.au. The proposal is due 10 October 2014 and acceptance of the proposal will be advised by 20 October 2014.

If the proposal is accepted, a full article suitable for blind double peer review must be submitted by 19 December 2014.

Please contact Melissa.dezwart@adelaide.edu.au if you have any questions.

The Media & Arts Law Review is the only Australian-based journal to focus on a broad range of legal issues affecting cultural life. The Review aims to engage both the academic and practitioner branches of the profession. It has a wide scope, including: communications, copyright, cultural heritage, defamation, digitisation, entertainment, free speech, intellectual property, journalism, privacy and public interest issues. The Media & Arts Law Review publishes independently refereed articles from Australia and overseas, as well as conference reports and book reviews. It also includes a series of regular update reports on media and arts law developments. These offer a snapshot of matters such as case law, legislation, law reform, convention developments, and changes in industry self-regulation. Update reports include coverage of the US, Canada, the UK, the European Union, New Zealand, Australia and some Asian jurisdictions.

Editors: Jason Bosland and Melissa de Zwart

Strategic Space Law Program at McGill

The McGill University Institute of Air and Space Law, in partnership with the University of Adelaide Law School, has planned to offer the first ever Strategic Space Law program. The aim of the program is to provide a unique opportunity for lawyers and other professionals in the defence services, international relations, government, international organisations and other entities around the world to understand space law in a strategic context. The program will be run as a one-week intensive, interdisciplinary, interactive workshop (non-assessable) at the Institute of Air and Space Law, McGill University, from 27-31 October 2014. This Brochure provides more details of the program. The Brochure can also downloaded from:

http://www.mcgill.ca/iasl/channels/event/strategic-space-law-intensive-program-237671

Glenn Greenwald: No Place to Hide

It is one year since the revelations of former NSA contractor Edward Snowden, confirmed our worst fears regarding widespread interception of telephone and internet communications. Those leaks were carefully shepherded to publication according to a carefully planned timetable by Glenn Greenwald and Laura Poitras (together with Ewen MacAskill of The Guardian) in order to ensure that the importance of those disclosures was not lost in the midst of mass information overload. Greenwald's role in the Snowden leaks has not been without personal risk and cost to him (and to his partner David Miranda) and in this book No Place To Hide, he traverses all of these issues: the background to his meeting with Snowden (together with Poitras) and decisions taken regarding content and timing of publications; his own analysis of the leaked material in context; a discussion of the dangers of mass surveillance and threats to privacy and an exploration of what it means to be a journalist in the post 9/11 era, when concerted efforts are made to break down journalists' protections and to discredit whistleblowers as paranoid loners with no sense of social obligation.
Greenwald has written a very readable book which identifies a number of vital questions for our age. He addresses these questions from a multi-jurisdictional perspective, highlighting key differences in particular between US and UK approaches to journalistic protections and freedom of speech. It also provides a fascinating insight into Edward Snowden, the young man prepared to put his whole life on hold (and potentially much worse) to stand up for what he believes in.
Along the way a number of other interesting points are canvassed.
Greenwald begins by outlining the story of the early contacts that were made to him by Snowden and his uncertainty regarding the status and seriousness of this potential source. Contact was delayed by his own lack of understanding of the need for encrypted communications. Once these obstacles were overcome and he travelled to Hong Kong (meanwhile still questioning whether the effort would be wasted) only to be surprised by the serious, well-organised, thoughtful and startlingly young Edward Snowden. This background reinforces the fact that Snowden's act of whistleblowing was no reckless or random act. Here is a man prepared to sacrifice his own freedom to support the ideals of democracy and transparency. He did not seek any personal gain of any kind and was determined to remove himself from the centre of the story, so the focus was not on personality  but rather about his message.
Greenwald makes an interesting aside regarding the role of video games in shaping Snowden's world view (and of course that of others of his generation) through 'moulding political consciousness, moral reasoning, and an understanding of one's place in the world', as well as the central belief in the value of the internet: 'the world in which his mind and personality developed, a place unto itself that offered freedom, exploration, and the potential for intellectual growth and understanding.' This belief in the need to ensure that the internet functions as a place for freedom and individual actualisation lies behind Snowden's motivations to reveal the vast, daily, bulk collection of personal data being undertaken by the NSA and its equivalents in other States, and Greenwald captures and articulates this core belief well.
A key message to take away from Greenwald's book is the ongoing threat to journalistic standards and freedoms: the detention of David Miranda at Heathrow, the raid on The Guardian's offices and smashing of computer hard drives and the repeated demands for Greenwald's prosecution as a 'co-conspirator"should be seen as very serious incursions on the independence and integrity of journalistic freedoms. As Greenwald notes, the smashing of computers and hard drives by The Guardian on the demand of GCHQ staff is bad enough, but what does it mean for the source who has risked his life to bring their contents to light? How do we deal with growing complicity between journalists and politicians?  Particularly chilling were the references to efforts against Anonymous and the 'human network that supports WikiLeaks'. The attacks on Greenwald were derogatory and dangerous and the status of journalistic standards and the continued existence of an independent media remain in question.
Greenwald's book is still shocking for the stories that it reveals about data collection. The clunky power point slides used to train NSA employees and contracts contained in the book are laughable and chilling for their simplistic message of "Collect it All".
This book is vital reading for anyone concerned about the Snowdon revelations and their implications for privacy, but also for those concerned about the future of journalism in the context of whistleblowing, mass surveillance and Big Data.

