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Draft:Lexis

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Publication Logo The Sunday Times (London)

February 22, 2009 Edition 1

Names of freemasons made public in leaked internet list

BYLINE: Mark Macaskill

SECTION: NEWS; Pg. 3

LENGTH: 551 words

THE names and addresses of 2000 freemasons, including 18 church ministers and justices of the peace, have been made public after a list of every senior Scottish member was published on the internet.

The document, believed to have been posted on the Wikileaks site by a former member, is an embarrassment for the organisation which has long been shrouded in secrecy.

The names of current members are published in the Grand Lodge's year book, which is available to the public on request at individual lodges.

However a list of office-bearers from all 1,100 Scottish lodges in Britain and abroad, has never been published on the internet before.

Among those named is William Renwick, 78, a retired justice of the peace and former convener of West Lothian council.

He said he was "not averse" to being known as a freemason but added that other members would not be comfortable with their association being made public. "I have been a freemason for 50 years, there's nothing wrong with it as far as I'm concerned. Of course we have our rituals but it's not a secretive movement. There will be people who will be uncomfortable that this list has been made public." Reverend Peter Price, a retired Church of Scotland minister from Bothwell in Glasgow, whose name also appears, said: "I was aware this list had been published, and why not? I'm not bothered at all." A source close to the Grand Lodge confirmed the list was genuine, saying: "The publication has not been endorsed by us, we simply would not have done this. It looks as if someone has taken the names of officebearers from a yearbook." The Scottish parliament, police forces and judiciary, encourage staff to declare any masonic links to avoid suspicion.

Last year, Michael Russell, the culture minister, revealed he had relinquished membership of the freemasons after being elected a nationalist MSP for South of Scotland in 2007..

Other political figures who have admitted being freemasons include the former Scottish Conservative leader David McLetchie and fellow Tories Jamie McGrigor, Brian Monteith, Phil Gallie and Keith Harding.

Freemasonry is one of the world's oldest secular fraternal societies. The Grand Lodge of Scotland was formed in 1725 and there are currently about 75,000 masons in Scotland.

There are around 5m worldwide..

Members are expected to show respect for the opinions of others, to behave charitably and to "strive for truth".

Prominent Scots masons have included Robert Burns, Sir Walter Scott, Arthur Conan Doyle and Sir Harry Lauder.

Russell, who followed in his grandfather's footsteps by joining the masons in 2004, said he had quit because membership of the organisation would have left him open to suspicion.

At the time, he said: "I felt it was best to declare membership of the Freemasons and in those circumstances I thought it would be best to resign. I did not think it was appropriate to be a minister and a member of anything that people would be suspicious of." However, he added: "I will not criticise it. If it was good enough for Robert Burns, it was good enough for me." Last year, the police complaints commissioner for Scotland ruled that Northern Constabulary failed to properly investigate a claim that some of its officers were influenced by the freemasons.

WE HAVE OUR RITUALS BUT IT'S NOT A SECRETIVE MOVEMENT

Copyright (c) 2008 The University of Texas School of Law The Review of Litigation

Fall, 2008

28 Rev. Litig. 203

LENGTH: 14150 words

Note: Changing With the Times: How the Government Must Adapt to Prevent the Publication of Its Secrets

NAME: Doug Meier*

BIO:

  • B.S.E.E., University of Texas, 2003; J.D. expected, University of Texas School of Law, 2009. I would like to thank Professor David Anderson for his guidance.

SUMMARY: ... Although the United States Supreme Court has not provided definitive guidance, prosecuting a traditional media source for publishing government secrets would be, at the very least, problematic. ... In addition to the problems encountered in prosecuting the traditional media, the new media presents new and distinct issues because of the evolution of technology. ... Additionally, some of the new media outlets, such as Wikileaks, are not generally held in as high esteem by the public as are the traditional media outlets, such as the New York Times. ... With a system of prior restraints designed to handle a very narrowly tailored set of circumstances, the government should be able to get a court-ordered injunction that would prevent sites like Wikileaks from publishing the documents in the first place. ... This further highlights the paradigm shift from the old media to the new media; it seems that most, if not all, traditional news outlets would obey a court-ordered injunction to prevent printing of the national security secrets. ... Therefore, this Note proposes that Congress incorporate the designation into the Espionage Act to ensure that pre-publication injunctions and post-publication prosecutions are consistent with one another. ... Geographical Limitations In today's Internet-centered world, it is quite possible (and even likely) that our government's secrets are published to a website hosted by an ISP that does not operate in the United States by somebody who has never set foot in the United States.

TEXT:

[*204] 

I. Introduction

On Friday, February 15, 2008, a district court judge in San Francisco ordered Dynadot, an Internet Service Provider (ISP), to shut down a website it was hosting, http://wikileaks.org (Wikileaks). n1 Wikileaks encourages everyday Internet users to post secret documents belonging to the government and corporations in an attempt to allow "the entire global community to relentlessly examine any document for its credibility, plausibility, veracity and validity." n2 The court order drew a great deal of criticism for being unconstitutional, and the judge reversed himself just a few weeks later, noting his previous order might constitute unjustified prior restraint. n3 In the meantime, however, even though Dynadot had complied with the order and shut down the site, Wikileaks remained available and accessible thanks to the use of mirror sites. n4

[*205] 

The unveiling of government secrets through the media channels has long been a controversial issue. Beginning with the debate surrounding the infamous Pentagon Papers, it has been a challenge to strike the appropriate balance between free speech and protecting sensitive government information. n5 Although the United States Supreme Court has not provided definitive guidance, prosecuting a traditional media source for publishing government secrets would be, at the very least, problematic. A host of both legal and practical issues would arise.

The introduction and expansion of new forms of media only increase the tension between recognizing free expression and protecting government secrets. The development of new media sources has challenged the definition and scope of the term the press. As contemporary methods of disseminating information replace traditional media outlets, the line between responsible reporting and outright espionage blurs. The problems associated with categorizing and defining new media sources have expanded the gray area between traditional newspapers serving as watchdogs and individuals possessing harmful intent.

The Wikileaks case highlights several problems emerging as we move further and further into the digital age. The fact that concern over First Amendment rights has allowed Wikileaks to remain fully operational demonstrates the failure of the government's current methods of combating the publishing of government secrets when applied to the new media. Furthermore, the clash between First Amendment issues and protecting the nation's security has only intensified because of the Wikileaks situation. When the court ordered Dynadot to shut down Wikileaks, Internet watchdog groups hurried to Wikileaks's defense, saying that this form of prior restraint was clearly unconstitutional. n6 As noted above, the judge ultimately reversed himself. The Wikileaks case, however, is important not because it implicates First Amendment concerns, but [*206] instead because it highlights an emerging problem. As newer technologies replace traditional media outlets and the paradigm of the press shifts from a model of a one-way information flow to one of interactivity, the problem of widespread dissemination of government secrets threatens to become all too common.

Before proceeding further, it is important to establish the distinction between what this Note will refer to as old media and new media. The term old media will be used to encompass what is generally considered the traditional press, including newspapers such as the New York Times, the Washington Post, and the like. It also includes smaller newspaper-type establishments such as local newspapers, community newsletters, and even the lone pamphleteer.

The term new media, on the other hand, will refer to the recent digital news outlets that have evolved as technology has advanced. The defining characteristics of the new media outlets are interactivity, speed of dissemination, and low cost of entry. The interactivity element replaces the traditional press's one-way information flow by allowing Internet users to post real-time comments about articles and to discuss or debate various aspects of the articles with other readers. The speed of dissemination of information is another redefining characteristic of the new media. Stories need not be held until they can be printed in the next day's newspaper; now they are posted online the minute they are finished. Similarly, articles travel faster because they are accessible by a larger audience and do not depend on the newspaper being delivered to gain exposure. The low cost of entry also separates the old media from the new media. Under the framework of the new media, anybody with an Internet connection can maintain his or her own blog and become an amateur journalist - a stark contrast to journalists who build their entire career around working for a traditional newspaper. The new media, for the purposes of this Note, most notably includes bloggers who do their own news-gathering and original reporting n7 and people who either maintain or participate [*207] in community forums, such as those persons operating or posting to Wikileaks. n8

This Note examines the problems the government faces when prosecuting the new media for publishing government secrets and how these problems can be addressed. Part II begins by examining the background of the problem of publishing government secrets, and then evaluates the difficulties that exist when prosecuting the traditional media sources. Part III looks at how these problems apply to the new media outlets. In addition to the problems encountered in prosecuting the traditional media, the new media presents new and distinct issues because of the evolution of technology. After examining the unique problems posed by the new media, this Note develops a detailed proposal in Part IV as to how the government can resolve these issues in order to effectively protect its secrets.

