Results tagged “WikiLeaks”

April 25, 2011

Caplan2.jpgBy Associate Professor Aaron Caplan

This is the second in a two-part series originally published in the April 21, 2011 edition of the Los Angeles Daily Journal.

Anonymous sources: One piece of information journalists often wish to keep secret is the identity of their anonymous sources. This is not a new phenomenon. In the early 1970s, Branzburg v. Hayes held that journalists have no constitutional privilege to keep sources confidential from a criminal investigation (although later cases have found a partial privilege in civil cases). Some states reacted to Branzburg with journalist shield statutes, and proposals for a federal counterpart arise in Congress with some regularity.

The current architecture of the Internet is not designed for anonymous communication. For every exchange of data over the Internet, be it via e-mail or by viewing a website, a trail of metadata is automatically logged that includes among other things the IP (Internet Protocol) addresses of the computers involved. In many ways, it is easier to be an anonymous tipster using older media, such as oral communication, an unmarked envelope, or a phone call on a landline. The Internet makes it far easier than before for law enforcement to attribute communications to particular speakers and listeners - including communications between sources and journalists.

WikiLeaks claims to have developed methods for truly anonymous uploading of source documents by leakers. If this is true, it creates a practical means of evading the Branzburg rule - journalists cannot be compelled to reveal identities of sources they don't know. It is open to question how effective this anonymous sourcing is, given the widely reported allegations of prosecutors that Pfc. Bradley Manning was the source of the leaked State Department cables. It appears he was identified in part by the paper trail he left on his work computer, and in part by oral testimony of an acquaintance, and not from evidence from the WikiLeaks dropbox itself. Regardless, the story shows the continuing difficulty of accomplishing truly anonymous speech.

If perfected, an anonymous electronic drop box would have enormous practical implications for journalists hoping to shield their sources. But the technology has no impact on their legal ability to do so. Reporters may still be compelled to testify to their knowledge of sources to a federal grand jury; it's simply that the extent of their knowledge has changed. In the same way, Internet technology should not alter the existing First Amendment rules that provide legal protection to journalists who republish material supplied by anonymous sources, even if the source obtained it unlawfully. That principle was most recently announced in Bartnicki v. Vopper, a case involving not the Internet, but radio broadcasts of recorded cell phone conversations.

Powerful intermediaries: A lone leafleter could in theory communicate with an audience without anyone else's help, but it is literally impossible for a writer to communicate with a reader via Internet without the assistance of intermediaries. These include ISPs (Internet service providers), web-hosting services and other keepers of infrastructure, both public and private, along the way. As a practical matter, this dependence on intermediaries for Internet speech has two major effects. First, it gives the intermediary the power to disrupt communication. This has already happened at least once to WikiLeaks. Due to unilateral action by its domain name server provider, WikiLeaks was temporarily removed from the Internet, and only returned after changing its domain name away from the familiar ".org" designation. Second, investigations of speakers can proceed by questioning the intermediaries, who may well disclose information in their control without the knowledge or consent of the communicating parties.

The Internet gives far more power to intermediaries than some other technologies, but the concept of speech mediated by others is not new to the law. Traditional authors relied on publishers and bricks-and-mortar booksellers to transmit their ideas to readers. Publishers and booksellers could freely choose not to participate. The First Amendment regulates this choice only insofar as it limits the government's power to pressure intermediaries not to distribute officially disfavored works. Some channels of communication - particularly the telephone and telegraph - have been declared by statute to be common carriers that must be open to all communications, but this was a political decision rather than a legal one. The "net neutrality" battle is the latest variation of the ongoing debate over which media should be treated like common carriers.

The question of searches of speech intermediaries has arisen under Fourth Amendment law years before the rise of the Internet, with results that have dismayed privacy advocates. Decisions from the 1970s, most prominently United States v. Miller, held that a person has no reasonable expectation of privacy in information shared with even one non-privileged third party. For example, the government does not require a warrant to gather a suspect's financial deposit records, because after all, the suspect shared that information with those strangers down at the bank. The [Miller] logic has arisen with regard to the requests by the government to obtain information from Twitter about tweets exchanged among the founders of WikiLeaks. A court recently ruled, in effect, that the founders must not have cared about privacy if they shared their metadata with those strangers running the computers at Twitter.

The ubiquity of intermediaries on the Internet brings the shortcomings of the [Miller] principle to the forefront. But once again, the existence of the Internet does not change the underlying legal principle. If Miller is wrong with regard to the Internet, as many believe, it was equally wrong as applied to old-fashioned bank ledgers.


Should we be alarmed, or instead pleased, that the law seems generally oblivious to the hugely consequential fact that a service like WikiLeaks exists on the Internet? Our legal system should of course be alert to the possibility that speech through one medium may be so qualitatively different than another as to require different rules or different frames of reference. I suspect those situations will be rare, and WikiLeaks does not seem to be one of them.

