Publishing Classified Info: A Review of Relevant Statutes
“There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables,” according to a newly updated report (pdf) from the Congressional Research Service, “although government employees who disclose such information without proper authority may be subject to prosecution.”
But there is a thicket of statutes, most notably including the Espionage Act, that could conceivably be used to punish unauthorized publication of classified information, such as the massive releases made available by Wikileaks. See “Criminal Prohibitions on the Publication of Classified Defense Information”, December 6, 2010.
The updated CRS report sorts through those statutes, provides an account of recent events, presents a new discussion of extradition of foreign nationals who are implicated by U.S. law, and summarizes new legislation introduced in the Senate (S. 4004).
A previous version (pdf) of the CRS report, issued in October, was cited by Sen. Dianne Feinstein in a Wall Street Journal op-ed yesterday in support of prosecuting Wikileaks, though the report did not specifically advise such a course of action. Sen. Feinstein also seemed to endorse the view that the State Department cables being released by Wikileaks are categorically protected by the Espionage Act and should give rise to a prosecution under the Act.
But the Espionage Act only pertains to information “relating to the national defense,” and only a minority of the diplomatic cables could possibly fit that description.
The new CRS report put it somewhat differently: “It seems likely that most of the information disclosed by WikiLeaks that was obtained from Department of Defense databases [and released earlier in the year] falls under the general rubric of information related to the national defense. The diplomatic cables obtained from State Department channels may also contain information relating to the national defense and thus be covered under the Espionage Act, but otherwise its disclosure by persons who are not government employees does not appear to be directly proscribed. It is possible that some of the government information disclosed in any of the three releases does not fall under the express protection of any statute, despite its classified status.”
Incredibly, CRS was unable to meaningfully analyze for Congress the significance of the newest releases because of a self-defeating security policy that prohibits CRS access to the leaked documents.
The CRS report concludes that any prosecution of Wikileaks would be unprecedented and challenging, both legally and politically. “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.”
For our part, we would oppose a criminal prosecution of Wikileaks under the Espionage Act.
As humans expand our geographic reach, encroach on untouched natural territories, and interact more with animal populations, we will encounter novel zoonotic diseases that threaten the human body. The sooner we act to address these risks, the better.
This report serves as a landscape assessment and toolbox from which local governments can negotiate an informed position when it comes to the levers available to them and includes a first-of-its kind analysis of eight executed community benefits agreements.
When a hurricane hits, it’s all hands on deck – that goes for federal data, too. Pulling back from our investments in timely, accurate, and accessible public data will only make us less prepared and put us all at greater risk.
This is bigger than a singular elimination of race and ethnicity questions. It could accelerate the second wave of widespread reductions to demographic data, leaving public health officials with even less information to deliver better health outcomes for all Americans.