an emac 6361 blog on privacy and technology
In the face of broad-sweeping proposals in National Security Policy as it relates to digital media and networks, it’s becoming increasingly hard to ignore the current “Elephant in the room”; WikiLeaks. The outcome of this case and the eventual creation of new legislations and policies to adress it will eventually affect us all. Consequently, it is vital that no new regulations or amendments be enacted with out the Public having a voice and at the least, some form of social discourse as to the lasting effects of these new proposals.
As a reaction to current events, a proposed new Amendment to the Espionage Act, know as the SHIELD Act has been introduced by Senators Joseph Lieberman, John Ensign, and Scott Brown in a move to make it illegal for anyone to publish the identity of a US Intelligence or Military source.
“As amended by the bill, the statute would read in relevant part:
Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government or transnational threat to the detriment of the United States any classified information . . . concerning the human intelligence activities of the United States or any foreign government [or] concerning the identity of a classified source or informant of an element of the intelligence community of the United States . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.” (Wittes, www.lawfareblog.com)
However, since it is currently illegal for a person or persons to disclose this level of information under existing law, it would seem, as a December 2010 article in Wired Magazine states, “…the measure is aimed squarely at publishers.”
“This bill, however, seems like it offers the worst of both worlds. It leaves intact the current World War I-era Espionage Act provision, 18 U.S.C. 793(e)…and then takes a currently well-drawn law and expands its scope to the point that it covers a lot more than the most reckless of media excesses. A lot of good journalism would be a crime under this provision; after all, knowingly and willfully publishing material “concerning the human intelligence activities of the United States or any foreign government” is no small part of what a good newspaper does.” (Wittes, www.lawfareblog.com)
Not to be confused with The Media Shield Law that protects reporters from being forced to testify as to the identity of their sources, The Shield Act would dramatically expand the current Espionage Laws to limit journalism. The timing of this amendment has been criticized by many as a direct attack on WikiLeaks and its Founder.
In the case of WikiLeaks this would serve as a retroactive law designed to make illegal actions that have already taken place, by enacting new legislation before prosecution, but while the accused is in custody. Creating a law to prevent future situations that could create additional National Securities is to be expected but this amendment acts as a regulation purposefully introduced to enhance and almost ensure prosecutorial victory.
However, this is not the only recent ruling to be brought to play in this case. This irony of the actions of this legislation and its similarly named Media Shield Law should not be lost. While it might seem that these two rules contradict each other in some fashion, they in fact compliment each other, especially in the case of Wikileaks.
In October of 2009, a compromise was reached between the White House and the Senate on a bill that would “preserves a strong protection for reporters interested in protecting their sources, while also making sure that the government can still do the job of protecting its citizens.” Sen. Charles E. Schumer (D-N.Y), (Pincus 09)
Under this legislation the “Reporters Privilege” of protecting their sources would be upheld but not in any case where National Security is involved. Since the definition of National Security is intentionally vague, granting broad powers to our government and intelligence communities, all the government must do is demonstrate “by the preponderance of evidence” that National Security is at risk. In addition, the definition of what constitutes a Journalist is still unclear. In some cases, Courts have ruled that, in fact, Bloggers are not Journalists, and are therefore not protected under any of the protections afforded to traditional media.
It is this backdoor that is currently being used by the US government to attempt to secure, with out warrant, the Twitter records of three subscribers believed to have assisted in the Wikileaks case. Had U.S. Magistrate Judge Theresa Buchanan (V.), not unsealed the government’s requests for these accounts, the action on the part of the State Department may have gone largely unnoticed to a greater segment of the population.
Combined, The SHIELD Act allows for prosecution, while the Media Shield Act effectively leaves the way open for warrantless intrusion, with out the benefit of “Reporters Privilege”. It’s a two-pronged attack with all sides of governmental protection being denied to non-traditional media.
While the SHIELD Act and Media Shield Law combined could be seen as a threat to “Objective Journalism” and Free Press, it could effectively cripple journalistic activism. Between the over-reaching amendment to Espionage Policy and the intentionally vague definitions of Journalism, especially in relation to new media, we risk that journalists, both Traditional and Non-traditional will choose to avoid subjects that, while should be examined, open them to prosecution and invasion of privacy.
Though Wikileaks is the “case of the day”, this powerful set of rules could encumber journalists and publishers with fear and threat that effectively allows for coercion of the press. And if this is true, then isn’t the role of non-traditional, journalistic activism, more important than ever in reaching out with important but risky and controversial issues?
The outcome of legislation like The SHIELD Act has yet to be seen. This is dangerous and unstable ground. The effects of this kind of legislation are dramatic especially through the lens of history. Our laws don’t work for just one person or one case. What applies to one applies to all. This is important to recognize, as this type of legislation allows for potential subversion of the press on the part of a government wishing to protect secrets even when those secrets and not in the interest of the people or to the benefit of National Security. We need to retain or journalistic right to free press and its freedom to report on both the positive and negative aspects of our political system.