Wikileaks Causing Headaches at Home and Abroad

A plethora of issues come to mind when you think about Wikileaks; national security, freedom of speech, freedom of the press and espionage are just a few. Julian Assange, founder of Wikileaks, probably did not imagine the backlash and support he would receive from Wikileaks. Wikileaks was founded on the principle of transparency in the transactions between nations. Transparency at a time like this however, can be a double-edged sword.

To begin, it is important to understand how the initial leaks happened. The former Commander of the U.S. Central Command, David Petraeus created a system of sharing sensitive information with U.S. allies. The information transferred by downloading documents from a secret network to a flash memory stick, and then transferring the documents to the allies. This supposedly time saving system of sharing information backfired and ended up being the cause of the initial information leak. The problem has since been fixed and new access restrictions have been made. However, the damage may have already been done.

As should have been expected, backlash to the leaking of hundreds of thousands of top-secret government documents is coming from all angles. The U.S. government has attempted to shut down Wikileaks. U.S. Senator Joe Liberman, head of the Senate Homeland Security Committee led the charge, pushing Wikileaks from the Amazon server. The French Industry Prime Minister, Eric Besson has called for the site to be banned from his country. A Swiss bank froze an account that was set up as a defense fund for Wikileaks. Surprisingly, governments are not alone in their fight against Wikileaks. Creditcard and internet payment companies such as Paypal, Visa, and Mastercard have blocked donations to Wikileaks in protest.

Now we ask the question, can legal action be taken by the government to stop Wikileaks and to punish Julian Assange for leaking the classified information? The government’s options are limited. Members of Congress want Assange to face criminal charges and a Senator even went as far as calling for a change in the law if prosecuting Assange under current U.S. law presents impossible.

The major legal issue that comes to mind in prosecuting Assagne for his cyber document dumping is the 1st Amendment to the U.S. Constitution. The Constitution provides extensive protection for publishers of state secrets. The right of news organizations to publish documents has historically been protected by the 1st Amendment. The 1st Amendment protects the news organizations but does not protect the individuals who initially leaked the secrets (Government Officials and Soldiers) as they can face prosecution. Arguments that Assange did not review and edit all documents before publishing them, that he played an active role in obtaining the information, and that he acted as more of a broker of the documents than a publisher are all going to be tough to prove and are essential to defeat the claim of a violation of his 1st Amendment rights.

The other legal avenues that the U.S. government is considering are theft and espionage. Theft is one avenue they are pursing because the documents were stolen. Nevertheless, that is going to be a difficult argument to make. Espionage under the U.S. Espionage Act of 1917 is a possible way to prosecute Assange, but it also comes with its challenges. The Act is broadly worded and on its face makes stealing or sharing secrets from the government a federal crime. The problems with the espionage act is that Assange is Australian and not a U.S. citizen so it is unclear if the U.S. law will apply to him, and extradition for prosecution in the U.S. will be challenging. If the U.S. Government charges Assange with espionage then they may have to charge the other news outlets that accepted the stolen documents from him. Lastly going around the 1st Amendment could set a precedent that could limit press freedoms in the future.

Wikileaks has effected not only governments but also visitors to the site. Federal employees and students have been warned by their respective institutions to beware of reading, commenting, and sharing documents that have been released on the Wikileaks site. The White House Office of Management and Budget sent out a memo to various government agencies warning employees not to view classified documents. The reason being that classified documents, even if posted on public websites are still considered classified. It is unclear if viewing the documents could result in termination but it has been said that it will be subject to applicable sanctions under long existing law. Students at Boston University Law School, Georgetown and Columbia received memos from their career development offices warning students that accessing the site could potentially affect them if they decided to pursue employment within the federal government. The warning was sent out because students who wish to work specific government agencies where security clearance is high may not make it though the screening process. The sentiment from the schools was that this was an attempt to educate the students of the possibility of potential problems down the road and not an attempt to persuade students from viewing the sites.

Wikileaks is at the forefront of technology and information sharing which exists in a legal gray area. How the governments of the world handle the distribution of classified documents will have long felt ramifications in the legal community. Will governments seek to classify Julian Assanage as a cyber-terrorists or will they assume the risks of classified documents becoming public in order to protect the freedoms that the 1st Amendment of the U.S. Constitution?