WikiLeaks Ban or Global Secrecy Act?

[~Souza~]

WikiLeaks Ban or Global Secrecy Act?
By D.H. Kerby
November 11, 2010

Sen. John Ensign, a Nevada Republican, has proposed amending the Espionage Act specifically to target WikiLeaks and other media organizations that “publish the name” of anyone “helping in our efforts against terrorism.”

In so doing, Ensign gives legislative expression to a firestorm of criticism against WikiLeaks emanating from the U.S. defense and intelligence establishments and also from many in the American mainstream press.

However, given that WikiLeaks is an international news organization, Ensign’s proposal also raises the specter of some kind of global secrecy act that would criminalize any media outlet that discloses the name of anyone who has collaborated with U.S. intelligence agencies or the U.S. military anywhere in the world, regardless of the context.

Ensign’s idea is particularly breathtaking because during the long Cold War and today’s “war on terror,” many collaborators with the CIA and other U.S. agencies have been linked to drug trafficking, human rights abuses, military coups and even terrorism. Presumably, under Ensign’s plan, journalists around the world would face prosecution for making those connections.

Under his proposal, journalistic intent would not be considered. After all, the chief purpose of recent WikiLeaks’ disclosures of secret U.S. military reports was to put a spotlight on the torture, murder and unnecessary killing of people in Afghanistan and Iraq during the U.S. military occupations of those countries.

WikiLeaks also made efforts to delete the names of some informants and withheld some documents where the risks to individuals were judged to outweigh the value of other information contained in those reports.

In addition, an initial Defense Department review of the leaked records failed to identify any sources or methods that were compromised by WikiLeaks. That review contradicted earlier claims by Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, who suggested that WikiLeaks had put sensitive sources and methods at risk.

However, after studying the actual disclosures, the Defense Department concluded that there apparently was no such harm.

Indeed, what the Wikileaks disclosures on the Iraq War do, primarily, is document large numbers of civilian deaths as well as the torture of detainees and sometimes their murders. Some of these revelations have caused the U.S. government PR damage but only because people around the world got a real-life glimpse into the day-to-day operations of the war.

Protecting War Criminals

Ensign and other legislators joining his efforts to criminalize WikiLeaks would stand in the way of justice for countless innocent victims of these wars. After all, a war crime cannot be prosecuted if it is kept secret.

If the code of silence among U. S. military and intelligence personnel is so strictly enforced that war crimes and crimes against humanity are successfully hidden, the perpetuation of such crimes becomes even more likely.

And, if there is no organization like WikiLeaks to amplify the voices of those brave enough to disclose violations of human rights by the U.S. military and its allies, those voices will be marginalized, discredited and sometimes silenced.

Consider what happened to Joe Darby, the military policeman who handed the Abu Ghraib  photographs (showing U.S. military guards abusing and humiliating Iraqi detainees) to an Army investigator. Since that disclosure, Darby has at times gone into hiding from vengeful members of his own country’s military.

So, criminalizing WikiLeaks may well deny victims of war crimes international legal attention by helping to keep the crimes secret and thus may protect the perpetrators. That is the larger issue.

More narrowly, there is the question of how Ensign’s plan to amend the Espionage Act would be applied to a news organization like WikiLeaks, which is not based in the United States but rather operates through Web sites in Scandinavia and elsewhere.

Ensign is proposing something like a global secrecy rule that would criminalize the disclosure of the name of anyone who collaborates with U.S. intelligence and military agencies anywhere in the world, even if the disclosure comes from a foreign news organization.

The underlying assumption seems to be that the entire world should see U.S. interventions abroad as so clearly in the planet’s interests that all collaborators with these operations deserve anonymity even if they are guilty of human rights abuses or other crimes.

Ensign also makes clear that another purpose of his legislation is to punish news outlets, like WikiLeaks, for undercutting U.S. military goals.

