We join our friends at the Electronic Frontier Foundation in their concern that the Wikileaks-provoked debate about the secrecy of government information and the people’s right to know has recently turned into a massive attack on the right of Internet intermediaries to publish truthful information. As EFF state “Suddenly, WikiLeaks has become the Internet’s scapegoat, with a Who’s Who of American and foreign companies choosing to shun the site.”
Since Amazon’s decision to refuse hosting services to WikiLeaks after pressure from a senator, an increasing number of companies and organizations have been backing away from WikiLeaks. PayPal, MasterCard and Visa cut WikiLeaks’ accounts. EveryDNS.net pulled Wikileaks’ DNS services. Unknown sources continue to cripple WikiLeaks with repeated denial of service attacks. Even the Library of Congress is blocking WikiLeaks.
WikiLeaks Frequently Asked Questions, developed by Open the Government
Are the people working for WikiLeaks journalists?
As neither the Espionage Act, nor the First Amendment to the U.S. Constitution differentiates between journalists and any other person, the question of who does and does not qualify as a journalist is irrelevant to issues at the heart of the WikiLeaks controversy.
Could Bradley Manning, or other accused leakers, and WikiLeaks be prosecuted?
There is a clear distinction between Bradley Manning and WikiLeaks under the law. If the governments allegations are true, Spc. Bradley Manning and/or other government employees disclosed classified information to unauthorized persons. As a government official Spc. Manning had an obligation to protect both the classified information and sensitive intelligence sources, and the personal privacy of other third parties mentioned in government documents.
The government interprets the Espionage Act to grant wide discretion in prosecuting leaks of classified information. Whether or not it is fair and appropriate to prosecute Pfc. Manning for choosing to violate his duty as a government employee to protect properly classified information is an open question that ultimately rests on whether one thinks the public good in exposing the information outweighs the potential harm to national security and the violation of the rights of innocent third parties. As more facts regarding the matter are made public as the prosecution proceeds, this debate will continue.
The case against WikiLeaks for violation of the Espionage Act is a much tougher sale for the government to make. As noted in a report by the Congressional Research Service (CRS), Criminal Prohibitions on the Publication of Classified Defense Information, Congress’ research arm is “aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it.” The Department of Justice would be wading into untested waters to bring a case which could have disastrous ramifications. Prosecuting WikiLeaks would undoubtedly harm on our first amendment protections and have a chilling effect on the press. Further, were the prosecution to fail, we could expect Congress to revive old proposed amendments to the law that would likewise curb free speech and press rights, hurt information sharing and disclosure, and encourage more classification of information.
We hope that Congress will resist the impulse to move quickly and speak loudly in favor of a cautious, measured approach. On December 16, 2010, the House Judiciary Committee held a hearing on “The Espionage Act and the Legal and Constitutional Issues Raised by Wikileaks.” The overwhelming sentiment of the seven witnesses testifying at that hearing was that Congress should focus its efforts on preventing leaks from within, not punishing those who receive or even publish such information. The Committee, and others with jurisdiction, should heed that advice and, in fact, collect more information before proceeding. The initial attempt to address the Wikileaks, the SHIELD (Securing Human Intelligence and Enforcing Lawful Dissemination) Act introduced on December 2, 2010, in the Senate as S 4004, contains several clearly unconstitutional provisions.
What should be done to better protect our national security?
The best way to protect against disclosure of our national security secrets is to deal with the supply side of the equation: improving security on our information systems and reducing over-classification. The government has an obligation to protect classified information, and the fact Pfc. Manning or someone else was supposedly able to walk out of a secure area with a trove of classified national security information on a CD is unconscionable. The Administration should endeavor to ensure that any security measures implemented are platform, issue and personnel neutral to the greatest extent possible. In other words, there should be no possibility for selective application for political purposes. If information or materials require the highest security, that security must apply in all situations.
The Administration should also push agencies to complete the Fundamental Classification Guidance Review, a procedure required by President Obama’s Executive Order on Classified National Security Information (EO 13526). Every agency that classifies information is supposed to seek out, identify and remove classification requirements that are no longer valid. The disclosures on WikiLeaks prove that much of what the government says is classified is not much of a secret at all. This overclassified information clogs our systems and prevents us from protecting the real secrets nearly as well as we should.
What is the relationship between the WikiLeaks case and the pending Whistleblower Protection Act, S. 372?
S. 372 does not under any circumstances authorize public disclosures of classified information, or disclosures of sensitive sources and methods information to any unauthorized persons or entities. Indeed, S. 372 is an anti-leaks measure; absent it, media outlets and WikiLeaks will be the safest alternative for those who want to challenge fraud, waste and abuse without engaging in professional suicide. Congress should pass the Whistleblower Protection Enhancement Act to provide safe and credible channels for disclosing classified information, when none currently exists.
For more information on S. 372, see The Project of Government Oversight’s fact sheet.
There is wide disagreement in the openness community as to whether or not Spc. Manning is a whistleblower: while much of the information he allegedly disclosed clearly benefits the public interest by exposing unnecessary official secrecy and potentially informing public debate about our government’s policies and actions, it is also argued that the sheer volume of the materials recklessly puts innocent parties at risk.