This Note argues that the government can and should pursue every possible avenue in order to protect its secrets. Clearly, this means the government must work harder to protect its secrets from ever getting leaked. Leaks, however, are inevitable, and the government would be well served to spend its time and resources prosecuting those who publish its secrets. n9 Hopefully, this post-publication prosecution would deter future leaks.

II. Background of the Problem

A. The Pentagon Papers

One of the first - and most famous - examples of the problem of publishing government secrets occurred in the context of the traditional newspaper. In 1971, the government sought to enjoin the New York Times from publishing the contents of a top-secret study, commonly referred to as the Pentagon Papers, that analyzed [*208] the United States military's involvement in the Vietnam War. n10 Refusing to enjoin the publication, the Supreme Court noted that "any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity," and a party who seeks to have such a restraint upheld "thus carries a heavy burden of showing justification for the imposition of such a restraint." n11 The government's interest in protecting this classified study was not enough to justify a prior restraint, and the New York Times was allowed to publish the study. n12

B. The "War on Terror"

Not unlike the Vietnam War, which was at the heart of the Pentagon Papers case, n13 the more recent "War on Terror" has led to publication of a number of articles that have revealed government secrets. For example, a 2005 Washington Post article revealed that the CIA was operating a covert prison system across eight countries used for hiding and interrogating some of its most important al-Qaeda captives (black sites). n14 Until the article's publication, these black sites were known only to "a handful of officials in the United States and, usually, only to the President and a few top intelligence officers in each host country." n15

Around the same time, the New York Times ran an article outlining the President's secret wiretapping program, which allowed the National Security Agency to listen in on certain international phone calls of people inside the United States. n16 According to the government, the disclosure of this secret program alerted would-be terrorists to the possibility that they were being watched. n17

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C. The Problem of Leaks in the Context of the Old Media

A common thread links the above examples: the disclosure of government secrets took place through the channels of the traditional media. The source of the article was easily identifiable and there was a quite tenable argument that the publication of those secrets was done for the good of the country. If, in fact, the government was operating outside the bounds of the law, then it was the responsibility of the press, functioning as the Fourth Estate, to bring it to the public's attention and thereby initiate public discourse. n18

Ultimately, no criminal charges were filed against the New York Times over the publication of the Pentagon Papers. The Pentagon Papers case only addressed prior restraint on publication, and therefore the Court did not rule on criminal liability for the act of publishing the classified information. However, even though the issue was not in front of the Court, some of the justices touched briefly on the subject. In his concurring opinion, Justice White discussed the possibility of criminal sanctions against the New York Times for publishing the information:


Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue [*210] of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings. n19

Justice Stewart, in addition to joining Justice White's opinion, stated in his own concurrence that "undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets." n20 In fact, not only did some members of the Court seem to think that criminal charges might have been appropriate, but:


Members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. [One senator], for example, was quite sure that the editor of such a newspaper "should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing." n21

Moving to more recent examples, many people thought that the journalists who published the story revealing President Bush's secret wiretap program would be prosecuted. n22 No such prosecution was ever initiated. Making the issue even more complicated, the Supreme Court has refused to "answer categorically whether truthful publication may ever be punished consistent with the First Amendment." n23 While there is some lively scholarly debate as to whether the press can legally be prosecuted for publishing government secrets, the Department of Justice believes that Congress [*211] has statutorily authorized prosecution of a newspaper and a reporter for publishing classified information. n24

While one can imagine the government did not pursue criminal charges against the reporters in any of the aforementioned cases because it thought it lacked a legally tenable case, perhaps it had more to do with the traditional media paradigm under which the secrets were revealed. The government may not have agreed with the disclosures, but it could at least recognize that the traditional media was, to some extent, just doing its job. Arguably, there was no element of sabotage or malicious intent, which does not always appear to be the case when looking at the problem in the context of the new media.

III. The Face of the New Media

The face of the media has changed. In the past, the public relied primarily on newspapers to keep them informed on the state of affairs. There were times when journalists would get hold of government secrets, and, after some consideration, the newspaper would print those secrets in order to spark public discourse. n25 Today, however, it is not simply journalists who are getting their hands on the government's secrets. Instead, websites exist for no other reason than to encourage people to leak documents. These websites promise to be untraceable - yet another way to help entice otherwise law-abiding citizens to disclose classified documents. Indeed, Wikileaks describes itself as "an uncensorable version of Wikipedia for untraceable mass document leaking and analysis. It combines the protection and anonymity of cutting-edge cryptographic technologies with the transparency and simplicity of a wiki interface." n26 Wikileaks promises its users complete anonymity. n27 The idea is that people will leak secret documents to the public without fear of [*212] retribution - either from the persons from whom the documents were stolen or from the government itself in the form of criminal liability. n28 This goes far beyond journalism; some of these actions cross the line into the realm of blatant espionage.

Wikileaks perfectly exposes the problem of the publication of leaked government secrets in the digital age. With the growth of the Internet and the speed at which information is disseminated, preventing the unwanted spread of information has become increasingly difficult. While the problem of leaking government secrets has always existed, the Internet has amplified the magnitude of the issues. In fact, in response to the injunction aimed to shut Wikileaks down, Wikileaks compared its case to the Pentagon Papers case. n29 One might more accurately describe it as the Pentagon Papers case with a twist. The technology aspect, which did not exist in 1971, changes the dynamic of the problem completely.

A. The Paradigm Shift

When this Note refers to the paradigm shift from the old media to the new media, it refers to the change in the way people interact with one another thanks to the evolution of technology and the integration of technology into people's daily lives. The backbone of the new media is the Internet, and people have become used to being able to access a world of information with the mere click of a mouse. With the evolution of technology, everybody now has a voice. However, in the framework of the new media, nothing is guaranteed to be accurate. Articles are not always written by educated, unbiased journalists, and information is not always published in order to benefit society. In the realm of the new media, anybody with Internet access can become "published."

While the Wikileaks website is a very illustrative example of the problem, the same concepts easily apply to bloggers who dig up classified information themselves and publish their own "investigative" [*213] piece. As the new media continues to evolve, the ways in which government secrets are disseminated may change, but the core problems seen in the Wikileaks situation are sure to surface again and again.

B. Prosecuting the New Media Under the Espionage Act

To date, no reporter has been prosecuted for publishing the government's secrets. n30 As the paradigm continues to shift from a focus on old media to one on new media, there is no valid reason why the government should continue to refrain from using criminal prosecution to protect its most valuable secrets. In fact, as the old media evolves into the new media, this is the perfect opportunity for the government to reevaluate the way it protects its secrets and the new threats it faces from the new media.

As the media paradigm shifts to one where a person can much more easily disclose classified documents and information travels much more quickly and is much more easily reproducible, the government must step up and take action to prevent further information leaks. It may not be able to entirely stop the problem, but if it zealously pursues criminal prosecutions of anybody who reveals its secrets, it can hope to deter more leaks in the future. Many of the reasons the government may not have prosecuted leaks in the past no longer apply as the old media gives way to the new media.

As discussed above, it is quite possible that journalists and newspapers could legally be prosecuted for publishing government secrets. n31 This criminal liability would stem from the idea that publishing government secrets violates the Espionage Act. If the editor of the New York Times had secretly handed over the Pentagon Papers to a foreign government, few would argue that this would not have violated the Espionage Act. It stands to reason that publishing the Pentagon Papers would be no less of a violation of the Espionage Act.

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C. First Amendment Analysis for the New Media

The First Amendment issues that have always applied to the old media still apply equally to the new media. While these issues do present some obstacles to prosecution, the obstacles are in no way insurmountable.

1. Free Speech

Shutting down a website, just like shutting down a printing press, is akin to a prior restraint and would likely fail to overcome the "heavy presumption against its constitutional validity." n32 That is not to say, however, that post-publication prosecution does not come with its share of First Amendment problems. Prosecution based on the content of publication squarely implicates free speech, and journalists would argue that the criminalization of publishing is inherently unconstitutional. But the right to free speech is not absolute. n33 The Supreme Court has said of the right:


"The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity." n34

Moreover:


There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of [*215] which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words - those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. n35

Thus, Congress may regulate certain aspects of free speech and provide appropriate punishment for violations of Congressional mandates.

