back to article Don’t leak WikiLeaks: The NDA from hell

As Julian Assange™ well knows, a culture of secrecy can be counterproductive, encouraging leaks by the disaffected. Someone has now leaked against WikiLeaks, with the organization’s non-disclosure agreement escaping into the wild. And a doozy of a document it is, indeed, imposing not only a vast penalty (£12 million) for …

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"saleability to mainstream publishers"

This quote appears in the damages section. Maybe they just want the maximum damages fine possible to be levied on anyone who breaches the contract.

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FAIL

Trying to defend Assange?

Sorry but no.

It's an admission that Assange is trying cash in.

That Wikileaks isn't as altruistic as it seems and that you'd be a sucker if you leaked to Wikileaks over a traditional news outlet.

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eh?

Despite this, there seem to be a lot of fools who have sent stuff to wikileaks. It does have more than the leaked US cables you know.

There are things there that no mainstream journo would have touched before it went "public" on Wikileaks.

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@AC re:eh?

Maybe mainstream media wouldn't have touched them. Maybe they would. However, even if you believe that mainstream media wouldn't have touched it, there are far more ethical "internet only" outfits with which to align yourself.

I believe that Cryptome - while not entirely above reproach - is significantly more trustworthy than Wikileaks and certainly more than Assange™. The advantage that Wikileaks has (and had) over Cryptome is notoriety. The very grandstanding, questionable financial and media tactics, and rigid internal hierarchy that I personally deplore are what have set Wikileaks front and center.

Cryptome has had (and continues to have) many very important documents available, many far more important than the US cables that set the world aflame. Cryptome’s lack of showboating however has ensured that when this information made it to the mainstream press, Cryptome was very rarely mentioned as the source. They simply sit quietly in the background and do their job.

Today, should you be choosing to leak documents, not only is Cryptome still around as a more ethical alternative to Wikileaks, but Openleaks is ready to deal with whatever information you have to share.

So whatever you feelings about Wikileaks – good, bad, or indifferent – I do beg to differ with the idea that “there was no other place to go with information the mainstream press wouldn’t touch.” Viable alternatives did and continue to exist for those who wish an alternative venue to ply the information they feel needs to be free.

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Just the facts

Possession of stolen property, regardless of how it was obtained, is still a crime in many countries. That said, it's very hard to unspill milk and it is difficult to blame either the carton or the floor.

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Copying is not theft

no matter how many times the MPAA/RIAA tell you it is. The data is not stolen, it is made public. There is a huge difference.

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Stolen from whom?

'Stolen' from whom?

Stolen from the democracy that owns in order its citizens may read it?

As others have said, such information can't be stolen, just made accessible.

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Anonymous Coward

@AC 02:23 GMT

There are many things that one *can* do and it then becomes every citizen's responsibility to decide *whether* to, based upon both their conscience and the law. When money or reward is involved, suspicion naturally arises as to the underlying motives. It is somewhat more complicated than "I can so I will and you can't tell me not to, so there" whether we are talking about copyrighted material; government, commercial or personal secrets or property.

Actions are rarely free of consequences.

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Re: Copying is not theft

In most cases, these documents would have trade secret protection. It isn't out of the ordinary to talk about theft of trade secrets.

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Anonymous Coward

RE: Copying is not theft

Keep telling yourself that, it doesn't make it any more legal in this case.

Documents such as the war logs and US cables are specifically protected against duplication and dissemination by the law, you are not dealing with some civil case here of MP3 copying.

Copying may not be theft but it has more in common with counterfeiting than Theft, and regardless the documents Wikileaks mostly deals with now are often protected by state secrecy laws expressly prohibiting duplication and release.

Anyway this is very damaging to Wikileaks, they have pretty much indicated here that their own volunteers who help them process the information to be leaked are carrying the legal risk and they will not back them. If I were a Wikileaks volunteer I would be very worried about being targeted after this.

Julian shows his true colours in that his outfit exists to make him money and sell the information for top dollar, after all we cannot have someone leaking the data for free like a true crusader for truth now can we?

