Bank of America is apparently -- and predictably -- assembling a SWAT team of legal talent to try to stop the release of a reported 5GB of internal documents from the bank. Its stock may have recovered from the 3.2% dive it took when news first broke of the WikiLeaks assault. But that's not much comfort.
If you're in any position to enable Assange online, you're looking for ways to avoid that. And most of your corporate neighbors are pretty anxious that that they'll show up on Assange's "naughty" list. One thing is clear: He's just as interested in busting the doors wide open on corporations as he is in revealing diplomats' undiplomatic moments. In answer to Amazon.com's decision this week to pull WikiLeaks from its servers, Assange tweeted: "If Amazon [is] so uncomfortable with the first amendment, they should get out of the business of selling books."
Windfall for Ambien?
As a longtime advocate of more corporate transparency, I have to admit to some schadenfreude as I watch this unfold. Not that I'm cheering for stocks to slide or for executives to lie awake at 3 a.m. worrying about a WikiLeaks pat-down. I don't even expect shocking revelations. Arguably, whatever Wikileaks has on Bank of America won't come close to the transparency already inflicted on U.S. companies by the world's most exacting disclosure requirements. Anything juicy will be more embarrassing than incriminating, along the lines of the "fabulous Fab" and the made public by Congress and the Senate.
But I am fascinated to see the issue of public scrutiny on business jump into the headlines. Business fought hard for the GOP to take back the Congress, hoping that financial regulation and other regulatory incursions could be killed or stalled. And the Bank of America cache is likely to come out (barring a legal miracle) just as FCC v AT&T hits the Supreme Court early next year. It's a potentially game-changing case, with AT&T trying to sell the justices on the idea that companies have the same right to "personal privacy" as the next guy, whether it's a body-scan refusenik or Brett Favre wishing for protected sexting.
"I am a human being!"
The AT&T case involves internal documents AT&T did not want released to competitors under the Freedom of Information Act. A lower court had approved AT&T's argument that it should be considered an actual human being when it comes to "personal privacy." If the Court allows that ruling to stand, it would be a major win for corporations - going beyond existing restrictions that protect proprietary or trade secret information.
(Corporate America is not always as generous in protecting the privacy of human beings as are normally conceived, and it may be gaining on that front. A court in Vermont last week ruled that a corporation's interest in "mining" personal medical data from individual customers is more important than those customers' -- you guessed it -- "personal privacy."
If you run any organization, you know we need some confidentiality. We want to protect strategic and competitive information and to allow the candor needed to do business, whether it's about making a risky marketing move or deciding to do business in a geopolitical hot-spot.
Will Time magazine annoint Assange?
But I don't want to see the Court help corporations expand the current rules for keeping vital information from investors, employees, analysts and the press. In the Citizens United envrironment, there is more reason than ever to make sure we know how companies are spending shareholder money. Even if it does, WikiLeaks is a daily demonstration of the new reality -- there is really no way to prevent this kind of exposure. And in the grand tradition of Justice Brandeis -who famously said that "sunlight is the best disinfectant" - this is a pretty good incentive for a clean-up. Impolitic conversations or poor control of conflicts at Bank of America could make it more difficult for the new Republican leaders to succeed in gutting financial reform.
Meanwhile, companies will be scrambling to shore up their anti-leak defenses. But that's trickier than ever since an Enron whistleblower was named Person of the Year by Time magazine. (Will Assange have the honor this year?) Bank of America's high-priced SWAT team may rack up the billables this weekend, but there's no way for them to stop the release. It would just pop up elsewhere-as WikiLeaks did in jumping to a Swiss server when shut down. Assange says the site's been flooded with submissions. Ex-associates of Assange are already moving to create their own leak sites and and others-a corps of neo-Woodwards and Bernsteins-will follow.
Corporations have to do more than hire extra lawyers and encrypters. They should get ready for the Brandeis treatment by making sure their documents are ready for primetime. And they might think about being nicer to employees who have hurt feelings and portable thumb drives.
Nell Minow, dubbed "queen of corporate governance" by BusinessWeek, is editor and co-founder of GovernanceMetrics International (formerly Corporate Library), an independent research firm.