There is a cost to creating information, and users of information place a value on the information. “Cost” and “value” are not just money – they include time, utilization of other resources, and in some cases human lives. Part of the cost is the harm to persons and property that may occur with the misuse of the information.

Freedom of speech, which concept is perhaps one of the underpinnings for Stewart Brand’s comment in the 1960s that “information wants to be free,” has its limits. The 1919 decision by U.S. Supreme Court Justice Oliver Wendell Holmes, Junior, in Schenck v. United States sets forth an often quoted statement that “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force.” The courts today, in the United States and elsewhere, continue to struggle with defining these limits in our global village.

As a practical consideration, part of the cost of production and dissemination of information through Wikileak type sources includes the potential harm that information may cause. For example, alleged informants/collaborators in Afghanistan whose names news accounts said were revealed in a recent Wikileaks disclosure now face potential threats to themselves and their families as a result of this production and dissemination of information. Economists call these types of costs “externalities.”

An externality refers to any impact of an economic activity that is not captured in its price. The impact can be positive or negative. One traditional example is of a coal-burning power plant which sends pollution into the air. The cost of dealing with this pollution is not borne by the power plant, so it is not integrated into the price of the power. This cost is the externality. In the case of websites like Wikileaks, the cost of responding to the potential threats resulting from unauthorized disclosures and distribution of information is not borne directly by the Wikileaks producers.

Although it has been in recent news, Wikileaks is not the only “leaking” website (e.g., there are others including OpenLeaks, BrusselsLeaks, IndoLeaks, LiveLeaks, TuniLeaks, TradeLeaks, etc.) – all purport to have information that they have obtained by various means and now choose to disclose and distribute. In some cases these websites may pay others for the information. In some cases the suppliers of this information, in exchange for the money they may receive from the leaking websites, are drawn by greed, ignorance, or otherwise to violate their duties of trust to their employer or, in some cases, to their fellow citizens, or even their own conscience. In some cases the suppliers of the information may have the perspective that their unauthorized disclosure of the information to leaking websites will expose perceived wrongdoings by others (e.g., an employer engaging in illegal activities).

Not all “leaks” are “bad” or “wrong” or illegal. Each case requires critical thinking and analysis since any leaking of information will have consequences, or externalities. Problems will arise when information is distributed absent honest critical aforethought.

What are the tests that the courts, and our global village, might use to determine these information use parameters? How do cultural differences impact this analysis? What are appropriate remedies applicable to the person(s) creating, supplying, or disclosing the information? Perhaps the greater impact of the disclosures by the leaking websites will be the robust debate engendered by the activities of the leaking websites and not the information disclosed and distributed. What do you think?

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