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Made public

It's not just made public though, it is also sold - or so this NDA implies.

The original holder of then information then loses the value of that sale as once revealed the information has no further value.

That pretty much makes it a chose in action and makes taking it without the consent of the owner a candidate for being classed as theft.

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Yes, a huge difference

"no matter how many times the MPAA/RIAA tell you it is. The data is not stolen, it is made public. There is a huge difference."

Indeed, there is a huge difference: we are not talking about copyright theft in the vast majority of these cases, we are talking about (in the UK anyway) a breach of the Official Secrets Act. Whether you agree with any morality stuff or not, distributing secret government e-mails is obviously a different thing to copying the latest <insert pointless band here> album, and to conflate the two by using the MPAA/RIAA as a straw man is specious.

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Anonymous Coward

RE: Copying is not theft

Could you please post the following personal information so that we can "not steal your identity":

name, address, DOB, Mother's maiden name, bank account details (including passwords), NI/SS number.

I could do with a new credit card but I'd rather not have to pay it back after I max it out.

On a more sensible note, data theft and copyright theft are completely different things - I am astounded that you have managed the ability to read and write yet you cannot see that.

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Re Copying is not theft @ 02:22

Pause for thought on this one. Have a think about this, which is not too different from a lot of the modern 'leaks'

If you had spent many years developing a new product and someone gained access to your safe and photographed the design plans. They then put the originals back in the safe and make their exit. They haven't caused any physical damage or removed any physical objects.

Ask yourself this, have the stolen your plans or not?

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Anonymous Coward

Official secrets

Yes, obviously I would be breaking the law if as a government employee I were to publish secret documents from my work. However, would I be breaking the same law if I were to assist people in anonymously publishing documents, which may or may not contain government secrets? As an outsider I have no way of telling whether they contain genuine government secrets. They could be disinformation from a foreign government for all I know. I would guess it would depend on my beliefs and intentions and, as always, a court would have to take a guess at what those were, even if I'm not really sure of them myself. After all, what sentient being fully understands itself?

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WTF?

@Joylon Huh?

Ok..

Let me get this straight...

Someone leaks documents to Wikileaks andthats ok...

Once leaked the document becomes the property of Wikileaks and if said document is then leaked, it is now considered a theft?

Ok... If this is true...

1) Wikileaks acknowledges that leaked documents have value.

2) leaking documents, regardless of renumeration or compensation is theft.

3) Wikileaks will not indemnify any of their volunteers.

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Straight @ IM Gumby

Um, that's not straight yet.

I was suggesting that _Wikileaks'_ actions, if they acknowledge this information has a financial value, can without too much of a stretch of the legal imagination, be considered theft (or handling).

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Grenade

Copyright vs Theft

Lots of opinions on the legal matter here, so who can post a link to an act of law that either shows copying isnt theft or that it is?

Anyone?

Bonus points if it covers enough jurisdictions to make sense in the case of wikileaks.

On a related note, the Official Secrets Acts 1911 - 1989 (more than one of them) do indeed make it a crime for someone to pass on sensitive information in their knowledge but good luck getting this to apply to *anyone* at Wikileaks. There are provisions on who the Acts apply to (such as the list in the 1989 Act) and in any case once the first leak has happened, everything else would have to be considered as out in the open.

I suspect a similar situation applies with US laws.

Despite the people crying about how Assange has broken the law in [insert country] none of this really matters as they dont apply. Its like saying that you have broken the law in Iran every time you go for a pint. Meaningless.

Now, the people who leak to Assange, on the other hand... they are going to be seriously at risk.

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Anonymous Coward

You are quite right. Any country's laws apply only to its citizens,

and if any treaties between countries have been concluded which extend those laws, to the citizens of those countries affected by said treaties.

For everybody else, you release the CIA, MGB, M6, Mossad, etc and dispense with Burkeian justice.

