WikiLeaks and the Espionage Act – how will the US press line up?

by Naomi Colvin

Considering that news broke this week of multiple subpoenas being issued by the federal Grand Jury in Virginia investigating WikiLeaks, it surprising how little attention this piece from the Wall Street Journal has attracted, not least as it went to press the day before the subpoenas (maybe just the latest round of them) were issued.  It deserves attention, not because it’s a particularly well-reasoned or thoughtful piece, but because it provides a clue as to how the US press might manage to support US legal action against WikiLeaks and Julian Assange, even though any such action could – in theory – be equally applicable to them:

The Espionage Act requires willfully endangering the U.S. It may seem unusual to consider intent in the context of how information flows, but without focusing on intent, the law would raise serious First Amendment issues. Many academics and media commentators—and perhaps overly cautious prosecutors—have missed the point that WikiLeaks is different from the New York Times. It’s the political motivation of Mr. Assange that qualifies him to be prosecuted. The publisher is not liable for its reporting.

We could, unfortunately, see more of this although from the legal documents themselves it looks as though other avenues are also being explored.  From the Washington Post:

“If the Justice Department concludes that a crime has been committed, it will twist itself like a pretzel to avoid using the Espionage Act, not only because it is old and vague but because it raises a number of First Amendment problems for prosecutors,” said Abbe D. Lowell, a Washington defense attorney who has handled leak cases.

U.S. officials would not comment on any subpoenas but indicated that prosecutors are likely to carefully weigh any decision to file charges under the Espionage Act, in part because of First Amendment concerns.

The April 21 letter, first reported by Salon.com, indicated that the individual served with the subpoena was to appear next month before a grand jury to answer questions concerning “possible violations of criminal law.” Possible violations include conspiracy to “knowingly [access] a computer without authorization” and to “knowingly [steal] any record or thing of value” belonging to the government.

“What they are trying to do is find proof that the WikiLeaks people were in a conspiracy with the leaker to get the information,” Lowell said. “If WikiLeaks is involved in the theft or improper access to the information, that’s not protected under the First Amendment.

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