Does the state have to disclose everything?

This week I was asked by German Tageszeitung to give a statement redarding transparency of government and freedom of information. For those of you who read German, it is part of a longer debate which you can read online here. My quote goes like this:

Die Server von Wikileaks stehen in Schweden. Einen Grund dafür sieht der schwedische Kommunikationswissenschaftler und Blogger Christopher Kullenberg im dortigen Pressefreiheitsgesetz – dem ältesten der Welt. „Transparenz macht Institutionen öffentlich überprüfbar“, sagt Kullenberg im Streit der Woche in der sonntaz. „Mit dem ständigen Wissen im Hinterkopf, dass er für seine Handlungen zur Verantwortung gezogen werden kann, handelt der Staat auch dementsprechend.“ Auf diesem Weg könne Demokratie zu jeder Zeit praktiziert werden, sagt der schwedische Blogger.

The quotes originate in a longer article that I wrote in English. I publish it here below:

”Does the state have to disclose everything?”

Recently Julian Assange, spokesperson of the whistleblower organization Wikileaks, has made several appearances in Sweden explaining why they have chosen to place servers in a remote Scandinavian country. One reason goes back a long time in history, more precisely to 1766, and the world’s first Freedom of the Press Act, which in modern versions gives a strong legal protection for sources of the press by making it illegal for authorities to even try to reveal their identity.

Moreover, the Principle of Publicity states that only with certain exceptions, all public records created by state institutions must be easily available to journalists and citizens.

However, the picture of the seemingly ultra-transparent state quickly fades in the light of recent surveillance legislation. Sweden has introduced a wiretapping law allowing the National Defense Radio Establishment (FRA) to monitor internet traffic, and with the coming implementation of the Data Retention Directive, the 250 year old laws of freedom of the press are weakened severely.

The original idea of creating a radical transparency of the state, was to prevent corruption and abuse of power. This mechanism functions i two ways. Firstly, it makes institutions reviewable by the public, and not only by other agencies within the state. Secondly, knowing that such transparency is always imminent, the state will choose to act as if it were held accountable for its actions. This way, democracy can be practised at any given moment, rather than during the elections every three to five years.

In the European Union we see diametrically opposed ways of decision-making. Only recently, it took several leaks of the Anti-Counterfeit Trade Agreement (ACTA) before the parliament finally made the proposed documents public. Documents that will impact the legislation of internet infrastructure in the member states. Without the numerous leaks of the negotiated documents, the ACTA may very well still have been kept secret, not only from the elected parliament, but more importantly, to the citizens of Europe.

A domain which always has been classified is military intelligence. It is argued that its information must be kept secret as a tactical maneuvre, for preserving strategic positions and advancing national security. This may be true on the battlefield. But equally true is that these battlefields in today’s conflicts consist of the homes of civilian people, whose lives are tragically lost, in Iraq, Afganistan, Mexico, India and Sudan.

The records of wars barely ever become public to the generation affected by it. They remain classified until history already has been written, leaving people in doubt as they can not know what happened to their friends and relatives. The ”Afgan War Diary”, released by Wikileaks only a few weeks ago, makes the history of war, for the first time ever with such magnitude, accessible to anyone with only moments of delay.

Ironically this new situation was brought about by an American technology of the cold war – packet switched computer networks. Or to be more precise, we know it by the more familiar name of the Internet. When contemporary citizens are able to communicate freely, without needing to pass the gate-keepers of traditional media, state interventions can be scrutinized and made public instantly. When freedom of information no longer is guaranteed in law, internet activists in transnational networks guarantee it with technological means.

Making warfare public, communicating what has been kept a state secret for far too long, is a civilization process. The civilian casualties portrayed in the Afgan War Diaries, are no longer exclusively represented by official figures of a government agency in clean graphs and tables. Instead we are able to read about the cruel chaos in minute detail, thus enabling us to make the involved parties accountable for their decisions.

In every corner of the world the whistleblowers are under threat, even in the countries such as Sweden, where the tradition of freedom of speech has been very long. The accellerating surveillance of the Internet, in Europe and elsewhere, has made leaks more difficult and dangerous.

Four years ago the bittorrent file-sharing site The Pirate Bay was shut down by the Swedish police, who fell for the pressure of the Motion Picture Association of America. Only three days later the site was up and running again, rapidly doubling their user base. Whether or not the parts of Wikileaks that are hosted on a Swedish location will remain or not is yet to be seen. It is a challenge to our legislation, and a challenge to whether or not we are able to deal with the free flow of information concerning a war that even our own armed forces participate in.

