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

By Freedman, James | Stanford Journal of International Law, Winter 2012 | Go to article overview

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


Freedman, James, Stanford Journal of International Law


INTRODUCTION
I. The Shortcomings of Traditional Approaches
 A. Statutory Scope
 B. Jurisdictional Reach
 C. Extradition
 D. Constitutional Limitations

II.COPYRIGHT INFRINGEMENT ANALYSIS
 A. Ownership of U.S. Government Works
 B. Copyrightable Subject Matter
 C. Rights, Remedies, and Enforcement
 1. Location of infringing acts
 2. Grounds for protection
 3. Choice of law
 4. Minimum standards of protection: basic rights and remedies
 5. National (and most-favored nation) treatment
 D. Criminal Copyright Infringement

III LEGAL BARRIERS TO SUCCESS
 A. Fair Use and Fair Dealing
 B. The Idea-Expression Dichotomy
 C. De Minimis Use
 D. Constitutional Issues and the Purpose of Copyright

IV. ADDITIONAL OBSTACLES

 A. The Decentralization Problem
 B. Outlier Nations

CONCLUSION: THE TRIUMPH OF COPYRIGHT

INTRODUCTION

In late November of 2010, an organization headquartered in Sweden and founded by an Australian national released approximately 250,000 United States government diplomatic cables--many or all classified as state secrets (1)--onto the World Wide Web. (2) Warning that the cables' release could put the lives of American diplomatic sources at risk and "deeply impact ... U.S. foreign policy interests," the White House strongly condemned this "unauthorized disclosure of classified documents and sensitive national security information." (3)

This wasn't the first time WikiLeaks (4) had distributed U.S. classified material over the Internet, (5) and it wouldn't be the last. (6) In Washington, government attorneys scrambled to find a legal hook that would enable them to shut down the site for good. (7) In the meantime, U.S. prosecutors turned their attention to the low-hanging fruit: the alleged source of the leak, a U.S. citizen and Army intelligence analyst, Bradley Manning.

This Note will not dwell on the normative--should the United States seek to shut down WikiLeaks and similar organizations? Is sunshine truly the best disinfectant? (9) Is WikiLeaks even a threat to national security, (10) or a beneficial counter to excessive government secrecy? (11) Instead, the Note starts from the straightforward assumption that the government desires to keep certain information secret, a supposition supported by the existence of today's classification system and the costly complexities involved in maintaining it. With this in mind, what tools can the government employ to achieve those ends, preventing the exposure of its classified documents? Many are already in place, in the form of physical security, access restrictions, deterrence through discovery and prosecution of initial leakers, and the like. (12) Those methods, like the above normative question, are also beyond the scope of this Note.

What this Note will address are potential lawsuits the United States can bring against distributors of purloined state secret documents. Particularly, it will focus on a somewhat unusual and largely disregarded or derided approach: utilizing intellectual property laws--namely, copyright--to prevent and punish the distribution of U.S. government documents classified as state secrets. (13)

At least based on press reports, it appears federal prosecutors have had a hard time formulating a strong case against WikiLeaks. (14) While accused leaker Bradley Manning's alleged actions more clearly constitute violations of various U.S. statutes--most notably the Espionage Act of 1917--prosecuting third-party recipients of classified information who later redistribute it is far more difficult, both because of the language of the applicable statutes and due to First Amendment protections. (15) As a result, attempts have been made to find evidence of a conspiracy between WikiLeaks and Manning, (16) which could then render the organization or its members liable alongside Manning for any illegal acts he committed in furtherance thereof, or to stretch the application of various U.S. laws to cover the activities WikiLeaks is known to have undertaken--namely, the publication of thousands of classified documents online. …

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