t byfield on Thu, 7 Apr 2016 17:20:07 +0200 (CEST)

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<nettime> 'responsible' handling of the Panama Papers

Here's a mail I just sent to a list devoted to discussion of 'responsible data.'


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Hi, all --

I appreciate that a forum devoted to responsible data is what it says on the tin, but I want to question the reflexive assumption that journalists' gatekeeping role is the most responsible course of action in the case of the Panama Papers. It may be the most *defensible* and it may be the most *professional*, but a lot of other freight can be smuggled in under labels like that. That's basically what Mossack Fonseca did: use anodyne language to mask activities that -- to put it charitably -- benefited the few at the expense of the many. And while it would be grossly unfair to lump the investigative journalists working on the papers together with MF's staff, it is a *fact* that, for the purposes of public access to the vast majority of the documents, the actions of both groups will have the same outcome. And that's a material fact, because it is how many powerful forces will exploit this leak to prevent another like it from happening again -- for example, by intimidating journalists into acting 'professionally.'

That's not to say that a precautionary principle shouldn't be considered -- of course it should, but only as one factor among many. The challenge in a case like this isn't to say, look, we're being responsible -- which is unfortunately one of the things the ICIJ's Gerard Ryle did when he took that swipe at Wikileaks ("We're not Wikileaks. We're trying to show that journalism can be done responsibly"). Instead, the challenge is to define responsibility *outside* of 'professional' frameworks.

Here are a few rough perspectives:

(1) Ethical: Sean's points are right on, but no matter how well-designed and -implemented the governance structure is, publics (plural) are being told, basically, what you don't know won't hurt you. I don't think that's a safe assumption in the case of a tax-haven data. On the contrary, we could equally to assume the opposite, that the burden should fall on the stakeholders to prove that their activities are benign. Either way, people will get hurt; who gets hurt will change based on how much is revealed. But we shouldn't naively assume that a handful of journalists operating under tremendous time constraints -- individual, professional, and cyclical -- will be able to perform an adequate triage forty years of documents.

(2) Historical: The Panama Papers will have an immense blowback. Governments will crack down quickly, in some cases brutally, and private-sector entities (law firms, accountants, shippers, etc) will clamp down to make sure this kind of fiasco never happens to them. And, crucially, I'm pretty certain we'll start seeing provisions that address leaks like this in bilateral and multilateral treaties like TPP and TTIP -- provisions ensuring that 'violators' can be pursued in jurisdictions with the most draconian civil and criminal codes. While I wouldn't say this is a one-time chance, you can be sure that the 'professional' considerations that many journalists around the world will be weighing next time around will be very different -- and much more fearful. I don't think a hyper-cautious approach to what is released will mitigate that any more than the hyper-cautious approach in the case of the Snowden files mitigated the US intelligence establishment's response. But I *do* think that a much more open approach to the Panama Papers could fuel substantive changes that would protect leakers, whistleblowers, journalists, and the specialists they rely on.

(3) Discursive: In many countries there are laws and regulations that, however poorly, define how 'public' documents actually become publicly accessible. But in the case of large-scale leaks, the laws will be murky, speculative, or negative (for example, statutes of limitations). The data is in a legal limbo not unlike the situations that Assange and Snowden face -- a sort of abandoned endgame with just a few moves left. What should happen to it? Who decides? On what basis? Using what procedure? On what schedule? How can the answers be reviewed, validated, refined? Again, 'professional' frameworks for answering those questions are problematic. If the decisions are too provocative, the profession itself will come under attack -- for example, by means of changes to media laws, licensing, accreditation, and so on (and those are just the 'legal' means). But if the decisions are too opaque, the public will -- rightly -- get tired of these spectacular leaks. But that kind of disciplinary hand-wringing is a poor substitute for justice.

Only a tiny fraction of the Snowden documents were ever released, and over time the criticisms of the Snowden recipients (made by Cryptome's John Young, for example) will gain legitimacy. Ask yourself: Are you *absolutely* confident that the people with access to the Snowden files made the best possible decisions? That the release of more of those files -- not all, just more -- to more people would have had decisively negative consequences? That the remaining documents will be released on a deliberate and justifiable basis -- for example, to historians, archivists, and activists? Now fast-forward four years to 2020 and look back on the Panama Papers.


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