2. Free Press

Further, whatever may have been said in the past of the concept that the press, as an entity, enjoys freedom from prosecution for violations of the Espionage Act by the Press Clause of the United States Constitution, this argument simply lacks any force under the new media paradigm.

Justice Stewart argued that the Press Clause was meant "to create a fourth institution outside the Government as an additional check on the three official branches." n36 If this is indeed the case, then the government might have not prosecuted the old media on the theory that the Fourth Estate is just doing its job. But as the paradigm shifts to the new media, one can hardly see how this new media fits the concept of the Fourth Estate that the framers of the Constitution had in mind. When websites exist solely for the purpose of encouraging the reckless - and illegal - disclosure of secret national security information, this becomes more than just the constitutionally-envisioned Fourth Estate doing its job. In this respect, the so-called Fourth Estate has failed to serve its function and has actually become harmful instead of helpful.

D. Policy Considerations

When considering why the government has never initiated a prosecution of the old media for the publication of government [*216] secrets, one should keep in mind that there are delicate policy considerations that have surely factored into the government's decisions. Regardless of the force with which those considerations applied to the old media, they simply do not provide justification when considered in light of the new media.

1. Public Perception

Most notably, the traditional media outlets are very deep-pocketed defendants who would have been able to mount tremendous defenses against any type of prosecution. More importantly, the traditional media has a great deal of public influence that it could easily use to make the government look like the "bad guy." Even if the government had a valid case, it quite conceivably might want to avoid putting itself in the grossly unpopular position of prosecuting the media for, as the media would frame it, simply keeping the public informed as to the inner workings of the government.

Because the new media is a much newer industry and is much more fragmented than the traditional media, the new media outlets most likely have much less public influence to use to their advantage. Additionally, some of the new media outlets, such as Wikileaks, are not generally held in as high esteem by the public as are the traditional media outlets, such as the New York Times. Therefore, the government does not have as much to lose, in terms of public approval, by going after some of the new media outlets.

2. Internal Safeguards

Additionally, the government knows that the traditional media has internal safeguards that exist to prevent them from publishing government secrets that could be damaging to the security of the nation. Editors make the final decision on what stories to run, and they might decide that it would be in the nation's best interest not to run a particular story.

Many of the new media outlets, on the other hand, are generally not constrained by those same internal safeguards. As highlighted in Part III.A, part of the appeal of the new media is that anybody with an Internet connection can become a "journalist," for [*217] better or worse. For example, not only does Wikileaks lack these internal safeguards, but it actually prides itself on being truly "transparent." n37 In the face of this goal of complete transparency, the government can no longer rely upon the internal checks of the traditional media to keep its secrets safe.

3. The "Streisand Effect"

Finally, the government is likely aware of what has come to be known as the Streisand Effect. n38 The idea of the Streisand Effect is that the filing of lawsuits in an attempt to protect privacy often has the opposite effect of that which was intended. n39 Instead of making the problem go away, the lawsuit draws unwanted attention to the issue, making it more popular and bringing it further into the public consciousness than it otherwise would have been.

In the old media and the new media alike, prosecuting certain persons for publishing government secrets might have the actual result of calling more attention to the classified information than it would have originally received. On the other hand, regardless of whether it is published through the channels of the old media or the new media, the public will quickly latch on to a truly newsworthy leak. With the speed with which information travels on the Internet, it would not take long for a newsworthy document leaked on Wikileaks, for example, to be reposted to a host of other websites [*218] and thrust into the mainstream news. Therefore, in the context of the new media, the Streisand Effect should not have enough of a deterrent effect to dissuade the government from prosecuting - and thereby calling attention to - the publication of government secrets.

IV. Proposed Solution

So far, this Note has laid out the problem of the disclosure of national defense secrets under the new media paradigm. Simply put, the problem is that the government must find a way to keep its secrets safe when there does not seem to be any sort of consequence for - or deterrent to - publishing those secrets. In this Part, this Note will develop the roadmap for a possible solution to the problems laid out above. This solution involves a combination of a shift in governmental thinking, the use of pre-publication injunctions, and most importantly, post-publication criminal prosecution.

A. Shift in Governmental Thinking

First, as the paradigm shifts from the old media to the new media, the government must likewise shift the way it views the online publication of its secrets. It ought to completely change the way it analyzes the problem. At the outset, the government must recognize that in an ever-increasing digital world, it is quite possible that it can no longer reasonably expect to keep anything secret. It is simply too easy for people with access to classified information to leak it to the public. With that mindset, the government's first step in combating this problem is to tighten up its current protocols for protecting its truly secret information. If it is more difficult for potential leakers to obtain national defense secrets, then it stands to reason that the overall number of leaks would decline.

B. National Security Secret Designation

Most people would likely concede that some leaks of documents - even those marked classified - are beneficial to the overall health of the nation. The disclosure of important classified documents can spark public discourse and help to steer public policy [*219] in the direction most favored by the people. The majority of the leaks encouraged by sites like Wikileaks, however, are not beneficial, and those documents should never be disclosed to the public.

As a way to distinguish between beneficial and detrimental disclosure of classified documents, this Note proposes that the government add another classification group to the currently existing scheme. Under the current scheme, there are three levels of Classified National Security Information: Top Secret, Secret, and Confidential. n40 This new classification would not necessarily replace any of the existing classification groups; instead, it would serve as an identifier that would modify the above three levels of classification. Ideally, this new classification group would be called National Security Secret, and it would apply to documents containing genuine national security secrets. The standard that a document would need to meet to receive National Security Secret status would be such that the disclosure of the document to the public would "surely result in direct, immediate, and irreparable damage to our Nation or its people." n41 By creating this standard, the government would effectively be creating a classification group that would properly allow for prior restraint.

C. Pre-Publication Injunctions

One obvious problem with trying to eliminate the publication of national security secrets is that under current First Amendment jurisprudence, it is doubtful that the government could shut down an entire website, such as Wikileaks, or an entire blog, such as the Huffington Post, simply because some of the documents or articles that could be posted in the future might contain national security secrets. That is simply not enough of a direct relationship to "direct, immediate, and irreparable damage" to justify a prior restraint. n42 However, surely there are cases in which the publication of documents can be prevented at the outset, and, with the fourth [*220] classification this Note just laid out, the government would now have a way to distinguish those documents.

1. Injunctions in Certain Cases

To prevent the dissemination of these documents, the government needs to have in place some sort of pre-publication stop that prevents these types of documents from being published in the first place. It is true that this sort of pre-publication stop would be considered a prior restraint; however, this does not automatically foreclose the possibility. In setting up a system of prior restraints, the government must be keenly sensitive to the constitutional issues it will face. With a system of prior restraints designed to handle a very narrowly tailored set of circumstances, the government should be able to get a court-ordered injunction that would prevent sites like Wikileaks from publishing the documents in the first place.

From a practical standpoint, the government would petition a court to enjoin certain ISPs and websites from publishing any documents bearing the designation of National Security Secret. Unfortunately, this might not be an entirely effective method because the efficacy of an injunction is completely dependent upon the website honoring it. As Wikileaks demonstrated after the district court judge ordered it to be shut down, it had no intention of obeying court orders such as these. n43 Thus, while it may be constitutionally acceptable for the government to impose prior restraints on the publication of national security secrets, it may not be practically effective. This further highlights the paradigm shift from the old media to the new media; it seems that most, if not all, traditional news outlets would obey a court-ordered injunction to prevent printing of the national security secrets. Unfortunately, reliance on good faith may no longer be enough to give a system of prior restraints any force.

2. Independent Review Court

A key factor to effectively - and perhaps constitutionally - enforcing prior restraints would be to set up an independent review [*221] court that would determine whether documents had been properly classified as National Security Secret. Some people might feel compelled to leak certain documents for the good of the country, and the independent review court would give those people a valid channel through which they could get permission to leak the document.

Under current First Amendment law, a prior restraint will stand only if the disclosure of the document will "surely result in direct, immediate, and irreparable damage to our Nation or its people." n44 Because the National Security Secret designation would be keyed to that particular standard, it would raise a rebuttable presumption that the document can be constitutionally enjoined from publication. The function of the independent review court would be to allow any person in possession of that document to rebut that presumption.

