A highlight of the 2011 ABA Annual Meeting in Toronto was a session on “Wikileaks, National Security and Free Speech.” Moderated by Devon Chafee, Legislative Counsel for the American Civil Liberies Union, the panel boasted McInnes Cooper partner and privacy expert David T.S. Fraser; Charles D. Tobin of Holland & Knight; Professor Steve Vladeck of American University’s Washington College of Law; and Lee Williams, Assistant General Counsel to the Cable News Network Inc.
Professor Vladeck explained that the Espionage Act prohibits the dissemination of classified national security information “to any person not entitled to receive it.” Taken on its face, this means that someone who steals national security information, someone who receives national security information, someone who publishes national security information, and someone who reads national security information in the newspaper, are all liable under the Act. It would seem that scienter, intent and impact are of no consequence – if national security information is classified, then the person who trips over it in the street and picks it up in order to clear his path is equally criminally liable as the spy who enters Fort Knox to obtain it in order to benefit a foreign government.
It is through this statutory lens that one views what Ms. Chaffee described as an extraordinary event: The simultaneous posting on a web site, accessible by people around the world, of hundreds of thousands of classified national security documents, along with articles analyzing them appearing in leading newspapers in five
countries. Neither the web operator nor the newspapers stole the documents and, for purposes of this analysis, it is urged that none of them commissioned or encouraged the actual thief to do so. Everyone with an internet connection is presumably “in possession of” documents to which they are “not authorized.” How far does liability extend – if at all – beyond the thief? What about “possessors” located outside the United States? What about the press – are they due some first amendment protection for possession and dissemination? Does the “press” include Julian Assange’s nasty little web site equally to The New York Times and The Guardian?
Ms. Williams considers that the information need not be classified – just determined to be harmful to national security and in the
possession of one not authorized to have it. The advice that she gives to producers and reports at CNN includes; (1) Is this a really big and important story, worth the cost and risk and time and reputational jeopardy that may be involved? (2) Are the documents that have been proffered of real news value, essential to the planned story, and perceived so by the senior executives of the network? (3) Does the reporter have absolute control of the documents, and can she ensure that no copies or clones can be made of them? (4) Are the documents complete or have redactions been made that make some contents unknowable? (5) Have you asked for comment from the government, or are you prepared to do so prior to running the story? (6) Have you sought government guidance with respect to information that might put at risk of harm government agents or civilians of other countries? (7) Did these documents come to you unsolicited, or did you encourage or conspire with the source in an effort to obtain them?
Mr. Tobin reviewed the case law under the Espionage Act and noted that courts are in fact more flexible than the rigid language of the statute would suggest. As the Pentagon Papers case notes, the remedy of prior restraint is much more rare than the remedy of allowing publication and moving for subsequent sanction. Courts have distinguished between information of serious import and that of only marginal disclosure, as well as the nature
of the publication. The source of information is also taken into account: tapped cell phones, broadcast by radio, and receipt by mere happenstance raise different reactions to courts. While labeling Mr. Assage a “kook” – to which Ms. Chafee objected – Mr. Tobin noted that many proponents of protected speech
(such as the fellow wearing a “Fuck The Draft” jacket in court) might be thought “kooks” as well.
Now we come to perhaps the most interesting dilemma. In response to a “leak,” the government might decide to trace credit cards, to track web sites, to follow e-mails, or to pressure third parties (such as the financial institutions who were persuaded to cut off ties with WikiLeaks). The panel, and the audience, were increasingly uncomfortable the further “downstream” the government reached. No one was liable for reading The New York Times. But applicants were declined to be hired because they had viewed the WikiLeaks web site, and attorneys for Guantanamo defendants were barred from reading information that was otherwise accessible to anyone with a web
connection.
The questions that were left unanswered were the most tantalizing: Is there a principled distinction between the liability of the actual thief and the liability of everybody else downstream, from the malicious web-poster to the reader of a newspaper? And what is the source of the privacy protections when an individual’s scrutiny by government increases, and a government’s transparency decreases? Traditionally the protection has been a federal magistrate, who stands between a prying state and a private citizen’s privacy. Is that true post-9/11, where the government can tap a phone without warrant and use what it finds? Or post-2011, where a newspaper can do so without qualm and print what it finds?