It's Come To This: Commentators Arguing That The Press Commits A Crime In Exposing NSA Surveillance

Free Speech

from the sad dept

Tue, Jun 18th 2013 1:43pm — Mike Masnick

Marc Thiessen, a former speechwriter for President Bush, apparently really hates it when government overreach is exposed. We last mentioned him when he attacked Wikileaks in the aftermath of its publishing of various State Department cables. Now, with the new NSA surveillance scandal, he's back (of course) and taking the lovely position that it's perfectly fine to charge journalists who publish information about NSA surveillance with crimes.

Greenwald’s crime is violating 18 USC § 798, which makes it a criminal act to publish classified information revealing government cryptography or communications intelligence.

The law is absolutely clear. It states: “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes , or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information— (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes— Shall be fined under this title or imprisoned not more than ten years, or both.”

Of course, there's also that fancy First Amendment, which Thiessen would prefer to ignore:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It would appear that 18 USC 798 is exactly what is forbidden by the First Amendment. It is a law abridging the freedom of the press and freedom of speech. Defenders of Thiessen and the NSA will point out that there are lots of times the courts have said this is okay, but I'm not sure what kind of defense that is, other than nitpicking why the First Amendment is something to ignore. Personally, I think that the First Amendment is fairly important, and worry about any laws that appear to push back on the basic concept of it.

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Filed Under: first amendment, free speech, journalism, leaks, marc thiessen, nsa, nsa surveillance

60 Comments

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rw (profile), 18 Jun 2013 @ 1:06pm

Amen.
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Zakida Paul (profile), 18 Jun 2013 @ 1:44pm

I almost knocked myself out with that gigantic face palm
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Anonymous Coward, 18 Jun 2013 @ 1:55pm

Our system of government is broken. Perhaps irreparably. The government does whatever it likes because first they have to be caught, then we the people have to get past the state secrets hooey. Next, we have to show standing, then we have to demonstrate real harm. All the while we have to have immeasurably deep pockets to afford the legal experts to pursue such a case.

230+ years of unnecessarily complex jurisprudence, 100+ years of the federal reserve pushing 2-3% inflation, 30+ years of this credit bubble coupled with 30+ years of EMTALA... its no wonder that education costs so much, legal fees costs so much, healthcare costs so much and the cost of living costs so much. It's all designed to enslave We The People under an unbreakable chain and make the fruits of our labors solely for the profit of the state.
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Anonymous Coward, 18 Jun 2013 @ 1:59pm

Traitor Mike
Queue up the trolls comments:

Milk it Traitor Mike....
Traitor Pirate Mike....
Mike the Traitor Pirate Milkman...
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Anonymous Coward, 18 Jun 2013 @ 2:05pm

Now we know
So this means that the classified, redacted enemy that Bradley Manning was aiding and abetting is us, the public. Even if nobody comes out and says so in so many words.
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Rich, 18 Jun 2013 @ 2:07pm

Re: Traitor Mike
Wait...Mike is also a milkman? Wow!
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That One Guy (profile), 18 Jun 2013 @ 2:09pm

So wait...
1. Government commits crime.
2. Government classifies any data or evidence relating to said crime.
3. Government makes it illegal to leak or even talk about classified information.
4. Government finds itself in the position of being completely unaccountable for anything it does, as to expose their actions to public scrutiny and the possibility of justice one has to first break the law to do so, and even then evidence is forbidden from being presented, as it's 'classified', making any court case against the government impossible.