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RE: Copying is not theft

That's right - Copying is not in itself theft. Copying trade secrets or copyrighted works for profit IS theft. (I accept that there is a gray area for copying for personal use, and this will always depend on the specific case.)

However in the case of Wikileaks, the general idea is that they are exposing activity that is illegal or immoral that otherwise would not be made public. In the case of governments it has become routine to classify documents as secret not because there is a national security or similair interest, but simply to cover the arse of some beareaucrat (in some cases documents are outright deleted such as the CIA torture interrogations) .

In the case of big corporations it's dodgy practices, insider tradingetc, again, copying and publishing this information should not be protected by 'trade secrets' or copyright.

In both these cases, government and big business can bring a lot of big guns to bear against wikileaks, so it's understandable that they protect themselves. However they have been a bit too publicity-friendly of late (any chance St Julian will shut up for a while??), and offloading liability onto their staffers.... Not Good!

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@AC

"Ask yourself this, have the stolen your plans or not?"

No. They are still there in the safe, and no court in the country would convict you of theft, not least because of several other criminal acts that you probably would be convicted of under the circumstances described.

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Boffin

@Jolyon. Ok...

Was not sure what you were trying to say...

I concur...

This 'legal' doc puts Wikileaks right in the crosshairs of the US govt prosecution.

It's not a newspaper and first amendment protection has it's limits.

By creating this document, Assange establishes mens rea ?sp? That their primary motive is for profit.

Wikileaks is saying to their volunteers that if you leak a document from Wikileaks, that they have the right to sue you for monetary damages because they recognize that the information has value.

It also refuses to indemnify their 'staff'.

Talk about a self destructive messiah complex...

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Headmaster

Ye olde "but I didn't know, guv!"

It always bemuses me that people think their clever philosophical arguments will be novel and suprising to the magistrates. They seem to be unaware that the people to whom they offer these arguments *do this for a living* and have probably heard the exact same ambit twice already this month alone.

In the case of AC's argument, above, the operating words are generally "knew, or REASONABLY SHOULD HAVE KNOWN" (emphasis added.) Thanks for playing, go to gaol, do not pass Go.

( We will also point out that classified documents have their classification at the top and bottom of each page, in bold red type, for precisely this reason. Electronic versions have similar warnings so that there can be no frickin' way you don't realise you are committing a felony.)

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Umm, not even close

If this were true, it would mean that Britons are allowed to drive on the left in America, since American laws don't apply to them. Or Mormons could legally have polygamous marriages to 13 year old girls, whether in Utah or New York, simply by adopting Nigerien* citizenship.**

In fact, any country's laws apply only to its *jurisdiction*. Working out the boundaries of a jurisidiction (which can be limited by territory, persons, or types of acts) is very complicated and definitely a job for a real lawyer. It is not infrequent to have different countries disagree, sometimes violently, on the nuances -- particularly with regard to taxation law.

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* The adjectival form of Niger, not Nigeria.

** For those who find this appealing, I point out that a) I have no idea how to actually adopt Nigerien citizenship, sorry; and b) AC's claim is false, and adopting Nigerien citizenship will not allow you to legally enage in pedophilia anywhere in the USA.

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Troll

Re: Copying is not theft

> The data is not stolen, it is made public.

But probably not before Jules has touted it round all the "old media" looking for another dollar.

cryptome.org is still going strong, if you want to be sure of getting stuff "out there"...

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cryptome is good

Cryptome definitely publish all expired NSA documents from the 1950's and other NOFORN stuff that has previously bin found lying aroun' on the interwebs. I find relatively few documents on Gladio style operations (the stay-behind false-flag terrorists) and other similar deeply embarassing 'merkin activities. (Some of which were actually very successful against the USSR). Cryptome will probably *be allowed* to publish those in another 50 years. I like Cryptome but I suspect it, slightly whiffy?

