[governance] EFF: Information is the Antidote to Fear: Wikileaks, the Law, and You

[Katitza Rodriguez]

EFF: Information is the Antidote to Fear: Wikileaks, the Law, and You
https://www.eff.org/deeplinks/2010/12/information-antidote-fear-wikileaks-law-and-you

When it comes to Wikileaks, there's a lot of fear out there on the 
Internet right now.

Between the federal criminal investigation 
<http://www.upi.com/Top_News/US/2010/12/08/Justice-mulls-WikiLeaks-prosecution/UPI-23201291830680/> 
into Wikileaks, Senator Joe Lieberman's calls 
<http://tpmmuckraker.talkingpointsmemo.com/2010/12/after_getting_amazon_to_boot_wikileaks_lieberman_e.php> 
for companies to stop providing support for Wikileaks and his suggestion 
<http://www.huffingtonpost.com/2010/12/07/lieberman-times-crime-wikileaks_n_793293.html> 
that the New York Times itself should be criminally investigated, 
Senator Dianne Feinstein's recent Wall Street Journal op-ed 
<http://online.wsj.com/article/SB10001424052748703989004575653280626335258.html?mod=WSJ_WSJ_News_BlogsModule> 
calling for prosecution of Wikileaks founder Julian Assange, and even 
the suggestion by some that he should be assassinated 
<http://www.msnbc.msn.com/id/40467957/ns/us_news-wikileaks_in_security/>, a 
lot of people are scared and confused.

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' 
apparent 
<https://www.eff.org/deeplinks/2010/12/amazon-and-wikileaks-first-amendment-only-strong> 
fear 
<https://www.eff.org/deeplinks/2010/12/join-eff-in-standing-up-against-internet-censorship> 
to do any business with Wikileaks (with a few notable exceptions 
<http://www.readwriteweb.com/archives/facebook_were_not_kicking_wikileaks_off_our_site.php>).

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 ([1 
<http://dyn.politico.com/printstory.cfm?uuid=A4AC45B7-C53A-1BD1-67FE36305A60F843>], 
[2 
<http://blogs.wsj.com/law/2010/07/26/pentagon-papers-ii-on-wikileaks-and-the-first-amendment/>]) 
and would be "extremely dangerous" 
<http://www.salon.com/news/politics/war_room/2010/11/30/wikileaks_espionage_act> 
to free speech rights. Along with our friends at the ACLU 
<http://www.aclu.org/free-speech-national-security/prosecuting-wikileaks-publishing-documents-would-raise-serious-constit>, 
"We're deeply skeptical that prosecuting WikiLeaks would be 
constitutional, or a good idea."

Even better than commentary, we can also provide legal /information/ 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, CRS <http://www.loc.gov/crsinfo/>. 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 Secrecy News 
<http://www.fas.org/blog/secrecy/2010/12/publishing_classified.html>, we 
have a copy of CRS' latest memo on the Wikileaks controversy 
<http://www.fas.org/sgp/crs/secrecy/R41404.pdf>, a report entitled 
"Criminal Prohibitions on the Publication of Classified Defense 
Information" and dated this Monday, December 6.

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, the State Department 
<http://techcrunch.com/2010/12/08/paypal-wikileaks/> 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,

    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 *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*. There may be First Amendment implications that would
    make such a prosecution difficult, not to mention political
    ramifications based on concerns about government censorship.

The report proceeds to discuss the Espionage Act of 1917 
<https://secure.wikimedia.org/wikipedia/en/wiki/Espionage_Act_of_1917> 
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 the Pentagon Papers case 
<https://secure.wikimedia.org/wikipedia/en/wiki/New_York_Times_Co._v._United_States> 
--- 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.

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 oppose online censorship 
<https://www.eff.org/deeplinks/2010/12/join-eff-in-standing-up-against-internet-censorship> 
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 join us 
<https://www.eff.org/pages/say-no-to-online-censorship> in the fight.

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