The result of this would be to allow for an effective review of the system of prior restraints. As discussed above, "any system of prior restraints of expression comes to the [United States Supreme] Court bearing a heavy presumption against its constitutional validity ... [and a party who seeks to have such a restraint upheld] thus carries a heavy burden of showing justification for the imposition of such a restraint." n45 The Executive branch would have the initial authority to classify documents as National Security Secret, but that ruling could be challenged at any time through this independent review court.

The function of the independent review court would be to review, in private, the documents to be disclosed and determine whether the disclosure would "surely result in direct, immediate, and irreparable damage to our Nation or its people." n46 If not, then the person could not be enjoined from leaking the document. On the other hand, if the independent review court affirmed the National Security Secret designation by determining that the document would cause "direct, immediate, and irreparable damage" to the nation, then the person seeking review could be enjoined from disclosing the document. n47

[*222] 

As a practical matter, the most efficient way to implement this independent review court would be to simply attach the National Security Secret designation review authority to the current Foreign Intelligence Surveillance Act (FISA) court. The FISA court is comprised of eleven federal district court judges from seven of the United States judicial circuits. n48 These judges are appointed by the Chief Justice of the United States. n49 Each judge serves for seven years, with one new judge appointed each year. n50 No judge may serve more than one term on the FISA court. n51 The only real change that would need to be made to the current FISA court would be to add a requirement that when reviewing the status of national security documents, more than one judge would be required to make a decision, and a majority vote would be necessary to either affirm or reject the designation. This Note proposes that five judges would be needed to hear a status designation challenge case, and a three-judge majority would be required to overturn the designation of a document as a National Security Secret. This would prevent one single judge from having the power to decide whether a classified document may legally be leaked.

Like with the system of prior restraints, the efficacy of the independent review court depends, at least to some degree, on the would-be leaker's good faith. The documents must get in front of the court somehow, and only people with genuine concern for national security would be willing to go through the proper channels to determine whether they might be able to disclose the document without any criminal liability. Unfortunately, some people who leak documents do so without regard for the consequences. Here again, this system only really helps those people who are willing to step forward with a document they would like to leak and effectively ask for permission before doing so.

[*223] 

3. Whistleblower Protection

In addition to allowing for independent review, there must be a built-in whistleblower protection that would encourage people who have a document they would like to leak to go to the independent review court in the first place. If a document is categorized as National Security Secret, by definition it cannot be revealed to anybody not entitled to see it. In a technical sense, just going to the independent review court would be revealing the document and, therefore, illegal. Congress could simply amend a whistleblower protection clause into the Espionage Act, allowing people in possession - either legally or illegally - of National Security Secret documents to bring them to the independent review court to challenge the National Security Secret designation.

Obviously, the review of documents by the court would be completely private to protect both the person bringing the document forward and the information contained in the document. As a final whistleblower protection, the independent review court would necessarily be segregated from the governmental agencies that protect these documents and enforce the leaks. A person would not feel free to bring a document in front of the court if that information would ultimately make it back to his or her employer. The goal is to encourage people who are considering leaking documents to use the proper channels before doing so; anonymity in the review process is necessary.

Further, if the review court were to decide that the National Security Secret designation was unwarranted and therefore removed it, and the document was subsequently leaked, the agency from which the document was taken would have an interest in figuring out exactly who had recently challenged that designation. The court must be statutorily protected from ever having to disclose the identities of persons who have successfully challenged a document's designation.

On the other hand, if a person unsuccessfully challenges the designation and the document later ends up being leaked, the government should, at the very least, be able to use that person's identity in investigating the source of the leak. Of course, it cannot simply assume that the person was the leaker; to the contrary, it seems that the person who went to the trouble to get the document [*224] reviewed by the court should be presumed not to be the leaker. However, the government could talk to that person in an effort to determine the source of the leak. It is doubtful that this would have any chilling effect because, as already discussed, the people who would be inclined to use the independent review court would generally be acting in good faith and would therefore be likely to abide by the court's ruling.

D. Post-Publication Prosecution

While the system of prior restraints described above would function to prevent some of the truly detrimental leaks while still allowing some arguably beneficial leaks to occur without any criminal liability, it is not enough by itself to prevent all, or even most, of the leaks that could damage the country's national security. The prior restraints depend too much on the good faith of the would-be leakers. To supplement this system, the government must also attack the problem of leaks of national security information by aggressively prosecuting the people responsible for these leaks.

The goal of aggressive prosecution would be to provide as strong of a deterrent effect as possible. If a large number of the people leaking classified documents are doing so for no other reason than because they can do so without fear of retribution and websites like Wikileaks make it easy, then it is quite likely that aggressive prosecution will effectively deter many of the leaks.

As an example of how effective the deterrent effect can be, it is useful to look at the problem of the illegal downloading of music. In 2003, the "RIAA [Recording Industry Association of America] filed more than 300 lawsuits against people suspected of distributing" copyrighted music files for free. n52 Shortly after the RIAA launched its campaign against individual copyright infringers, a study showed that the percentage of people in the United States who downloaded music files dropped by almost half. n53


[*225] 

This goes to show that the threat of prosecution can have a deterrent effect, especially when it is possible that the offenders were motivated by opportunity more than anything else. Many people will not risk prosecution just to get a few free songs; similarly, most people will not risk prosecution just to leak classified documents.

1. The Espionage Act

The government already has a weapon to attack this problem head on - the Espionage Act. n54 The act punishes anyone who "willfully communicates, delivers, [or] transmits" information "related to the national defense." n55 With a few minor changes, Congress could make the Espionage Act much more effective for dealing with the problem of publication of national security information.

a. National Security Secret Documents

As discussed above, this Note has proposed that the Executive branch create a new designation of classified information called National Security Secret. This label would apply to any document that would create criminal liability if leaked or published. Therefore, this Note proposes that Congress incorporate the designation into the Espionage Act to ensure that pre-publication injunctions and post-publication prosecutions are consistent with one another. Congress simply needs to change the language "relating to the national defense" to say "designated as National Security Secret."

b.

"Publish"

The language of the Espionage Act might not apply to journalists and the press because it only makes the act of "communicating, delivering, [or] transmiting" criminal. n56 Journalists - and the traditional media in general - would argue that the Espionage Act does not apply to publishing, which is exactly [*226] what they are doing. Indeed, as Justice Douglas observed in his concurrence in Pentagon Papers, Congress rejected a version of the Espionage Act that prohibited "the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense ... ." n57 This rejection of the version using publish in favor of the version using communicate suggests that Congress had no intention of imposing criminal liability for the act of publishing.

Therefore, in order to effectively combat the problem of leaking information onto the Internet through sites like Wikileaks or even through bloggers acting as journalists, Congress must amend the Espionage Act to ensure that it specifically applies to the act of publishing. The statutory language of 18 U.S.C. § 793(e) must define "communicates or cause to be communicated" to explicitly include publishing articles or posting information on the Internet.

c. Surreptitious vs. Public Disclosure

It is possible that Congress purposely chose to exclude the act of publishing from criminal liability based on the premise that wide dissemination to the public of classified information is not as big of a threat as is the surreptitious transmission of classified information. When traditional media publishes the government's secrets, the government knows exactly what was revealed and has notice that the enemy knows the information. On the other hand, when a person surreptitiously gives the information to the enemy, the government has no knowledge of what information was turned over or even that it was turned over in the first place.

While this may have been a valid consideration under the old media paradigm, this Note suggests that it is no longer a relevant distinction. Because this Note argues that the government needs to aggressively pursue all violations of the Espionage Act, the hard-line rule cannot take into consideration the circumstances under which the disclosure was made. Therefore, to further strengthen the Espionage Act and defeat any such legislative intent argument, Congress should add language to the Espionage Act noting that it is [*227] of no importance whether the information was communicated in secret or disseminated to the public.

2. Tracking Down Violators

The most difficult problem the government will face in prosecuting people for publishing national security secrets is that of anonymity. It is quite likely that the government will have no idea who actually posted the national security information. When the traditional media publishes an article, it is often clear who wrote the article. And, even if the author does choose to remain anonymous, there is still a major news source that may be held liable for the publication. On the other hand, when somebody anonymously posts an article on the Internet, it is not immediately apparent who posted it. To effectively prosecute somebody for posting government secrets, the government must first know who actually posted those secrets. For example, Wikileaks, which recognizes that people who "provide leaked information may face severe risks, whether of political repercussions, legal sanctions or physical violence," boasts that its website "incorporates advanced cryptographic technologies to ensure anonymity and untraceability." n58 This anonymity presents obvious practical problems to the enforcement of the Espionage Act.

a. The Problem of Anonymity

In addition to websites themselves promising anonymity, third-party companies now offer computer software that promises to make Internet users completely untraceable. n59 As technology becomes more sophisticated, it becomes easier for Internet users to remain anonymous. To add to the problem, many community forums, such as Wikileaks, do not require a user to log in to post [*228] documents or comments. n60 Thus, anybody can simply go to the webpage and upload a classified document for the entire world to see. This is the most difficult scenario to deal with from an enforcement perspective. Once a document has been uploaded, it is likely untraceable.

