I have a little while before I have to go to the airport, so I’m going to try to type up a little recap of my favorite programs at ASIL. [On edit: am finishing this up Saturday night, surrounded by candles, in honor of earth hour. My laptop is unplugged]. Also on edit: this will be a long post.
On Thursday I attended a panel called, “Espionage and the First Amendment after Wikileaks”. I had thought it would devolve into a shouting match, but everybody was surprisingly pleasant. They did not all agree about everything (although I think there was only one pro-government speaker – in fact, I thought he was a government lawyer, but I was wrong), but they managed to be civil, as well as informative, engaging, and entertaining.
They did all agree (which also surprised me) that there are some things that a state needs to keep secret – “The First Amendment has never held that information should always be free,” said one of them – and they also agreed that Julian Assange’s goal (whether it was to set information free or humiliate the U.S. government) ran contrary to that belief.
Roger Alford (the guy I thought was a government guy but is apparently a prof at Pepperdine), talked about how the internet – where “everyone is the press, everyone is a source, everyone has access and everyone is anonymous” – has made the old paradigm, “attack the source [of a leak] and not the publisher,” unfeasible. He said that measures of deterrence must be pursued if some infoermation cannot be free, and that if Assange met the requirements for prosecution under the Espionage Act, he should be punished.
Mary-Rose Papandrea, of Boston College, discussed the importance of the press as a check on government access, on ensuring transparency and openness in a democracy. She said that the problems of anonymity and how to define the press are not new ones and did not just suddenly appear with the Internet. She said that instead of focusing on “who is the media,” we should focus on what was the harm in the leaks, and was there an intent to harm.
Simon Chestermann, from NYU and the National Univeresity of Singapore, had some really great quotes. He said that Wikileaks/Assange capitalized on the virtues and the vices of the Internet, which are the same things: the internet is “decentralized, anonymous, and user-driven.” He said that the problem lay not with Wikileaks as the disseminator of the info, but with the breakdown of protocol, starting with the fact that some 3 million people had access to the info (which, he said, was only secret stuff, not top-level secret stuff – I’m paraphrasing a bit here).
As to the question of whether WL is a journalistic institution, he said, “it’s not quality journalism, it’s quantity journalism.” He closed with the observation that that, contrary to what Assange wanted to accomplish, the lasting result of this incident would be that the government would become more secretive, and make poorer decisions, with bad information. “Which seems to be a high price to pay for gossip.”
There was a fourth person on the panel (David B. Rivkin, from Baker and Hostetler), but I can’t tell from my notes where he started talking. There was some discussion about the problems with the intent aspect – how could you prosecute Wikileaks for publishing something if you weren’t going to prosecute the New York Times for the same thing? I’m not sure the panelists really finalized the question to their satisfaction, but criminal statutes do that all the time, don’t they? You get different results for the same action depending on the required intent proved.
There was also a little bit of talk about the nature of journalism, and the importance of good journalism. Chestermann (I think) made some point about how the New York Times, along with maybe Der Spiegel, was really one of the only organizations performing real investigatory journalism any more, and how that was important in a democracy. It made me think about the kerfluffle (apparently I really like that word) about the Times charging again to view its online articles – I don’t understand why people don’t seem to understand that this stuff costs money. Of course they should be compensated for this service. Information may very well want to be free (although I have my nits to pick with that sentiment as well – I don’t really think information really wants anything), but people want – need – to be paid for providing a useful, authoritative service that takes them time, effort, and resources to produce.
On Friday, the International Legal Research Interest Group had a panel entitled “Greater than the Sum of its Parts: Global Cooperation in Making the World’s Laws Accessible.” This was my favorite program, and not just because it was sponsored by the group of which I am the secretary (I had nothing to do with the program). This was such an exciting group of people, talking about what, to me, is such an enthralling subject.
Marylin Raisch, of Georgetown, talked about the role of academics in providing access to laws. She discussed the movements in legal instruction towards more integration of international law in doctrinal courses, and some of the ways that academics currently research international law: governmental websites, inter-governmental websites, NGO’s. Ultimately, she seemed to conclude that whatever we did, the “good” answers would still be found in subscription databases, maintaining the digital haves and have-nots. She did indicate that she thought we should embark upon a “World’s Laws Wiki” project, which, rather than being a substantive database of answers, would compile all the authoritiative resources out there in an easy-to-find manner.
Hongxia Liu, of the World Justice Project, talked about her organization and the reports they are tabulating evaluating how different countries provide access to their laws “to the people,” as she stressed, rather than the legal specialists. She emphasized the importance of law being “publicized, clear, stable, and available to the general public.” Her organization has developed the Rule of Law Index, which “provides detailed information and original data regarding a variety of dimensions of the rule of law, which enables stakeholders to assess a nation’s adherence to the rule of law in practice, identify a nation’s strengths and weaknesses in comparison to other countries, and track changes over time.” She noted some of the Index’s findings: that accessibility is very much related to the wealth of a country, that within high-income countries, the U.S. does not fare as well as other countries (we are primarily lacking in access to municipal law), and that Sub-Saharan Africa has the lowest level of accessibility to its laws.
Tom Bruce, of Cornell (and the Cornell LII) talked about the open access movement in legal research. He talked about the problems in creating a systematic, global legal research database: there are different legal systems, environments, institutions, with different policies and priorities. It may be impossible for any single entity to collect a complete, open access U.S. collection, let alone a worldwide collection. He mentioned that there are “diverse business models” for providing open access legal research resources, “but all of them are fragile.” He said he favored bottom-up, rather than top-down efforts in this arena.
The last panelist to speak was Roberta Shaffer, the Law Librarian of Congress (can you imagine? The Law Librarian of Congress! That’s like the pope of my profession! Or something. I’m a little tired and perhaps jet-lagged. But I’m pretty sure that you can’t get much higher than that, as a law librarian). Of the departments in the Library of Congress (where I would like to live, by the way), the Law Library is the smallest, and it is also the foreign law arm of the LOC. Shaffer said that their ultimate goal is to provide universal, comprehensive legal materials in a digital, visual, boundary-less manner. Which, she said, was not as easy a task as many had originally thought. The big issues are (of course!) authenticity, accessibility, authoritativeness, and accuracy.
They are doing so many cool things at the Law Library of Congress. They are working on what they call the “One World Legal Library” (OWLL), which aims to be to international legal research what the WorldWideScience website is to science. They’re modeling it after WorldWideScience, in fact (I would totally go to this meeting were I there on the 30th. And, of course, a LLOC employee). They’re also creating a “sovereign within a sovereign” legal research database on indigenous peoples.
Now I am home, and it’s cold, and I’m tired, and my baby and husband are in Wausau, WI. And you probably don’t want to read anymore, anyway. So I’m headed to bed. Will see you tomorrow with a weekly photos post.