I certainly wouldn't dream of leaking 'secrets' via John Young/Cryptome, not that I know any. The well informed leaker would probably start reading at ht4w.co.uk and think a lot first! (the ht4w website neatly sums up recent UK whistleblowing cases)

Cryptome has some interesting photos. I bought the Cryptome DVD's. I'll keep on reading Cryptome which I reckon does not release information that could be of value to foreign intelligence and security services, perhaps because FiSS already know the stuff - unlike wikileakx and their NDA who do (occasionally) leak new data that might be of interest to foreign intelligence and security services, the media and generally peoples. simples.

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No 'probably' about it!

I seem to remember from my researches on wikileaks during the recent US cables disclosure, that the major financial contributors to wikileaks were News organisations. These benefactors gained advanced access to the leaked materials, enabling them to prepare 'exclusives' on the materials prior to their public release on the wikileaks website.

So the NDA can only apply to wikileak materials between the time they are handed to the wikileaks representative and their being disclosed - some weeks or months later, on press and wikileaks websites. However, it should be remembered that not all leaked materials are published and so these remain confidential under the NDA.

This makes sense, as it is during this time that the materials have their greatest value to media companies and wiklleaks needs benefactors with deep pockets to cover its operating costs...

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Anonymous Coward

aHahaha, aHa, aHahahahaha

"sell the information"

Priceless.

What a tireless crusader, a paragon of virtue and a courageous hero. Or something like that.

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Scary doc

But much of it isn't valid. Sure they can claim breach of confidentiality for leakage of any info on their internal workings/meetings or of any analyses they make, but the original documents do not belong to wikileaks. Therefore they cannot claim damages for leaking the docs themselves.

If such a case came to court, then wikileaks would have to reveal much of their internal workings and their sources in order to establish any sort of ownership of the information - so would they really push it?

Mind you, anyone who is prepared to sign up to an agreement that gives the company all rights to the information, yet leaves the employee liable for the method of obtaining it is an idiot.

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WTF?

Wikileaks?

Has a draconian NDA with massive penalties for leaking information publicly?

Is Assange after the Nobel Prize for Irony now?

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A witty and smart title goes here (unless its me posting)

sounds to me that wikileaks wants to have their cake and eat it.

anything you pass to wikileaks will be disclosed without any liability to wikileaks however anything you give to wikileaks also becomes entirely their property.

this is equivalent to giving or selling somebody a car (filling all the relevant paperwork so it truly belongs to them and not you) and then you have to pay any speeding fines or parking tickets that they get with the car.

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Anonymous Coward

Interesting

That it's a document drawn up under English law. How many wikileaks staff are UK based?

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Sir

This sounds more damaging than the government sponsored smear campaign if you ask me, which you didn't.

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Commercial Operation

Trading in confidential information for commercial or personal gain can NEVER be justified as being in the public interest.

Wikileaks and its owners/founders should be taken apart. Courts, trials, siezed funds and prison to follow.

Freedom is fundamental. Protection for whistleblowers is vital. The PRINCIPLE of leaks is sound in support of freedom.

Exploiting the vulnerable is immoral and criminal.

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I'm no supporter of Julian Assange [tm]

In fact I think he's a colossal grandstanding arse with dubious morals. But:

>>>>>>>>>>>>>>

Trading in confidential information for commercial or personal gain can NEVER be justified as being in the public interest.

>>>>>>>>>>>>>>

That's a rather foolish thing to say. Do you think Woodward & Bernstein were doing it for charity? Nope. They got paid for uncovering Watergate. It was their job. The investigative journalist gets paid in cashy money, and this is a good thing for society. Otherwise there'd be less of them.

Sadly other journos get paid to tell us who [insert name of footballer] is sleeping with. Which makes it a bit harder to justify the statement, 'newspapers exist to make profits from trading in confidential information - and newspapers are a good thing'.

However, I'd still say that this is basically true. Also, if the newspaper buying public were a bit more interested in 'proper' news, then more of that profit would be diverted to the 'good for society' investigative bits, and less would go to the rumpy-pumpy correspondents. But that's as much society's fault as the newspapers'.