Amateur journalists turned bloggers, on the other hand, may prove slightly easier to catch since they repeatedly post to the same blog. Additionally, in order to maintain a blog, some form of log-in is required. n61 Because of the registration and log-in aspect of blogs, it would seem that it would be slightly easier for the government to catch people posting classified information on their blogs. The registration process, however, might not be helpful in identifying anonymous users because users can simply register using false information.

No easy solution to the problem of anonymity exists. Luckily, as the technology that provides anonymity evolves, so too does the technology the government uses to crack that anonymity. If the government can combine some of this cutting-edge technology with some old-fashioned detective work, it should be able to track down who is posting its secrets.

b. Locating the Offending Computer

The government uses two different types of technology similar to caller ID units, pen registers and trap-and-trace devices, to locate offending computers. A pen register tells government agents the number being dialed by a telephone. n62 It does not tell them to whom that phone number is registered, and it cannot reveal any of [*229] the content of the phone conversation; it simply gives the number dialed. n63 On the other hand, a trap-and-trace device works in the opposite direction. n64 It tells agents the number of the phone that is calling the phone being monitored. n65 Again, it does not tell to whom the calling number is registered, and it cannot reveal any of the content of the phone conversation; it just gives the calling number. n66

The USA PATRIOT Act expanded the definition of a pen register to include devices or programs that provide an analogous function with Internet communications. n67 Prior to the USA PATRIOT Act, it was unclear whether or not the definition of a pen register, which included very specific telephone terminology, could apply to Internet communications. n68 Currently, however, pen registers and trap-and-trace devices can be used to track both phone calls and computer communications. At one time, there was a physical distinction between a pen register and a trap-and-trace device. But with today's technology, the distinction has been erased - computers perform both sides of the trace, functioning as both a pen register and a trap-and-trace device.

A pen register and a trap-and-trace device may legally only give the government the header information of the computer or e-mail being traced. n69 It may not disclose the content of the messages. n70 However, the header information of the computer being [*230] used to post the classified documents provides the government with a good starting point.

c. Locating the Offending Person

Once the government has determined the identity of the computers, the next step will be to use a national security letter (NSL) to force the ISP to identify the owner of the website. A NSL is effectively an administrative subpoena; it is issued by government agencies and is not subject to judicial review. n71 It is a written directive that orders third parties, such as telephone companies, financial institutions, ISPs, and consumer credit agencies, to provide customer information to the government. n72 The NSL will force the ISP to disclose to the government the suspected offender's billing information. Since the enactment of the USA PATRIOT Act, to get an NSL the government need only certify the information sought as "relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, provided that such an investigation of a United States citizen is not conducted solely on the basis of activities protected by the first amendment to the Constitution of the United States." n73 As long as the government is willing to certify that the billing records are "relevant to an authorized investigation," it should have no trouble getting these records. n74

Assuming the person uploading the files is not an incredibly sophisticated computer user, this technique of locating the person posting the classified information should work. If the person is posting from home or work, the government should be able to track down the information because that person has to pay for Internet access from the ISP. These billing records should provide enough information to allow the government to find the right person.

Unfortunately, the government's case is still not made at this point. Just because the government has a name and address does not [*231] mean it can prove who posted the information. This is where old-fashioned police work comes into play. The government would now need to obtain a search warrant to search the person's residence or office for evidence linking the person to the crime. If the government can find some evidence linking the person to the crime, the next obstacle to overcome would be the issue of jurisdiction.

3. Claiming Jurisdiction over Offenders

When analyzing the problem of effectively combating the publishing of government secrets in the new digital age, the problem of jurisdiction quickly appears. Nowhere else is the paradigm shift from the old media to the new media as apparent as in the realm of jurisdiction. In the days of the old media, it was clear that if the New York Times, for instance, published an article revealing the government's secrets, the government would have jurisdiction over the New York Times should it choose to prosecute. However, as the new media removes the geographical boundaries of possible violators, the problem becomes much trickier.

a. Geographical Limitations

In today's Internet-centered world, it is quite possible (and even likely) that our government's secrets are published to a website hosted by an ISP that does not operate in the United States by somebody who has never set foot in the United States. Turning again to the Wikileaks issue, the court order only applied to the U.S. website, which was hosted by a U.S. ISP. This order lacked real force because the court did not even attempt to exercise jurisdiction over the Wikileaks sites in other countries. If, instead of attempting to shut down the site, as that particular court did, the government had wanted to prosecute Wikileaks under the Espionage Act, how would it have been able to do so? So far, this Note has argued that the government can, and should, go after any and all violators of the Espionage Act; now it will show that the government can, in fact, claim jurisdiction over the violators operating out of foreign states.

It ought to be clear that if the person or entity publishing the secrets is operating within the United States, then the government should have no problem exercising jurisdiction over that person or [*232] entity. The jurisdictional problem appears at its peak when a foreign website, hosted by an ISP in a foreign country, posts or publishes the classified documents. At first blush, it would seem that the U.S. government would be without power to act. However, in an attempt to bring the problem into clearer focus, consider the following example: The London Times, through some of its sources, receives the U.S. military's latest classified plan for a coordinated strike in Iraq. It immediately runs the story, and the strike plan becomes accessible, via the Internet, almost everywhere in the world. In this case, the United States should not - and would not - be prevented from prosecuting the London Times merely because the London Times does not operate within the United States.

b. Extraterritorial Jurisdiction

The United States Constitution does not bar extraterritorial application of its penal laws, n75 and numerous cases have upheld the authority of the United States to enact and enforce criminal laws proscribing acts outside the United States that have adverse effects inside the United States. n76 The Supreme Court discussed the rationale behind this concept in United States v. Bowman:


But the same rule of interpretation should not be applied to criminal statutes which are, as a class, not logically dependent on their locality for the [*233] government's jurisdiction, but are enacted because of the right of the government to defend itself against obstruction, or fraud wherever perpetrated, especially if committed by its own citizens, officers or agents. Some such offenses can only be committed within the territorial jurisdiction of the government because of the local acts required to constitute them. Others are such that to limit their locus to the strictly territorial jurisdiction would be greatly to curtail the scope and usefulness of the statute and leave open a large immunity for frauds as easily committed by citizens on the high seas and in foreign countries as at home. In such cases, Congress has not thought it necessary to make specific provision in the law that the locus shall include the high seas and foreign countries, but allows it to be inferred from the nature of the offense. n77

This rationale seems to apply perfectly to the problem of the overseas publication of the government's secrets:


Two principles of extraterritorial jurisdiction recognized under international law are applicable here: the "effects" or "objective territoriality" principle and the "protective" principle.

The effects principle recognizes that "acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect." n78

The Restatement (Third) of Foreign Relations "takes the position that a state may exercise jurisdiction based on effects in the state, when the effect or intended effect is substantial and the exercise of jurisdiction is reasonable under § 403." n79 The Restatement goes on [*234] to say that "even when one of the bases for jurisdiction under § 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable." n80

The mass dissemination of the government's secrets - the military strike plan in this hypothetical - is clearly "intended to produce" harmful effects to the United States, and therefore the government would be justified in "punishing the cause of the harm as if it had been present at the effect." n81

Similarly, the protective principle of extraterritorial jurisdiction imparts jurisdiction when actions have a potentially adverse effect upon the security or governmental functions of a sovereign state. n82 This protective principle embodies the idea that a government should be free to protect its security, no matter where the threat originates. Further, this analysis squarely lines up with the requirement in the Espionage Act that the documents revealed are "related to the national defense." n83 This provides a built-in protective measure that works to ensure that the government cannot use the Espionage Act to go after whomever it chooses. Since the Espionage Act and the extraterritorial jurisdiction are both tied to national security, the government, by definition, cannot claim extraterritorial jurisdiction unless the Espionage Act first applies. These two principles, then, work together to provide a solution to the London Times hypothetical from above.

