Posted: November 27th, 2013
Wikileaks legal dilemna
Present democracies are guided by principles of ensuring transparency and accountability through easing the spread of information between the government and public. In addition, many modern democracies allow for the freedom of press and expression as a way of ensuring the public understands how their government is being run. However, information available to the public through available communication channels is at times limited so as to maintain security. Therefore, one can argue that a government is supposed to provide information seen as relevant for the public and restricting that which it sees as a threat to public security. The aforementioned statement although rational seems to contradict laws on freedom of speech (Wolters Kluwer Law & Business, 2009).
Present laws seem to lack a definition for the role played by the internet and internet sources. This arguably creates a dilemma on whether the internet can be termed as part of media or simply an information hub (Wolters Kluwer Law & Business, 2009). If termed a part of the media outlet, then prosecuting an individual for providing information to the public through this channel may be seen as unconstitutional with regard to the first amendment. The Federal government is currently facing this dilemma with regard to the Wikileaks phenomenon. Most government opponents are against prosecuting individuals involved in leaking what can be termed as information contained in diplomatic cables. This however should not be the case since the Wikileaks domain does not entirely prescribe to laws of freedom of speech and expression. In the discussion that follows, we aim to argue that contributors to Wikileaks break particular laws and should be able to be prosecuted by national governments. This will be argued through discussing forms of unconstitutional behavior practiced by the aforementioned individuals.
As earlier implied, most of the information contained within the Wikileaks site centre on diplomatic cables between foreign missions in the American government and is at best classified as confidential. According to the Federal law, any individual found leaking classified government information to the public can be prosecuted under the espionage act.
“Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States…or otherwise obtains information concerning any…office…or of any of its officers…or agencies… would be prejudicial to the national defense…” (Overbeck, 2006)
Contributors to Wikileaks break the aforementioned act by leaking cables that contain information that may negatively impact the security of the American government. Critics however argue that the information leaked does not entirely compromise American security and that prosecuting such contributors would require enough proof of such wrong doing. Lowell Abbe argues “If a charge survived such a challenge, courts have then stated the government has a much higher burden of proof if First Amendment activity is involved … (Dedman, 2011).” In addition, prosecuting contributors to Wikileaks will require proof beyond reasonable doubt of the acts being done in bad faith of the American Government. Solving this dilemma is rather easy through noting that Wikileaks intentionally redistributes information considered secret with malicious intent. According to a blog sourced from strategypage.com, the “…United States government has expressed alarm over some of the documents released on Wikileaks and has said that the information could hamper our efforts in Iraq and Afghanistan and could result in US military and civilian casualties … (Smitty 237, 2008).” With regard to the mentioned statements, contributors to Wikileaks should then be prosecuted for sharing information that may compromise security within America and internationally.
The American Government is presently trying to extradite Wikileaks founder Mr. Assange to face charges relating to his site and information contained there in. They are however facing opposition from the media sector as well as a substantial part of the local and international demographic. This opposition as obviously implied centers on a notion that the American government is presumably going against laws allowing freedom of speech and expression. In addition, opponents to prosecuting contributors to the Wikileaks argue that it is in sense an attack on media freedom. Wikileaks has in the recent past collaborated with mainstream media outlets to provide the aforementioned leaked information. They also seem to base their existence as a media station by actions such as recognizing their contributors as anonymous reporters and whistleblowers. Although they do provide a justified claim, their actions again go against the Federal act without essentially restricting freedom of expression or press freedom. Wikileaks “…communicates…and …transmits…”information to “…person(s) not entitled to receive it…” (Overbeck, 2006), and therefore warrant prosecution. As earlier implied, information leaked by Wikileaks is only to be seen by individuals in the United States diplomatic corps and government. It is therefore illegal for any other individual to observe or communicate such information. This means that even though Wikileaks may portray themselves as a media front to warrant protection from the First Amendment, they are still wrong.
Lastly, contributors to Wikileaks are also guilty of invasion of privacy and contradiction of the government secrecy clause. Although a rather weak argument that would probably hold little weight within judicial circles, it still is a viable claim. One could argue that the leaked information was essentially initially classified as secret and confidential. Therefore any access to this information without consent from the author or intended author could be seen as a form of ‘theft’. In addition, proof that the government initially restricted availability of the leaked information means that Wikileaks contributors are presently in possession of information they obtained illegally (Wolters Kluwer Law & Business, 2009).
In conclusion, prosecuting contributors to Wikileaks is essentially an argument between national governments against rights groups and the media, as well as a substantial part of the public. Despite holding the contributors as criminally liable for espionage and probably crimes against the state, it may create a dangerous situation through limiting freedom of expression and speech essentially ‘gagging’ the media and public. Notwithstanding threats posed by going against the First Amendment through successfully prosecuting contributors to Wikileaks, it should be understood that the needs of the general public should come before those of an individual. In addition, laws are structured to benefit every individual within a state and breaking any such laws puts the rest of the public at risk. In this case, contributors to Wikileaks expose information that may destroy to the American governance structure. Therefore contributors to Wikileaks should be held accountable, if not for breaking the espionage act, for exposing the American public to threat of insecurity.
Dedman, B. (2011). U.S. v. WikiLeaks: espionage and the First Amendment. Retrieved May 28, 2011, from http://www.msnbc.msn.com/id/40653249/ns/us_news-wikileaks_in_security/
Keller, B., & Star, A. (Ed). (2011). Open Secrets: WikiLeaks, War and American Diplomacy. New York: The New York Times Company.
Overbeck, W. (2006). Major principles of media law. New York: Cengage Learning.
Smitty 237 (2010, August 3). Wikileaks and Julian Assange: The moral dilemma. Message posted to http://www.strategypage.com/militaryforums/89-81919.aspx
Wolters Kluwer Law & Business. (Eds.). (2009). Constitutional Law. 4th Edition. New Jersey: Aspen Publishers Online.
Lindenberger, M. A. (2010, Dec. 09). The U.S.’s Weak Legal Case Against WikiLeaks. Retrieved from http://www.time.com/time/nation/article/0,8599,2035994,00.html
Williams, P. (2010, Dec. 07). U.S. dilemma: No easy way to charge Assange: Government lawyers weigh a variety of laws that might be employed. Retrieved from http://www.msnbc.msn.com/id/40554656/ns/us_news-wikileaks_in_security/
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