So I would go further and say that if you believe that a lot less information should be confidential, then you should also believe that making a profit from revealing it, is likely to lead to more of it being revealed, and thus a benefit to society.

Admittedly, that's rather simplistic. I do think that governments should publish a lot more, and that a lot of secrecy is used to mask cock ups and wrongdoing. However I also think that the US diplomatic cables and the Afghan logs should probably have stayed secret. We've gained very little knowledge from their publication for quite a large potential cost to society.

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Anonymous Coward

You misunderstand

"Any and all information disclosed to you [that is, the WikiLeaks staffer or volunteer receiving incoming leaks] is disclosed without any liability on the part of WikiLeaks, (our emphasis).

Once received, apparently at the staffer’s risk, a leaked document then becomes solely the property of WikiLeaks”

No, what it means is that any potential profit belongs to Wikileaks (management), and any liability belongs to the staffer and/or leaker.

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Stop

Typical for lawyer speak

Heads we win tails you loose

Also sounds like my marriage contract, 'what's yours is ours, but whats mine......'

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Anonymous Coward

Hmm

I wonder how much of the cash from selling leaked documents go back to the person who actually supplied the documents. Why should WL be making all the money?

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Anonymous Coward

Not for profit organisation with significant infrastructure and staffing needs

Not to put a damper on all these fine allegations, speculations and consipracy theories, but Wikileaks is, according to Wikipedia, "... an international non-profit organisation that publishes submissions of private, secret, and classified media from anonymous news sources, news leaks, and whistleblowers".

Given the IT and IS infrastructure required to receive *and* publish highly sensitive documents worldwide [not exactly something you can buy or source off-the shelf] as well as the staff to develop and maintain it, why is anyone surprised that Wikileaks has to recoup costs from wherever possible? I highly doubt Wikileaks Donations covers it, especially when the so-called democratic countries like US, UK, and their financial institutions keep unilaterally closing Wikileak donation accounts systematically. Plenty of other not-for-profit organisations operate in this way.

At the end of the day, there's Assange and there's Wikileaks. Like it or not, Wikileaks has been a unprecedented revolution to the world. Sure, its a shame its run by someone like Assange (whose main fault appears to be a control freak), but the Wikileaks model has both been highly successful in its objectives, so much so that now there are copycats coming out of the woodworks, including some by ex-Wikileaks staffers.

Of course, the ideal thing, would be open access to Wikileaks audited accounts, but that probably opens more cans of worms than it closes. After all, financial information can be very powerful to your enemies, especially since the enemies in this case are the most powerful: state entities.

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Black Helicopters

non-profit? NOT

By definition, a non-profit is an organization sanctioned by the tax code having jurisdiction where it is founded. An organization could be a non-profit in some kleptocracy, making money hand over fist off drug sales in some other country, and be fully legal, as long as they keep the bakshish flowing. Without a tax code and accompanying laws that define commerce, the concept of an organization realizing profits has no actual meaning. A proprietor in an anarchy may make a whopping profit on individual items sold or cash given for religious benefits, but has as much right to claim an organizational loss because his cost of doing business includes paying for his $100,000 a day cocaine habit as the local religious institution claiming a vow of poverty.

That said, most non-profits in developed nations are a joke. It just means the money shows up elsewhere on the balance sheet -- most often in executive salary and perks. However, the Board of Directors tends to get adequately compensated for their time/silence, too. Even in the case of an actual lack of passing profits around, their motives are not necessarily pure.

If you believe that being self-promoted as a non-profit actually adds moral cachet, I would like to sell you a lovely bridge. In fact, I firmly believe in thinking "they're lying" whenever a group says they are a non-profit, much like I disbelieve a person who tells me they are honest. It merely means they have discovered how to purchase the perception of credibility and integrity by filling out a complicated government form. If I ever started a business and had no morals, it would be a not-for-profit, primarily because of the chumps that believe in such things as this, honest politicians, FSM, tooth fairy, et al.