"With this newest document dump, WikiLeaks has knowingly endangered the lives of thousands and further threatened our military efforts,” declared Ensign in a press release. “My legislation will extend the legal protections for government informants, such as the Iraqis named in this latest document dump, and will prevent an organization such as WikiLeaks from hiding like a coward behind a computer mainframe while putting lives in jeopardy."

Ensign said his bill would accomplish this by amending the Espionage Act to make it illegal to publish the name of any human intelligence informant to the U.S. military and intelligence community.

Behind the Bluster

What is really going on here?

Ensign’s proposal seems to be a mix of legislative grandstanding and a desire to punish people who dare pull back the veil concealing the ugly face of the wars that the United States has been fighting, wars in which prisoners have been tortured and murdered and in which the slaughter of civilians has been covered up.

The Pentagon spends a vast amount of money every year on public relations, portraying contemporary warfare as heroic, noble and virtuous. WikiLeaks committed an affront to this image-making by revealing the grimy and grisly reality behind the sanitized version that normally reaches the U.S. public.

For exposing that truth, WikiLeaks is now a target for revenge.

But imagine yourself one of the Iraqis or Afghans subjected to torture and other abuses. Or the widow or orphan of one of those murdered. Then, imagine that a foreign occupier was claiming the right to keep these dirty secrets from the world.

What you would want is truth and justice, not perception management.

Organizations such as WikiLeaks provide at the very least the hope of that – and that is a hope frightening to the likes of Sen. Ensign.

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[Sarahli]

In my understanding of all this, Wikileaks has been created to give a reason for that secrecy act to be put in practice... and hence shut the mouth of those who really disclose information and harm the US policy for real... because Wikileaks never really damaged the US policy as no names were given. I see wikileaks as a kind of trojan.

[Infinitylady]

In my understanding of all this, Wikileaks has been created to give a reason for that secrecy act to be put in practice... and hence shut the mouth of those who really disclose information and harm the US policy for real... because Wikileaks never really damaged the US policy as no names were given. I see wikileaks as a kind of trojan.

WOW!! You know that may make sense.   :|

[Infinitylady]

I was reading somewhere that the guy who started Wikileaks said that he will not come on american soil. It's somewhere on youtube.

[~Souza~]

Still not sure about the intention of this whole Wikileaks saga, but on a tv show tonight here in Holland someone made the point that id Assange will get arrested, people will stand up for him and demonstrate. He said it could switch the power from government and media to the public. He could have a point there, that is IF Assange will get arrested. If not and this new act will pass, then we will know why this all happened, because in that case I agree it was only to get even more control over the internet.

Let's see what happens.

[Andrea]

A part of my mind suspects that Wikileaks was started by "them" as an excuse to hit that internet killswitch...

[Grace]

Wikileaks is going like a rocket.
12 hours ago they had their servers mirrored on 133 locations. Now it is 507 locations.
That's called global support.

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[themjkiss]

Wikileaks is going like a rocket.
12 hours ago they had their servers mirrored on 133 locations. Now it is 507 locations.
That's called global support.

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It was being mirrored almost immediatly when the controversy started,so as to have a back up. Alot of government officials are real nervous  :?

[Grace]

December 8th, 2010

Information is the Antidote to Fear: Wikileaks, the Law, and You
Legal Analysis by Kevin Bankston

When it comes to Wikileaks, there's a lot of fear out there on the Internet right now.

Between the federal criminal investigation into Wikileaks, Senator Joe Lieberman's calls for companies to stop providing support for Wikileaks and his suggestion that the New York Times itself should be criminally investigated, Senator Dianne Feinstein's recent Wall Street Journal op-ed calling for prosecution of Wikileaks founder Julian Assange, and even the suggestion by some that he should be assassinated, a lot of people are scared and confused.

Will I break the law if I host or mirror the US diplomatic cables that have been published by Wikileaks? If I view or download them? If I write a news story based on them? These are just a few of the questions we've been getting here at EFF, particularly in light of many US companies' apparent fear to do any business with Wikileaks (with a few notable exceptions).