On the other hand, just because the government may effectively claim jurisdiction does not mean that it should always do so. In this area more than any other, a host of practical concerns come into play.

4. Getting Offenders Into Court

a. Extradition

"Extradition is the formal process whereby a fugitive offender is surrendered to the State in which an offense was [*235] allegedly committed in order to stand trial or serve a sentence of imprisonment." n84 However, there is no general rule of international law that requires a state to surrender the offenders. n85 Countries often rely upon either extradition arrangements or formal treaties to facilitate extradition. n86

The details and intricacies of extradition treaties are beyond the scope of this Note; however, suffice it to say that the United States has many extradition treaties in place and could rely upon these already existing arrangements to get foreign violators of the Espionage Act into the American criminal justice system. n87

Unfortunately, noting that the United States has many extradition treaties in place does not completely resolve the matter. "In some circumstances, States will refuse a request for extradition." n88 In the previous hypothetical, it is not difficult to imagine the United Kingdom refusing to extradite the editors and journalists of the London Times for simply publishing a story. More pointedly, many countries that are not considered "friends" of the United States would have a lot to gain from allowing the publication of our national secrets to continue; they would absolutely refuse to cooperate in any way.

b. Abduction

If a country were to refuse to extradite somebody who was posting and publishing U.S. secrets, the U.S. government could go find that person in the other country and bring him or her back to the U. S. for prosecution. n89 Not surprisingly, abduction is quite controversial, and the government should only resort to it in the direst of circumstances. n90

In the seminal case dealing with abduction, the Supreme Court in Ker v. Illinois held in line with "the highest authorities" that [*236] "such forcible abduction is no sufficient reason why the party should not answer when brought within the jurisdiction of the court which has the right to try him for such an offence, and presents no valid objection to his trial in such court." n91

The Court reaffirmed the rule from Ker in Frisbie v. Collins when it announced:


This Court has never departed from the rule announced in Ker that the power of a court to try a person for crime is not impaired by the fact that he had been brought within the court's jurisdiction by reason of a "forcible abduction." No persuasive reasons are now presented to justify overruling this line of cases. They rest on the sound basis that due process of law is satisfied when one present in court is convicted of crime after having been fairly apprized of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. There is nothing in the Constitution that requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will. n92

However, in applying the Ker-Frisbie doctrine in United States v. Alvarez-Machain, the Court strongly cautioned against this type of abduction: "Respondent ... may be correct that [his] abduction was "shocking' and that it may be in violation of general international law principles." n93 The Court went on to note the benefits of using a diplomatic approach in such situations. n94

While abduction is technically a viable option, from a practical standpoint it should not be used by the government as a way of enforcing violations of the Espionage Act when persons in [*237] foreign countries are publishing government secrets. On the other hand, it might be the only option as certain countries continue to grow more hostile towards the United States while at the same time supporting people who are working to undermine our national security.

5. Mirror Sites

Another problem the government will run into when trying to track down the persons responsible for posting or publishing its secrets is mirror sites. Again, Wikileaks provides a perfect example. Wikileaks maintained mirror sites, which are copies of websites that are usually produced to ensure against failures and court-ordered shut downs. n95 Mirror sites are most commonly used to provide multiple sources of the same information, and they can be especially helpful in providing reliable access to large downloads. The basic concept is this: if there are a lot of people trying to download file X from one server, then it will be slower for everybody because of that one server's limited capability. On the other hand, if there are five servers with identical copies of file X, downloads can be divided among the five servers, substantially speeding up each download. More important for the context of this Note, mirror sites are also used to prevent interruption of service when a website might be shut down - or even compromised - in the near future. As with Wikileaks, a website may maintain mirror sites in many different countries in case it gets shut down in one particular country.

As seen with Wikileaks, the U.S. government shutting down the American version of a website is not enough to prevent dissemination of documents. The government also needs to be able to quickly and successfully shut down mirror sites. With the speed at which information travels over the Internet, it is not at all a stretch to say that once something is released, there is no effective way to reel it back in. The government must devote its resources to deterring and preventing the problem in the first place. The harder the government cracks down on Espionage Act violations, the less likely people will be to publish its secrets in the future.

[*238] 

The process for dealing with the mirror sites as they pop up looks very much like the jurisdictional problem laid out above. n96 The government, unfortunately, will be forced to deal with each individual mirror site separately. Since each site is generally hosted by a different ISP in a different country, there is no broad solution to the mirror problem. However, under the plan this Note has laid out to combat these leaks, the government will target the individuals who are posting the classified information. It should not matter to which mirror the person posts. As long as the person posts to one of the sites, the government should be able to track the person using the information from the home or work computer.

V. Limitations to Proposed Solution

A. Sophisticated Computer Users

The above-outlined solution is not perfect. Because of the rapid evolution of technology and the bureaucratic red tape that plagues governmental investigation agencies, sophisticated computer users will always be able to stay one step ahead. The government will likely never effectively stop these people from anonymously leaking classified information.

As this Note commented at the outset of the proposed solution, the government must accept that the days of governmental secrets are gone. Ultimately, it will need to change the way it operates in an effort to be less reliant on secret national security information. The government's paradigm will necessarily continue to change, and it will most likely evolve from attempting to protect its secrets to a focus on not having any secrets. In the meantime, however, a system designed to prevent publication before it happens and to track down the offenders after it happens appears to be the most effective way to combat the growing problem.

[*239] 

B. Deterrence Schemes are Not Perfect

A second limitation of this Note's proposal as to how the government can stop the leaking of secret national security information is common to any deterrence scheme. No deterrence scheme is perfect, and in the arena of national security, the revelation of just one secret has the potential to be very damaging. Where seventy-five percent deterrence is acceptable in many areas of the law, it may not be high enough to have any noticeable effect when dealing with the leaking of secret national security information. Again, this leads to the conclusion that an overhaul of governmental thinking on this issue is in order. If the government can attack the problem from many different angles by protecting its secret information more carefully at the outset as well as producing less classified information, a seventy-five percent effective deterrence scheme becomes much more effective.

VI. Conclusion

It is not surprising that the government has never prosecuted an old-media journalist for publishing its secrets. Although the government most likely would have been able to do so under the Espionage Act, overriding policy considerations indicate post-publication prosecution would not have been beneficial to the country. However, as the old media is ushered out by the ever-expanding new media, those policy considerations no longer carry the day. This Note has argued that under the paradigm of the new media, the best solution to the problem combines three key elements: (1) a shift in governmental thinking to recognize that secrets are no longer as safe as they once were, (2) a system of prior restraint to stop publication of secrets before it happens, and (3) aggressive governmental prosecution of anybody who actually leaks national security secrets. Until the government fully adjusts its methods of protecting its secrets to keep pace with the new media's methods for disclosing them, the best solution is to use existing crime-fighting methods that have been specifically tailored to the new generation of problems.


Legal Topics:

For related research and practice materials, see the following legal topics: Computer & Internet LawCopyright ProtectionCivil Infringement ActionsOwner RightsAdaptationComputer & Internet LawInternet BusinessInternet & Online ServicesService ProvidersConstitutional LawBill of RightsFundamental FreedomsJudicial & Legislative RestraintsPrior Restraint

FOOTNOTES:

n1. Bank Julius Baer & Co. v. Wikileaks, No. CV08-0824 JSW (N.D. Cal. Feb. 15, 2008) (order granting permanent injunction); see also Adam Liptak & Brad Stone, Judge Shuts Down Web Site Specializing in Leaks, Raising Constitutional Issues, N.Y. Times, Feb. 20, 2008, at A14 (describing the circumstances of the order and the potential for constitutional challenges).

n2. Wikileaks:About - Wikileaks, http://secure.wikileaks.org?/wiki?/Wikileaks?:About (last visited Sept. 20, 2008).

n3. Bank Julius Baer & Co. v. Wikileaks, 535 F. Supp. 2d 980, 983 (N.D. Cal. 2008); see also Jonathan D. Glater, Judge Reverses His Order Disabling Web Site, N.Y. Times, Mar. 1, 2008, at A11 (describing Judge White's withdrawal of, and concern over, his previous order).

n4. E.g., German Wikileaks mirror, http://wikileaks.de (last visited Oct. 24, 2008); Wikileaks info mirror, http://wikileaks.info (last visited Oct. 24, 2008); United Kingdom Wikileaks mirror, http://wikileaks.org.uk (last visited Oct. 24, 2008).

