Why I'm Worried about the Espionage Act.

these folks are most likely also breaking the Espionage Act.
It's a party in here.

One of the reasons I'm following the Wikileaks and Cablegate-craziness-and-attendant-f*ckery so closely is because I really believe that it's history in action: the way that the world reacts to Assange et al at Wikileaks and the information they released is going to change the way that free speech and freedom of the press work in very fundamental ways. Growing up in a democracy, I recognize the fact that the information I have access to as a citizen--the quality, connotation, frequency and validity of it--changes the way my country runs, and the way that I live my life. This is gonna change my day-to-day, and yours too. I thought I should maybe stay informed.

The problem is that this is fundamentally a question of information. And there seems to be some scary attitudes about the transmission of information from people in power these days. I want to talk about the reasons I'm fretting about the legal arguments happening about these questions of information.

Firstly: because the 1917 American Espionage Act could be interpreted to make me a National Security Risk for talking about the Cables, and YOU one for reading about them.

More after the break:



Secondly, it also criminalizes wikileaks publishing the information they obtained from the leaks--as well as the New York Times, the Guardian, Der Spiegel, El Pais, and every blog I've read in the last three weeks.
It criminalizes talking about Cablegate with your mom while washing dishes.
It criminalizes liking any of the information on facebook.

Now, specifically it criminalizes discussion of national defense stuff, meaning technically the majority of the Cablegate publications--Gaddafi's hot nurse, Prince Andrew being a bore, etc--don't fall under its statutes.

A substantial chunk of the information that's important for a voting public to know, however, does. And in wars that are killing many people, straining the economy to a breaking point, and are considered by experts to be at least moderately unwinnable, it might be the most important information to be disseminated and discussed.

The Electronic Frontier Foundation links to this report from the Congressional Research Service that summarizes the legislation and court history in the US that could apply to the wikileaks issue and others like it, and analyses it to make the legal babble slightly easier to understand.

Technically, this is what the Espionage Act has to say:

"18 U.S.C. § 793 prohibits the gathering, transmitting, or receipt of defense information with the intent or reason to believe the information will be used against the United States or to the benefit of a foreign nation. Violators are subject to a fine or up to 10 years imprisonment, or both, as are those who conspire to violate the statute. Persons who possess defense information that they have reason to know could be used to harm the national security, whether the access is authorized or unauthorized, and who disclose that information to any person not entitled to receive it, or who fail to surrender the information to an officer of the United States, are subject to the same penalty... classified documents remain within the ambit of the statute even if information contained therein is made public by an unauthorized leak."

This is what law theorists suspect thye're try to nail Assange with:

"18 U.S.C. § 1030(a)(1) punishes the willful retention, communication, or transmission, etc., of classified information retrieved by means of knowingly accessing a computer without (or in excess of) authorization, with reason to believe that such information 'could be used to the injury of the United States, or to the advantage of any foreign nation.' Receipt of information procured in violation of the statute is not addressed, but depending on the specific facts surrounding the unauthorized access, criminal culpability might be asserted against persons who did not themselves access a government computer as conspirators, aiders and abettors, or accessories after the fact. The provision imposes a fine or imprisonment for not more than 10 years, or both, in the case of a first offense or attempted violation. Repeat offenses or attempts can incur a prison sentence of up to 20 years." (emphasis mine)

These statutes have almost never been used to prosecute people who are not directly providing the information, and leaks to the press have only rarely been prosecuted as crimes. Also, charges of Espionage are under the rubric of treason, which generally requires you to be a citizen of the "suffering" nation. Granted, a US court already convicted an East German citizen for espionage... but the caveat was this:

"Under the statutorily defined crimes of espionage in §§ 793 and 794, noncitizens would be subject to prosecution only if they actively sought out and obtained or delivered defense information to a foreign government or conspired to do so."

The swift law-types also say that there's a small amount of pressure on the government to prove the information is actually damaging...but it's not much.

 "Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that 'state action to punish the publication of truthful information seldom can satisfy constitutional standards.' And it has described the constitutional purpose behind the guarantee of press freedom as the protection of 'the free discussion of governmental affairs.'"

Information that qualifies as dangerous for dissemination must also be "closely held", something that works in Wikileaks' favour considering thousands of people had access to the cables before they published them. Unfortunately, courts seem to take the government's word that materials in question are damaging.

The key to the US prosecution will be demonstrating potential damage to national security, and proving that wikileaks is excluded from the umbrella of "the media". Unless of course they can introduce a new law that would explicitly criminalize what wikileaks did:

"To date, one bill has been introduced to address disclosures of classified information of the type at issue in the WikiLeaks publications. The Securing Human Intelligence and Enforcing Lawful Dissemination Act’ (“SHIELD Act”), S. 4004, introduced by Senator Ensign on December 2, 2010, would amend 18 U.S.C. § 798 to add coverage for disclosures of classified information related to human intelligence activities (the provision currently covers only certain information related to communications intelligence). The bill would add 'transnational threat' to the entities whose benefit from unlawful disclosures would make such disclosure illegal. The statute as written prohibits disclosure of classified information for the benefit of any foreign government (or to the detriment of the United States, which would remain unchanged if the bill is enacted). A 'transnational threat' for purposes of the bill means any ‘any transnational activity (including international terrorism, narcotics trafficking, the proliferation of weapons of mass destruction and the delivery systems for such weapons, and organized crime) that threatens the national security of the United States' or any person or group who engages in any of these activities. This change is likely intended to ensure that disclosures of any covered information that a violator “publishes, or uses in any manner … for the benefit” of Al Qaeda or any other terrorist group, international drug cartels, arms dealers who traffic in weapons of mass destruction, and other international criminals will be subject to prosecution, regardless of whether the group purports to govern any territory. As is currently the case, it is unclear whether this conduct must be undertaken 'knowingly and willfully” to incur a punishment, or whether those qualifiers apply only to furnishing covered information to an unauthorized individual.'"

My faith in the restraint, commitment to the constitution, or sense of the US government has been all but wiped out by following political developments for the last six or seven years, so all of this is deeply troubling.

But I can't imagine they'll have the space to lock up all of us for being interested in the world around us.