White House Ramps Up Efforts To Criminalize Wikileaks, As Witnesses Refuse To 'Cooperate'

from the this-is-the-new-transparency? dept

We've discussed a few times how, despite all the promises of transparency and protection for whistleblowers from President Obama, the Obama administration has been by far the most aggressive presidential administration in going after leakers and trying to charge them with crimes. So it was little surprise that the feds were putting tremendous pressure on folks like Bradley Manning to admit to a "conspiracy" involving Wikileaks. Manning refused to play along, so now the feds are broadly widening their investigation, issuing all sorts of random subpoenas on people with very, very distant relations to Wikileaks, seeking something (anything!) that can be used to bring charges under the Espionage Act.

Meanwhile, many who are being called as witnesses are refusing to participate, and may face jailtime themselves:

But it also highlights a very important potential controversy: the refusal of numerous witnesses to cooperate in any way with this pernicious investigation. One witness who has appeared before the Grand Jury has already refused to answer any questions beyond the most basic biographical ones (name and address), invoking the Fifth Amendment right against self-incrimination to do so, and other witnesses are highly likely to follow suit.

One option for federal prosecutors when facing a witness who refuses to answer questions on this basis is to offer them immunity, meaning that nothing they say when testifying can be used to prosecute them (they can still be prosecuted, just not with the aid of anything they say while testifying). Such an offer then precludes further invocations of the self-incrimination privilege as a grounds for refusing to answer questions, as it means there is no longer any danger that the witness could incriminate themselves by testifying. In the event the government makes such an offer, the court would almost certainly compel the witness to answer questions. But at least some of those witnesses -- ones who have already been subpoenaed or are likely to be -- intend to refuse to answer questions anyway, risking an almost-certain finding of contempt of court, which typically carries jail terms as a means of forcing testimony.

One witness or potential witness who is considering that form of civil disobedience told me they view the attempt to criminalize WikiLeaks as such a profound assault on basic freedoms, including press freedoms -- one motivated by a desire to conceal government wrongdoing and illegality -- that they would rather be imprisoned than cooperate in any way with those efforts. That is the mindset of true principled heroism, and if it actually comes to that, anyone committed to transparency and preservation of press freedoms should do everything possible to support such persons in any way they can...

This whole thing seems like a massive waste of resources by the Administration, seeking to punish whistleblowers and the press for revealing information that wasn't sensitive, but merely embarrassing.

Filed Under: espionage, fifth amendment, first amendment, wikileaks
Companies: wikileaks

Bradley Manning Hit With New Charges; Could Face Death Penalty

from the going-a-bit-far? dept

After being unable to convince Bradley Manning to lie about his "relationship" with Julian Assange, the government has decided to up the pressure on Manning by filing another 22 charges against him, including putting him at risk of facing the death penalty -- though, they insist that they will not ask for the death penalty. In the end, however, it is up to the judge, so whether or not the feds ask for it, he is still technically facing the death penalty. In addition, the new charges could put him in jail for life.

Some of the charges seem like clear exaggerations. Government officials have already admitted that the State Department cable leaks have done little to actually damage US diplomatic relationships or put anyone in danger. Yet, the charges certainly suggest both things are true. There's a charge for "aiding the enemy," charges for "theft of public property," the inevitable (but highly questionable) "computer fraud" charges and (of course) Espionage Act charges. It'll take some time before the reasonings behind all of the charges are understood, but the point is pretty clear: the feds don't want any more whistleblowers, so they're throwing the book at Manning as a warning shot to anyone else who wants to expose government misdeeds.

Filed Under: bradley manning, death penalty, espionage, whistleblowing, wikileaks
Companies: wikileaks

Congressional Hearing On Wikileaks Surprisingly Focuses More On Gov't Overly Secretive Actions

from the good-for-them dept

Earlier today, Congress held hearings about Wikileaks and, given how the government has been reacting so far, I fully expected pure grandstanding about how "evil" Wikileaks is and how Julian Assange must be brought to justice. There was some of that, but it appears much more of it was focused on how the US government was abusing the classification system to make things secret that never should have been secret -- and how that was the real problem. Panel chair John Conyers apparently kicked off the hearing by saying that criminal charges against Assange would be "extreme" and saying that "caution is needed" before anything is done:

"Prosecuting WikiLeaks would raise the most fundamental questions about free speech, about who is a journalist and what citizens can know about their government," Conyers said. "The problem today is not too little secrecy but too much secrecy."

