Plenty has been written on the contents of the recent disclosure of the diplomatic cables. To no one’s surprise, Wikileaks has been sued before and I wrote about one of their last legal battles here. That one involved a private bank. Now, what can the U.S. Government do (legally) to the site?
The First Amendment, Vietnam War and Prior Restraint
Let’s first focus on the Federal Government’s ability to ban site and the disclosure of documents altogether. That is called prior restraint and has been tried before. History and Constitutional Law scholars will remember the Pentagon Papers case. The New York Times was provided confidential information about the Vietnam War and wanted to print it. The Government sought a temporary injunction preventing the publication of part of the information that had not yet been printed. In a gross over-simplification, the Supreme Court ruled the Government could not prevent the publication, but could hold those who publish it accountable after publication if laws were broken.
Not only would the Government have to overcome the First Amendment defense, Wikileaks is not based on the United States and therefore would probably not be subject to a court order from a U.S. district court.
Much like the Pentagon Papers case, there will be criminal prosecutions against those who leaked the information, but we will have to see what other actions will be taken against those who publish the stolen or leaked information.
What are the other options?
The first is on the technology side. China keeps out certain websites, why can’t we? Others have discussed the tech side of the issue such as this post from the Technollama. As pointed out in that site, there could be ways to prevent the site from being viewed the U.S., but that would not prevent it from being viewed in other countries and being reported on in the mainstream press. The U.S. would not be the free speech/free press beacon taking a symbolic measure that would have no effect on leaked information from becoming news. It is not a road we want to start going down.
What about seizing the domain? After all, the Government just seized about 70 domain names from sites the Government claimed were trafficking in seized goods. The Government can seize “property” of those engaging in flagrant copyright infringement or those who sell counterfeit goods. There is a debate beyond the scope of this post about the broadening of the government’s ability to seize domain names through a proposed bill named COICA going through Congress right now.
There are two drawbacks to this tactic. First, the only thing the Government could seize would be the “property” in the United States which could be the domain name. The code and data that make up the actual website would not and could not be seized since they are located outside of the United States. Wikileaks would simply have to come up with a new domain name and register it outside of the U.S. and likely outside the reach of the Government. The sites who had their domain names seized are starting to do the same thing right now. This would be another cat and mouse game the Government would not want to be involved in.
As in the Pentagon Papers, the person suspected of leaking the information to Wikileaks is facing criminal issues. The suspect is Bradley Manning — a young Private First Class of the U.S. 10th Mountain Division in Iraq. Manning was charged with violations of Article 92 and Article 134, of the Uniform Military Justice Code for “transferring classified data onto his personal computer and adding unauthorized software to a classified computer system,” and “communicating, transmitting and delivering national defense information to an unauthorized source.” He could face 52 years.
I freely confess that I am not a military justice or national security law expert. But, there has been some chatter about trying to hold Wikileaks liable as a conspirator or as an accomplice. The informant on the Pentagon Papers was charged with violations of the Espionage Act of 1917, but was later acquitted.
The Federal Government has known for months that Wikileaks had this information that was released this week. And there has been some debate as to whether the Wikileaks’ founder could be prosecuted under the rarely-used Espionage Act of 1917.
Republican Congressman Peter King, Republican ranking member of the Homeland Security Committee, suggested Wikileaks should be named a terrorist organization because it puts the country’s national security at risk. MSNBC is taking a poll on that right now. That would put Wikileaks on the same level as al-Qaida and make it difficult for the site to raise money or hold any assets in the U.S. Taking it to the extreme, there could be a drone attack on Wikileaks’ servers.
Presumably, that would involve the Office of Foreign Assets Control and a designation of Wikileaks as a Special Designated Organization. Such a designation would mean Wikileaks would be designated as a company controlled by, or acting for or on behalf of, targeted countries or an entity such as terrorists and narcotics traffickers.
Again, not being an expert, I don’t know all of the laws that would apply, but it seems there could be some effort to make the Wikileaks founder liable for conspiracy to commit espionage, 18 U.S.C. 794(c) or for conveyance without authority of government property, 18 U.S.C. 641.
Espionage, under the U.S. Code, is committed if you, “with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense.” The law further states that “if two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.”
Section 641 makes it illegal to embezzle, steal, “purloin” or knowingly convert for your own use a government record, or to receive, or retain government records with intent to convert it for your own use or gain.
My editorial comments:
This episode emphasizes the need for journalistic discretion, training and ethics. Major news outlets consider the public safety of the news they print and quite often will blackout names of informants and other information that does not take away from the news value of the story. For 99.99% of the world, the newsowrthiness of the documents would not have been lessened if certain names were blacked out that may protect the individual informants, national security and other lives. Apparently, Wikileaks left that information out there for the world to see rather than exercising the types of debates we had in journalism school and newsrooms.
It also emphasizes the need for the Government to take care of its own business. This leak should never have happened in the first place. The ire towards Wikileaks would be diminished had the information been leaked to the New York Times and they exercised some discretion. While there would be some debate about the exercise of editorial discretion, it would be unlikely there would be calls to be put the editor-in-chief in jail. The real ire should be aimed at the lax protection of this so-called sensitive information.