There can be no state secrets, since the purpose of the state is to empower and secure its citizens. Dutch philosopher Baruch Spinoza argued that obeying the state is valid as long as the it fullfills these purposes. In order to evaluate whether or not these purposes are met, transparency is a necessity. Thus, we must guarantee it both in law and in practice.

With the exception of Iceland, who recently passed maybe the world’s strongest laws concerning the freedom of information, the rest of Europe is heading in the wrong direction. Then it is up to the civil societies to disclose and make state secrets public.

17 svar på “Does the state have to disclose everything?”

  1. Hi Christopher. I’m glad that our conversation in the bunker contributed in some way to the clarification you bring here. This validates non only some of the choices i made regarding the book & the documentary film, but also for the debate that we need to have in october in Deauville.

    As I’m about to return to Norland (wink wink) this morning I don’t have much time to add more meat to your post right now. I intend to to so by monday. However, it is important to underline what makes our discussion on transparency a bit different from what people have been used to lately.

    When I finally decided to establish a twitter account, a year after I started seriously working on the book, being ”transparent” my intentions and research program was part of the fun. It took me some time to summarize the goals in a digestible way, but once it was done, I pasted this in the bio section of my twitter profile:

    ”Fragments on Culture, Education; Warfare in the era of Cognitive Surplus, Blip Machines; Mindcasting.”

    It makes some people uneasy, others laugh, most are intrigued.

    Sorry for this small ”biographical” digression, but i guess my point is this: the legal approach to transparency-building is very important. Those who have eyes to see can witness what the impact Sweden’s 1766 Freedom of Information law have had on the entire society and its political culture. On the other hand, the Swedish case makes alson quite clear the limits of the legal approach: States can and do make unilateral decisions as to which laws are to be enforced at any given moment. When it suits its needs, a core principle of the constitution can be re-interpreted. Therefore, it’s up to the citizenry to re-interprete the decision thus made by governments in charge of the State apparus.

    Re-interpreting the State’s own re-interpretation means rigthing what has been wronged: the unilaterality, the asymetry. The means for doing can not be limited to philosophical argumentation alone. This means first recapturing the means to disseminate the citizenry´s counter-interpretation (call it education, communication or mediation). The goal of such a discursive weaponry must be to not only raise awarness, but create the conditions of a debate about ”who decides what the law should be”. The best (read most efficient, cost-effective, fast) way to doing this is to actually ”dramatize” the terms of the debate. Dramatizing means entering and perverting the theater of politics through direct action.

    The beauty of the internet is that it is both a discursive machine (cf. the origins of computer science in mathematical logical, formal systems & the software/hardware coupling, machine languages, etc. ”read my LISP”) AND the theater itself. On this network of networks, talking and acting CAN be one and the same. Therefore, direct action is not a virtual possibility. It’s a constitutive feature of the network: generativity. The ability to connect minds on a fundamental level (mindcasting), not just through pure mindless distraction (lifecasting), is the most profound AGENT of CHANGE in the hands of any citizenry. It’s technology’s gift to democracy.

    The problem for too long a time has been this: the internet was out of reach of the citizenry (and remains so in many areas of the ”outernet”). People spent most of their ”free” time watching tv. Television had captured their Cognitive surplus. Their brains were glued to the image machine.

    But in societies such as Iceland and Sweden, where the internet is everywhere, where people have an intimate experience (in their homes, their hands and their pockets), people have experienced first hand the empowering potential of the internet. Thus they use it to talk, act and live. They have entered the internet and discovered that they could make it theirs. What happened is that they became the internet and the internet became them. Other means of mediation therefore lost their attraction.

    Transparency is the name of the drama which pits the State and its citizenry when it comes to deciding which laws should be followed when direct action is just as powerful.

  2. Kan man inte se källskyddet och efterforskningsförbudet som hack som gör det möjligt för en stat att ha hemligheter (för att skydda medborgarna)? Liksom, antingen goda möjligheter att läcka utan att riskera repressalier, eller full transparens – den demokratiska staten får välja.

    Bara en tanke, för diskussionens skull.

  3. Calixte: Many thanks for your extensive comment. I think your notion of mindcasting is very close to the concept of (internet)netexistence which i develop in my forthcoming book. I cant wait to send you a copy :).

    The presence and interconnectedness of the discursive/computational/packet-switching machine that constitutes the internet brings forth a collectivity of mind and a collectivity of action. You saw both ”live” at your visit in Gothenburg, where internet was intertwined with internet Zero, presence mediated by wires as well as the air we breathe in. Computers, human bodies, artificial intelligence, all in rhizomatic and non-predictable flows, still a ”whole” existence that by necessity unfolds the world in real-time.

