Repost of the Chronicle Wikileaks Op-Ed
U.S. should be cautious in going after WikiLeaks
By TRAVIS CRABTREE
Dec. 8, 2010, 8:29PM
Since WikiLeaks <http://topics.chron.com/topics/Wikileaks> dumped some 250,000 U.S. <http://topics.chron.com/topics/United_States> diplomatic cables into the public domain, many have called for the controversial Web site to be shut down and/or its executives jailed. Congressman Peter King, Republican ranking member of the Homeland Security Committee, suggested WikiLeaks should be named a terrorist organization. That would, in effect, put the Web site on the same footing with al-Qaida and even make it legal, if improbable, that the U.S. could attack the site’s servers under the guise of protecting national security <http://topics.chron.com/topics/National_security> .
The trouble with any such heavy-handed response is that it is exactly how you would expect a terrorist group or repressive regime to react. No question, the individual or individuals who provided such sensitive information to WikiLeaks should be prosecuted if it can be proven that laws were broken. But banning Web sites and prosecuting those who report the news is exactly what totalitarian states do.
Appallingly lax cybersecurity, which is solely the fault of the U.S. government <http://topics.chron.com/topics/Federal_government_of_the_United_States> , should not take us down that road.
It is actually a road we’ve previously traveled, albeit before the Internet <http://topics.chron.com/topics/Internet> , with the release of the controversial Pentagon Papers in 1971. Once the New York Times <http://topics.chron.com/topics/The_New_York_Times> published those top secret documents suggesting the war in Vietnam <http://topics.chron.com/topics/Vietnam_War> could not be won, the federal government sought to prevent the Times from publishing more. In a gross oversimplification, the U.S. Supreme Court <http://topics.chron.com/topics/Supreme_Court_of_the_United_States> ruled the government could not prevent publication, known as engaging in “prior restraint.” The court said the government could, however, hold accountable those who publish classified or secret information after publication if laws were broken.
The same rules apply to WikiLeaks, which is why some, including U.S. Attorney General <http://topics.chron.com/topics/United_States_Attorney_General> Eric Holder, are suggesting retribution post-publication. Going forward, authorities essentially have three options.
First, the government could go the China-Google route and prevent the site from being seen in the U.S. It would still be available in other countries and reported on inside and outside our borders. Unless we are interested in outsourcing our already dwindling journalism jobs, it would be an exercise in futility and a black eye on our human rights <http://topics.chron.com/topics/Human_rights> record.
Second, the government could also attempt to seize the domain name as it did with sites engaged in counterfeiting and copyright infringement. The government took the domain names, but not the actual sites. Just like the counterfeiters, WikiLeaks could simply put up a new address registered outside the U.S. and continue.
Finally, the government could prosecute WikiLeaks as a conspirator to espionage. Under federal law, espionage is committed if secret information is “communicated, delivered or transmitted” to any citizen of a foreign country “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.” A conspirator is just as liable as the person who actually steals the information.
No matter what happens, a precedent will be set — one that will guide, inform and shape actions in this relatively new area of the law.
To be sure, we can’t prosecute or take the domain name of every newspaper in America. Courts are loath to prosecute news outlets unless they publish the identity of covert agents, nuclear secrets or certain intelligence communications like codes and passwords. If WikiLeaks actively helped steal from government computers as opposed to merely providing an outlet, then by all means, it should be prosecuted.
For now, the only real crime WikiLeaks appears to have committed was to lack discretion. Many news outlets consider the effect of their reporting and black out names of informants and other information that does not take away from the news value of the story. The newsworthiness of the content often is not substantially diminished by the absence of names.
Rather than engaging in the self-restraint often employed by news organizations, WikiLeaks apparently left that information in for the world, and foreign dignitaries, to see.
How should we as Americans respond?
Those who support the essential balance between a responsible free press and open government should reconsider their support of donation-supported WikiLeaks until it exercises better discretion.
For those who are still angry, I would argue the real culprit here is the government’s failure to safeguard its sensitive information. According to initial reports, the military let a 22-year-old private download this information from the proprietary Secret Internet Protocol Router Network, SIPRNET, using nothing more than a simple flash drive. The ire should be aimed at the system that let it happen. This leak should never have happened in the first place.
Crabtree practices online media and commercial litigation law with the law firm of Looper Reed & McGraw in Houston.
The Electronic Frontier Founation agrees (not surprising).
Senator Dianne Feinstein does not ( little surprising), but Congressman Ron Paul does (when not taken to extremes, he sometimes makes sense):
If the responsible editors of professional journalism outlets withheld these newsworthy cables after taking necessary steps to redact information that would lead to personal safey out of fear of U.S. prosecution — that would be criminal.