n5. The Pentagon Papers were the contents of a top-secret study that analyzed the United States military's involvement in the Vietnam War. New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 714 (1971).

n6. See, e.g., Press Release, Elec. Frontier Found., EFF, ACLU Move to Intervene in Wikileaks Case (Feb. 27, 2008), http://www.eff.org/press/archives /2008/02/26-0 (stating that various civil rights groups filed motions to intervene on Wikileaks's behalf).

n7. The Huffington Post is a good example of a blog with original reporting. http://www.huffingtonpost.com/ (last visited Sep. 29, 2008). In 2006, the Huffington Post began original reporting instead of just reposting stories from other news sources. Katharine Q. Seelye, Huffington Post Will Add Original Reporting to Its Blog, N.Y. Times, Nov. 30, 2006, at C2.

n8. Community-based forums like Wikileaks exist all over the Internet. Anybody can contribute to these forums. Different forums have different levels of moderator supervision and offer different levels of anonymity to the poster.

n9. See, e.g., Developments in the Law - The Law of Media, 120 Harv. L. Rev. 990, 1008 (2007) [hereinafter The Law of Media] (noting, anecdotally, that George Washington himself read newspaper articles that recounted the minutes of his private cabinet meetings).

n10. Pentagon Papers, 403 U.S. at 714.

n11. Id. (citations omitted).

n12. Id.

n13. Id.

n14. Dana Priest, CIA Holds Terror Suspects in Secret Prisons, Wash. Post, Nov. 2, 2005, at A1.

n15. Id.

n16. James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. Times, Dec. 16, 2005, at A1.

n17. Id.

n18. See Potter Stewart, "Or of the Press," 26 Hastings L.J. 631, 634 (1975) (recognizing that the primary purpose of the constitutional guarantee of a free press was to "create a fourth institution outside the Government as an additional check on the three official branches").

n19. New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 740 (1971) (White, J., concurring) (citations omitted).

n20. Id. at 730 (Stewart, J., concurring).

n21. Id. at 734 (White, J., concurring) (quoting 55 Cong. Rec. 2009 (1917) (statement of Sen. Ashurst)).

n22. E.g., Walter Pincus, Prosecution of Journalists Is Possible in NSA Leaks, Wash. Post, May 22, 2006, at A4.

n23. Bartnicki v. Vopper, 532 U.S. 514, 529 (2001).

n24. Examining DOJ's Investigation of Journalists Who Publish Classified Information: Lessons From the Jack Anderson Case: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 3 (2006) (statement of Matthew W. Friedrich, Chief of Staff for the Criminal Division, U.S. Justice Department).

n25. See supra Part II.A

n26. Wikileaks:About - Wikileaks, supra note 2.

n27. Id.

n28. Id.

n29. See Liptak & Stone, supra note 1 (""The Wikileaks injunction is the equivalent of forcing The Times's printers to print blank pages and its power company to turn off press power,' the [Wikileaks] site said, referring to the order that sought to disable the entire site.").

n30. The Law of Media, supra note 9, at 1008-09.

n31. See supra Part II.C.

n32. New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 740 (1971).

n33. Near v. Minnesota, 283 U.S. 697, 708 (1931).

n34. Id. at 713-14 (quoting 4 William Blackstone, Commentaries 151-52).

n35. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942) (footnote omitted).

n36. Stewart, supra note 18, at 634.

n37. Wikileaks:About - Wikileaks, supra note 2.

n38. See Mike Masnick, Photo of Streisand Home Becomes an Internet Hit, Techdirt, June 24, 2003, http://www.techdirt.com?/articles?/20030624?/1231228?.shtml [hereinafter Masnick, Streisand] (explaining the circumstances of Barbara Streisand's challenge to have a photo of her home removed from the Internet). The term came into being because Barbara Streisand sued in order to have a photograph of her home removed from the Internet because it violated her privacy. Id. The lawsuit actually had the opposite effect of making the photograph widely known and widely posted. Id. If she had just let the original posting of the photograph disappear over time, she would have faced much less public exposure. Id. The lesson here is that "if you want to hide something from the Internet - you're only likely to make it more widely available, so you're often better off not stirring the hornet's nest." Id. The term was officially coined in a later piece by the same author. Mike Masnick, Since When Is It Illegal to Just Mention a Trademark Online?, Techdirt, January 5, 2005, http://techdirt.com?/articles?/20050105?/0132239?.shtml.

n39. Masnick, Streisand, supra note 38.

n40. Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).

n41. New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 730 (1971) (Stewart, J., concurring).

n42. Id.

n43. Wikileaks:About - Wikileaks, supra note 2 ("We are prepared, structurally and technically, to deal with all legal attacks.").

n44. Pentagon Papers, 403 U.S. at 730 (Stewart, J., concurring).

n45. Id. at 714 (majority opinion) (citations omitted).

n46. Id. at 730 (Stewart, J., concurring).

n47. Id.

n48. Foreign Intelligence Surveillance Act of 1978 § 103(a)(1), 50 U.S.C.A. § 1803(a)(1) (West Supp. 2008).

n49. Id.

n50. Id. § 103(d), 50 U.S.C. § 1803(d) (Supp. V 2005).

n51. Id.

n52. Eric J. Sinrod, RIAA Music Lawsuits Chill Online Downloading, USA Today, Jan. 14, 2004, available at http://www?.usatoday.com?/tech?/columnist?/ericjsinrod?/20 04-01-15-sinrod_x.htm.

n53. Id. (noting that the number of people who were downloading music online dropped from 35 million down to 18 million).

n54. Ch. 30, 40 Stat. 217 (1917).

n55. 18 U.S.C. § 793(e) (2006) (corresponds to Espionage Act § 1(d), 40 Stat. at 218).

n56. Id.

n57. New York Times Co. v. United States (Pentagon Papers), 403 U.S. 713, 721 (1971) (Douglas, J., concurring) (quoting 55 Cong. Reg. 1763 (1917)) (emphasis added).

n58. Wikileaks:About - Wikileaks, supra note 2.

n59. See, e.g., Anonymizer - Frequently Asked Questions, http://www?.anonymizer?.com?/company/about/anonymizer-faq.html (last visited Apr. 14, 2008) ("Our best selling consumer privacy solution ... protects you by keeping your IP address (and your identity) private. [It] works by creating an encrypted path between your computer and the Internet to shield you from even the most sophisticated methods of online spying ... .").

n60. To see how simple it is to post to Wikileaks, all a user needs to do is go to http://secure.wikileaks.org and click on "SUBMIT DOCUMENTS" from the toolbar on the left side of the screen. Next, the user clicks on "Click here to securely submit a file online," which will take the user to the upload screen. From there, the user selects a computer file to be uploaded and clicks on "Click here to send file." Wikileaks does not ask for any sort of identifying information.

n61. For example, on http://www.blogger.com, users are required to register by providing an e-mail address before being allowed to create a blog.

n62. See 18 U.S.C. § 3127(3) (2006) ("The term "pen register' means a device or process which records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted.").

n63. See id. ("Such information shall not include the contents of any communication.").

n64. See id. § 3127(4) ("The term "trap and trace device' means a device or process which captures the incoming electronic or other impulses which identify the originating number or other dialing, routing, addressing, and signaling information reasonably likely to identify the source of a wire or electronic communication.").

n65. Id.

n66. See id. ("Such information shall not include the contents of any communication.").

n67. Pub. L. No. 107-56, § 216(c)(2), 115 Stat. 272, 289 (2001) (amending 18 U.S.C. § 3127(3) (1994)).

n68. Computer Crime & Intellectual Prop. Section, U.S. Dep't of Justice, Field Guidance on New Authorities That Relate to Computer Crime and Electronic Evidence Enacted in the USA Patriot Act of 2001 (Nov. 5, 2001), http://www.usdoj.gov/criminal/cybercrime/PatriotAct.htm.

n69. See 18 U.S.C. § 3127(3), (4) (2006) ("Such information shall not include the contents of any communication.").

n70. Id.

n71. Office of the Inspector General, U.S. Dep't of Justice, A Review of the Federal Bureau of Investigation's Use of National Security Letters 1 (2007).

n72. Id.

n73. Id. at 13 (citing 18 U.S.C. § 2709(b)(2) (2006)).

n74. Id. at 13-14.

n75. Blackmer v. United States, 284 U.S. 421, 436-38 (1932).

