Law Fare Blog: Problems with the Espionage Act

[TalkingDog]

Ooops... I guess the entire Internets are in trouble now.

http://www.lawfareblog.com/2010/12/problems-with-the-espionage-act/



The law also has two additional problems that receive relatively little attention but which are important in contemplating its use. The first is that it contains no limiting principle in its apparent criminalization of secondary transmissions of proscribed material. The relevant section, 18 U.S.C. 793 (e), reads:

Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it . . . shall be fined under this title or imprisoned not more than ten years, or both.

By its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations. It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them–in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents. Taken at its word, the Espionage Act makes felons of us all. As long as this deficiency remains, it will be a poor instrument against an outlet like Wikileaks, precisely because there will be no way in principle to distinguish between the prosecution of Assange and the prosecution of just about anyone else–from the New York Times to the guy on the street who reads the newspaper and talks about it. That will make Espionage Act prosecutions seem like far more of a menace to legitimate speech than would a prosecution under a better-drawn law. There are ways to fix this problem–an intent element and a clear limitation to material not already made public would be a start–but as long as it goes unfixed, I oppose any prosecutions under it for secondary transmissions. (Contrast the Espionage Act on these points with the law protecting intelligence agents’ identities, 50 U.S.C. 421, and the law protecting cryptographic systems, 18 U.S.C. 798)

[tcaudilllg]

1. Isn't it a little suspicious don't you think...

about how that "vital interests" file was held by the State Dept.? What would the State Dept. need with such information?

[struggle4progress]

2. What?