We unfortunately don't have the capacity to offer individualized legal advice to everyone who contacts us. What we can do, however, is talk about EFF's own policy position: we agree with other legal commentators who have warned that a prosecution of Assange, much less of other readers or publishers of the cables, would face serious First Amendment hurdles ([1], [2]) and would be "extremely dangerous" to free speech rights. Along with our friends at the ACLU, "We're deeply skeptical that prosecuting WikiLeaks would be constitutional, or a good idea."

Even better than commentary, we can also provide legal information on this complicated issue, and today we have for you some high quality legal information from an expert and objective source: Congress' own research service, CRS. The job of this non-partisan legal office is to provide objective, balanced memos to Congress on important legal issues, free from the often hysteric hyperbole of other government officials. And thanks to Secrecy News, we have a copy of CRS' latest memo on the Wikileaks controversy, a report entitled "Criminal Prohibitions on the Publication of Classified Defense Information" and dated this Monday, December 6.

Like this blog post itself, the CRS memo isn't legal advice. But it is a comprehensive discussion of the laws under which the Wikileaks publishers — or anyone else who obtains or publishes the documents, be it you or the New York Times — might be prosecuted and the First Amendment problems that such a prosecution would likely raise. Notably, the fine lawyers at CRS recognize a simple fact that statements from Attorney General Eric Holder, the Senators, the State Department and others have glossed over: a prosecution against someone who isn't subject to the secrecy obligations of a federal employee or contractor, based only on that person's publication of classified information that was received innocently, would be absolutely unprecedented and would likely pose serious First Amendment problems. As the summary page of the 21-page memo succinctly states,

    This report identifies some criminal statutes that may apply [to dissemination of classified documents], but notes that these have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship.

The report proceeds to discuss the Espionage Act of 1917 and a number of other potentially applicable statutes, followed by an extended discussion (at pp. 14-20) of how the Supreme Court's First Amendment decisions — and in particular the Pentagon Papers case — could complicate such a prosecution. For anyone interested in or concerned about the legality of publishing the Wikileaks documents and the legal and political challenges to a successful prosecution, this CRS memo is an absolute must-read.

Hopefully, this information will help counter much of the fear that our government's so-called "war" against Wikileaks has generated. Meanwhile, we will continue our effort to oppose online censorship and provide additional news and commentary on the ongoing WikiLeaks saga, which is shaping up to be the first great free speech battle of the 21st century. We hope you'll join us in the fight.

Related Issues: Free Speech

Related Cases: Bank Julius Baer & Co v. Wikileaks

For the links to read further details, check the source directly.:
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The Weakest Link: What Wikileaks Has Taught Us About the Open Internet
By Audrey Watters / December 6, 2010 4:34 PM / 20 Comments
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"The first serious infowar is now engaged," EFF co-founder John Perry Barlow tweeted on Friday. "The field of battle is WikiLeaks. You are the troops."

And here we are.

In the week since the whistleblower site released its latest round of documents to major global newspapers, the site has been besieged by DDOS attacks (upwards of 10 Gbps at one point), forcing the site offline and hampering its ability to deliver data.

After moving to Amazon Web Services at one point, presumably to better handle the traffic, the site was summarily booted on Wednesday, shortly after Senator Joe Lieberman condemned Amazon with a "providing comfort to the enemy" sort of rationale. In justifying its actions, Amazon pointed to its Terms of Service, and challenged Wikileaks' rights to and ownership of the documents, as well as its ability to promise no injury will occur based on the content.

A similar argument was made by the visualization company Tableau Software on Thursday when it also expunged all Wikileaks data from its site.

On Thursday, Wikileaks also lost its nameserve provider when EveryDNS cut service. EveryDNS made a different argument than Amazon or Tableau, arguing that while it supported Wikileaks, it could not continue to provide services to its 500,000 other customers while under the barrage of heavy DDoS attacks.