And the whistleblowers are supposed to be the enemies of the country?
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Anonymous Coward, 18 Jun 2013 @ 2:10pm

forgive me for being so ill informed, but:

why would anyone ever want to purposefully contravene the Constitution, when it is what your country is built on and what people hold most dear?

why would anyone ever want to bring in a law that makes contravening any part of the Constitution legal?

even more to the point, why is a person(s) who wants to bring in a law that contravenes the Constitution even allowed to try??

sounds a bit sus to me!
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Lance (profile), 18 Jun 2013 @ 2:11pm

I reject his premise. Greenwald didn't violate 18USC798. The information release was not "prejudicial to the safety or interest of the United States" because WE are the United States, and WE need to know our gov't. is doing this crap. Neither was it "for the benefit of any foreign government to the detriment of the United States".
So no law has been violated. I do agree that it is a first amm. violation to prosecute the publisher if he did not personally break a law in obtaining the information.
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Anonymous Coward, 18 Jun 2013 @ 2:12pm

Re:
We as a country are screwed�
We now effectively have a one party system thanks to the lying cheating thieving progressive party.
Say anything against the current administration and you�re a racist or bigot usually both.
They have made voter fraud a spectator sport, arm our enemies (their allies) and are preparing tax us to death�thanks to barrycare�
Or maybe it�s really just the prelude to us all singing kumbaya in front of the bonfire and farting rainbows�
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Anonymous Coward, 18 Jun 2013 @ 2:15pm

Re: Re: Traitor Mike
They still have milkmen?
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Anonymous Coward, 18 Jun 2013 @ 2:18pm

You know what also is pretty clear...
The 4th amendment.
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Anonymous Coward, 18 Jun 2013 @ 2:20pm

Re:
The Federal Reserve is part of the problem, I agree!

The other parts of the problem are the 16th and 17th Amendments passed by those early 20th century "Progressives"

16th concentrates massive amounts of money in one place, the Federal Government. Money leads to power and power leads to corruption.

17th allowed mob rule eliminating the ability of individual states to have a say in how the federal government is run.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2013 @ 2:25pm

Re:
The United States is the government. The people are its servants. Big Brother knows better than you.
[ link to this | view in thread ]
Anonymous Coward, 18 Jun 2013 @ 2:33pm

Re:
Torch the idiotic system, revolution and rebuild, as humanity has always done.
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Anonymous Coward, 18 Jun 2013 @ 2:44pm

They've already shredded part of the Constitution, might as well go big and get rid of the rest.
[ link to this | view in thread ]
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Anonymous Coward, 18 Jun 2013 @ 2:45pm

Don't miss the post that Mike is desperate to censor: http://is.gd/5gjxqa

Why's he so scared of dissenting views? Hmm...
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Anonymous Coward, 18 Jun 2013 @ 2:45pm

Never would have seen this coming. /s

Big media, big content, big government, one and the same.
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Anonymous Anonymous Coward, 18 Jun 2013 @ 2:51pm

Re:
Power
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Anonymous Coward, 18 Jun 2013 @ 2:55pm

Re: Re:
Heh, I didn't see George W. Bush as a part of the "lying cheating thieving progressive party", but everyone has a right to their own opinion...
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John Fenderson (profile), 18 Jun 2013 @ 3:05pm

Re: Re: Re: Traitor Mike
Yes! They still exist and are doing surprisingly well, at least in my area. It's the most convenient way to get fresh milk from local dairies.
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Anonymous Coward, 18 Jun 2013 @ 3:07pm

Re: So wait...
Pretty good point, but how would you avoid this unless you completely give up on any kind of secret services or armies? Sure, if every country did things right, there would be no need for either, but that is an utopia given the situation in some or most countries on every continent of the world.

When that is said, the judgement about if a leak is compromising national security is not for politicians or secret services to make. In Denmark we had a case about a special troop writing a book about his missions in Afghanistan. The secret service found the book to involve too specific informations and he lost his contract with publishers. A newspaper published the book and the cases were running for treason. Some right wing politicians were calling for his blood etc.

The end result? Two higher officers of the secret service were fired and sued for fabricating evidence and the court found it to be completely unreasonable to withhold the information... Sure the court was not secret which is why the fabrication of evidence was revealed at all, but that is another story.
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PRMan, 18 Jun 2013 @ 3:14pm

Re:
I know it's popular to rant on stuff like this (and I agree the First Amendment is extremely important), but:

* education costs so much

Actually, more people are more educated than at any other point in history.

