UNPLUG WIKILEAKS? ENACT A FEDERAL SHIELD LAW INSTEAD

wikileaksBY PETER SCHEER—-The Obama administration has made no secret of its desire to unplug wikileaks, the whistleblower website infamous for data dumps of classified records. Of the few options available to the government, the best is one that probably hasn’t been considered in this context: enacting a federal Shield Law.

How would a Shield Law–a version of which has passed the House and awaits a vote by the full Senate—put Wikileaks out of business? The answer is that it would remove the need that Wikileaks fills. If that were to happen, wikileaks would receive few, if any, sensitive  documents leaked by sources inside US government agencies.

The purpose of a Shield Law is to enable journalists to protect the identity of their confidential sources—which, under current law, they can’t do. Although journalists, in dealings with a source, can promise confidentiality up to a point–-the point being when a federal judge orders a journalist to identify her source or go to jail—the risk of disclosure deters sources in many cases.

Journalists have had their hands tied in this way since 2005, when the Supreme Court declined to review federal court rulings ordering reporters Judith Miller and Matthew Cooper (then of the New York Times and Time Magazine, respectively) to reveal their confidential sources for information about the outing of CIA operative Valerie Plame.

The Supreme Court’s inaction fundamentally altered the relationship between journalists and  sources. Journalists could no longer credibly promise  anonymity to a source.  And whistle blowers came to realize that  federal judges enforcing  grand jury subpoenas could, and would, force journalists, despite their intentions to the contrary, to identify confidential sources.

Wikileaks emerged as a technological solution to this  hole in the fabric of legal rules implementing the First Amendment’s free press and free speech guarantees. Wikileaks is designed to foil subpoenas or other assertions of judicial power. Because the website is not tied to any single real-world venue and apparently was built with layers of redundancy, court injunctions issued against wikileaks, whether directed to its service providers (ISPs), lawyers or other entities, are unlikely to disable it.

More important, wikileaks claims to use technology that erases the fingerprints of  sources, rendering leaked documents untraceable. By contrast, the same documents leaked to the Washington Post, whether by means of email, “cloud”-based internet services or other electronic communications, would be vulnerable to interception and tracing. And if the documents, instead, were hand-delivered to the Post, its reporter could be subpoenaed and forced to testify.

Imagine, for a moment, that you are a government official in possession of an internal investigative report of official wrongdoing that has been suppressed because it would cause embarrassment to the administration. You wish to leak the report to the New York Times or the Los Angeles Times. The safest way to do that, today, is to leak the report to wikileaks with instructions for wikileaks to pass it on to one of those papers.

This, in essence, is what happened in wikileaks’ handling of the voluminous records it received concerning Iraq and Afghanistan. The source (or sources), rather than leaking to the New York Times directly, leaked to wikileaks. Wikileaks, in turn, provided the records to the New York Times (as well as the Guardian in London, Der Spiegel in Germany and other publications). The news organizations dealt only with wikileaks. They had no contact with, and presumably were never told the identity of, the sources.

Ironically, wikileaks’ surging notoriety, and the controversy surrounding its founder, Julian Assange, have only increased opposition in Congress to the Shield Law. But opponents, who are worried that a Shield Law could provide legal protection to wikileaks, miss the point. Wikileaks’ technology already gives it de facto immunity from American judicial process. The Shield law is irrelevant in that respect (although it does not exempt wikileaks, in fact).

But wikileaks’ continued viability does depend on traditional media’s vulnerability to the same judicial process.  Remove that vulnerability—through enactment of a Shield Law—and wikileaks’ utility will be greatly diminished. The resulting shift in leaked, sensitive documents from wikileaks to major news organizations, though hardly ideal from the standpoint of US government agencies, is still a huge improvement: legitimate news organizations are sensitive to security concerns and don’t engage in wholesale dumping of classified data on the internet.

Turning out the lights at Wikileaks’ is not the only reason or even the main reason to back the Shield Law, of course. However, it has the advantage of appealing across party lines in a Congress that is otherwise incapable of bipartisan legislation. And it provides a lawful means of protecting national security while also strengthening First Amendment rights.

Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition. The views expressed in this commentary are his alone.

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4 Comments

  • As much as I support the notion of a shield law, I am not sure that its implementation would diminish or even “greatly diminish” the need for Wikileaks. The fly in the ointment of this argument is that news outlets such as the Washington Post or the New York Times, while protective of their reputations as ‘great’ newspapers, are under the same economic strain that other news outlets are. This strain forces reductions in staff as well as reductions in the willingness to spend time (read “money”) on complex stories — the kind of stories for which Wikileaks provides the raw data if not the back story. News outlets may assert their devotion to the news and their craving for the red meat that goes into a good news story, but they are increasingly unable and perhaps unwilling to upset too many apple carts, least of all their own.

    The editorial room to-ing and fro-ing that accompanied the release of the Pentagon Papers so many years ago is, I think, magnified in a time when economics and patriotic politics holds so much sway. As time has passed, so, I think, has the courageousness of news operations.

    I am not convinced that a shield law — however much I might favor it — would do much more than slightly bruise the need that Wikileaks fulfills.

  • Maybe its time we allowed Wikileaks to reveal all the documents it has in hand. In the end when the dust settles it will have little or no lasting impact on relations between governments but will unfortunately seriously affect future government media relations.

    Truth in media is suspect because there is always someone writing the report and/or a person/organization behind the report to influence the angle of the subject.

    Truth and media are on two different planets. It doesn’t exist.

  • The government is violating wiki leaks 1st amendment. The government is in the wrong here. If you disagree with me go read the 1st amendment again and you will agree with me.

  • Senator Joe Lieberman is presenting a SHIELD Act. This is not exactly the federal shield law Peter Scheer suggests.

    The SHIELD ACT acts adds specifics to the 1917 Espionage Law. Securing Human Intelligence and Enforcing Lawful Dissemination Act is the SHIELD Act.

    One key addition is the of a definition of Human Intelligence: Procedures and methods employed in the collection of intelligence through human sources.

    The intent is to write a law to ensnare WikiLeaks when more documents are released. Journalists and internet sites will be challenged to report and divulge public information without a risk of being placed under undue legal pressure of the USA SHIELD Act.

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