Our most important sources of law - including, of course, our constitutional law - deal with persistent questions of human relations that can transcend media. The First Amendment protects the exchange of information generally, not just information memorialized in familiar ways. The Fourth Amendment protects privacy against overly intrusive government searching, even when that searching takes new forms. Because events can change faster than law can, we are fortunate to have a set of first principles that are sufficiently broad to allow meaningful application in novel circumstances.

This op-ed is adapted from remarks delivered on March 24 as part of the William O. Douglas lecture series at Gonzaga University School of Law.

Tags: , ,

Bookmark and Share

April 21, 2011

Caplan2.jpgBy Associate Professor Aaron Caplan

This is the first in a two-part series originally published in the April 20, 2011 edition of the Los Angeles Daily Journal.

The controversy over publication of leaked State Department documents by the WikiLeaks website seems to have "Internet" written all over it. It is treated as a major technology story by publications like Wired magazine and Internet advocacy organizations like the Electronic Frontier Foundation. How could I ask whether it has anything to do with the Internet? The online nature of the WikiLeaks enterprise has immense practical effects, but despite this, any legal action likely to arise from the State Department leaks will be resolved through principles that do not concern themselves with the Internet as a specific medium. By and large this is a good thing.

Unauthorized leaks of government documents, including diplomatic cables, were part of life long before the Internet. Public revelations about the Zimmerman telegram helped propel the United States into World War I. Publication of the Pentagon Papers fueled public debate over the Vietnam War. The statutes governing wrongful disclosure of documents by government employees are decades old, the Espionage Act was passed in 1917, and the constitutional limits on investigation and prosecution of any alleged crimes date back to the Bill of Rights from 1791. With remarkably little adaptation, these preexisting legal concepts will be applied to leaks distributed by Internet.

Let's consider five ways in which the fact that WikiLeaks exists on the Internet has profound practical impact, but remarkably little legal impact.

Wide, cheap distribution: Posting documents on the Internet allows far more people to read it at less marginal cost than ever before. The Pentagon Papers, by contrast, were first revealed in printed articles in the New York Times and Washington Post, summarizing and selectively quoting their contents. These disclosures were reprinted in other newspapers and magazines, discussed in the broadcast news, and the documents themselves were ultimately published as a paperback book. Taken together, these means of distribution cost far more than posting the documents on WikiLeaks, which can potentially reach an audience as large or larger.

As a constitutional matter, the size of a speaker's audience makes little difference. A small town newspaper has the same freedom of the press as the New York Times or Fox News. Freedom of speech and the press also apply to a solo leafleter standing on a street corner, although most speakers desire a larger audience. The First Amendment facilitates their freedom to reach as large an audience as desired to change as many minds as desired. As Justice Abe Fortas wrote in Tinker v. Des Moines Independent School District, we do not limit First Amendment rights to a manageably small zone of expression "that a benevolent government has provided as a safe haven for crackpots."

Access to source document: The Wikileaks site serves primarily as a repository for source documents, and it has relatively little authored content summarizing and analyzing those documents. The huge capacity and relatively low cost of computer storage makes this possible. It would have been prohibitively bulky and expensive to widely distribute hundreds of thousands of State Department documents using earlier media. Public access to source documents adds to the ability of the public to form their own opinions about the events described in them, without relying on the interpretations of gatekeepers. At the same time, the sheer volume of documents available means that most readers will rely on third parties (be they traditional journalists, scholars or bloggers) who have the time or incentive to read and interpret them.

Legally, the choice of publishing a copy of an original document or a summary of it makes no difference. In the Pentagon Papers case, the government unsuccessfully sought to enjoin publication of articles by journalists that summarized and selectively quoted from the documents. After all threat of injunction ended as a result of the U.S. Supreme Court's decision, the documents were later published in the form of a best-selling paperback book that continues to turn up at garage sales decades later. Both forms of dissemination enjoyed equal constitutional protection.

Easy duplication: Computer files on networked systems are made to be copied. Although the WikiLeaks computers store one copy, a viewer surfing the site is actually reading a different copy of the file that has been transferred to her own computer, through a pathway of partial or complete copies housed temporarily or permanently on other computers in the chain of distribution. Once downloaded by an end user, the documents can be duplicated further, perhaps in a mirror site. Even if a government were able to shut down the WikiLeaks web site and jail all of its operators, others can make (and already have made) the information available through other copies. Such fast and easy duplication makes it essentially impossible to keep secrets on the Internet, if a critical mass of decentralized copiers are determined to make them available. This is a truly new practical development.

Yet none of this affects the legality of WikiLeaks posting the documents initially. It was either lawful or unlawful at the outset, even if no further copies were made. As it happens, existing law gives greater legal protection to republication than to initial publication. Under the Espionage Act, for example, it has long been presumed that journalists repeating a secret already publicly revealed by others lack the requisite intent to cause injury to the United States. WikiLeaks' computerized format allows for easier republication by others, but does not alter the legal relationship of publishers and republishers.

This op-ed is adapted from remarks delivered on March 24 as part of the William O. Douglas lecture series at Gonzaga University School of Law.

Tags: , ,

Bookmark and Share
1