Kevin Gosztola reports on U.S. congressional legislation that would protect members of the press who solicit, obtain or publish government secrets.
U.S. Department of Justice headquarters in Washington. (CC BY-SA 3.0, Wikimedia Commons)
Under legislation proposed in Congress, the United States government would not be able to prosecute journalists such as WikiLeaks founder Julian Assange who publish classified information.
Democratic Senator Ron Wyden and Representative Ro Khanna introduced the Espionage Act Reform Act to reaffirm “First Amendment protections for journalists” and ensure “whistleblowers can effectively report waste, fraud, and abuse to Congress.”
Last month, Wyden said in a press statement, “The Espionage Act currently provides sweeping powers for a rogue attorney general like Bill Barr or unscrupulous president like Donald Trump to target journalists and whistleblowers who reveal information they’d rather keep secret. This bill ensures only personnel with security clearances can be prosecuted for improperly revealing classified information.”
It would protect members of the press who “solicit, obtain, or publish government secrets” from prosecution.
The legislation would also protect disclosures of classified information related to signals intelligence to any member of Congress.
Those with whistleblower protections would be able to provide classified information to the Federal Communications Commission (FCC), Federal Trade Commission (FTC), Privacy and Civil Liberties Oversight Board (PCLOB), and inspector generals to help them investigate privacy abuses. The government would not be able to invoke secrecy laws to shut down reviews of their conduct.
Democratic Senator Ron Wyden. (New America Foundation)
Additionally, a summary [PDF] indicates it would shield “cybersecurity experts from prosecution when they publish research showing discoveries of government backdoors in encryption algorithms.”
In 2014, H.D. Moore, the creator of Metasploit, which is an “ethical hacking tool,” told The Guardian that U.S. law enforcement warned him he may be vulnerable to prosecution because he operated a project called Critical.IO. “The initiative sought to find widespread vulnerabilities using automated computer programs to uncover the weaknesses across the entire internet.”
Law enforcement pressure was so significant that Moore took a break from his work in the internet security industry.
NSA whistleblower Edward Snowden’s disclosures saw an increased focus in expanding government protections against privacy abuses, but the bill’s summary does not attribute this amendment to Snowden’s impact. It relies on a much older example of government abuse of secrecy laws.
“After the NSA’s SHAMROCK program was revealed by the press in 1976, the FCC opened an investigation, as the disclosure to the NSA by the phone companies of customer communications violated federal communications law.” FCC Chairman Richard Wiley told Congresswoman Bella Abzug during a hearing that carriers “refused to answer the FCC’s questions” because of secrecy rules in 18 U.S.C. 798, which is a part of the Espionage Act that applies to “communications intelligence.”
The FCC had to shut down their investigation into the SHAMROCK program, which was an international telegram-spying program that existed from August 1945 to May 1975. At the time, it was “probably the largest governmental inspection program affecting Americans ever undertaken.”
Obama Ratcheted Up Prosecutions
President Barack Obama’s administration, which included Vice President Joe Biden, prosecuted more leakers or whistleblowers under the Espionage Act than all previous presidential administrations combined.
The Obama Justice Department’s use of the 1917 law enabled the government to institute “insider threat programs” to effectively intimidate and discourage whistleblowers from revealing corruption. The administration intercepted the communications of journalists in Espionage Act prosecutions and even treated journalists as co-conspirators in leak cases.
“I’m Edward Snowden – Stop Watching Us,” Berlin, 2013. (mw238 Flickr)
President Donald Trump has intensified Obama’s war on leaks to silence whistleblowers who bring scrutiny to his administration, and the impact on journalists is largely unknown.
Since Trump was elected, the Justice Department has prosecuted Daniel Hale, alleged drone whistleblower; Joshua Schulte, alleged “Vault 7” materials leaker; Terry Albury, an FBI whistleblower, who pled guilty and was sentenced to prison; and Reality Winner, an NSA whistleblower who pled guilty and was sentenced to prison.
The Trump administration also crossed a line the Obama administration would not by charging Assange with 18 offenses, 17 of which are Espionage Act violations. The indictment specifically criminalized Assange and WikiLeaks for seeking, obtaining, and disseminating classified information from the U.S. government.
The bill may reflect an interest in narrowing who can be prosecuted under the Espionage Act to those who pass information to “foreign agents,” however, the bill summary declares, “Every single person convicted to date under the Espionage Act would still have been convicted had this bill been law at the time they were prosecuted.”
Khanna told The Intercept “prosecutors and judges should have discretion to weigh the consequences” of leaks “against the motives of the source.” But the language of the legislation is silent on the matter of rights defendants should have to defend themselves under the Espionage Act.
Both Wyden and Khanna say Assange could still be prosecuted for allegedly helping Chelsea Manning hack passwords, though defense attorneys might have a reasonable challenge. The computer crime offense was written with language from the Espionage Act, and they could argue it was improperly charged to show prosecutors were skirting protections for journalists.
Alex Abdo, litigation director at the Knight First Amendment Institute of Columbia University, concluded, “This is a crucial effort to ensure that it isn’t a crime for national security journalists to do their jobs. The bill would make clear that the everyday work of journalists isn’t an act of espionage.”
“These protections for journalists are vital. It is also vital that Congress enact additional protections for national security whistleblowers, who must risk personal and professional sanction to expose government malfeasance and corruption.”
Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, “Unauthorized Disclosure.”
This article is from Shadowproof.
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Since the publishing of “collateral murder” we all know the tuth about the US wars for humanitarian reasons. Julian Assange is a hero.
