Stanford Law School paper fails to convince on information and national security

Recently SSRI published the following paper:

"Protecting State Secrets as Intellectual Property: A Strategy for Prosecuting WikiLeaks"

James Freedman
Stanford Law School
Stanford Journal of International Law Vol. 48, No. 1, p. 185, 2012

This is one of the more bizarre papers I have read on the topic of National Security and Information. So I thought I would just write something down in case someone is googling it 50 years from now and wonders what is going on back here in the strange old days of 2012.

First of all, the author uses the word 'classified' several times in connection with the Wikileaks case and the Espionage Act. In fact, most of the Espionage Act does not use the word 'classified' at all. It uses a phrase like "information related to the national defense", which has a different meaning, as pointed out by Judge TS Ellis' recent rulings on Espionage Act cases, and elsewhere - including a paper that Freedman cites, Jennifer Elsea's paper for the Congressional Research Service about the nature of laws protecting government information. Why does it matter? I know that his paper only discusses these issues as a sort of an aside - saying that espionage/classification law is unlikely to work against wikileaks. But the lack of attention to detail in this paper, as these issues are thrown casually at the reader, is really difficult to watch.

There are several actual reasons why the Espionage Act has never been amended by Congress to increase the punishment for leaking material that is purely 'classified' - because congress and the president leak classified information all the time as a routine part of their business. It's called "white propaganda". You can go back through each president and tick off the list of leaks. Obama's staff leaked Bin Ladin raid material. Bush's staff leaked Iraq WMD information. Reagan's staff leaked information about DEA operations in Central America. Nixon tried to leak part of the Pentagon Papers that made Johnson look bad. Eisenhower leaked information about the coup in Iran we supported in the 50s. And on and on and on. There are countless articles and books published every day that contain phrases like "senior officials say" and "sources familiar with the matter tell us". Those are often quotes involving information that is technically classified. Then there is the fact that the government has begun trying to 'retroactively' classify information as it did in the Thomas Drake case, or even claim that material marked FUOU (non classified) is used against a defendant when the government argues he 'should have known' it was classified. Or the well-known problem that classification extends to material that shouldn't be classified in the first place.

If you make something illegal simply because it's "classified", the government would fall into chaos, with the parties constantly trying to put each other in prison for leaking information. In a democracy, 'leaking' of information is part of how business is accomplished; perhaps that is why so many congressmen look askance at a bill that might further criminalize what they do every day. The place of lobbyists of course is threatened as well here . . . if you rifled through the files of every contractor or consultant in DC, you'd probably have information they "should have known" was classified up to their ears.

The paper also fails to mention that 18 USC 1030 is the 'Computer Fraud and Abuse Act', not the Espionage Act or any other sort of typical anti-spy law. The specific section of the act the author refers to, (a) (often called the "Computer Espionage" section) truly has never been used against someone for communicating with a reporter. If the standard of 'probability' is good enough for this discussion, then I would like to propose that 18 USC 1030 (a) is probably unconstitutional when applied to communication with a reporter. This 'Computer Espionage' section of the law essentially makes some bizarre distinction between alleged Espionage committed on a computer and Espionage not committed on a computer - in the modern world this makes absolutely no sense. It is an artefact of a time (1986) when the average congressman had never heard of email let alone a blackberry or a cellphone (which, essentially, is a computer, even running the same operating system software nowdays). The fact that the authors took the language of the Espionage Act and slapped the phrase 'foreign relations' into it alongside 'national defense' information makes the outlook rather bleak. The fact that almost all communications nowdays are done on a computer, other than face to face talking, also do not bode well for the survival of this act's language. Probably.

It is difficult to find criminal statutes to prosecute Wikileaks because the vast majority of what they did is not a crime, and because the traditional press, in collusion with the white house and/or congress, leak material constantly and consistently in order to get their message out. Even if you did make it illegal to publish 'classified information', now you have to figure out how to comb through every newspaper, blog, and book, break it down sentence by sentence, and find some piece of it that has been classified. Not to mention that since the decision to stamp 'classification' on something comes under the executive branch, the legislative branch might be a bit upset at this usurpation of constitutionally protected power. Not to mention the judicial branch - as TS Ellis noted, when it comes to the Espionage Act, only the court can decide what "national defense information" actually means, and they do it on a case by case basis. The Jury and Judge are the ones in charge of that process, not the executive branch or even congress.

