Unplug Wikileaks? Enact a federal Shield Law instead

December 5, 2010

Peter Scheer

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.


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31 Comments

  1. davidbroadwater says:

    While I agree strongly with Scheer’s advocacy of the Shield Law, and that the source protection it would provide news reporters would well serve a free press, I have my doubts that the corporate media (who helped Bush/Cheney lie us into invading Iraq, e.g., New York Times) would investigate and report as diligently as he and others may assume.
    WikiLeaks has exposed President Obama’s executive branch interference with the judicial branch of a foreign and allied sovereign country, to subvert the application of national and international law; something which should concern every American citizen who cares about the stability of our constitutional republic.
    Leaked State Department cables show that, soon after its inauguration, the Obama administration launched a campaign to obstruct the Spanish National Court’s indictment of six Bush/Cheney officials for justifying torture. Coordinated by the U.S. embassy there, pressure was placed on Spain’s prosecutors, judges, attorney general and foreign minister. Obama’s attorney general had refused to pursue justice under the UN Convention Against Torture, a treaty the U.S. signed in 1988.
    Article 6 of the U.S. Constitution makes “all Treaties… the Supreme Law of the Land”. Obama’s negligence of his sworn oath to enforce the law, and obstruction of another nation’s obligation to do so, constitute violations of national and international law.
    Although this is all over the front pages of Spain’s newspapers, has been reported in England (Guardian) and domestically by Harper’s, The Atlantic, Mother Jones and others for over a week, the corporate media (NY & LA Times, Wash. Post, etc.) have kept the story off their pages. This information was not kept secret by the U.S. to protect our national security, and isn’t being silenced by our national media to protect intelligence sources and methods, but to hide Obama’s obstruction of justice and our nations’ complicity in crimes against humanity.
    It’s also meant to enable lackeys like Fareed Zakaria of CNN and Time who claims, about WikiLeaks, “the cables don’t show the United States doing anything duplicitous or underhand or scandalous” and “Ambassadors are not caught pushing other countries in order to make deals secretly” (CNN 12-5-10, Time 12-2-10).
    So, in the absence of a really free press in this country, rogue operations like WikiLeaks will probably continue to fill a need for an informed citizenry, with or without a Shield Law.
    For those interested in more on this story:
    http://www.guardian.co.uk/world/2010/nov/30/wikileaks-us-spain-guantanamo-rendition
    Guardian
    11-30-10
    Wikileaks: US pressured Spain over CIA rendition and Guantánamo torture
    http://motherjones.com/politics/2010/12/wikileaks-cable-obama-quashed-torture-investigation
    Mother Jones
    12-1-10
    Obama and GOPers Worked Together to Kill Bush Torture Probe
    http://www.harpers.org/archive/2010/12/hbc-90007836
    Harper’s magazine
    12-1-10
    The Madrid Cables
    posted by David Broadwater

    (5) 7 Total Votes - 6 up - 1 down
    • zaphod says:

      WTF?? Houston Hairballs
      According to one of the leaked cables, DynCorp, a DC based, tax-payer funded Texas corporation has been funding and throwing parties that include paying for child sex slaves…With US Government knowledge.

      (3) 5 Total Votes - 4 up - 1 down
    • OnTheOtherHand says:

      Exactly right!

      The very media that the right wing criticizes as “liberal” and “lame-stream” has been anything but liberal. If the corporate ownership hasn’t moderated most prior biases (as you suggest — and I agree), at the very least these institutions have been intimidated. The outpouring of venom from right wing media types who label as “unamerican” or “socialist” anyone who challenges the positions that they or their political puppets take has been effective. While there may be economic reasons for this cowardice, if they give in, they are no longer worthy of the label “Free Press”.

      I used to consider myself a “moderate” who strayed to both sides of the fence. Due to the effectiveness of right wing propaganda in redefining where the political center should be, I have been moved to the left despite my disagreement with much of the naive idealism found there.
      Someone needs to become a vocal advocate for the average middle-class American. Many in the Tea Party thought that was what they were doing. But their movement has been co-opted by right wing propagandists while mega-corporate fascists sit back and laugh at the futile and misguided attempts at populism.

      (2) 4 Total Votes - 3 up - 1 down
  2. ThomasA says:

    I agree with Mr. Scheer.

    The ‘secret’ data stolen by the Army private and dumped on Wikileaks demonstrates how poorly our well funded military manages the basics of internal security.

    Data systems are in use that should have never ever passed procurement.

    Basic data-security protocols in place, even in municipal gov’t , would block such data-downloads/copying as perpetrated, and would have sounded immediate ‘alarms’ even if just attempted.

    The Wikileaks bunch proffer themselves as an outlet for “whistle blowers”, and in that respect the need is there thanks to the steadily decreasing/non-existant investigative ‘news’ outlets. Unfortunately, after the ‘leaks group got the ‘secret’ poop from the private, and they approached the Feds seeking input, the walls went and we see results.

    (0) 8 Total Votes - 4 up - 4 down
    • zaphod says:

      thank you for the links
      Lets read the message and think about what it means, before we execute the messenger.

