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WikiLeaks, the Web, and the Need to Rethink the Espionage Act

There are likely few people reading the State Department cables released by Wikileaks with greater interest than students of international relations, who have every personal, academic, and professional reason to explore the inner workings of U.S. diplomacy. So it must have surprised the would-be diplomats of Columbia University's School of International and Public Affairs to receive an email last week from the Office of Career Services warning that -- according to an unnamed Columbia alum in the State Department -- any student who so much as tweeted about the cables could jeopardize his or her hopes of getting any job with the federal government that requires security clearance. "The documents released during the past few months through Wikileaks are still considered classified documents," the email read. "He recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter."

This school-wide warning might sound extreme or even outrageous, but it is not without merit given current U.S. law. The Espionage Act, which has been cited by members of Congress calling for WikiLeaks founder Julian Assange to be prosecuted as a spy, could be loosely interpreted as making it illegal to post a link to WikiLeaks on your Facebook page. The World War I era law, intended primarily to punish government employees and contractors who pass classified information to foreign government agents, is wildly out of date. Written long before the Internet changed how information and media work, the Espionage Act is unsuited to our era and long overdue for reform.

A careful reading of the Espionage Act makes clear that anyone who obtains and retains classified information -- regardless of whether or not they communicate or publish it -- is committing a crime. No doubt, whoever provided WikiLeaks with the more than 250,000 diplomatic files violated the Espionage Act. But so too did Julian Assange. And that's just the tip of the iceberg. Le Monde? Guilty. The Guardian? Guilty. The New York Times? Guilty. You? If you obtained any portions of the cables, maybe just by printing out a few lines from the much-circulated cable on Qaddafi's Ukrainian nurse, you're probably guilty, too.

The law indicates that it is a felony to share classified documents that you are not authorized to possess with another unauthorized party. That includes classified cables posted by the New York Times. Moreover, it is a crime to retain classified documents, regardless of whether you share them. While federal courts rarely address the Espionage Act, there are a few decisions that support this interpretation.

In New York Times v. United States (1971), the Supreme Court refused to allow the government to prevent the New York Times and the Washington Post from publishing classified excerpts of the Pentagon Papers. Several justices suggested, however, that the federal government could still bring criminal charges under the Espionage Act. Two Justices warned that they "would have no difficulty in sustaining convictions."

In United States v. Morison (1988), the U.S. Court of Appeals for the Fourth Circuit upheld the conviction of a former U.S. Navy analyst who had mailed secret satellite photos to Jane's Defence Weekly, a popular British military affairs magazine. The three-judge panel expressly rejected the defense's claim that the First Amendment "offers asylum ... merely because the transmittal was to a representative of the press." They added in passing that the receiving news outlet might also not be immune from prosecution.

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Louis Klarevas is a member of the clinical faculty at New York University’s Center for Global Affairs, where he also serves as coordinator of graduate Transnational Security studies.

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