* legal fees costs so much

Lawyers were always ridiculously expensive, good ones even more so. But because the university factories keep churning them out in record numbers despite a demonstrated lack of demand, they are actually getting cheaper all the time.

* healthcare costs so much

While it is more than say, the 80s, the amount of things they can do to save and prolong lives and improve quality of life combined with the number of people that have access to health care (which far exceeds the 80s levels), it really isn't THAT bad. And certainly better than 100 years ago, where you would DIE from 90% of the things you go to the doctor for now.
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bob, 18 Jun 2013 @ 3:18pm

does not apply
the first amendment argument aside for a second..

I don't know that the quoted law (as I read the excerpt above) is relevant in this case. (Mind, I have not read the details of what has been revealed, but, I have not seen mention of the following qualifying criteria)
that it had anything to do with item (1) or (2) cryptography or devices used,it was touched on by (3) - communication activity of US or foreign govt, but that's ANY news story.. and it also did not qualify under item (4)method used to obtain the information.

Mind, this is from a layman, not a lawyer, but this event really doesn't seem prosecutable under this law, as only 1 of 3 criteria are met.

And then there's the first amendment.
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John Fenderson (profile), 18 Jun 2013 @ 3:35pm

Re: Re:
it really isn't THAT bad

Unless you're poor. Then it really is that bad. And if you aren't poor, but aren't rich either, then a single major medical problem will bankrupt you (even if you have insurance).

This is an unconscionable situation in the richest nation in the world.
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Anonymous Coward, 18 Jun 2013 @ 3:35pm

It's so cute how the sockpuppets come out to refute it, but no one can actually address the merits. Don't miss the link that Mike so desperately wants you not to see: http://rdd.me/e9cd9hqe
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Anonymous Coward, 18 Jun 2013 @ 4:08pm

What do certain people not want you to see?

This! http://v.gd/3K4FAn

So scared of the truth! It's totally awesome!
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Anonymous Coward, 18 Jun 2013 @ 4:27pm

Re:
AJ go home you are pathetic dude.
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Anonymous Coward, 18 Jun 2013 @ 4:40pm

Re:
Shut up. Even if there is something to what you are saying (big if), putting it here this many times just gets annoying and makes people not want to listen.
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Anonymous Coward, 18 Jun 2013 @ 5:04pm

I suppose Richard Nixon didn't like it either ... boo hoo
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The Real Michael, 18 Jun 2013 @ 5:43pm

Re: Re:
"The Federal Reserve is part of the problem, I agree!"

Big time. Why do you think both Abraham Lincoln and JFK were assassinated?
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Anonymous Coward, 18 Jun 2013 @ 6:11pm

Re:
You make a false assumption in that the majority of people in the Northeast and California do not believe in the principals you state instead believing in the principals of total totalitarianism and slavery of the masses for the benefit the correct elitists as defined down by Stalin, Mow, and Pol Pot.
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Anonymous, 18 Jun 2013 @ 6:13pm

Re: Re:
Agreed!
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Anonymous, 18 Jun 2013 @ 6:16pm

Re: Re:
Blessed be America, a nation reborn.

(If you haven't seen "The Purge" yet, you should. Good movie.)
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Anonymous Coward, 18 Jun 2013 @ 6:16pm

Re:
You forgot to include Microsoft. What Microsoft? If you ask that question then you probably are dumb enough to believe that Microsoft is a computer company that produces the Windows operating system not a cartel of individuals and companies with a law firm at its center devoted to world domination and control by means of computers, media, and news.
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Anonymous Coward, 18 Jun 2013 @ 6:22pm

Re:
It is impossible to understand Richard Nixon without understanding Henry Wallace VP under Roosevelt
http://en.wikipedia.org/wiki/Henry_A._Wallace

and the fact that the US government was as penetrated by communists as the UK government was with the Cambridge Five.
http://en.wikipedia.org/wiki/Cambridge_Five
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Anonymous Coward, 18 Jun 2013 @ 6:24pm

Theissen defended torture and King supported IRA, not really surprised
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AC Unknown, 18 Jun 2013 @ 6:34pm

Re: Re:
You mean Mao?
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Uriel-238 (profile), 18 Jun 2013 @ 7:18pm

Humans are too stupid for democracy
The lawr's the lawr is as instinctive to human beings as Hulk SMASH both of which are two reasons I cringe when some politician appeals to common sense: Common sense is pretty stupid.