A new tort of privacy in the UK: Vidal-Hall, Hann and Bradshaw v Google Inc [2014] EWHC 13 (QB)

Mr Justice Tugendhat recently handed down this decision in the UK High Court (Queen’s Bench Division) recognizing the existence in the UK of a tort of misuse of private information. Recognition of such a tort is the culmination of many years of the UK courts considering how best to deal with issues of what are essentially invasions of privacy, particularly cases dealing with celebrities, and distorting the concept of breach of confidence in order to accommodate such cases.

A number of matters were considered in the case but this note will focus on the key issue of the recognition of a tort of misuse of private information.

This case concerned claims brought by three users of Google in the UK who alleged that Google had misused their private information and acted in breach of confidence and their statutory duties under the Data Protection Act 1998 by tracking and collating information relating to the Claimants' internet usage using the Safari browser in 2011/ 2012, such as which web sites they visited, how frequently they visited the sites, how long they spent on the site and in what order sites were visited. 

The essence of their claim is that Google collected information from their computers, and other internet enabled devices, regarding their browsing habits. Each Claimant specified in a Confidential Schedule their individual personal characteristics, interests, wishes and ambitions, which they used as the basis of the claim that ‘they suffered distress, when they learnt that such matters were forming the basis for advertisements targeted at them, or when they learnt that, as a result of such targeted advertisements, such matters had in fact, or might well have, come to the knowledge of third parties who they had permitted to use their devices, or to view their screens.’ [at 22] The Claimants' damage is based upon the harm caused to them by the fact that their apparent interests (deduced from their browsing habits) were used to target advertising to them which disclosed certain information about them based on those interests as evidenced in their online habits. Those advertisements, and the personal information that they disclosed, may have or had been viewed by third parties viewing the claimants’ devices. [at 23] Tugendhat J noted [at 24] whilst targeted advertisements which merely reveal the employment of the user may not cause any damage ‘if the targeted advertisements apparently reveal other information about the users, whether about their personalities, or their immediate plans or ambitions, then if these matters are sensitive, or related to protected characteristics (eg beliefs), or to secret wishes or ambitions, then the fear that others who see the screen may find out those matters, and act upon what they have seen, may well be worrying and distressing.’ Whilst all of the Claimants claimed acute distress and anxiety, none of them claimed to have suffered any discrimination or other direct harm.

(It should be noted that the conduct engaged in by Google during the relevant time had since been discontinued, due to regulatory sanctions brought by the United States Federal Trade Commission, which were settled in August 2012 and US state based consumer actions brought by US State Attorneys-General on behalf of 37 US states and the District of Columbia).

In order to satisfy the requirements of the service out rules, the Claimants framed their argument on a number of grounds, including tort. With respect to this claim, Google argued that the cause of action based on misuse of private information/ breach of confidence was not a tort, that no significant physical or economic harm was suffered by the Claimants and the act complained of was not committed in the jurisdiction.

The issue of whether the claim was based in tort is of most relevance to the consideration of the evolution of the privacy tort. Tugendhat J asserted [at 58] that it was clear that a claim for breach of confidence is not a claim in tort, Kitetechnology BV v Unicor GmbH Plastmaschinen [1995] FSR at 777-778. [52] However, the position may be different with respect to misuse of private information, as aluded to in Vestergaard Frandsen A/S v Bestnet Europe Ltd [2009] EWHC 1456 (Ch) where Arnold J stated [at 19] that whilst breach of confidence in not a tort (citing Kitetechnology) ‘Misuse of private information may stand in a different position’ (citing Campbell v MGN [2004] 2 AC 457 at [14]).

