Digital Media and Data Privacy Law Blog

The recent disclosure of reams of classified diplomatic cables by WikiLeaks has sparked outrage among leaders on both sides of the aisle in Washington, outrage that may negatively impact the gathering and dissemination of the news.  There are already indications that Congress could take steps to sanction the publication of certain classified information, moving beyond the current regime in which the confidential source, if exposed, faces the greatest legal exposure.

The website WikiLeaks was founded in 2006 by Julian Assange, and its purpose is to publish documents obtained from anonymous sources.  Since its founding, the website has disclosed publicly a range of classified or otherwise unavailable documents, including documents relating to the U.S. detention facilities at Guantanamo Bay, the war in Iraq, and the war in Afghanistan, Sarah Palin, and climate change. WikiLeaks has won a variety of awards, including from the Economist and Amnesty International.

WikiLeaks took center stage internationally last week when it exposed hundreds of thousands of pages of classified U.S. diplomatic cables.  The leak opened for all to see U.S. diplomatic strategy with respect to a host of regions, countries, and issues.  Because of attacks on WikiLeaks' website, the disclosure was accomplished by providing the documents to prominent international media outlets, including the Guardian and the New York Times.  The two newspapers maintain archives of stories and summaries relating to the leaks here and here, respectively.  Secretary of State Hillary Clinton denounced the disclosure:

This disclosure is not just an attack on America's foreign policy; it is an attack on the international community, the alliances and partnerships, the conventions and negotiations that safeguard global security and advance economic prosperity.

Rep. Peter King of New York called for WikiLeaks to be designated as a terrorist organization.

The response by U.S. officials and politicians has not stopped with words.  The WikiLeaks website has been subjected to repeated hacks and other attacks.  The United States and other governments, such as France, have put pressure on the companies hosting WikiLeaks' servers to take them down, and they otherwise have attempted to make WikiLeaks difficult to access.  In particular, U.S. Senator Joe Lieberman, chair of the Homeland Security Committee, pressured Amazon to pull WikiLeaks from its servers, and earlier this week it did so.  Just today, the U.S. federal government blocked access to WikiLeaks for federal workers.

These moves have sparked intense debate, with the Electronic Frontier Foundation and other free speech organizations criticizing the U.S response to the leak as censorship akin to the pressure put by the Chinese government on Google.  As these organizations point out, government interference with access to websites containing leaked classified documents may be tantamount to a prior restraint and thus may violate the First Amendment principles articulated in the Pentagon Papers case, which involved a high-profile leak of classified documents concerning the Vietnam War.  In the digital age, is a government-led effort to take information it does not want to be public off the servers hosting that information substantively different from government seeking a court order barring the print publication of that same information?  The WikiLeaks controversy may put that distinction, if one can be made, to the test.

Senator Lieberman has also proposed amending the federal Espionage Act "by making it illegal to publish the names of human intelligence informants (HUMINT) to the United States military and intelligence community."  Criminalizing the publication of information is of course a change in kind from the criminalization of a governmental official's improper disclosure of classified information in his or her possession.  Doing so would represent an encroachment upon the traditional principle that absent truly extraordinary circumstances, if otherwise confidential information is received by a news organization, its publication cannot be prevented or sanctioned.

Finally, the WikiLeaks controversy is also likely to lead to renewed efforts to discover the identity of confidential sources who leak classified information.  This may well complicate the long-running efforts to pass a federal shield law in Congress, which we have reported upon previously.

High-profile leaks of classified information put our commitment to a free press to the ultimate test.  We will continue to monitor the various ways in which this most recent instance might affect the gathering and publication of the news going forward.