How We
Lost That Story
At
Slate
, we
do not go whoring after scoops. While others chase semen-stained cocktail
dresses and sweat through the Beltway summer humidity in pursuit of leaks, we
sit back in our breezy Pacific Northwest aerie, sipping a microbrew, observing,
analyzing, synthesizing, and generally thinking great thoughts. Or at any rate
thinking thoughts. But we are not above indulging in a scoop if it falls into
our lap. For a few hours this week, we thought we had one.
Over the
weekend, a journalist friend in London e-mailed us an article. It was by a
former British intelligence officer (MI5? MI6? MI7? Who can keep them
straight?), telling tales out of school about alleged attempts by British
intelligence (MI8? MI9?) to kill Muammar Qaddafi, the prominent Libyan
statesman and murderer. A bomb intended for Qaddafi allegedly blew up the wrong
car, killing innocent people. At the British government's request, the author
of this tale was arrested Saturday in France. Our friend's newspaper, and all
other British papers, were forbidden to publish the article under Britain's
notorious Official Secrets Act. But
Slate
could publish it on the
Internet, he reasoned, and in Drudge-like fashion avoid the constraints on
print journalism and draw attention to ourselves. The story would get out and
the Official Secrets Act would be exposed as a farce in the age of
cyberspace.
We did what any red-blooded American would do in such a
situation. We consulted our lawyer. He told us it's not so simple. (The
lawyers' mantra.)
Slate
also might be subject to the Official
Secrets Act. If we published this article, not only could our editors be
stopped at Heathrow on their way to pay homage at the Diana museum, but the
assets of our parent company could be seized, and so on. Imagine millions of
Windows 98 CD-ROMs going moldy in some government warehouse! The heart sickens.
Could we in good conscience risk denying the plucky British people this
marvelous operating system, with its fully integrated Internet browser?
Our lawyer said we might
escape Britain's ridiculous censorship laws by arguing that we are an American
publication, and any seepage into Britain was purely unintentional. Or we might
note that the story--it's now Monday morning, Pacific time--was already
dribbling out. The London Sunday Times had mentioned the alleged Qaddafi
plot, comically reasoning that the government claims the story is untrue, and
something that never happened cannot be an Official Secret. Just to be safe,
though, the reference was buried deep within an article on something less
interesting. On Monday, other British papers reported that other British papers
had reported the story.
But in
truth, getting the story into Britain was not incidental: It was the main idea.
And to the extent the story was already out in Britain, we had little interest
in publishing it. In short, we realized, our lawyer's efforts were futile:
There was a perfect inverse correlation between our desire to publish the
article and our legal ability to do so. Basically, if it didn't violate the
Official Secrets Act, there was no point.
This conclusion turned a potential scoop into a
potential stand on principle, which is even more exciting. Should we ask
Microsoft Corp. to prove its bona fides as a media company by backing an act of
journalistic civil disobedience? That sounded like a lot of fun, but first we
had to figure out which principle, exactly, was at stake.
Was it
the right of the Internet to be free of all government restrictions? No. We are
comfortable with the idea that some national security information--the names of
agents in hostile countries is the usual example--should not be published and
that such constraints should not have to depend on every journalist in the
world acting voluntarily. The Internet makes enforcement of any restrictions on
the spread of information much more difficult. But it does not, as far as we
can see, affect the principle that society ought to have the right to prevent
or punish publication of some information.
Was the principle at stake here the right to be free of
stupid and/or unnecessary government restrictions? Governments will always
claim too much secret territory. A botched assassination attempt that killed
innocents is just the kind of thing the citizens ought to know about, while the
government won't want them to know. But it makes no sense for a journalist to
say, "I don't mind being censored, but only about information I wouldn't
publish anyway." There's no need for a law to prevent you from doing what you
wouldn't do anyway. If you concede the government's (society's) right to rule
some information out of bounds, you must also concede the right to draw the
line in a place you disagree with.
Of course
civil disobedience--breaking the law (and taking the punishment)--is a valid,
even noble, way to dramatize iniquity and create pressure for change. For
Slate
, a basically American publication, to risk its future on a
crusade to reform the excessive secrecy laws of the United Kingdom would have
been a lovely gesture. But somehow it did not seem morally mandatory. Let the
Brits care for the Brits.
So maybe the principle is that Internet
publications shouldn't be subject to stupid and/or unnecessary censorship by
foreign governments. Although, with Internet access, you can get
Slate
as easily in Rwanda as in Redmond, so perhaps the rule
should be that every Web site must follow the laws of its "home" country, and
no other. After all, if an American publication like
Slate
finds
itself subject to Britain's Official Secrets Act, this turns the Internet's
promise of freedom on its head. Not only are we not liberated from our
particular national jurisdiction: We are simultaneously subject to
every
other national jurisdiction.
Slate
is content
to obey the laws of the United States, even laws we don't care for. But the
notion of, say, Belgium popping up to enjoin us from criticizing moules
frites seems unfair.
Trouble is, the Internet
makes a farce of any such one-Web-site-one-country solution, as the case in
hand demonstrates. Our British friend instantly and effortlessly e-mailed us
the rogue spy's article, and if we hadn't been worried about British law we
would have made it as instantly and effortlessly available in Britain as if
he'd published it himself. In this case that would have been a happy result.
But what happens when those agents' names get e-mailed from the United States
to, oh, Libya and immediately get posted on www.muammar.com? As a practical
matter this may be unavoidable. And, to be clear about it, the massive
censorship necessary to avoid it is certainly not worth the cost in freedom.
But there's no point in pretending that a Web site subject to only one
country's laws is actually subject to any at all.
So in the end we were denied
both an exhilarating scoop and an invigorating stand on principle. There is an
obvious opportunity here for a bonanza of international conferences to study
the need for worldwide treaties to set up global commissions to come up with
transnational standards for ... oh God, we can't go on. There must be an easier
way. Any suggestions?
--Michael Kinsley