Late Friday night, PayPal updated its blog, indicating that it was freezing Wikileaks' account. The organization could no longer receive donations via PayPal. PayPal justified its actions by pointing to its Terms of Service, which dictate "our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity."
Terms of Service & the Espionage Act

scotus_pentagon_papers.jpgDespite the arguments that Amazon, PayPal, and others make about the illegality of the leaked documents, it's not clear that Wikileaks has broken any law. It is clear that some politicians and pundits wish it to be so, most often invoking the  Espionage Act as justification.

The Espionage Act makes it a crime to interfere with military recruitment or to convey information dealing with national defense. Since its passage in 1917 (Red Scare, anyone?), the law has been challenged a number of times in the courts, most notably with regards to the  Pentagon Papers when the Supreme Court ruled that The New York Times was within its rights to publish the leaked information. "Conveying" government secrets is a crime; "publishing" them is not. It is protected by the First Amendment, and for the government to intervene to prevent that from happening is unconstitutional.

Of course, Amazon and the other companies aren't the government, and as such can intervene - determining whether or not to have Wikileaks as a customer. The legality of publishing documents is irrelevant. These companies can shrug and say it's "against the Terms of Service" and that's it. Wikileaks, take your business elsewhere.

The ability for Internet companies and Internet users to be able to create and share without government intervention is not just a mark of free society. The tech industry pays a lot of lip service to the "open Internet," arguing that it is the very thing that has fostered innovation in and growth of the industry. The filters, monitors, blocks, and blacklists associated with repressive governments, so the argument goes, serve not just to prevent access to information but to stifle creativity and entrepreneurship.

No matter how one justifies the actions of Amazon and the like - Terms of Service or otherwise - the events this past week have not simply demonstrated the spinelessness of certain companies to stand up to government and public pressure; they have pointed to some of the weak links in the "open Internet," those points of control that are particularly important (and seemingly particularly vulnerable).

1. Cloud Storage:

Amazon Web Services is the leader in cloud computing, that is, virtualized servers that offer a far cheaper and more flexible way to store data and host websites. Cloud computing is, in the words of Newsweek's Joseph Galarneau, the "21st century equivalent of the printing press." Arguably cloud computing has helped facilitate the explosion of new media and new companies.

However, that the modern-day printing press - the way in which companies increasingly host and distribute their content - is so quick to shut its doors is deeply troubling. It raises a number of questions about the future of free expression as well as about the reliability of the cloud as a tool for such. It also highlights the importance of data portability. If cloud providers can so easily oust controversial customers, the cloud may be a less appealing route for publishers. But once "in the cloud," we do need interoperability - the ability to easily move storage from one cloud provider to another. We shouldn't be locked in to one provider who can then completely govern whether or not we can have access to its "printing press."

2. DNS:

It's important to point out that unlike Amazon, Paypal, and Tableau, EveryDNS did not boot Wikileaks due to political pressure. The service provider said it needed to sever the contract in order to maintain services to its other customers. Nonetheless, problems with Wikileaks' DNS -- as well as recent domain seizures by Homeland Security - point to the second major weak link in the open Internet: the domain name system. The DNS, or Domain Name System, is one of the foundational elements of the Internet, responsible for translating the numbers in IP addresses to the more human-friendly names. And Wikileaks has struggled to keep its site up, having to move from Wikleaks.org to Wikileaks.ch to Wikileaks.nl as various countries have put pressure on both local DNS providers as well as on ICANN the international body that manages the registration of top level domains.

There have a number of suggestions recently to address this centralized control, most notably a proposal by Pirate Bay co-founder Peter Sunde to work towards the development of an alternative P2P DNS, one that would be decentralized and distributed. In the meantime, hundreds of people are setting up mirror sites for Wikileaks.

We often talk about the Internet as being the new "public square," the place where we communicate, participate, argue, share, debate, learn, listen. But many of the key pieces of Internet infrastructure are privately owned. And these companies have no obligation - and sometimes clearly, little willingness - to protect our First Amendment rights.

As the EFF recently noted, "Online speech is only as strong as the weakest intermediary." And while the U.S. likes to describe itself as the bulwark for free speech, neither the government nor corporations have proven to be defenders of such.