Tugendhat J then cited directly from Lord Nicholls in Campbell:

‘This cause of action has now firmly shaken off the limiting constraint of the need for an initial confidential relationship. In doing so it has changed its nature. In this country this development was recognized clearly in the judgment of Lord Goff of Chiveley in Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, 281. Now the law imposes a 'duty of confidence' whenever a person receives information he knows or ought to know is fairly and reasonably to be regarded as confidential. Even this formulation is awkward. The continuing use of the phrase 'duty of confidence' and the description of the information as 'confidential' is not altogether comfortable. Information about an individual's private life would not, in ordinary usage, be called 'confidential'. The more natural description today is that such information is private. The essence of the tort is better encapsulated now as misuse of private information." (emphasis added)’

Tugendhat J then considered the complexity of issues surrounding the recognition of such a tort in the context of other decisions and the question of service out of jurisdiction. He observed that the privacy tort and the equitable action of breach of confidence, although related, should be treated separately, citing Lord Nicholls in OBG Ltd v Allan and Douglas v Hello! [2008] 1 AC 1 at para [255]: "As the law has developed breach of confidence, or misuse of confidential information, now covers two distinct causes of action, protecting two different interests: privacy, and secret ("confidential") information. It is important to keep these two distinct." [at 67] Tugendhat J further bolsters his recognition of the tort of misuse of private information [at 68] noting:

 ‘there have since been a number of cases in which misuse of private information has been referred to as a tort consistently with OBG and these cannot be dismissed as all errors in the use of the words 'tort''

After this consideration Tugendhat J concludes [at 70] ‘that the tort of misuse of private information is a tort within the meaning of ground 3.1(9).’

With respect to the breach of confidence claim however, Tugendhat J concludes that he is ‘bound by the decision in Kitetechnology to hold that the claim for breach of confidence is not a tort.’ [71].

Further consideration was then given to the question as to whether the Claimants had suffered any recognizable and relevant damage.  Tugendhat J concluded that damages for ‘distress are recoverable in a claim for misuse of private information, eg Mosley v New Group Newspapers Ltd [2008] EMLR 679.’ Therefore the Claimants’ claim for damage fell within the requirements of the rules relating to service out.

On the question of whether the information was private, it was submitted on behalf of Google that the information collected about the Claimants browsing habits was anonymous and not private: ‘The aggregation of such information sent to separate websites and advertising services cannot make it private information. One hundred times zero is zero, so one hundred pieces of non-private information cannot become private information when collected together.’ [115] Tugendhat J rejected this approach, noting that Google would not have gone to effort to collect and collate this information unless it resulted in something of value. Further, the fact that Google personnel do not themselves identify or recognize the identity of people from whom the data is collected. At some point the Claimant becomes identifiable as a result of the collation and use of the information, in this case, at the point where the targeted advertisements become visible on their screen by a third party. Tugendhat J conceded that not all of the generated information would give rise to claims of privacy, in the individual cases the particular types of information identified by the Claimants was private information. (‘These are not generic complaints. They are complaints about particular information about particular individuals, displayed on particular occasions (even though the precise dates and times of the occasions are not identified)’ [at 119].

The novel aspect of this case is the final recognition of a separate tort of misuse of private information. This has evolved in the UK as a consequence of the distortion of the breach of confidence action and the UK Human Rights Act, which required a change of approach to the balancing of various interests in the disclosure and protection of personal information. This certainly would not reflect the situation under Australian law, where the privacy tort has evolved no further than the glimmer in the eye of the High Court in Australian Broadcasting Corporation v Lenah Game Meats in 2001. Of course, in Australia the ALRC is still considering the introduction of a tort for serious invasion of privacy.

Media & Arts Law Review: December 2013

The new issue of Media & Arts Law Review  (December 2013) is out!