The doubt about him spread by the mainstream press is the same doubt the society throws on every human being that doesn’t abide to their rules. They do that with artists, the do that with scientists, the do that with writers.
They do that with every spezial human being. They can’t see that these special persons are unable to fully adapt to the common rules. If they were they would not be able to see what is wrong.
Thank you Julian Assange.
Thank you Joe Lauria.
I wish they would protect Julian from Covid-19 and keep him in a different place.
I am extremely grateful that this did not turn into an anti-Trump tirade (not that he doesn’t deserve it). But the idiotic notion only one party or one president are involved in grossly unconstitutional conduct, or that it only started recently, is to diminish the extent of just how horrifically we have all been betrayed by our government(s).
The problem is that the secrecy legislation does not address the cause of whistleblowing.
No one would argue that leaking the time and place of a wartime operation like the Normandy invasion was OK, and no responsible cleared individual or reporter would do so, nor should they leak info that identifies secret agents. What they should leak are secrets exposing policies and actions that are not generally known or approved by the People of the United States. Those policies and actions are or should be illegal acts, and the People have the right to know all about them. If they cannot be exposed without damage to those involved, or such damage is accidental, then the damage is the fault of those responsible for the unlawful policies, not those who expose them.
The secret wars of presidents and secret agencies since WWII have been a disaster for the people of the US, and for the world, killing about 20 million people, and are the result of corruption, bribes from interested parties, extremist politics hidden from the people, and other actions which are or should be unconstitutional and criminal acts. Those who make such secret policies, perform such acts, and keep such secrets are gangsters, effectively and deliberately subverting the Constitution and laws of the United States, acts tantamount to treason, and should be investigated and jailed.
Any rationales they may have for such acts cannot legitimately be taken further than requests and arguments to the people for such policies: when they act secretly without public information, debate, and approval, they belong in jail.
Well said, Sam. It is LONG PAST TIME TO CRIMINALIZE POLITICAL LIES AND LIBEL. Political lies should be a first degree FELONY because of the damage they cause to life, liberty, our democracy, to the constitution, to health, the environment, the economy, etc.
“Espionage Act Reform Bill Would Protect Journalists Like Julian Assange”
I’m sorry, but I do find this kind of stuff a bit tiresome.
It’s literally “head in the clouds” stuff.
It absolutely is not just a lack of legislation working against Assange.
It is an almost complete lack of will, by politicians of both parties and powerful interests across the country.
No one important speaks up or defends Assange. There are reasons for that, powerful ones.
He could be free tomorrow if enough important people wanted it, but they clearly do not want that. It works against the massive interests of the American military-security state in its main job of working to defend, control, and expand a global empire.
And that global empire serves virtually exclusively the interests of America’s “one per cent.” There’s nothing fair or principled about any aspect of it. Coercing and abusing and threatening others are about as far from principled as you can go.
And no one important will support such legislation, if it even had any chance of protecting someone like Assange – or perhaps that should be, especially if it had any chance of protecting Assange.
Remember, you have the best Congress money can buy, and the bulk of that money comes from the same “one per cent” served by the empire and its military-security complex.
And in the end, is there even one law or rule or tradition that is not regularly broken in America’s relentless pursuit of power? Just ask the poor folks in Cuba or Venezuela or Nicaragua or Bolivia or Iran or Brazil or so very many places.
That was well said, John Chuckman. I have a major problem with you, however.
You are wasting your talent by not doing Internet presence properly.
Dude – nobody’s going to care or even notice when you have things one the Internet with long obscure and almost impossible addresses like “https : // chuckmanwordsincomments . wordpress . com /.”
You have to publish on a catchy domain that grabs people and is easy. Even JohnChuckman . com would be a million times better, though I don’t recommend it (you should at least have it though).
John, with your ability to express yourself like that you are doing the world a disservice by not having a clear, catchy and desirable online destination.
Wyden talks a good talk but the Wikileaks embassy cables revealed he was talking secret trips to Venezuela to assist the opposition. His Oregon staffers didn’t know about it and Wyden refused to say who paid for his trips, or who he met.
Let’s see if this piece of legislation goes anywhere.
Wyden wouldn’t be where he is if he opposed the ongoing coup in Venezuela so I wouldn’t doubt what you say but, anytime you can paste a Wikileaks link you should do it.
The Wikileaks search engine will help you find the Wyden trip
cable. Please follow Comment policy and refrain from putting
links into Comment messages.
I can’t help but wonder where this legislation gets its legs if its protections can’t extend to Julian Assange. Seems like a successful conviction would undermine it. That assumes a lot; One, that Assange isn’t done in by the treatment dealt him by the (in)justice system in the UK and is successfully extradited, which seems increasingly likely now. I welcome any clarification of this, as well as any evidence that my pessimism is unfounded. Perhaps there’s a ray of light of this that I missed somewhere?
I don’t think your pessimism is unfounded at all. In fact, I suspect that, even if a law was enacted tomorrow that completely cleared Julian, complete with his name right in the text, he would still end up in a U.S. torture chamber.
They’ve already burned a number of existing international laws, along with the existing laws of 5 countries, in order to get Assange to the point he’s at now, as well as keep him there. I don’t see how another new law written anywhere would make any difference, seeing how the Law obviously doesn’t matter to Washington (or the U.K., or Australia, or Ecuador, or Sweden).
The only thing that might help Julian is a significant civil rebellion. The People might have to resort to things like burning down courthouses, just to get some kind of attention. And I’m not saying that would get them anywhere, either.