Thomas Jefferson was similarly concerned that the common people are just not smart enough to govern by popular opinion. His arguments were that the laity were just generally dimwitted. Nowadays we recognize that we are prone to certain automatic notions (such as only people who look and smell like themselves should be regarded), and that most of us can't be bothered to apply some critical scrutiny (or even mere empathy) to an issue before we decide on policy.

The hope of our founding fathers was the notion that we'd at least be able to elect someone wiser than ourselves to represent us, but given that people voted against Obama because he is a Kenyan Muslim (and not because, say, he lied about increasing transparency of the current administration) that hope is pretty much lost.

All empires fail sooner or later. Two-and-a-half centuries will be a short run if ours turns sour so quickly.
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Uriel-238 (profile), 18 Jun 2013 @ 7:22pm

Microsoft as a world-dominating conglomerate
That might explain why its two latest major products (the Xbox One and Windows 8) were far more developed as instruments of corporate control over users, rather than improvements to the user experience.

Both are failing miserably. Perhaps they jumped the gun.
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Anonymous Coward, 18 Jun 2013 @ 7:22pm

See the post that mike is so scared of that he's blocking IP addresses, keywords, and links...

http://tr.im/44w44

Why is mike such a hardcore censor? I thought he hated censors??

Hmm..
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Anonymous Coward, 18 Jun 2013 @ 7:25pm

Episode 2 is in the works.

You can bet that Mike will be working extra hard to censor it.

why is he so scared of criticism? why is he working so hard to censor me??

You decide.

stay tuned!!
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BentFranklin (profile), 18 Jun 2013 @ 7:59pm

The comparison to Wikileaks is apt: The government has to prosecute both of them or neither. It looks like they are choosing both.
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Anonymous Coward, 18 Jun 2013 @ 8:05pm

Re:
Back in your box moron.
I read some of your drivel, and you were wrong.

I'm not from the US and IANAL... But the reason you disagree is that you clearly have your own interpretation of the law... and it is wrong.
Your BS article is all about Kim Dotcom, who at this point has not been served with anything, and almost certainly had nothing to do with any piracy, other than providing the platform on which piracy was performed.
Your argument is about as logical as charging MS or Apple with conspiricy to comit ect. for allowing their OS to connect to the site, or indeed the internet at all.

You don't have to like pirates to see that the law is being played fast and loose for the benefit of hollywood.

The same Safe Harbour exceptions that these AGs want to remove, are the ones that basically mean the case against Kim Dotcom is fairly bogus. You may disagree with the existing safe harbour laws, but at the end of the day it is the current law.
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Anonymous Coward, 18 Jun 2013 @ 8:19pm

Re:
Probably because you're indistinguishable from a spambot.
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Anonymous Coward, 18 Jun 2013 @ 10:23pm

Oops ! Another "Hot Mic" incident ...
http://www.dailymail.co.uk/news/article-2344098/NSA-hearing-Tell-boss-I-owe-friggin-beer-Hot-mi c-catches-NSA-boss-praising-FBI-chiefs-supportive-testimony-surveillance-programs.html
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Uriel-238 (profile), 18 Jun 2013 @ 10:37pm

To be fair...
This is an unconscionable situation in the richest nation in the world.

Only 25% of the United States is the richest nation in the world. I think richer than the rest of the world combined.

The rest of us are no-one to speak of.
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Uriel-238 (profile), 18 Jun 2013 @ 10:39pm

Re: So wait...
And the whistleblowers are supposed to be the enemies of the country?

Enemies of the country? No.