He also noted -- in contrast to much of the hysteria we've heard -- that while the releases have been embarassing "the real-world consequences have been fairly modest." Rep. William Delahunt appeared to echo these sentiments and again noted that secrecy by the government has been the real issue:

"Secrecy is the trademark of totalitarianism. In contrast, transparency and openness is why democracy is all about," Delahunt said.

"There is far too much secrecy and overclassification in the executive branch, and I think it puts American democracy at risk."

Rep. Bob Goodlatte also noted that expansion of government secrecy was "out of control" and "illegitimate," while Rep. Bobby Scott noted that we need to remember the 1st Amendment. Rep. Hank Johnson warned of the "chilling effects" of prosecuting Wikileaks.

Many panelists appeared to make similar points as well. Thomas Blanton, the director of the National Security Archive at George Washington University, told the panel that the government always overreacts to leaks and that "more openness makes us more secure." He also urged the government to "use a little restraint" and to avoid rushing into charging Julian Assange with violating the Espionage Act.

Of course, not everyone argued this way. Many of the Congressional Reps still seemed pretty bloodthirsty to charge Assange. And some of the panelists seemed to agree. Kenneth Wainstein, a lawyer from O'Melveny and Myers, warned the panel that any lawsuit against Wikileaks would raise serious First Amendment issues but then argued that the government could easily distinguish Wikileaks from the media though he did so by misstating that Wikileaks was "indiscriminately" dumping documents -- a point that has been debunked already. Gabriel Shoenfeld, who is a big supporter of government secrecy, spent a lot of time talking about how there's too much secrecy and that the government leaks info to the press all the time but ended his talk by saying that doesn't apply to Wikileaks.

However, even those who seemed to think that the government should still seek to prosecute Assange, they all seemed to admit that the government is way too secretive and abuses its classification privileges.

Filed Under: congress, espionage, hearings, secrecy, wikileaks
Companies: wikileaks

Congressional Research Service Notes That There Are Serious Challenges To Charging Assange

from the ain't-so-easy dept

While a lot of the rhetoric from the US government -- concerning Wikileaks and Julian Assange and whether or not any law was violated -- has been overwrought and full of hyperbole, it appears that the Congressional Research Service (which tends to do a damn good job most of the time) has put out a nice simple report detailing the specific legal issues and laws that might apply here (pdf), and more or less summarizes that the US government would be breaking new ground in charging Assange, and may have difficulties in succeeding. While the report notes you could probably stretch the law to cover what Wikileaks did, it warns:

[The] statutes described in the previous section have been used almost exclusively to prosecute individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, or to foreign agents who obtain classified information unlawfully while present in the United States. Leaks of classified information to the press have only rarely been punished as crimes, and we are aware of no case in which a publisher of information obtained through unauthorized disclosure by a government employee has been prosecuted for publishing it. There may be First Amendment implications that would make such a prosecution difficult, not to mention political ramifications based on concerns about government censorship. To the extent that the investigation implicates any foreign nationals whose conduct occurred entirely overseas, any resulting prosecution may carry foreign policy implications.....

The report does note that there has been at least one case it's aware of where a foreign national was charged under the Espionage Act for activities done outside of the US. But, it is quite rare, and beyond a single district court ruling saying this okay, the history and language of the Espionage Act suggest it was not designed for this purpose.

The report also delves into the hurdles to having Assange extradited to the US (something the US is apparently already discussing with the Swedish government), pointing out that no current US treaty "lists espionage as an extraditable offense."

But the biggest hurdle is noted towards the end of the report, in highlighting the rather serious Constitutional issues associated with attempting to try Assange for anything in the US, with a lot of focus on the ruling in the Pentagon Papers case:

Where First Amendment rights are implicated, it is the government's burden to show that its interest is sufficiently compelling to justify enforcement. Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental. On the other hand, the Court has stated that "state action to punish the publication of truthful information seldom can satisfy constitutional standards." And it has described the constitutional purpose behind the guarantee of press freedom as the protection of "the free discussion of governmental affairs."

[...]

[If] national security interests were not sufficient to outweigh the First Amendment principles implicated in the prior restraint of pure speech related to the public interest, as in the Pentagon Papers case, it is difficult to discern an obvious rationale for finding that punishing that same speech after it has already been disseminated nevertheless tilts the balance in favor of the government's interest in protecting sensitive information.

