<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN">
<html>
<head>
<meta http-equiv="content-type" content="text/html; charset=ISO-8859-1">
</head>
<body text="#000000" bgcolor="#ffffff">
<p>EFF: Information is the Antidote to Fear: Wikileaks, the Law, and
You<br>
<a class="moz-txt-link-freetext" href="https://www.eff.org/deeplinks/2010/12/information-antidote-fear-wikileaks-law-and-you">https://www.eff.org/deeplinks/2010/12/information-antidote-fear-wikileaks-law-and-you</a><br>
</p>
<p>When it comes to Wikileaks, there's a lot of fear out there on
the Internet right now.</p>
<p>Between the federal <a
href="http://www.upi.com/Top_News/US/2010/12/08/Justice-mulls-WikiLeaks-prosecution/UPI-23201291830680/">criminal
investigation</a> into Wikileaks, Senator Joe Lieberman's <a
href="http://tpmmuckraker.talkingpointsmemo.com/2010/12/after_getting_amazon_to_boot_wikileaks_lieberman_e.php">calls</a>
for companies to stop providing support for Wikileaks and his <a
href="http://www.huffingtonpost.com/2010/12/07/lieberman-times-crime-wikileaks_n_793293.html">suggestion</a>
that the New York Times itself should be criminally investigated,
Senator Dianne Feinstein's recent Wall Street Journal <a
href="http://online.wsj.com/article/SB10001424052748703989004575653280626335258.html?mod=WSJ_WSJ_News_BlogsModule">op-ed</a>
calling for prosecution of Wikileaks founder Julian Assange, and
even the suggestion by some that he should be <a
href="http://www.msnbc.msn.com/id/40467957/ns/us_news-wikileaks_in_security/">assassinated</a>,
a lot of people are scared and confused. </p>
<p>Will I break the law if I host or mirror the US diplomatic cables
that have been published by Wikileaks? If I view or download them?
If I write a news story based on them? These are just a few of the
questions we've been getting here at EFF, particularly in light of
many US companies' <a
href="https://www.eff.org/deeplinks/2010/12/amazon-and-wikileaks-first-amendment-only-strong">apparent</a>
<a
href="https://www.eff.org/deeplinks/2010/12/join-eff-in-standing-up-against-internet-censorship">fear</a>
to do any business with Wikileaks (with a few <a
href="http://www.readwriteweb.com/archives/facebook_were_not_kicking_wikileaks_off_our_site.php">notable
exceptions</a>).</p>
<p>We unfortunately don't have the capacity to offer individualized
legal advice to everyone who contacts us. What we can do, however,
is talk about EFF's own policy position: we agree with other legal
commentators who have warned that a prosecution of Assange, much
less of other readers or publishers of the cables, would face
serious First Amendment hurdles ([<a
href="http://dyn.politico.com/printstory.cfm?uuid=A4AC45B7-C53A-1BD1-67FE36305A60F843">1</a>],
[<a
href="http://blogs.wsj.com/law/2010/07/26/pentagon-papers-ii-on-wikileaks-and-the-first-amendment/">2</a>])
and would be <a
href="http://www.salon.com/news/politics/war_room/2010/11/30/wikileaks_espionage_act">"extremely
dangerous"</a> to free speech rights. Along with our friends at
the <a
href="http://www.aclu.org/free-speech-national-security/prosecuting-wikileaks-publishing-documents-would-raise-serious-constit">ACLU</a>,
"We're deeply skeptical that prosecuting WikiLeaks would be
constitutional, or a good idea."</p>
<p>Even better than commentary, we can also provide legal <i>information</i>
on this complicated issue, and today we have for you some high
quality legal information from an expert and objective source:
Congress' own research service, <a
href="http://www.loc.gov/crsinfo/">CRS</a>. The job of this
non-partisan legal office is to provide objective, balanced memos
to Congress on important legal issues, free from the often
hysteric hyperbole of other government officials. And thanks to <a
href="http://www.fas.org/blog/secrecy/2010/12/publishing_classified.html">Secrecy
News</a>, we have a copy of <a
href="http://www.fas.org/sgp/crs/secrecy/R41404.pdf">CRS' latest
memo on the Wikileaks controversy</a>, a report entitled
"Criminal Prohibitions on the Publication of Classified Defense
Information" and dated this Monday, December 6. </p>
<p>Like this blog post itself, the CRS memo isn't legal advice. But
it is a comprehensive discussion of the laws under which the
Wikileaks publishers — or anyone else who obtains or publishes the
documents, be it you or the New York Times — might be prosecuted
and the First Amendment problems that such a prosecution would
likely raise. Notably, the fine lawyers at CRS recognize a simple
fact that statements from Attorney General Eric Holder, the
Senators, <a
href="http://techcrunch.com/2010/12/08/paypal-wikileaks/">the
State Department</a> and others have glossed over: a prosecution
against someone who isn't subject to the secrecy obligations of a
federal employee or contractor, based only on that person's
publication of classified information that was received
innocently, would be absolutely unprecedented and would likely
pose serious First Amendment problems. As the summary page of the
21-page memo succinctly states,</p>
<blockquote>
<p>This report identifies some criminal statutes that may apply
[to dissemination of classified documents], but notes that these
have been used almost exclusively to prosecute individuals with
access to classified information (and a corresponding obligation
to protect it) who make it available to foreign agents, or to
foreign agents who obtain classified information unlawfully
while present in the United States. Leaks of classified
information to the press have only rarely been punished as
crimes, and <b>we are aware of no case in which a publisher of
information obtained through unauthorized disclosure by a
government employee has been prosecuted for publishing it</b>.
There may be First Amendment implications that would make such a
prosecution difficult, not to mention political ramifications
based on concerns about government censorship.</p>
</blockquote>
<p>The report proceeds to discuss <a
href="https://secure.wikimedia.org/wikipedia/en/wiki/Espionage_Act_of_1917">the
Espionage Act of 1917</a> and a number of other potentially
applicable statutes, followed by an extended discussion (at pp.
14-20) of how the Supreme Court's First Amendment decisions — and
in particular <a
href="https://secure.wikimedia.org/wikipedia/en/wiki/New_York_Times_Co._v._United_States">the
Pentagon Papers case</a> — could complicate such a prosecution.
For anyone interested in or concerned about the legality of
publishing the Wikileaks documents and the legal and political
challenges to a successful prosecution, this CRS memo is an
absolute must-read. </p>
<p>Hopefully, this information will help counter much of the fear
that our government's so-called "war" against Wikileaks has
generated. Meanwhile, we will continue our effort to <a
href="https://www.eff.org/deeplinks/2010/12/join-eff-in-standing-up-against-internet-censorship">oppose
online censorship</a> and provide additional news and commentary
on the ongoing WikiLeaks saga, which is shaping up to be the first
great free speech battle of the 21st century. We hope you'll <a
href="https://www.eff.org/pages/say-no-to-online-censorship">join
us</a> in the fight.</p>
</body>
</html>