    There is however one other feature, which in your terms would belong to the discursive machine. The general purpose computer, born in logic and mathematics, occupies another space; cipherspace. This is what Telecomix calls The rise of the (fractal) cipherspace.

    By disrupting discourse, understood in the literal sense of dis-course, a course that is disassembled rendering its ”course” untraceable; then re-coursing it with only the right encryption key. This allows the internet to be fractal. There can be tunnels-in-tunnels-in-tunnels, encrypted-encryption-encrypted-encryption.

    This vector is fuelled by speed. The more computational power and bandwidth we get, the faster the fractalization moves. By far it already supersedes the powers of nation states trying to stop it.

    This is the point of departure of my political philosophy of transparency. With proper exploitation of computers AND mindcasting/internetexistence the political practice of transparency is prior to rights, laws and constitutions.

    In one sense, that constitutes crypto-anarchy.

  4. Marcus: Jo, absolut. Så länge man har kvar de olika graderingarna av sekretess finns inte full transparens i lagen. Det känns som statsapparater i någon mening alltid måste ha en stor eller liten del som är hemlig. Så då är frågan om absolut transperens, att argumentet som sådant, egentligen leder till kryptoanarki snarare än en kritisk och granskande fjärde(femte) statsmakt där medborgarna granskar staten.

  5. (Bit of an aside, really, but somewhat relevant still.)

    This relates in rather interesting ways to the master’s thesis a friend of mine is working on. It’s about the flow of information (using Iran as an example) and how that relates to Cornelius Castoriadis’ theories about the institution of society. Basically, most societies are (according to CC) instituted as heteronomies, i.e. the laws and the very structure of society come from the outside: god, the founding fathers and their constitution, tradition, history and so forth. As such they leave no opening for questioning or re-inventing; they are what they are.
    What CC imagines is a society instituted as an autonomy, where members of society are fully aware that the society they live in is their own creation and responsibility. Where laws, values and structures are seen and accepted as created (imaginary, in CC’s words) and hence open to debate and re-construction.
    What my friend is proposing is that the internet poses a threat to heteronomous societies, as it offers access to information questioning the legitimacy of any given heteronomy, as well as opening up radical possibilities for the re-imagining of society in new ways. Hence the massive efforts of what could be termed ”strong” heteronomies (Iran, North Korea and suchlike) to censor the internet and limit the flows. It’s not just about depriving dissidents of channels of communication and organization, but also the people as a whole of an arena in which to re-imagine society.

    It seems to me that fractal cipherspace is a way of accelerating and escalating this, making sure that there are always tunnels that the watchdogs of society have no idea even exists. In a way it carves zones of autonomy inside even the strongest heteronomies — zones that offer new ways of collectively (re-)imagining society.

    (N.b. I’m no real fan of CC myself. Far too marxist and, as I believe Haraway once said about Foucault, describing a system at the very point of its collapse. I might also have missed subtle and important nuances in his theory etc etc. Caveat emptor.)

  6. Calixte: Thanks for taking the discussion on a very interesting course with that comment. Let me add a few things to the mix.

    I like what you write about re-interpreting the State’s own re-interpretation of the law and doing so by direct action/talking. What I would like to add here is the distinction between legality and legitimacy. Legality is acts that are considered legal under the current functioning of the law (the state’s interpretation). Legitimacy on the other hand is not tied to the law. It can base itself on a re-interpretation of law, but also base itself on other values, outside of the legal discourse; in technocratic reasoning, ontological claims, logic hedonistic values or somehting like that.

    So the re-interpretation of the re-interpretation that you lay out so well is a part of this process of making legitimacy (and maybe legality in the end…) and one that is more about hacking the legal discourse than the more antagonistic version of basing legitimacy in discourses outside of the law (such as Barlow in the declaration of independence of cyberspace).

    Connecting this to the interview we had in the bunker, perhaps the massive state interest in, enforcment of and attempt of control of the internet that we see today creates less space for engaging in legitimacy based on other discourses and perhaps the urgency of incoming state regulations requires the legitimacy of the open net to base itself on a re-interpretation of legal discourse. Ciphernets is on the other hand an exception to this.

    I don’t remember the source of the quote (is it Mao perhaps?) but it is said that you have already won when the enemy defends himself using your ways. This would mean that the battle is lost and the state won and the ‘hacking’ of the law is only the last scuffle of the remaining free territory before the score is counted. The opposite interpretation is of course that this instead signal an expansion of the internets right into the core of political power.