Great articles on a diversity of topics:

Articles by:
Rebecca Giblin: Was the High Court in iiNet right to be chary of a common law graduated response?
Catherine Bond: Commonwealth v WikiLeaks: Fairfax revisited
Susan Corbett: The case for joint ownership of copyright in photographs of identifiable persons
Angela Daly:E-book monopolies and the law

Case note: Michael Douglas: A broad reading of WA's Shield Laws
Hong Kong Media Law Update: Anne Cheung: A Study of Online Forum Liabilities for defamation: Hong Kong Court in Internet Fever in Oriental Press Group Ltd v Fevaworks Solution Ltd

http://www.law.unimelb.edu.au/cmcl/publications/media-and-arts-law-review

Submissions for 2014 can be sent to melissa.dezwart@adelaide.edu.au

Oxford-UNSW Copyright Scholars Roundtable: Exceptions reform: fair use for Australia?

A number of copyright scholars enjoyed a day of copyright reform related discussion thanks to Michael Handler (UNSW) and Emily Hudson (Oxford) at UNSW Law School on 17 December 2013. I opened the discussion on the question of fair use, and set out my brief speaking notes below: (A fully developed paper will follow)

The ALRC Final Report on Copyright and the Digital Environment was presented to the Government on 29 November 2013. The Attorney-General, Senator George Brandis has confirmed that the Final Report recommends the introduction a ‘broad flexible exception for fair use’. The full Report must be tabled before Parliament by February 2014 and a Government response to the Report should be forthcoming some time in 2014. However, the Attorney-General has already indicated that he does not support significant changes to the copyright law which would restrict the rights of copyright owners:

‘The government’s response to the ALRC report will be informed by the view that the rights of content owners and content creators ought not to be lessened and that they are entitled to continue to benefit from their intellectual property.’

The question that I would like to ask is why and how the introduction of a fair use exception would in fact lessen the rights of owners or prevent them from continuing to benefit from their intellectual property (in this case copyright)?

Leaving aside the example of the US which has a fair use law and seems to still be enabling copyright owners to make enough money to get by (!), other jurisdictions have more open ended exceptions to copyright, so fair use should not be seen as open slather for unremunerated uses.

Fair use can and should be cast in such a way that it reflects the balance of interests in copyright.

I have been considering the Canadian example: where despite significant legislative reform which declined to introduce a fair use exception, the Supreme Court has re-crafted fair dealing so it is in effect a fair use law.

Such an approach would build upon the decisions of the Canadian Supreme Court in Théberge v. Galerie d’Art du Petit Champlain inc., [2002] 2 S.C.R. 336, 2002 SCC 34  and CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 S.C.R. 339, 2004 SCC 13, which recognized that the Copyright Act contained a ‘balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator’ and that this required a recognition of the limits on the rights of the copyright owner clearly articulating fair use as user’s rights.

In Alberta v Canadian Copyright Licensing Agency (one of five copyright cases handed down on 12 July 2012) the Supreme Court held that previews on iTunes were fair dealing, stating that: ‘One of the tools employed to achieve the proper balance between protection and access in the Act is the concept of fair dealing, which allows users to engage in some activities that might otherwise amount to copyright infringement. In order to maintain the proper balance between these interests, the fair dealing provision must not be interpreted restrictively.’

The Court continued:

‘an important goal of fair dealing is to allow users to employ copyrighted works in a way that helps them engage in their own acts of authorship and creativity’.

As Michael Geist has argued, this decision paves the way for a more 'principles based' approach to fair dealing which effectively transforms it into a law more akin to fair use. The Canadian experience may provide a good model for Australian reform in this area.

Therefore I contend that a fair use law may be crafted and interpreted in a way that does not represent a challenge to the rights of owners, but rather better reflects the balance underlying copyright law. The approach articulated above by the Attorney-General should not necessarily prevent the introduction of a fair use style defence.

Julian Assange: Hero or Villain, a binary choice

This is a transcript of my presentation to the Law, Literature & the Humanities Association of Australasia: Interpellations Conference (5-7 December 2013)

This is a difficult issue to write on definitively as the war on whistleblowers is being played out as we speak. Just a few days ago, the ABC was lambasted for reporting the news of the bugging of the mobile phones of the Indonesian President and his wife. Similarly, The Australian recently ran a facile editorial calling for Julian Assange to leave the Ecuadorian Embassy, ‘now the US Justice Department has made clear it has no intention of prosecuting’ him.

I have chosen to discuss this war in the context of two recent major movies: We Steal Secrets and The Fifth Estate. I want to consider whether the vilification of Assange occurring in the context of the fictionalised movie, The Fifth Estate, is balanced out by the ‘documentary’ of We Steal Secrets? Unfortunately both movies were based on biased sources and both were ultimately more concerned with telling an entertaining story that telling the truth. Further, not enough is reported about the facts to enable the audience to distinguish fact from fiction, but viewers will be left with the feeling that it has.