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Boffin

So...

who leaked the Wikileaks NDA then? ;)

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Stop

Roll out the Tiresome Chorus of Assange Bashers

There may be many examples of poor style, or overzealous reactions from Assange and his allies, but the these are more than eclipsed by the war crimes and atrocities being done daily in the name of our so-called democratic institutions.

Nobody has mentioned that Wikileaks takes exquisite care to release only the information which will not endager lives. They may err, or misjudge in some cases, but I have yet to see an example of a civilian or military death which resulted from a leak published after wikileaks released it.

There are (therefore) other more important, and wholly ethical reasons than making money, which would behoove Wikileaks to strictly control their 'crown jewels'.

All those that celebrate the principle of 'free' leaks from wikileaks are arguable ethically worse-positioned than wikileaks themselves - unless you can point to some kind of code of practice which would also prevent civilian and military casualties.

-also, when banks and credit card companies *illegally* block sources of income from donations, how else do you expect the organisation to pay the bills?

I am getting really tired of the ad hominem attacks on Assange in the reg forums. Sure he's not an angel, but most of the criticism of him seems to consist of ridiculing his vanity, and his eagerness to secure a decent financial footing for wikileaks and its employees. I will continue to regard these attacks as spiteful, cowardly and tiresome, especially for as long as the war criminals Wikileaks exposes, and those that undermine the validity of democratic values are still considered paragons of virtue, just because they have more extensive PR resources.

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Staffers risk

I dont see how this makes everything a risk taken by the wikileaks volunteer, other than the claim in the article that this is so.

What have I missed? Saying "Wikileaks" isnt liable for any information given to the staffer isnt the same as saying the staff member is.

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Wikileaks trying to mimic Scientology?

With an NDA like this, perhaps Wikileaks is trying to become the next Scientology. Perhaps the next update to the NDA will claim that a Wikileakleaker's head will explode.

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Stop

Stop and think for a moment

Whatever the rights and wrongs of Wikileaks you have to admit that its a bit of a thorn in the side of governments and other organizations. Because of this you'd expect all sorts of attacks on the organization and its visible front people. Assange's been smeared by the Swedish -- not very effectively, but you've got to hand it to them for trying. This may be more of the same. We need to get it into people's minds that Wikileaks is an organization designed primarily to make a few obnoxious people rich and it will do this by throwing anyone it doesn't like under a handy bus....that sort of thing. This may even be true, of course, but you've got to look at the bigger picture. Who's to gain from discrediting Wikileaks? How much effort and money is it worth?

The article on the rather crude attempt by Facebook to use a PR firm to smear Google should be your guide. Imagine what would happen if it was done competently?

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Crude would do the trick

Assange doesn't actually help his case much - he comes out with the crazy often enough to make almost any slur plausible. But the fact that the readership of El Reg seem happy enough to swallow this revelation without any reflection on its provenance, or who might benefit, suggests that a crude attempt to smear Wikileaks would be quite sufficient. No real need to bring in the big boys here.

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Interpretation

From Wikileaks' point of view, confidentiality is very important. How else can you offer to protect the anonymity of people who send stuff to you?

This particular document looks like a complete legal dogs' breakfast, and I seriously doubt if it'd be enforceable in any court it's likely to come before. I suspect the objective is not so much to create an actual legal barrier, as to signal to WL staff that Confidentiality Matters.

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Streaming on-demand video series, WikiLeaks: Security Threat or Media Savior?

Check out the streaming on-demand video series, WikiLeaks: Security Threat or Media Savior? at FORA.tv (http://f4a.tv/eFjoq1)

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WTF?

@Dan Goodin... Your smoking gun.

Dan,

You've written most of the Wikileaks articles...

This NDA is your smoking gun.

While IANAL, I have toast whereas thereconsideration with respect to the volunteer? ( is the NDA really enforceable in a court of law?)

The NDA outlines the function of Wikileaks as a reseller of information not as the Press itself.

So how could one argue that Wikileaks should be consider part of the press anymore than being a source of information?

The point is that this just made it easier to go after wikileak's Assange.

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