The paper doesn't discuss any of this. It gives the impression that the author, and the reader, are supposed to accept as given that Wikileaks published classified information, and that this is automatically bad and should be prosecuted. This is the crux of the case, but there is nothing underlying it. It is an inaccurate presumption, that misunderstands and ignores the history of US law, but also the spirit of good government that stretches back at least to ancient Greece. It also ignores the reality of the recent Espionage Act prosecutions, especially the Drake case, which by almost all accounts was an egregious abuse of government power against an innocent person.

When considered in the context of world history, it is not a 'bad thing' that it is difficult to use the Espionage Act against government critics. Even if one believes the Act should be easier to use, one should at least mention why. For what purpose? What threat to national security was created? Which, specific document in the Wikileaks dump created the threat? What benefit will the nation receive by prosecuting Wikileaks? What will we gain that we do not have now?

Then the paper starts dealing with the idea that copyright law should be used against Wikileaks. We start with the idea that in foreign countries, the US can exert copyright over it's works, even though it can't inside the US. The author is not sure this is possible, it is only 'probable'. How can we overturn long traditions of free dissemination of material on the basis of something that is only 'probably' true?

Besides that, how is the government going to enforce this new notion, that it should exert copyright over it's material as published in foreign countries? There are so many terabytes of US government material splattered all over the web, but done so by the government itself. The CIA world factbook comes to mind. Or the various Oceanic and Atmospheric data publishers that share works with other nations. Or any other scientific endeavor the US takes on in collaboration with any other country. How do you decide which of that material you want the US to distribute, and whether it falls under US copyright, in which country, and which doesnt? Are you going to start putting up some kind of bizarre firewall system to keep people outside of the nation from accessing certain government information? You will have to block not just wikileaks, but every major newspaper, thousands of blogs, forums, facebook, and wikipedia, all of which publish government documents based on the 'no copyright of US government works' rule. This might make the 'great firewall of china' seem like an easy job.

Next, the author has opened up the can of worms regarding private corporations and their copyright material winding up in government databases. He argues that the US government can prosecute Wikileaks for having private copyright material that happens to be inside of government documents, because those private entities have assigned copyright over to the US government. Then  cannot other corporations sue the US government for copying their material without their permission and sticking it in the same databases? If the State Department has built a huge database of documents, and a good number of them have copyright information from, for example, newspapers or such, then can't those newspapers sue the State Department for copying their information into the database without permission? What about negligence, for allowing all of that copyright material to be accessed so easily by low level military clerks with proven histories of mental instability?

Now if you do manage to assert copyright for Wikileaks material in foreign nations, such as the 'Baghdad 2007' raid helicopter gunship footage, you are going to run into the problem that the government has to have some semblance of consistency about it's copyright lawsuits, are you not? They can't choose to go after one party who violates copyright and not go after another. This means that you can't just go after Wikileaks and it's alleged source for that helicopter gunship video. You have to go after every other gunship video that is on youtube, on apachevids.com, aviation forums, military forums, and every other site that hosts these things. You also can't just go after Manning, you have to go after every other private and officer who leaked every one of those other videos, and there are, literally, hundreds of them floating around the internet.

The author also incorrectly labeled BitTorrent as a 'service' for sharing illegally copied files. That is 100% wrong. BitTorrent is a network protocol and a set of programs. It's like FTP or HTTP. In other words, it's like saying that the Phonograph is a 'service for copyright theft' because it reproduces sound. Or perhaps a better analogy would be the video tape - companies tried to sue Sony for coming out with the VCR but Sony won because the VCR is just a tool. BitTorrent is just a tool. It is used commonly for people sharing legitimate files that are too large to host on a traditional monolithic server. BitTorrent is an obvious evolution of the infrastructure of the internet. There are many file-stealing services, like the Pirate Bay, that utilize bittorrent as part of their system - but they also utilize Intel or AMD chips - should Intel or AMD be attacked too by lawsuits? They also use electricity - should we go after the power companies too?

All in all, James Freedman's paper is almost impossible to grasp the meaning of, other than that he wants Wikileaks shut down and thinks Copyright might be a way to do it. I keep imaginging what Judge Judy might ask. Show me a specific document that the defendant stole. Show me what damage it did. Show me where in the law it says that this is stealing. Show me show me show me. I do not feel 'shown' after finishing reading Mr Freedman's work.