Updated below to reflect withdrawal of the new Air Force guidance
Americans who have accessed the WikiLeaks web site may have violated the Espionage Act, under an extreme interpretation of the law advanced by Air Force officials last week.
Many government agencies have instructed their employees not to download classified materials from the WikiLeaks web site onto unclassified computer systems. The government’s position is that although the material is in the public domain, its classification status is unaffected. Therefore, to preserve the integrity of unclassified systems, the leaked classified information should not be accessed on such systems. If it is accessed, it should be deleted.
But on February 3, Air Force Materiel Command (AFMC) at Wright-Patterson Air Force Base issued startling new guidance stating that the leaked documents are protected by the Espionage Act and that accessing them under any circumstances is against the law, not simply a violation of government computer security policy.
“According to AFMC’s legal office, Air Force members — military or civilian — may not legally access WikiLeaks at home on their personal, non-governmental computers, either. To do so would not only violate the SECAF [Secretary of the Air Force] guidance on this issue,… it would also subject the violator to prosecution for violation of espionage under the Espionage Act,” the AFMC legal office said.
Then, in an astounding interpretive leap, the AFMC went on to say that similar prohibitions apply to the relatives of Air Force employees.
“If a family member of an Air Force employee accesses WikiLeaks on a home computer, the family member may be subject to prosecution for espionage under U.S. Code Title 18 Section 793.”
This is a breathtaking claim that goes far beyond any previous reading of the espionage statutes.
“That has to be one of the worst policy/legal interpretations I have seen in my entire career,” said William J. Bosanko, director of the Information Security Oversight Office, by email.
If taken seriously for a moment, the AFMC guidance raises a host of follow-on questions. What if a family member accessed WikiLeaks on a computer outside the home? What if a non-family member accessed WikiLeaks on the home computer? What if one learns that a neighbor has accessed WikiLeaks in the neighbor’s home? Is the Air Force employee obliged to intervene or to report the violation to authorities? And how could any of this possibly be constitutional?
Since the AFMC guidance is not based in existing case law or past practice, these questions have no immediate answers.
Last December, a Department of Homeland Security official complained to Secrecy News that government policy on WikiLeaks produced the incongruous result that “my grandmother would be allowed to access the cables but not me.” But if the new Air Force guidance can be believed, this is incorrect because the official’s grandmother would be subject to prosecution under the Espionage Act.
In reality, there does not seem to be even a remote possibility that anyone’s grandmother would be prosecuted in this way.
Instead, ironically enough, the real significance of the new AFMC guidance could lie in its potential use as evidence for the defense in one of the pending leak prosecutions under the Espionage Act. Defendants might argue that if the Espionage Act can be seriously construed by Air Force legal professionals to render a sizable fraction of the American public culpable of espionage, then the Act truly is impermissibly broad, vague and unconstitutional.
For a standard view of the general subject see “The Protection of Classified Information: The Legal Framework” (pdf), Congressional Research Service, January 10, 2011.
Update: Josh Gerstein at Politico was told by the Air Force Monday afternoon that the AFMC guidance “is being taken down pending a further review of the legal opinions it was based on.”
However, several copies of the AFMC statement were also entered into the Lexis-Nexis database by States News Service, Targeted News Service and US Fed News. Those remain in circulation and unaffected.
Update 2: Air Force Lt. Col. Richard Johnson provided this statement on the evening of February 7:
“Air Force Materiel Command (AFMC) recently published an internal news story that discussed the implications of downloading presumed classified information from WikiLeaks. The release was not previously coordinated with Headquarters Air Force and has been removed from the AFMC website. The Air Force has provided guidance to military members and employees to avoid downloading what could be classified information into Air Force unclassified networks and reminded them that publication of information does not itself constitute declassification of such information. The Air Force guidance did not address family members who are not Air Force members or employees. The Air Force defers to the Department of Justice in all non-military matters related to WikiLeaks.”