In re WikiLeaks: S. 4004, SHIELD Act, Goes After WikiLeaks; EFF Calls for Standing up Against Internet Censorship; CRS Tries to Provide Analysis without Access to Leaked Cables

Excerpts from EFF's Call to Action by Shari Steele, Join EFF in Standing up Against Internet Censorship:

The debate about the wisdom of releasing secret government documents has turned into a massive attack on the right of intermediaries to publish truthful information. Suddenly, WikiLeaks has become the Internet's scapegoat, with a Who's Who of American and foreign companies choosing to shun the site.

Let's be clear — in the United States, at least, WikiLeaks has a fundamental right to publish truthful political information. And equally important, Internet users have a fundamental right to read that information and voice their opinions about it. ...

On Friday, we wrote about Amazon's disappointing decision to yank hosting services from WikiLeaks after a phone call from a senator's office. Since then, a cascade of companies and organizations has backed away from WikiLeaks. A public figure called for the assassination of WikiLeaks founder Julian Assange. PayPal, MasterCard, and Visa axed WikiLeaks’ accounts. EveryDNS.net pulled Wikileaks’ DNS services. Unknown sources continue to cripple WikiLeaks with repeated denial of service attacks. Even the Library of Congress, normally a bastion of public access to information, is blocking WikiLeaks.

There has been a tremendous backlash against WikiLeaks from governments around the world. In the United States, lawmakers have rashly proposed a law that threatens legitimate news reporting well beyond WikiLeaks. We expect to see similar efforts in other countries. Like it or not, WikiLeaks has become the emblem for one of the most important battles for our rights that is likely to come along in our lifetimes. We cannot sit this one out.

(Emphsis added.)

The bill Steele is referring to is S. 4004, SHIELD (Securing Human Intelligence and Enforcing Lawful Dissemination) Act [Open Congress link]. Introduced on Dec. 2, 2010, the bill would amend section 798 of title 18, United States Code, to provide penalties for disclosure of classified information. Quoting from one of the co-sponsor's press release, Bipartisan Ensign Legislation Goes After WikiLeaks by Amending Esponage Act (Dec. 2, 2010):

Senator John Ensign (R-NV) led with Senators Joe Lieberman (I-CT) and Scott Brown (R-MA) today in introducing legislation that will help derail the very real threat posed to human intelligence sources by WikiLeaks.  Their legislation, the SHIELD Act, would give the Administration increased flexibility to go after Wikileaks and its founder Julian Assange by making it illegal to publish the names of human intelligence informants (HUMINT) to the United States military and intelligence community.

...

United States Attorney General Eric Holder recently stated, “To the extent there are gaps in the laws, we will move to close those gaps.”  The SHIELD Act will help close these holes in the law.

Recently Updated On Topic CRS Report Crippled by Lack of Access to Leaked Cables. “There appears to be no statute that generally proscribes the acquisition or publication of diplomatic cables,” according to a newly updated [CRS Report, Criminal Prohibitions on the Publication of Classified Defense Information, Dec. 6, 2010] “although government employees who disclose such information without proper authority may be subject to prosecution,” writes Steven Aftergood on Secrecy News. Aftergood adds:

Incredibly, CRS was unable to meaningfully analyze for Congress the significance of the newest releases because of a self-defeating security policy that prohibits CRS access to the leaked documents.

The CRS report concludes that any prosecution of Wikileaks would be unprecedented and challenging, both legally and politically. “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.”

(Emphasis added.)

See also Aftergood's CRS Seeks Guidance on Using Leaked Docs post ("After its access to the Wikileaks web site was blocked by the Library of Congress, the Congressional Research Service this week asked Congress for guidance on whether and how it should make use of the leaked records that are being published by Wikileaks, noting that they could 'shed important light' on topics.") 

Will AALL"Sit This One Out"? One has to wonder whether our professional association's leaders have given any thought to issuing an official statement about this open access issue. [JH]