The publication of truthful information that is lawfully acquired enjoys considerable First Amendment protection. The Court has not resolved the question "whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may ever punish not only the unlawful acquisition, but the ensuing publication as well." (The Pentagon Papers Court did not consider whether the newspapers' receipt of the classified document was in itself unlawful, although it appeared to accept that the documents had been unlawfully taken from the government by their source).

The Court has established that "routine newsgathering" is presumptively lawful acquisition, the fruits of which may be published without fear of government retribution.

There are definitely plenty of loopholes whereby the government can try to file charges against Assange, but in reading through the document it would likely be a pretty tough sell. You can read through the entire document after the jump.

Filed Under: espionage, extradition, julian assange, wikileaks
Companies: congressional research service, wikileaks

How The Press Misleads About Wikileaks

from the journalism-at-work dept

As Julian Assange's lawyers fully expect him to get charged in the US under the Espionage Act, it's interesting (and a bit distressing) to see how some in the press -- who should be his biggest supporters -- are acting. Glenn Greenwald highlighted how a Time Magazine report on the potential US legal case against Assange misstated a variety of facts -- including the idea that Wikileaks itself had published "thousands" of classified State Department cables and that it had done so "indiscriminately." As Greenwald points out Wikileaks itself has only published a little over 1,000 of the cables, and nearly all of them are the ones that the press has already posted/vetted/reported on.

This is a part of the story that isn't getting much coverage. While most of the news reports have said that Wikileaks published over 250,000 such cables, that's not exactly true. It has over 250,000 such cables and appears to have passed them on to its media partners, but it's slowly releasing specific cables -- with redactions -- and mostly after the press partners are releasing those same cables. In other words, it appears that Wikileaks is actually being judicious and discriminating in what it's releasing. Or, you could say (and probably should say) that Wikileaks is actually doing much of what a journalist would do in selecting which documents to pass along at this time.

But by trying to claim that Wikileaks is "just" a data dump, it's an effort to make Wikileaks look like it's not a journalistic or media entity -- thereby affording it fewer First Amendment rights. But, it appears that some in the press, such as Time, are being quite misleading in doing so. After Greenwald called them on it, Time issued a "correction," but it's a "correction that's not a correction" in that they basically say that Assange and some others disagree with some of Time's claims. But it makes no attempt to fix the factually incorrect statements.

Of course, this may come back to the view that many have: that certain elements in the press are upset about Wikileaks because it shows what a crappy job they've been doing on their own. If we had a functioning press that actually sought to hold the US government accountable, there would be much less of a need for Wikileaks. Instead, we have a press that focuses on keeping "access" to those in power, and that means not digging too deep at times.

Filed Under: espionage, journalism, julian assange, time magazine, wikileaks
Companies: wikileaks

MGA Claims Mattel Acted Like Bratz In Secretly Spying On MGA Plans

from the on-the-counteroffensive dept

It looks like toymaker MGA has decided that if the momentum is turning in its ongoing legal fight with competitor Mattel, it might as well go all in. As you may recall, Mattel had sued MGA over its (extraordinarily successful) Bratz lines of dolls, because the designer who came up with the concept had done so while working at Mattel. This resulted in an amazingly broad ruling against MGA that required it to basically turn over everything having to do with Bratz dolls, including future plans, to Mattel. This made no sense. If Mattel was to get the rights to anything from MGA, it should have only been the original expression if they were actually produced under the Mattel employment contract (a point of dispute). Thankfully, the appeals court realized what a terrible ruling this was, and rejected most of it.

With momentum moving to MGA, the company has now filed headline-grabbing counterclaims against Mattel, concerning revelations, supposedly unearthed during depositions for the case, of widespread and potentially illegal corporate espionage done by Mattel on MGA and many other toy companies, including setting up fake personas so that people working for Mattel could get into toy showcases from competitors that were closely guarded secrets.

While it does make for a good story, it's not entirely clear what this really has to do with the case at hand. Corporate espionage happens all the time, as competitors try to get a leg up on one another. It seems like a bit of a tangent for MGA to even bother to bring this up now. Why not just focus on the key issue of retaining the rights to the lucrative Bratz dolls?