      (-1) 5 Total Votes - 2 up - 3 down
  3. SanSimeonSam says:

    I for one haven’t trusted our government since Nixon. I don’t buy the “national security” excuse for withholding information from the American public. I believe that excuse has cost us billions of dollars in corruption and countless lives in wasted endeveours such as Iraq. HOWEVER, i am not willing to have the likes of wikileaks and some SOB like Assange and his followers decide what should be released to public and international viewing. Classified documents are classified and their release is illegal. They may not really be classified and may in fact be so designated to cover up illegal activites on the part of members of our government (which i don’t doubt) but their release is still illegal and those that release them need to be prosecuted. The Americans involved should be prosecuted as traitors and the foreigners involved should be executed. In the meantime we Americans need to get our act together and form some independent oversignt committees (not associated with congress) to beef up the Freedom of Information Act so that better decisions are made on what information can and can not be released.

    (3) 17 Total Votes - 10 up - 7 down
    • BeenThereDoneThat says:

      I like what you said.

      (-1) 9 Total Votes - 4 up - 5 down
    • OnTheOtherHand says:

      Hmmm, if I believed that your idea of a good oversight committee was viable, I might be able to support you on the rest of your views. Actually, the policies in place for US citizens who leak are already strong enough. It hasn’t played out yet, but I suspect that the Private who leaked the docs to Wikileaks will end up spending the rest of his life in Leavenworth (or some similar place.)

      The fact that he was able to pass on the docs was a failure of security policy within the military. I understand that information must be shared within the military command if it is to be useful but there needs to be much tighter limits on access and some of the info. shared should not have been in the military’s network at all (i.e. diplomatic gossip unrelated to immediate operations.)

      I agree that Assange and Co. could be making some serious mistakes in what they are releasing but, like you, I don’t have much trust in the federal government. Unlike you (apparently), I also have NO faith that the problem of abuse of secrecy laws will be corrected and I fear tyranny from within more than threats from abroad. The gradual surrender of individual freedoms to the authority of an ostensibly representative government may not be as dramatic in appearance as an airplane flying into a building. But, for those of us who think that a free society is essential to human progress, it is far more dangerous in the long run and far harder to overcome.

      Also, Assange and Co. are not subject to US law as long as they operate outside the US borders. While, I don’t like the Wikileaks situation, the consequences of forcing our laws on others not operating within our borders are potentially worse in terms of alienating other nations than any benefits of pursuing him.

      (1) 3 Total Votes - 2 up - 1 down
  4. BeenThereDoneThat says:

    Alright let me try this from another angle. As it seems that people are scared to death of their Government and the power it possess, (not saying they aren’t right to) I find it even more scary to have the kind of power that is being wielded by this one man, in one man’s hand. If they can get into the Government files and bank files, how long do any of you think till they try and hold the internet hostage??? Now I know that some of you say it won’t happen. Hmm and this group just got into Gov. files and the net ,with it’s less than steller reputation for being hacked, wouldn’t be prime for him???

    (-3) 5 Total Votes - 1 up - 4 down
    • OnTheOtherHand says:

      I am one of the “paranoids” to which you refer. (“Just because you’re paranoid doesn’t mean that no one is out to get you.”) However, Wikileaks is not the same as the hackers who are trying to steal financial and other personal information about individuals. At most, they would act as a middleman for someone trying to expose corruption or other mis-deeds by some wealthy or powerful figure. Their organization is orientated toward complete transparency in government everywhere in the world. That philosophy may be naive at best and dangerous at worst but I don’t think that they want to kill the thing that makes their efforts plausible — the Internet.

      For threats to individuals through use of internet databases, I suspect that we would be much more at risk from some of the big corporations that have paid off enough of our Congress Critters to be able to do pretty much what they want. The misuse of health information by insurance companies and financial records by large lenders come immediately to mind.

      I also doubt that Assange and Wikileaks have the capability to do anything more than minor damage to the internet through active breachiing of security. Some of their supporters have more ability to do this but the biggest threats of that come from cyber war departments in places like China and Russia. The fact that they tolerate so many criminal hackers on their soil makes me suspect that they have reached some sort of an agreement that these hackers will help them out if they decide to attack using the Internet.

      On the same line of thinking, if this country is to be serious about defense, we need to continue to strengthen our ability to counter attacks through and to the internet. At the same time we need to be careful about over-reliance on it as much of the supporting infrastructure (communications lines and power sources) is quite vulnerable to a serious and coordinated attack.

      (0) 2 Total Votes - 1 up - 1 down
  5. danika says:

    I wholeheartedly disagree with BTDT. I do not feel Assange intention was terrorism and he should not be deemed a terrorist. His intention was to increase his footprint on the internet, notariety, and to damage the US in a political sense. If the government doesn’t want info leaked, they shouldn’t put it in print. Gotta be careful what you allow to be deemed “terrorism”. Next, it could be what you post here. Big brother now wants to control every aspect of your life. They are slowly chipping away at this under the guise of keeping us “safe”. Do you feel safer today than you did on 9-10?

    (6) 10 Total Votes - 8 up - 2 down
    • BeenThereDoneThat says:

      I say to you the same as to the poster monkeyscrew below. Check out the link.

