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.