Enemies of the state? Absolutely.
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Uriel-238 (profile), 18 Jun 2013 @ 10:41pm

Re: Re:
The United States is the government.

Or the Ford Motor Company. As in, what's good for them is good for America.
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Anonymous Coward, 19 Jun 2013 @ 5:17am

POLL: released today by ABC News / Washington Post
Results from another poll were released today. This one finds strong, general support for Congressional hearings on the NSA surveillance program.

�Most Back NSA Surveillance Efforts � But Also Seek Congressional Hearings�, by Gary Langer, ABC News, June 19, 2013

� The public by 58-39 percent supports the NSA collecting �extensive records of phone calls, as well as internet data related to specific investigations, to try to identify possible terrorist threats.��

See PDF with full results, charts and tables here.

At the same time, in a strikingly nonpartisan result, 65 percent of Americans favor congressional hearings on the subject � a view expressed by more than six in 10 Democrats, Republicans and independents alike, as well as by virtually equal numbers across the ideological spectrum.�

This ABC News/Washington Post poll was conducted by landline and cell phone June 12-16, 2013, in English and Spanish, among a random national sample of 1,017 adults. Results have a margin of sampling error of 3.5 points.&helip;
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agalvan (profile), 19 Jun 2013 @ 7:57am

Interpretation
Actually, Thiessen's interpretation of the law is valid only if "United States" = "Government of the United States". That sounds a lot like "l'etat, c'est moi".
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SmarterThanYall (profile), 19 Jun 2013 @ 11:34am

Re: contravening constitution
Why? Because for those whose financial standing places them above the need for such protections, said protections are an impediment to getting richer and/or more powerful. The ideals embodied in The Constitution were revolutionary, put in place by men with both vision and a desire to end the kind of tyranny and abuse that has always been the sequelae of concentrated power.
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Anonymous Monkey (profile), 19 Jun 2013 @ 11:50am

�Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes , or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information�"...

thus the published information is for the interest of the United States, not against, as recorded by the Constitution (We the People).
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nasch (profile), 19 Jun 2013 @ 12:44pm

Re: Re:
They have made voter fraud a spectator sport, arm our enemies (their allies) and are preparing tax us to death�thanks to barrycare�

Which of course was originally invented by a conservative think tank...
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nasch (profile), 19 Jun 2013 @ 1:24pm

Re: Re: So wait...
Pretty good point, but how would you avoid this unless you completely give up on any kind of secret services or armies?... Sure the court was not secret

I think you hit on a big point right there. If this were not all handled through a court that by default makes everything secret, it would be a better situation. These things should go through regular federal courts where they might get examined with a critical eye rather than rubber stamped.
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nasch (profile), 19 Jun 2013 @ 1:27pm

Re: Re: Re:
Or the Ford Motor Company. As in, what's good for them is good for America.

That was GM.

http://en.wikipedia.org/wiki/History_of_General_Motors#Post-war_growth
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John Fenderson (profile), 19 Jun 2013 @ 1:31pm

Re: To be fair...
Only 25% of the United States is the richest nation in the world

Good point, but still. The immorality of the health care situation is staggering.

To your point, I recently learned that my own income is in the top 10% of the income range in the US. This struck me as deeply disturbing because I'm not anything like wealthy. I'm not poor, but I don't get to snort coke off of the asses of strippers or anything, either.
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Gwiz (profile), 19 Jun 2013 @ 1:37pm

Re: Re: Re:
You mean Mao?

Mow is the absolute dictator of my yard on Saturday mornings, so.....
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nasch (profile), 19 Jun 2013 @ 2:02pm

Re: Re: To be fair...
The immorality of the health care situation is staggering.

Fortunately if you have good insurance you can see a doctor about your staggering problem.
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Wayne, 21 Jun 2013 @ 3:02pm

Re:
18USC798 quoted says publishing *or* using in a manner prejudicial - the act of publishing one of the proscribed items is sufficient. (Yes, that seems to me an unconstitutional prior restraint ... but still, that's what that law says.)
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