Wikileaks & protecting the government from embarrassment

Thu Dec 9 12:09:11 PST 2010

I very much doubt that a court evaluating this question would believe that the only governmental interest at play is "protecting the government from embarrassment."  At best, this disclosure runs the risk that the identities of confidential informants will be disclosed, prejudicing the ability of the diplomatic service to offer assurance of such confidentiality in the future, and for that reason compromising the ability of the the foreign service to obtain useful intelligence.  At worst, this disclosure could endanger the safety of confidential informants.  It is the risk -- whether or not realized in the particular case -- that supports the government's interest in utilizing criminal sanctions to deter such disclosures.  In Snepp v. United States, for example, even though Snepp did not disclose and confidential information in his book, the Court concluded that his failure to seek preclearance rendered the publication unprotected because of the risk that classified or otherwise sensitive material might be disclosed absent preclearance.  Perhaps, as in Bartnicki, the ability to punish the original source of the leak is enough of a deterrent, but given the national security interests at stake, the government has a point if it argues that there ought to be a deterrent on publication as well as leaking in order to minimize the likelihood of harmful disclosure.

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Humbach, Prof. John A.
Sent: Thu 12/9/2010 11:38 AM
To: Rosenthal, Lawrence; Steve Vladeck; Robert Sheridan; CONLAWPROF Prof list
Subject: RE: Wikileaks & protecting the government from embarrassment

Of course, Larry is right that Stanley is about possession and not dissemination. But, my comment citing Stanley was in response to Steve Vladeck's statement about prohibitions on "retention."

As concerns the right to disseminate (if any), Bartinicki is the case.

So, in sum, Bartnicki and Stanley taken together confirm a right to possess and disseminate lawfully obtained information "absent a need . . . of the highest order." And, I'd add, protecting the government from embarrassment is not such a need. To the contrary, the occasional need to embarrass the government is exactly what the First Amendment exists to serve.

I might also add, on the IP point, that it's arguably not possible to "lawfully" obtain possession of stolen expressive media, since a thief cannot convey good title. It's a different question, however, whether one can "lawfully" obtain possession of misappropriated expressive *content.* The only analogous laws on obtaining content would be the "retention"-type laws or copyright-type laws mentioned by Professors Vladeck and Rosenthal. But the constitutionality of *those* laws (facially or as applied) is what is at issue.

John A. Humbach, Professor of Law
Pace University School of Law

takinglibertyseriously.net
________________________________________
From: Rosenthal, Lawrence [rosentha at chapman.edu]
Sent: Thursday, December 09, 2010 2:11 PM
To: Humbach, Prof. John A.; Steve Vladeck; Robert Sheridan; CONLAWPROF Prof list
Subject: RE: Wikileaks & protecting the government from embarrassment

Whatever one thinks of Stanley, or the validity of a prohibition on "retention" of classified or otherwise confidential material on different facts, Stanely certainly does not secure a right to publish otherwise unprotected material, or even to possess such material with intent to publish.

Larry Rosenthal
Chapman University School of Law

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Humbach, Prof. John A.
Sent: Thu 12/9/2010 11:00 AM
To: Steve Vladeck; Robert Sheridan; CONLAWPROF Prof list
Subject: RE: Wikileaks & protecting the government from embarrassment

I think that, for purposes of Bartnicki, the concept of "lawfully obtained" means obtained without violation of laws *other than* the laws at issue.

So the fact that there's a law prohibiting "retention" of regulated information does not resolve the constitutional questions when one of the questions is, precisely, whether that law against "retention" is (on its face or as applied) constitutional.

A law prohibiting "retention" seems to be, whatever its validity, one that aims to regulate or suppress pure speech, specifically, one that trenches on the Stanley v. Georgia "fundamental" right to read and possess whatever expressive content one pleases.

John A. Humbach, Professor of Law
Pace University School of Law
takinglibertyseriously.net
________________________________________
From: Steve Vladeck [svladeck at wcl.american.edu]
Sent: Thursday, December 09, 2010 1:34 PM
To: Humbach, Prof. John A.; Robert Sheridan; CONLAWPROF Prof list
Subject: RE: Wikileaks & protecting the government from embarrassment

I'd be reluctant to read too much into Bartnicki.  It was fairly
important to the majority there that, although the recording was made
illegally, the radio station that rebroadcast it had obtained (and
possessed it) lawfully. The Espionage Act, in contrast, prohibits even
the _retention_ of classified information by those not entitled to
possess it. If this case ever got that far, I have to think that the
current Supreme Court would only too quickly harp on that distinction...

