Steve Vladeck on WikiLeaks

by Kevin Jon Heller

Steve testified yesterday about WikiLeaks in front of the House Judiciary Committee.  Here is a snippet of his testimony, which discussed five major flaws in the Espionage Act:

Second, the Espionage Act does not focus solely on the initial party who wrongfully discloses national defense information, but applies, in its terms, to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that, by that point, is already in the public domain. So long as the putative defendant knows or has reason to believe that their conduct is unlawful, they are violating the Act’s plain language, regardless of their specific intent and notwithstanding the very real fact that, by that point, the proverbial cat is long-since out of the bag. Whether one is a journalist, a blogger, a professor, or any other interested person is irrelevant for purposes of the statute. Indeed, this defect is part of why so much attention has been paid as of late to the potential liability of the press—so far as the plain text of the Act is concerned, one is hard-pressed to see a significant distinction between disclosures by WikiLeaks and the re-publication thereof by major media outlets. To be sure, the First Amendment may have a role to play there, as the Supreme Court’s 2001 decision in the Bartnicki case and the recent AIPAC litigation suggest, but I’ll come back to that in a moment. At the very least, one is forced to conclude that the Espionage Act leaves very much unclear whether there is any limit as to how far downstream its proscriptions apply.

Go read the whole thing — and then go read his guest post today at ACSBlog, in which he elaborates on some of the themes of his testimony.

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