We have also witnessed a bizarre and unquestioned merger of fact and fiction. For example, The Guardian reported that, interviewed on ITV’s The Agenda in October 2013, the British Prime Minister, David Cameron, was asked to review The Fifth Estate. Observing that he had ‘managed to see the first part of the film’, the PM told The Agenda that Benedict Cumberbatch, who plays Assange, was ‘brilliant, fantastic piece of acting. The twitchiness and everything of Julian Assange is brilliantly portrayed.’ However, he then goes beyond a review of the film and the strange merger of fact and fiction begins in earnest. Cameron, and remember he has admitted to seeing only the ‘first part’ of the film, states: ‘he felt uneasy that in the film Assange appears to be more concerned about the fate of people who leaked documents to WikiLeaks – an apparent reference to Chelsea Manning – rather than people whose security may have been jeopardised by the leaks.’ In this swipe, Cameron dismissed very real concerns for Manning’s wellbeing as well as confusing, in his own and the readers’ minds the film and reality. Cameron continues: ‘There is an interesting  bit at the beginning when he says some of these documents are confidential, people’s lives are at risk and of course he is thinking of the people who have leaked them. Actually, you also need to think about the people whose lives are at risk because they have been leaked. In the bit of the film I saw that didn’t come out enough. But it makes you think.’ Later in the same interview, the PM is asked his views regarding the leaking of NSA documents by Edward Snowden and the suggestion that the UK Government was snooping on its citizens. He replied: ‘We have very good rules in this country. If a telephone call is going to be listened into that has to be signed off by the home secretary personally. There are very good safeguards in place.’ The merger of fact and fiction is complete.

So what is the model for The Fifth Estate? The whistleblower film is not a new genre, and there is a large number of films and books where the whistleblower is the hero, including John Le Carre’s recent book A Delicate Truth, which examines the story of Toby Bell: ‘the most feared creature of our contemporary world: a solitary decider.’ In the majority of these works, the whistleblower is celebrated as the hero. Such stories include: All The President’s Men (1976), The China Syndrome (1979), Silkwood (1983), The Whistleblower (1987), The Insider (1999), The Constant Gardner (2005), The Most Dangerous Man in America: Daniel Ellsberg and the Pentagon Papers (2009), The Whistleblower (2010) and Fair Game (2010).

However, these hero stories are not the model for The Fifth Estate. Rather,  I would locate it more directly in the ‘dangerous geek’ genre, akin to The Social Network and Jobs. Again, the temptation in these films is to depict the neurotic, anti-social geek as the person who uses up and ultimately abandons his friends. Steve Jobs is shown as effective in starting up the business, based on Wozniak’s computing skills, but he ruthlessly exploits and then abandons the friends who helped him build the first Apples in his parents’ garage. In The Social Network, Facebook founder Mark Zuckerberg is also shown as exploiting carelessly those around him.

I like a good ‘hero story’ as much as the next person. However, I believe it is dangerous and misleading to reduce the WikiLeaks story down to a good versus evil showdown. This is particularly the case when the story is still playing out and still has a very real set of consequences for vulnerable people, including Manning, Assange and now of course, Snowden. The exhortation to Assange to exit the Embassy cited above must be considered in the context of real life rather than dramatic consequences. This is not a new development in a movie plot line.

The Fifth Estate is preoccupied with the question of whether Assange is good or evil, as is We Steal Secrets. Both start from the angle that Assange could be a hero, and then expose him as paranoid, delusional and worst of all, uncaring by the end of the film. He loses his humanity to the machine. The technology of leaking literally becomes more important than the alleged lives at stake, but this is all done in the cause of narrative development and dramatic tension, rather than accuracy and truth. Yes these films are meant to entertain, but as the discussion above demonstrates, this is not the way it may be interpreted by audiences, who perceive it as an accurate portrayal of events.

Assange and others, such as Geoffrey Robertson, have recognised the dangers lurking in ‘fictionalised’ accounts such as The Fifth Estate. There was a well-publicised exchange between Assange and Benedict Cumberbatch online and reported in The Guardian (which it must be remembered is a key player in and source of the content for The Fifth Estate).

Assange’s letter to Cumberbatch included the following:

‘The bond that develops between an actor and a living subject is significant.

If the film reaches distribution we will forever be correlated in the public imagination. Our paths will forever be entwined. Each of us will be granted standing to comment on the other for many years to come and others will compare our characters and trajectories.’