Filed Under: dolls, espionage
Companies: mattel, mga

Where's The Line Between Whistleblowing And Criminal Leaking Of Classified Works?

from the is-there-a-line? dept

Nearly 40 years ago, Daniel Ellsberg leaked what's now known as The Pentagon Papers to the NY Times, exposing a "classified" study that showed how the Johnson Administration had regularly (and systematically) lied about the war in Vietnam. The Nixon administration claimed that Ellsberg violated the Espionage Act of 1917, since they had no authority to share those classified documents. The administration also sought injunctions against newspapers for publishing excerpts of the documents. Eventually, the Supreme Court allowed the newspapers to publish. As for Ellsberg, his case went to trial, but it was thrown out due to government bungling, including wiretapping him without a warrant and slapstick government attempts to spy on and/or discredit Ellsberg. These days many people consider Ellsberg quite a hero for whistleblowing on illegal activities by the US government.

This all has become very pertinent again, as it appears that the US Army has finally charged intelligence analyst Bradley Manning with violating the Espionage Act for his leaking of certain "classified" information to Wikileaks.

And that leaves us back to square one of a very difficult question: what's the difference between whistleblowing and criminally leaking classified works? It seems like the line is pretty clear. If the "leak" is designed to expose otherwise illegal activities, that should be protected in some manner. If the leak, on the other hand, has nothing to do with exposing illegal activities and, instead, is just to reveal secret (but legal) information, it probably falls on the other side of the line. Where Manning's actions fall on this spectrum are still not at all clear -- but it seems like folks are rushing to push him into one or the other camps already. Hopefully some more details will come out and it becomes clear where he really falls (no matter what a court may decide...).

Filed Under: bradley manning, daniel ellsberg, espionage, leaking, whistleblowing

Is Getting Access To Competitors' Presentations Claiming To Be An Indy Blogger Corp. Espionage?

from the blurring-lines dept

One of the things that many conferences are struggling with these days is the question of how do you handle "press passes" for events. In the past, it was easy: there was press... and there was everyone else. But these days, when anyone can become a publisher of their own blog or other site, where do you draw the line? I know I've had discussions with conference organizers who fret over the issue, and generally decide on a rather ad hoc basis. But Glurbie alerts us to a story that takes the issue to an entirely different level. If you're a blogger... and you get a "press pass" to an industry (or competitor's) event as a blogger, rather than as an employee of your company, at what point is there an ethical lapse?

In this story, a spokesperson for Boeing, who also writes for a defense contractor blog, went to an industry event under a press pass for the blog, rather than being listed as a Boeing employee -- and then sat in on various presentations by competitors. That second link notes that this probably falls short of real corporate espionage (which the original link above raises), but does certainly raise some ethical questions. There is a suggestion that most people in the room probably already knew the guy worked for Boeing, but it still seems odd not to admit that fact.

While there's some effort to pose this story as a question about "blogging" (and Boeing is apparently reviewing its blogging efforts and thinking of shutting down the guy's blog), I'm really not sure it's a "blogging" issue at all. The real issue is one of disclosure. The guy didn't disclose who he worked for when that could have been rather relevant.

Filed Under: blogging, espionage
Companies: boeing

Online Espionage Network, Based In China, Exposed

from the well,-there's-that... dept

For years, there have been claims of widespread "cyberspying" of various governments by other governments, but little evidence to back it up. Over the weekend, reports broke of a massive network, dubbed "GhostNet," that was based in China, and tapped into computers of multiple foreign nations, mainly via foreign embassies. The Chinese government denies that it has anything to do with the network -- though, the spying did include tapping into Tibetan computers. While it still seems like the threat of a damaging online attack may be overblown -- online espionage is only going to become a bigger and more important part of any government's arsenal in the coming years. That's why reports like this one probably shouldn't be much of a surprise.

Filed Under: china, espionage

Online Criminals Move On To Corporate Espionage

from the plain-old-phishing-doesn't-pay dept

One of these days, someone will do a fascinating study or book on the evolving nature of online crime. It's a constantly changing phenomenon that would be quite interesting to study. A few years ago, we noted that the ease with which script kiddies could jump into the phishing and online extortion market meant that margins were getting squeezed for older online organized crime groups who had focused on such practices in the past. Apparently, the big money now has moved away from standard phishing and into corporate espionage. Organized crime groups are figuring out ways to hack into company networks, suck up as much data as possible, and then sell it off to the highest bidder -- whether it's competing firms or foreign governments.

Filed Under: corporate espionage, cybercrime, espionage, organized crime, phishing