I’ve recently spent many hours using the data on Wikileaks to produce some original analysis on the Bank Julius Baer story. Maybe I’m a hypocrite, because I publicly voiced that I wasn’t sure that it was an automacally in the public interest that this data should have been released in the first place. There’s the condundrum: you have to read the data to see if it’s in the public interest.

I am grateful for Wikileaks. I like puzzles, and Wikileaks provided me with a lot of data to sort through. But I’m wary about becoming a registered user, even an occasional one who makes a single contribution, because I’m not thrilled with thir listed values (I signed up for an account just to see what accountholders see).

The popularity of Wikileaks has been buoyed by its use of the magic prefix: wiki. The confusion with Wikipedia is paramount; the very first sentence in their FAQ reads: “Wikileaks is an uncensorable version of Wikipedia for untraceable mass document leaking and analysis.”

And I’m a younger, eligible version of Jon Stewart (we both have the same first name, and crack political jokes from time to time). Wikipedia deals with the empirical world: every article, and sentence within, is testable. An investigative site, such as Wikileaks, on the other hand, deals with world of hypotheticals. With a hypothetical, the investigators must be able share ideas amongst themselves that may not prove to be true. The problem is that outsiders might confuse hypotheticals for proven fact. Reporters know that they must use the modifier “allegedly,” until a person has been convicted of a crime. If they assert that a person committed a crime, that person could well seek damages for libel. In American courts, this is libel per se: one who is accused of committing a crime does not need to prove damages.

Wikipedia’s policy on libel is to delete libellous material when it has been identified. Does Wikileaks have a comparable policy?

There’s another key difference. Wikipedia espouses a neutral-point-of-view (NPOV) philosophy to drive towards fairness and thoroughness. This is what inspires people to join and contribute. No user can be faulted of making changes according to those principles. Wikileaks, by comparison, never even mentions the words fair or thorough in its 6,600-word FAQ. It’s not clear what principles the Wikileaks contributors are following.

Some of the specifics in the FAQ are naive and presumptuous. To a question about the ethics of leaking, they explain: “As discovered with Wikipedia, the collective wisdom of an informed community of users allows for rapid and accurate dissemination, verification and analysis.” By that logic, anyone labelled guilty on a Wikileaks page probably is, since the “informed community of users” has apparently rendered judgment. (In the Julius Baer case, some unknown Wikileaks editor has declared ten individuals guilty of tax evasion).

Certainly editing post facto is better than not editing at all. But there’s a difference between crafting a story on a blog read by a handful of trusted colleagues and on one that is a highly touted worldwide collaborative project: the difference is audience size. Any mistake would be potentially magnified to a much larger group of people.

In addition, Wikileaks fumbles when it considers the question of public vs. private linking. Private leaking would be a whistleblower leaking to a reporter/editor, whose sense of newsworthiness and libel laws would advise as to when and what to publish. To the Wikileaks FAQ, all private leaks are bad, since they imply a damaging motive. The thought never occured to them that someone can be leaking publicly with a damanging motive! They suggest that Aldrich Ames, the traitorous CIA agent, would have been better to leak the names of field agents publicly (the only way this would be more moral is that it would have led to his arrest earlier).

As Steven Aftergood, director of the Project of Government Secrecy at the Federation of American Scientists told TIME last year: “Anyone who’s been in the business for any length of time knows leakers leak because they are trying to advance an agenda of their own, or because they have some personality or psychological quirk that leads them to disclose information out of official channels.”

All of this could be excused if Wikileaks were the first of its kind. It’s not even close. Three years ago I interviewed Brian Keeler, who had helped break the “Jeff Gannon” story on Daily Kos. Keeler and other dKos community members were in the process of setting up ePluribus Media, a collaborative investigations project. Here’s the link to the investigation page. You can’t get there. They’ve restricted that to vetted members. From what I understand, ePM has a collaborative strategy much like the GNU  Public License and many peer-to-peer filesharing services: getting demands giving.

It could be possible to set up a tiered investigation system where certain information is restricted to members (and excluded, notably, to search engines). They haven’t chosen that path. But I don’t think it compromises the value of openness. They may have to do that if they want to continue doing open hypotheticals while minimizing the risk of civil torts.

Steven Aftergood, rejecting the request from Wikileaks to serve on their advisory board, explained: “In the absence of accountable editorial oversight, publication can more easily become an act of aggression or an incitement to violence, not to mention an invasion of privacy or an offense against good taste.”

Wikileaks does work strictly as a source repository. It is extremely helpful that Wikileaks hosts the Camp Delta Standard Operating Procedure manuals — used at Guantanamo Bay detention camp. The problem is when they get into commentary and analysis. It’s markted as an anonymously edited site, yet it has signed articles with bylines. Are these not supposed to be edited in the way that anonymous articles are? As I noticed during my research into their Julius Baer data, an author was removed from a byline overnight, without notice. Was the listed author, a bona fide contributor? Did they have a change in heart once the article changed? Or did they never wish to be listed as an author in the first place?

All of the changes are attributed to “Wikileaks” — a single user. In their zeal for maximum anonymity, the Wikileaks team has avoided the simple convention on pseudonyms. The downside is that this reduces accountability. One cannot tell which Wikileaks editor made a particular edit.

I’m not a lawyer, but I know where one is needed. I’m a software architect who develops process/compliance software and who dabbles in media research. I like to think about risk. And I’d be more comfortable with Wikileaks if they did, too.

I realize at this point that I’m in the acute minority in taking on Wikileaks. After Judge White issued a temporary restraining order which removed wikileaks.org from DNS (a fairly unprecedented abd broad move), a phalanx of media and civil liberties organizations filed court briefs. They rushed in because they saw Wikileaks as a press functionary and decided to stand in solidarity. After all, the principle of freedom of speech is, in Justice Oliver Wendell Holmes’s words, is in supporting “freedom for the speech we hate.”

Of course I find Justice Holmes unassailable. The difference in this era is that on the Internet it is not just speech from opposing viewpoints we encounter. We’re witnessing whole new platforms of speech. By “platform” I am not talking simply talking about getting video on one’s iPod. Platform encompasses the whole process of communications.

For example, a liberal First Amendment lawyer will defend a neo-Nazi newsletter or rally, partly because they know that newsletters and rallies are platforms that are constrained by laws against libel or inciting violence. What Wikileaks presents is a platform which wants to exist outside of Lessigian constraints for speech. No law, norm, or code applies to Wikileaks; it is the golem conjured up in February 1996 by the Communications Decency Act (particularly, the blanket immunity clause of Section 230), and John Perry Barlow’s reaction to it, the Declaration of the Independence of Cyberspace.

Barlow’s manifesto, which rejected the notion that sovereign states could not design laws for cyberspace, echoed around the Internet. But he did leave room for their substitution by another Lessigian constraint, social norms:

We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge. Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule. We hope we will be able to build our particular solutions on that basis.

The governance structure still hasn’t emerged for Wikileaks. Judge White was flummoxed as to how he could have particular jurisdiction over Wikileaks if its creators didn’t want it to be a legal entity. (In that sence it joins the U.S. Vice President’s office, which for a time last year, had claimed a non-entity status.) As per the Golden Rule, if Wikileaks demands transparency and responsibility from others, it should provide the minimum of governance itself.

At best, Wikileaks will crowd out other responsible collaborative investigation efforts.  At worst, they’ll have a privacy or defamation suit on their hands one day, with no one standing up and taking responsibility.