Assange continues:

‘Feature films are the most powerful and insidious shapers of public perception, because they fly under the radar of conscious exclusion.

This film is going to bury good people doing good work, at exactly the time that the state is coming down on their heads.

It is going to smother the truthful version of events, at a time when the truth is on most demand.

As justification it will claim to be fiction, but it is not fiction. It is distorted truth about living people doing battle with titanic opponents. It is a work of political opportunism, influence, revenge and, above all, cowardice.

It seeks to ride on the back of our work, our reputation and our struggles.

It seeks to cut our strength with weakness. To cut affection with exploitation. To cut diligence with paranoia. To cut loyalty with naivety. To cut principle with hypocrisy. And above all, to cut the truth with lies.’

Cumberbatch’s response to Assange was discussed in another Guardian article, again breathlessly and heedlessly merging discussion of the film and real life politics, regardless of Cumberbatch’s status as an actor. (In fact the writer of the article admits to ‘a moment of genuine confusion’ when she thought she ‘was about to meet Assange himself.’).

The article provides a summary from Cumberbatch regarding what his response to Assange’s email was:

‘I don’t want to go into any great detail, but it took me four hours and the central thrust was: this is not documentary, this is not a legally admissible piece of evidence in a court of law, it’s not going to alter perception in a way that is actually politically going to damage you at all. People who will come to see this film will be savvy enough to see it as what it is; it’s a starting point,  that should both provoke and entertain. It will be a talking point, but your life, your private life, your persona, is fatefully intertwined with your mission – it cannot not be now. And to be honest, I think the sort of general perspective on you is still echoing from the kind of character assassinations that began way back when, with the initial leaks, and that is now heightened by the accusations of sexual misconduct in Sweden, and so you’re known as this white-haired Australian weirdo wanted for rape in Sweden who’s holed up behind Harrods in some embassy. So the misinformation about you is already there.’

There is some discussion of Cumberbatch’s thoughts on Assange’s childhood and the impact this might have had on his personality and mental state. And then, as with the interview with Cameron discussed above, the article moves to Cumberbatch’s attitudes to ‘cyber-whistleblowers’ including WikiLeaks and Snowden, which we are told are ‘decidedly ambivalent’: ‘He is alarmed by revelations of mass surveillance by the NSA and GCHQ, and doesn’t like the idea of anyone reading his private emails…but then adds, “Oh, but you might have stopped me from being killed on a tube I took last Wednesday. If they are saving lives, how can we say that’s less important than civil liberties?...”’. Whilst interesting in a general sense, why are we presented with Cumberbatch’s views on these important issues as if he is an authoritative source?

Geoffrey Robertson in his recent essay expressed the view in an essay that Assange’s withdrawal from  his autobiography project actually left the field open to negative portrayals of him and his work.

He also identifies several critical inaccuracies in the film which are important to the purported balance of its portrayal of events relevant to the major leaks. For example, in a moment of dramatic tension, the fictitious diplomat, played by Laura Linney, is involved in an attempt to extract a source from Libya. This plotline has clearly been included in the film to provide some human face to the leaks. However, as Robertson points out, it could never have happened in the context of the leaks of the diplomatic cables provided by Chelsea Manning. Manning did not have access to the level of intel ('top' or 'ultra' secret sources which would have placed the 'source' at risk as portrayed in the movie) (see Geoffrey Robertson, Dreaming Too Loud, 2013).

As Robertson states, there is no blood on WikiLeaks hands as a result of the leaks: 'The Fifth Estate will be propaganda if it propagates the lie that Assange has blood on his hands, and that Bradley Manning (who does not appear in the movie, although if 'Cablegate' has a hero, it is he) deserved the severe punishment (thirty-five years in prison) that he received.'

All of this discussion needs to be placed in the context of the mainstream media’s hostility (at worst) or ambivalence (at best) about whistleblowing. Despite the amendment of Australian whistleblowing laws in the Public Interest Disclosure Act 2013 (Cth), the whistleblowing actions of Manning and Snowden would not have been protected under that legislation had they occurred in Australia on the basis that the secrets they revealed (ie in part that the US Government is spying on everyone) is authorised by law.