n76. See, e.g., Am. Banana Co. v. United Fruit Co., 213 U.S. 347, 356 (1909) ("In cases immediately affecting national interests they may go further still and may make, and, if they get the chance, execute similar threats as to acts done within another recognized jurisdiction."); United States v. Castillo-Felix, 539 F.2d 9, 14 (9th Cir. 1976) (upholding the conviction of a defendant for counterfeiting alien registration receipt cards, even though the defendant did most of his work outside of the United States); United States v. Cotten, 471 F.2d 744, 749 (9th Cir. 1973) ("Extraterritorial application is ... justified by the international law "objective territorial principle' which condones jurisdiction of an offense committed elsewhere but taking affect within a sovereign that proscribes the conduct and is asserting jurisdiction."); Rocha v. United States, 288 F.2d 545, 548 (9th Cir. 1961) ("Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a state in punishing the cause of the harm as if he had been present at the effect, if the state should succeed in getting him within its power." (quoting Strassheim v. Daily, 221 U.S. 280, 285 (1911))).

n77. 260 U.S. 94, 98 (1922).

n78. United States v. Evans, 667 F. Supp. 974, 980 (S.D.N.Y. 1987) (quoting Strassheim, 221 U.S. at 285).

n79. § 402 (1987).

n80. Id. § 403(1).

n81. Evans, 667 F. Supp. at 980.

n82. Id.

n83. 18 U.S.C. § 793(e) (2000).

n84. Ilias Bantekas, Susan Nash & Mark Mackarel, International Criminal Law 139 (2001).

n85. Id.

n86. Id.

n87. See 18 U.S.C. § 3181 (2006) (listing all the countries with which the United States has bilateral treaties of extradition).

n88. Bantekas et. al, supra note 84, at 140.

n89. See id. at 170 (discussing abduction).

n90. Id. at 171.

n91. 119 U.S. 436, 444 (1886).

n92. 342 U.S. 519, 522 (1952) (citations omitted).

n93. 504 U.S. 655, 669 (1992).

n94. Id. at 669 n.16 ("The advantage of the diplomatic approach to the resolution of difficulties between two sovereign nations, as opposed to unilateral action by the courts of one nation, is illustrated by the history of the negotiations leading to the treaty discussed in Cook v. United States.").

n95. Liptak & Stone, supra note 1.

n96. See supra Part IV.D.3.


El Pais

October 24, 2008 Friday Andalucía Edición

Una 'Wikipedia' para los que se atreven a burlar la censura

BYLINE: LULA GÓMEZ

SECTION: PANTALLAS; Base; Pág. 64

LENGTH: 480 words

DATELINE: Madrid

"¿Tienes documentos que el mundo necesita ver? ¿Te ayudamos a publicarlos sin riesgos?", pregunta a los usuarios de Internet Wikileaks, una enciclopedia online para ciberdisidentes que pretende acoger los documentos que la censura de gobiernos o empresas no permita publicar. "Nuestro interés se centra en los países con regímenes totalitarios como China, la Eurasia central, Oriente Próximo y África subsahariana. También cooperamos con todos aquellos que quieran desvelar comportamientos no éticos por parte de sus gobiernos y empresas", reza su página web. Sus fundadores son un grupo de disidentes chinos, periodistas, matemáticos y expertos en telecomunicaciones de Estados Unidos, Taiwan, Europa, Australia y Suráfrica que creen en la información como principal valor en la defensa de la democracia.

El sitio Wikileaks.org, como su hermana la enciclopedia generalista Wikipedia, se alimenta de la información de los ciudadanos que voluntariamente colaboran filtrando documentos al gran público. La verificación recae en el equipo de la página, que hace un primer filtro, y en la propia comunidad de internautas, que con sus comentarios, discusiones y aportes van calificando lo que allí sale.

"Si un documento del Gobierno chino es transmitido por leaking [escape, filtración, en inglés], toda la comunidad china disidente podrá examinarlo y discutirlo. Y si es transmitido por este sistema desde Somalia, todos los refugiados somalíes podrán analizarlo y contextualizarlo", argumentan desde la web.

Así, una de sus noticias de portada hace unos días hacía referencia a la cárcel de Bragam que EE UU mantiene en Afganistán. Junto a ella, y a numerosos documentos y fotos, se invitaba a pinchar en la solapa "Discusión". Una vez allí, el lector se encontraba el aviso de que la información estaba todavía bajo la supervisión de los juristas de la entidad y que el artículo no ha recibido aún la aprobación final de calidad. Aparte, y como tónica general, se pide al visitante que participe de forma voluntaria con más documentos o comentarios que ayuden a clarificar el asunto.

¿Cuántos documentos tienen? Incontables, al menos eso dicen sus portavoces. "Hemos perdido la cuenta, tenemos miles de textos online y más de un millón de artículos por publicar". No obstante, esa promiscuidad a la hora de dar noticias (la web no tiene ni dos años de edad) podría ser su muerte. Porque el sitio es también criticado por publicar casi todo lo que se le cruza en el camino y por ser "irresponsable" al sacar a la luz pública información militar y gubernamental clasificada, algunas veces sin valor como noticia, amenazando la privacidad de los involucrados.

Por último, y para redondear el círculo y proteger a los que cuentan lo que ni gobiernos ni empresas quieren desvelar, no permite rastrear a los confidentes de los documentos censurados gracias a diversas técnicas criptográficas.


LOAD-DATE: October 24, 2008

LANGUAGE: SPANISH; ESPAÑOL


South China Morning Post

February 20, 2008 Wednesday

Injunction highlights Tung family finances

BYLINE: Tom Holland

SECTION: BUSINESS; Pg. 2

LENGTH: 605 words

The families of former Hong Kong chief executive Tung Chee-hwa and late CLP patriarch Lawrence Kadoorie must be spitting mad with Bank Julius Baer.

It was bad enough when a disaffected former employee of the Swiss private bank posted documents on the internet purporting to give details of their families' private financial transactions.

But by seeking a court injunction against the website on which the information was posted, Julius Baer has made things much, much worse.

In forcing the US host of Wikileaks.org to close the site down on Monday, the bank has only succeeded in igniting a publicity firestorm which has focused intense scrutiny on the documents - duplicated on a series of international mirror sites - when in all probability they would otherwise have continued to moulder away unnoticed in an obscure corner of cyberspace.

As one risk management specialist put it yesterday: "Julius Baer had a small fire, which it tried to put out with a bucket of petrol."

Among the documents posted on whistleblower site Wikileaks were more than 170 files purporting to detail millions of US dollars worth of transfers to and from offshore trusts in the name of MrTung's sister Shirley Peng, her husband John Peng Yin Kang, chairman of Taiwanese shipping company Chinese Maritime Transport, and a number of companies connected to family members and their business associates.

Several documents dating from the 1990s mention Mr Tung by name in connection with a Cayman Islands trust administered by Julius Baer and apparently controlling substantial investments in a number of Hong Kong companies and offshore hedge funds.

A smaller number of documents purport to detail information about $113US.75 million from the estate of the late Lord Kadoorie held in a number of bank accounts also administered by Julius Baer.

Other documents refer to alleged money-laundering by unrelated individuals and businesses.

The files were reportedly posted to Wikileaks by Rudolf Elmer, a former senior executive of Julius Baer's Cayman Islands subsidiary.

Sources close to the bank claim that some of the information posted is false, however Julius Baer has previously admitted that a number of documents were stolen from an overseas subsidiary in 2002. A Zurich-based spokesman declined to comment.

The whole affair is deeply embarrassing for the Swiss bank, which prides itself on its professional discretion. The big problem is that its attempt to block public access to the files, like so many previous efforts to censor the internet, has backfired spectacularly.

If Julius Baer had left matters stand, the chances are few people would ever have become aware of the documents' posting on the internet.

But by obtaining an injunction against the host of the US Wikileaks website it has sparked a controversy that will damage its reputation far more than the original theft ever could.

And by inadvertently publicising the posting of the documents, it has ensured that its clients' private financial dealings will be inspected and dissected at length both in cyberspace and by the more traditional media.

The intense embarrassment caused will surely ram home the vulnerability of private financial information in the internet age and send other institutions scrambling to beef up their own information security.

That, however, will be little consolation either to red-faced Julius Baer, or to the families of Mr Tung and Lord Kadoorie, who certainly will not appreciate their names being mentioned alongside alleged money-launderers, and who can look forward to a very public discussion of their private finances over the next few days.

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