Legality of Whistleblowing
Does the Federal government have the legal tools to prosecute whistleblowing organizations such as WikiLeaks? Different legislation does grant the federal government power to prosecute, but the First Amendment’s protection of speech and press freedoms is a deterrent for prosecution. Furthermore, the fact that online whistleblowing organizations operate internationally adds more complexities to a legal prosecution: the country where a member resides would have to recognize the whistleblowing as a criminal act, and the country would have to extradite the suspected criminal to the US. Yet, if the Federal government sought to prosecute a whistleblowing organization, then it would likely use the Espionage Act of 1917, the Conspiracy Statute, the Computer Fraud and Abuse Act of 1986, or possibly the act which prohibits Embezzlement of Government Property.
Espionage Act of 1917
The Espionage Act prohibits “Gathering, transmitting or losing defense information,” “Gathering or delivering defense information to aid foreign government,” and “Disclosure of classified information.” The act is regularly called a “draconian” act since its punishments include the death penalty or life imprisonment.
It is unlikely that the US government will try to prosecute a whistleblowing organization with the Espionage Act. Stephen Vladeck, an American University law professor, explained that the Act draws no distinction between the leaker and the recipient. For example, the Espionage Act does not differentiate between a whistleblower such as Julian Assange, a recipient of leaked government information, and a regular US citizen who opens a classified document on WikiLeaks at home. Therefore, if the US government tried to prosecute Julian Assange under the Espionage Act, then the mainstream media could face federal prosecution in the future. Since the press is protected by the First Amendment, such a prosecution could be seen as unconstitutional. According to Vladeck, the US government has attempted to prosecute someone other than the thief of classified information only once with the Espionage Act, and the prosecution failed.
Whistleblowing organizations will claim to be news organizations in order to gain protection from the First Amendment. For instance, Wikileak’s submission page “uses ‘journalist’ and forms of the word ‘news’ about 20 times”.
The Conspiracy Statute prohibits “two or more persons” from “[conspiring] to commit offense or to defraud [the] United States.” The statute punishes the offender to a fine or to imprisonment that lasts no more than five years.
The Conspiracy Statute provides a promising piece of legislation for prosecuting whistleblowing organizations. However, prosecution on this statute requires evidence that the whistleblowing organization conspired with the person who provided the classified information. For instance, Julian Assange could be prosecuted under this statute since evidence suggests that Assange had conversations with Private Bradely Manning about how to download and obtain certain kinds of documents.
Whistleblowing organizations will try to avoid the conspiracy statute by posting disclaimers. For instance, WikiLeaks posted on its submission page that “WikiLeaks accepts a range of material, but we do not solicit it”.
Computer Fraud and Abuse Act of 1986
The Computer Fraud and Abuse Act prohibits anyone from accessing a computer without authorization in order to obtain national security data. The act punishes an offender with a fine or imprisonment exceeding no more than twenty years.
Most whistleblowing organizations cannot be prosecuted under this Act. Many organizations such as WikiLeaks do not hack government computers to obtain classified documents; WikiLeaks is merely a recipient of classified information. However, the Federal government is prosecuting Private Private Bradely Manning under this Act and the Espionage Act.
Embezzlement of Government Property
The Embezzlement of Government Property Act makes it a crime for whoever “receives” or “retains” any “record… or thing of value of the United States.” The Act punishes an offender with a fine or imprisonment exceeding no more than ten years.
Whistleblowing organizations can be prosecuted under this act. Notably, classified information is “valuable information” that whistleblowing organizations “receive” or “retain”.