    I for one is optimistic. While the state seems aggresive and gaining a lot right now, it feels like behind the strong front lies lots of open territory to claim. The state is philosophically weak. It is only a matter of securing the defenses for the attack on the net we see right now and then find these open territories that are still not claimed but that are hidden behind the aggresive attempts of control that we experience first hand today.

    (funny how this comment turned into a strategy tutorial for playing a game of Go!)

  7. Mlowdi: A very interesting line of thought. It is on track with my other argument in my fortcoming book (sorry for talking so much about it). Namely that the internet, especially the fractal cipherspaces, is of another nature than states. Invented as a promethean defense technology, it is of other shape than the hierarchies and heteronomies of the state, not _merely_ in the way that it sends information in a distributed fashion, but the consequence is anotherexistence.

    To put it in Deleuze & Guattaris words, it is nomos instead of logos (the shape of State-apparatuses).

  8. monki: Excellent comment. I think the nomos/logos distinction is at work here, just like in the Treatise of Nomadology. The thing I wish to embrace is to hack nomos, hack the fundamentals of existence, and leave legal overcodings to the commentators and party politicians. Affirming logos means affirming the state, and this may be necessary in certain cases. This is why I argue that freedom of information is important, but, it is a consequence of how we practise it everyday.

  9. mlowdi: Chrisk:
    While I agree with the description of heteronomous societies and share the enthusiams for autonomy instead, and see that the internet (as I know it) is experienced as this (even though we who use it are not the same that manufacture the computer chips or run the back-bones of the net – something I think we will see all too clearly one day) – I must say that it is important to recognize that the major threat now to the internet is not necessarily ‘statis’ in the form on the fixed structures of heteronomy. We also have the subtle separation of the user from the machine, which for someone like Kittler starts already with the graphical user interface, but reaches it’s peak today with closed software and handware such as facebooks and iphones.

    Fixed states such as an Iranian regime can be circumvented by code, but the easy living of an app on a pad in a couch is what today is turning the internet experience from something that is provided, rather than created.

    I think that these technologies will eventually force a rethinking not only of the configuration of actors in the political game of openess but also of computational technologies and their situationess.

  10. Chrisk: If we believe the Nietzsche that Deleuze paints the active forces has to dress in reactive clothing to make their entrance. This would suggest that the active practice of freedom of information has to wear the clothes of the reactive state apparatus. And in fact be more reactive than the reactive force of the state. As Calixte is saying, actually identify more with the fundament of the law than the law itself. Obey the law (in a new re-interpretation) even more than the state wants to enforce. This reminds me of what Otto von Busch said in KIM #3 (and writes about in Hacktivism) about liberation theology in the South Americas, which fights the power of the church not by rejecting it, but by identifying more with jesus than the church does and claiming that he was crucified because of his political activism, not that he was the son of god (whether he was or not is not really interesting to them). I think it is a similar strategy that is being proposed by Calixte and by Deleuze.

    The late philolsopher Ibi Botani however claimed in a youtube video that this just don’t work and you just turn into a reactive pig if you try this strategy. It definitely is a dangerous one and must only be tried if the active force of everyday practice is strong enough.

  11. monki: arguing along the lines of Botani; copyright is the reactive force of the copy. kopimi/universal repetition/contagion is the active force of multiplication. Similarly, states are the reactive forces of rights and freedoms. In this case, mindcast/blackthrow/Netzsein is the active force of the freedom of information, which folds into and connects to the kopimi-machine of repetition and contagion.

    However. The strategy of masking as a reactive force, in for example claiming the ”rights of citizens” may still be successful. This is why I think the Pirate Party for instance is making a good thing, as well as the freedom of information act of 1766.

  12. Då skulle jag föreslå att det som behövs är en förståelse över hur den reaktiva förklädnaden kan fungera som något annat än en ersättning för den aktiva kraften i sin rena form (annat än skiljande av vad kraften förmår). Att fungera som sköld, stöd, trappsteg, byggkloss eller annat användbart material för den aktiva kraften som gör att den aktiva kraften inte är hotad utan själv kan söka upp fält där den konfronteras med andra krafter.

  13. Another thing…

    The more the opportunities for actual participation in politics and governance increases for citizens with communication technology, the more the state should open up to welcome this and to become a truly participatory and transparent apparatus. The benefits of co-governance is massive. Of course, the complete opposite happens and states seclude into their shells and gain even tighter information control. This is why leaks become the necessary next level. The participation of citizens is instead only welcomed in safe forums where action is turned into nothing more than discussion and opinion, and therefor not realizing the possiblity that Calixte talks about as that ”on this network of networks, talking and acting CAN be one and the same.”


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