The actions taken against Wikileaks should be a wake-up call to those of us who do value free expression. We need to support organizations, projects, and technologies that will make sure that the Internet remains open, and that information and knowledge are free. We need to recognize the "weak links" and move to strengthen the alternatives.

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[truthprevails]

In my understanding of all this, Wikileaks has been created to give a reason for that secrecy act to be put in practice... and hence shut the mouth of those who really disclose information and harm the US policy for real... because Wikileaks never really damaged the US policy as no names were given. I see wikileaks as a kind of trojan.

Names were actually given, Sarahli. I read some of the documents posted on the Wikileaks site, before it got hacked/attacked. There was real substance there...

[Sarahli]

In my understanding of all this, Wikileaks has been created to give a reason for that secrecy act to be put in practice... and hence shut the mouth of those who really disclose information and harm the US policy for real... because Wikileaks never really damaged the US policy as no names were given. I see wikileaks as a kind of trojan.

Names were actually given, Sarahli. I read some of the documents posted on the Wikileaks site, before it got hacked/attacked. There was real substance there...

What kind of names was it?

[truthprevails]

In my understanding of all this, Wikileaks has been created to give a reason for that secrecy act to be put in practice... and hence shut the mouth of those who really disclose information and harm the US policy for real... because Wikileaks never really damaged the US policy as no names were given. I see wikileaks as a kind of trojan.

Names were actually given, Sarahli. I read some of the documents posted on the Wikileaks site, before it got hacked/attacked. There was real substance there...

What kind of names was it?

The opinions of various American officials on foreign leaders and their countries AND the opinions of foreign leaders on the U.S. I read a few "articles" in a rush, but it was enough to form an impression that this was a BIG DEAL for the States. One item from Jordan said something about King Abdullah (and his views) and another high official, whose name I know but don't want to put here. Another memo (I forget from which country - Pakistan?) was to Secretary Clinton, debriefing her in preparation for her visit to that country... Iran was also discussed in various documents.

Given that both the Wikileaks site and the founder (Assange) got into trouble, my feeling is that the leak was genuine.

[Infinitylady]

We'll see.  I was listening on the radio yesterday how now they are making issues about internet radio and also radio host such as Rush Limbaugh, Glenn Beck, Alex Jones, and other alternative media.  Geez, I should have written down the name of the person who commented that they believe that the information that we are getting out is not enough.  They want to control what we listen to and that is the bottom land and this is getting out of hand. When I find this out I will post it but it is just ridiculous. There is tons of info out there and what it is, is that too much info is getting out there. People are beginning to see the corruption that is happening and they are getting exposed too much of this info.

[snowhite159]

I think this is a government set up. I think everything on wikileaks are lies. If any of you can er have time to, go to coast to coast radio and it you want to listen to any of their radio shows, just go on youtube. They definately have interseting topics!  8-)

[Sarahli]

In my understanding of all this, Wikileaks has been created to give a reason for that secrecy act to be put in practice... and hence shut the mouth of those who really disclose information and harm the US policy for real... because Wikileaks never really damaged the US policy as no names were given. I see wikileaks as a kind of trojan.

Names were actually given, Sarahli. I read some of the documents posted on the Wikileaks site, before it got hacked/attacked. There was real substance there...

What kind of names was it?

The opinions of various American officials on foreign leaders and their countries AND the opinions of foreign leaders on the U.S. I read a few "articles" in a rush, but it was enough to form an impression that this was a BIG DEAL for the States. One item from Jordan said something about King Abdullah (and his views) and another high official, whose name I know but don't want to put here. Another memo (I forget from which country - Pakistan?) was to Secretary Clinton, debriefing her in preparation for her visit to that country... Iran was also discussed in various documents.

Given that both the Wikileaks site and the founder (Assange) got into trouble, my feeling is that the leak was genuine.

I am still very skeptical about the purpose behind. I tend more to think that the dark side too fight each other... and apparently these leaks are beneficial for Israel who supposedly made a deal with Assange so that sensitive documents are not leaked.... these leaks harm the USA credibility.