The importance of these issues cannot be overstated. At a time when we should as a society be considering the consequences of the revelations that our communications, our networks of friends and families, our personal and supposedly private interactions, are considered fair game by democratically elected governments worldwide, we are, instead of interrogating these governments, turning on the whistleblowers. In Australia recently, revelations that Australia had tapped the phones of the Indonesian President and his wife, were met not with questions regarding how and why this was happening, but attacks upon the ABC for reporting on this scandal as it was ‘not news’.

We need to ask the big questions. Manning, Snowden, Assange and others have placed their lives and liberty on the line in order to tell us about the mass surveillance not only possible but occurring world wide, and all we seem to be able to do with this information, is to characterise them as misfits (and either mad or evil ones at that) which somehow saves us from having to deal with the difficult re-examination of ourselves that needs to be done in the wake of the revelations.

The Fifth Estate: the World vs Assange

Bram has finally got around to seeing The Fifth Estate. No small attraction of this movie was of course the fabulous Benedict Cumberbatch who plays Julian Assange, but Bram has concluded Benedict is better as Khan (no spoilers for those of you who haven't seen Star Trek Into Darkness, which you should).

Anyway, back to The Fifth Estate: an interesting but ultimately unsatisfying movie. Unfortunately the film suffers from being old media’s take on new media, whilst it manages to highlight the importance of new media ventures such as WikiLeaks, it really suggests that such projects are petulant children and until they grow up and learn some manners, they should be looked after by their older siblings who know the rules of the game. It doesn’t really tackle the real issue of whether existing media is serving its purpose of exposing the truth or whether it is now in the capture of government and big business. It never tackles the question of why whistleblowers turn to organizations such as WikiLeaks rather than established media. Ultimately of course The Fifth Estate descends into a good versus evil battle: is Assange a hero or a villain? Rather than focus on the big questions of surveillance, privacy, big data and what role is the media playing in keeping an eye on the other three estates, we are again preoccupied with the question of personality. Yet again, we get a gratuitous scene of Assange dancing…

The film is told from the perspective of Daniel Domscheit-Berg (played in the movie by Daniel Brühl), one time admirer of, and collaborator with, Assange. The film is based upon Berg’s book Inside WikiLeaks, a book highly critical of Assange (unsurprising since they had a falling out and Assange suspended and then excluded Berg from WikiLeaks) and the WikiLeaks book written by Guardian journalists David Leigh and Luke Harding, who also had a falling out with Assange during the publication of the war logs and US Embassy cables over the questions of redaction and matters of trust. Unsurprisingly therefore it tracks Berg's gradual disillusionment with Assange and his exclusion from WikiLeaks. The film deals only tangentially with Bradley (now Chelsea) Manning and mentions the sexual assault allegations and detention of Assange at the conclusion of the film in text boxes.

The film operates in the style of having various characters act as the mouthpiece for various points of view. Berg’s girlfriend (Anke played by Alicia Vikander) is very much the voice of conscience. We see her reminding Berg that people may be hurt as a result of the leaks, that the people named in the logs have families too. In the movie, she is a catalyst for Berg’s determination to stand up to Assange over the question of redaction, and ultimately bears responsibility for breaking up the band. She plays the role of “moral person”, she respects the value of the work being done by WikiLeaks but believes this does not justify any personal costs to her, Berg or anyone else. She also reminds Berg that Assange is a “manipulative asshole”, implying he has been corrupted by power and has gone bad (or mad or whatever). Daniel is the "everyman" character, motivated by conscience, generous, trusting and ultimately denounced by Assange when he stands up to him about the redactions (though Berg is shown still working “selflessly” behind the scenes to shut down access to the WikiLeaks server while Assange is presenting to the media). Nick Davies (David Thewlis) from the Guardian represents the “good media”. He has several set pieces where he tells us the viewer about the role of the media. At one crucial point he warns Assange: “you need to be careful how the story is published”. He claims that he is working on an angle to paint the leaks as the next Pentagon Papers, and that the future of Assange, WikiLeaks and Manning depends on this. It is at this point of the film that a key question comes into play: what is the role of WikiLeaks as an organization: to publish the truth, to protect whistleblowers, is it a source or a media organization? Different points of view on this are represented by different characters, but Davies is shown as trying to assist WikiLeaks in obtaining “legitimacy”. This is a contentious (and generous) characterization of how the Guardian has actually treated Assange.