-steve

---
Stephen I. Vladeck
Professor of Law
American University Washington College of Law
4801 Massachusetts Avenue, N.W., Room 386
Washington, DC  20016
Phone: (202) 274-4241 | E-Mail: svladeck at wcl.american.edu
Web: http://www.wcl.american.edu/faculty/vladeck/
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Humbach, Prof.
John A.
Sent: Thursday, December 09, 2010 1:24 PM
To: Robert Sheridan; CONLAWPROF Prof list
Subject: Wikileaks & protecting the government from embarrassment

The case referred to in the post below is Barknicki v. Vopper, 532 US
514 (2001). It reconfirmed that "state action to punish the publication
of truthful information seldom can satisfy constitutional standards" and
"if a newspaper lawfully obtains truthful information about a matter of
public significance then state officials may not constitutionally punish
publication of the information, absent a need . . . of the highest
order."

Obviously, laws that protect national security from real threats are a
need "of the highest order." However, laws that protect the government
from embarrassment are the exact thing the First Amendment exists to
prevent.

Public scrutiny of government activity is crucial to the viability of a
democratic system. It therefore should not easily yield to other needs.
If the people within government have discretion to prevent public
scrutiny without substantial independent oversight, the people's control
of the government is in jeopardy.

John A. Humbach, Professor of Law
Pace University School of Law

takinglibertyseriously.net
________________________________________
From: conlawprof-bounces at lists.ucla.edu
[conlawprof-bounces at lists.ucla.edu] on behalf of Robert Sheridan
[rs at robertsheridan.com]
Sent: Wednesday, December 08, 2010 4:13 PM
To: CONLAWPROF Prof list
Subject: Laws against industrial sabotage?

According to current news, Julian Assange has been ordered held w/o bail
in Britain, pending a hearing on extradition, based on the alleged
seriousness of what appears to be a form of battery (sexual) charges
filed against him in Sweden.  Two young women have come forward,
according to a report heard on NPR yesterday, alleging that after
consensual sex initially, using condoms, in separate encounters, Assange
then sought sex w/o protection, drawing the complaints, in Stockholm.
The women want him tested for their peace of mind, against disease.

Assange was of interest before that because of his effort to reveal
confidential government information in the form of conversations among
U.S. military members about the wars in Iraq and Afghanistan, and later,
State Department officials.

Today's Times reports that A-G Holder's Justice Department is looking at
various statutes that might be used to prosecute Mr. Assange.  The U.S.
is holding a low ranking soldier for having stolen the military records
and turning them over to Assange, who portrays himself as merely the
messenger, no more at fault for passing the information along than the
Times and other publications for publishing them.

In the Pentagon Papers case, the Court found no obstacle to denying the
government's request for an injunction against further publication in
the fact that the historical papers had in fact been taken w/o
authorization from the Pentagon by Daniel Ellsberg, a person who had
access to read, but not take them away, copy, or distribute them to
anyone, much less various newspapers for publication.  Theft was no bar
to publication.

The Court, as far as I'm aware, has left open the question as to the
effect of the stolen character of the information wrongfully
appropriated.  There's the labor union dispute, secret recording case
whose name escapes me until I hit the send button.

According to a law professor quoted in today's Times, the
misappropriation of information, not physical property, brings the
matter within the realm of intellectual property law, not physical
property law, an interesting distinction.

I was wondering whether the U.S. has laws specifically addressed to the
subject of industrial espionage, as in, "Suppose the agent of a foreign
government tries to pry loose an industrial process, such as the Norden
bomb-sight of yesteryear, or the architecture of the latest Silicon
Valley computer chip?"

There may be a significant difference between wrongfully accessing and
recording information belonging to the government to reveal alleged
government abuse and stealing, or revealing, information privately held,
such as belonging to Bank of America; or sabotaging MasterCard's ability
to process transactions in retaliation for the jailing of Mr. Assange.

Do we have such laws, that is laws prohibiting "industrial espionage,"
or "sabotage?"

Have they been tested against the First Amendment press and expression
guarantees?

In the Informational food-chain, how close to the source must one be to
court prosecution for a violation of the Unofficial Secrets Act?  The
local news vendor?  Handing the newspaper to one's spouse, sputtering,
"Take a look at the latest outrage?"

rs
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