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

By Louis Klarevas

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to punish government employees and contractors who pass classified information to foreign government agents, is wildly out of date.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.

Even though no news outlets were charged with any crimes in the Pentagon Papers or Jane's Defence Weekly cases, both rulings indicate that, in addition to those who leak, those who receive and subsequently disclose classified information cannot rely on the First Amendment to shield them. Indeed, George W. Bush's Justice Department drew on these precedents to argue that the press could be prosecuted for publishing classified leaks. To date, the administration of President Barack Obama has not done anything to suggest it disagrees.

It's hard not to conclude that WikiLeaks -- as well as the established news outlets that published classified documents originally obtained by WikiLeaks -- violated the Espionage Act. And because the documents still remain classified, any unauthorized person who downloaded or printed them is also in violation of the law.

You don't even have to share the documents to violate the Espionage Act. In United States v. Ford (2008), the Fourth Circuit reviewed the prosecution of a former National Security Agency employee who was found to be in possession of a boxful of sensitive documents -- material he was not attempting to share. On appeal, the defendant argued that his conviction should be overturned on grounds that Congress, in passing the Espionage Act, never intended to criminalize the retention of classified material. But the appellate court affirmed his conviction, ruling that merely possessing secret documents can be illegal.

So, yes, Columbia University had good reason to warn its students away from the WikiLeaks cables, the downloading of which could be construed as a violation of the Espionage Act; hardly a way to start one's career in government. But that law is so out of touch with the times that just about anyone who downloads or prints -- let alone publishes -- leaked classified documents commits a felony.

The government needs to protect its secrets. That's understandable. So is punishing those who purloin classified materials. But the press also needs to be able to disseminate information that is of national importance -- a practice that deserves some Constitutional protection. And in today's Internet age, when documents readily go viral, individual people need guarantees that they aren't committing high crimes against the state by viewing or discussing information that has come well within the public domain.

The Espionage Act needs to catch up with the times. For starters, the statutes should re-written to require proof of mens rea -- evidence that an individual knew what he or she was doing was wrong and still purposely chose to violate the law. This will protect those who inadvertently or naively come into possession of classified materials as well as those who willfully retain materials they do not realize are classified.

But arguably the most important reform would be a public domain exemption. Once classified documents are publicly exposed, anyone who comes into subsequent contact with them -- physically or virtually -- should be shielded from prosecution. This simple reform will go a long way toward bringing this legal relic into the information age.

Instead of telling students of international relations not to share or discuss one of the biggest diplomacy stories in years, we should be having a dialogue about how best to modify the out-dated and tortuous strictures of the Espionage Act -- soon, before we all end up in jail.

This article available online at:

http://www.theatlantic.com/politics/archive/2010/12/wikileaks-the-web-and-the-need-to-rethink-the-espionage-act/67664/