Added to the narrative provided by the Berg and Guardian books, the film includes a misleading side story about a US diplomat concerned to protect her source in Libya when the US Embassy cables are published. As Geoffrey Robertson has pointed out, this scene ‘could never have happened as a result of Cablegate’ as Manning did not have access to ‘top’ or ‘ultra’ secret sources (Dreaming Too Loud, "Assange in Ecuador", 2013). Further, any claims that WikiLeaks had blood on it's hands with respect to Cablegate have been refuted, and there is no evidence that there have been any casualties as a result of the Embassy Cable leaks.

The fictional diplomat, (Under Secretary of State Sarah Shaw played by Laura Linney) who is initially impressed by the work of WikiLeaks leaves us with the poignant comment that she is not sure who will be judged more harshly by history: her or Asange.

This is of course a film about truth and lies. Big lies told by governments, banks and corporations and small lies we tell one another. We are ultimately made to feel more concerned about the “lies” that Assange has told Berg, such as the fact that WikiLeaks is run by hundreds of volunteers, than the lies the US Government is telling its own citizens on a daily basis. If Assange is not 100% truthful and personally beyond reproach, then the suggestion seems to be, we cannot respect his work.

It is also about loyalty and trust. Assange explains early on to Berg that he works alone as “you don’t get far relying on others”. A key moment in the film is when Assange learns of the assassination of his Kenyan sources, he feels he has let them down because he did not get their story enough publicity to protect them.

Throughout the film we are drip fed strange elements from Assange’s past in pieces that feel quite staged (teenage hacking, being on the run from his mother’s ex, his University education): in the tone of “you need to know this about Assange because it explains why he is quite mad so try not to hold it against him!”.

There is also a thematic obsession with the colour of his hair, various explanations are given by Assange to different people about traumatic events that turned his hair white. Then at the conclusion of the film we are shown Assange dying his hair (a habit it is implied started with the Family and their practice of forcing all children to dye their hair blonde). But again, this is done in the context of presenting Assange as a liar (references are also made to his hacker tag of Mendax).

Throughout the film Assange is presented as a damaged character, but in the end this does not seem to be enough to redeem him, which is what the film so desperately wants. He has to be after all a hero or a villain, he cannot be neutral, human, conflicted. He is painted as an egomaniac and it is this ego which ultimately undoes him.

The film ends with some straight to camera pieces from Assange, apparently from inside the Ecuadorian Embassy, which again are clumsy attempts to encapsulate key points of view, but they become awkward in their lack of connection to the drama which has preceded this conclusion. They do not vindicate, rather they ostracise the viewer even further from Assange.

It is a shame that the film, which does so well in visualizing the new power of data, did not present a more balanced view of the personalities involved. Assange has denounced the project and it is worth looking at the email exchange between Cumberbatch and Assange regarding characterization of Assange and Cumberbatch’s participation in the film. See also WikiLeaks comments on the script.

It is time we move beyond personality and take up the bigger questions provoked by the leaks: how long are we content to sit by and let the media numb us into accepting massive scale surveillance? 

Journal of Virtual Worlds Research: Legal and Governance Challenges

The latest issue of Journal of Virtual Worlds Research is hot off the (virtual) press. Over the past twelve months, virtual world gurus Dan Hunter and Greg Lastowka and I have assembled a diverse collection of virtual world and law pieces. Notably it is also the ten year anniversary of Lastowka & Hunter's "The Laws of the Virtual Worlds"  (2004)  California Law Review 92(1) (available here). The collection shows us how large this area of study has now become and how much work there reamins for us to do and virtual places to explore. Enjoy!

The collection consists of:

Table of Contents

Managing Editor Corner

What Should Atomic and BITonic Learn from Each Other?	PDF
Yesha Sivan

Issue Editors' Corner

Editorial	PDF
Melissa de Zwart, Dan Hunter, Greg Lastowka

Peer Reviewed Research Papers

Authorship in Virtual Worlds: Author's Death to Rights Revival?	PDF
Sergio Roncallo-Dow, Enrique Uribe-Jongbloed, Kim Barker, Tobias M Scholz

Evaluating Consent and Legitimacy Amongst Shifting Community Norms: an EVE Online Case Study	PDF
Nicolas Suzor, Darryl Woodford

The Iron Law	PDF
William Sims Bainbridge

Blazing Trails: A New Way Forward for Virtual Currencies and Money Laundering	PDF
Michael P. Bombace

Dutch Supreme Court 2012: Virtual Theft Ruling a One-off or first in a Series?	PDF
Arno R. Lodder

Magic Modders: Alter Art, Ambiguity, and the Ethics of Prosumption	PDF
Aaron Trammell