<nettime> 'responsible' handling of the Panama Papers

["t byfield" <tbyfield@panix.com>]

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

Cheers,
T

- - - - - - - 8< SNIP! 8< - - - - - - - 

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.

Cheers,
Ted

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