      On top of that he is now threating leak on banks if arrested? How does this fit into you scheme of things? I had no problem with them when they started out but have grown to become suspicious of their actions recently, in the name of open jounalism.

      BTW the neg isn’t mine.

      (-5) 5 Total Votes - 0 up - 5 down
    • Cindy says:

      I think he should start a show called, World l Leaders Acting Badly. I don’t have a problem with the Wikileaks so far. Is it national security that is the concern or national embarrassment? I’ve been embarrassed by my gov along time, keep the leaks and the transparency coming, it’s time they suffer some embarrassment too.

      (-1) 9 Total Votes - 4 up - 5 down
    • danika says:

      I am now correcting my earlier statement. Mr. Assange, in my opinion, crossed the line into terrorism when he threatened to release information today about location of our military and other highly classified military information. To cause embarrassment to our government is one thing, to jeopardize global safety and that of our military is another. It does give one pause, tho, how a mere private first class could gather so much classified information…something doesn’t jive with this story.

      (-2) 4 Total Votes - 1 up - 3 down
      • BeenThereDoneThat says:

        You mentioned what I have been trying to say here to others. I have no problem with the embarrassment. If a person READS what I have been saying and link posted, is there a bigger picture to Mr. Assange, than the Robin Hood image he is trying to fool the masses with?

        (-2) 2 Total Votes - 0 up - 2 down
        • zaphod says:

          information and links to Mr Assange’s essays.

          (-2) 2 Total Votes - 0 up - 2 down
          • BeenThereDoneThat says:

            I read them. He’s a socialist. Hmm and we wonder why he has it in for the U.S.? Just more socialist clap trap bull.

            (-4) 4 Total Votes - 0 up - 4 down
            • zaphod says:

              Well the rascal socialist has turned himself in to authorities he is being held without bail for the serious charge off “sex by surprise” which is a type of crime in Sweden.

              (-2) 2 Total Votes - 0 up - 2 down
              • BeenThereDoneThat says:

                Or another word for it is RAPE.

                (-3) 3 Total Votes - 0 up - 3 down
                • zaphod says:

                  I suppose but he has no bail, Pinochet who participated personally in the electrical torture to death of a ‘socialist suspect’ … got bail in the same court.

                  (1) 5 Total Votes - 3 up - 2 down
                • BeenThereDoneThat says:

                  Well on that I agree. The justice system in this country and other countries, doesn’t make sense a lot of times in how punishment is handed out from one individual to the next.

                  (-1) 1 Total Votes - 0 up - 1 down
                • zaphod says:

                  “During my time in solitary confinement in the bottom of a Victorian prison I had time to reflect on the conditions of those people around the world also in solitary confinement, also on remand, in conditions that are more difficult than those faced by me. Those people also need your attention and support.”
                  .

                  (-1) 3 Total Votes - 1 up - 2 down
                • Kettel says:

                  That’s not what she said.
                  Not using a condom does not = Rape
                  Can I Google that for you?

                  (2) 4 Total Votes - 3 up - 1 down
                • BeenThereDoneThat says:

                  Well when it was first reported (at least when I first heard) weeks ago, the alegation was rape. Then I saw yesterday after my post, that now they say it was for not using a condom. So how to I Google a mistake the press made and not I????

                  (-1) 1 Total Votes - 0 up - 1 down
  6. BeenThereDoneThat says:

    I agree with what I saw Senators proposing this week. Make the Wikeleaks founder and Wikeleaks a terroist organization. I.e. threat to national security. Problem solved. Arrest Assange and jail the asshole. I am not against freedom of the press or sourses but this goes WAY beyond what these folks are doing. They are reckless and putting you, I and everyone else in this country in danger, with docs being leaked.

    I think it is appropreiate the first three letters in Assange’s last name. Fits him.

    (-13) 17 Total Votes - 2 up - 15 down
    • monkscrew says:

      What leaks in particular make you, I, and everyone else less safe?

      Govt in general should be more transparent, I say Kudos to Assange and Wikileaks! I am more interested in knowing what sort of shenanigans our elected officials are up to than the false pretense of “national security.” Stop blindly swallowing the Kool-aid and think for yourself.

      (13) 21 Total Votes - 17 up - 4 down
      • BeenThereDoneThat says:

        No Kool-aid here my friend. I suggest it is YOU that stop believing this posser hiding behind the guise of freedom, before some SERIOUS damage is done. Check out this article and tell me how this information is important in the shenanigans you mention????

        http://www.bbc.co.uk/news/world-us-canada-11923766

        (-4) 6 Total Votes - 1 up - 5 down
      • Smacks Forehead says:

        That is extremely naive. World politics is a dirty game that most don’t have the stomach for. “Shenanigans” as you say, come with the territory. There is no sitting out of the game just because you don’t like how it is played. We are in it like it or not.

        (4) 4 Total Votes - 4 up - 0 down
        • OnTheOtherHand says:

          What you say is true, but we have also made it worse with our involvement in affairs where a less greed and arrogance would have helped. (The middle-East and central America come to mind during the past 30 years.)

          (0) 0 Total Votes - 0 up - 0 down

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