Unplug Wikileaks? Enact a federal Shield Law instead

December 5, 2010

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

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

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

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

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

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

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

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

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

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

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

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

Peter Scheer, a lawyer and journalist, is executive director of the First Amendment Coalition.