WikiLeaks Would Not Qualify to Claim Federal Reporter's Privilege in Any Form

By Peters, Jonathan | Federal Communications Law Journal, May 2011 | Go to article overview

WikiLeaks Would Not Qualify to Claim Federal Reporter's Privilege in Any Form


Peters, Jonathan, Federal Communications Law Journal


I. INTRODUCTION
II. THE REPORTER'S PRIVILEGE, GENERALLY
III. THE QUALIFIED FIRST AMENDMENT-BASED PRIVILEGE
   A. Efforts by the Federal Circuit Courts to Decide Who
      Has Status to Raise the Privilege
   B. Investigative Reporting Involves More Than the Mere
      Dumping of Documents
   C. WikiLeaks Has Not Taken Steps Consistently to
      Minimize Harm
   D. Summary
IV. THE CONGRESSIONAL SHIELD BILLS
   A. WikiLeaks and the House Bill
   B. WikiLeaks and the Senate Bill
   C. Summary
V. CONCLUSION

I. INTRODUCTION

Supreme Court Justice Sonia Sotomayor, in August 2010, told a group of students at the University of Denver that her Court likely would be called upon again to address the uneasy balance between national security and free speech. (1) She made that remark in response to a question about WikiLeaks, an online clearinghouse for confidential information that had released, one month earlier, more than 76,000 classified U.S. documents about the war in Afghanistan. (2) The government reaction had been fast and furious.

The Pentagon condemned the website and demanded, through the news media, that its staff return the documents and any other documents not yet released. (3) All four branches of the armed services issued internal memoranda to personnel barring them from accessing WikiLeaks, (4) and the Department of Justice began to eye Julian Assange, the site's founder and public face, for charges under the Espionage Act of 1917. (5) Meanwhile, an Army intelligence analyst, already suspected of leaking a classified video and diplomatic cables to WikiLeaks, was sitting in a military prison in Kuwait, where he instantly became a person of interest in the Pentagon's growing investigation into the source of the Afghanistan documents. (6) WikiLeaks would not confirm whether the analyst was the source. (7)

To be clear, that was only the government reaction in the week or two following the July 2010 release. Experts and commentators also whipped themselves into a frenzy, (8) and special interests representing the journalism industry began criticizing WikiLeaks. Groups like the Society of Professional Journalists and the Newspaper Association of America had been working for years with members of Congress to pass a federal reporter's shield law, only to see their efforts imperiled by WikiLeaks, considered by key legislators to be a threat to national security. (9) As a result, the groups stated publicly that the website does not engage in journalism and thus the shield would not provide protection. (10)

Since then, WikiLeaks has released more than 2,000 U.S. diplomatic cables, (11) and nearly 400,000 classified U.S. documents about the war in Iraq. (12) It plans to release an additional 15,000 documents about the war in Afghanistan, withheld originally so the website could edit them. (13) WikiLeaks also plans in 2011 to "take down" a major American bank and reveal an "ecosystem of corruption" by releasing data from an executive's hard drive. (14) Meanwhile, the U.S. Department of Justice has demanded records from Twitter about the account activity of several people linked to WikiLeaks, (15) and Assange himself is on house arrest in Britain after surrendering to authorities in December 2010 and spending nine days in prison. (16) He is challenging extradition to Sweden, where he is wanted on charges of sexual molestation and coercion. (17) Assange has said repeatedly that he is innocent, and his lawyers have suggested that the accusations are "part of a political conspiracy to silence WikiLeaks." (18)

Further, around the time Assange was detained, a group of hackers brought down the Swedish government's website and attacked the sites of companies that had cut ties with WikiLeaks, such as Visa, PayPal, Amazon.com, and MasterCard. (19) One of the hackers said that "[t]he idea is not to wipe them off but to give the companies a wake-up call" and that the group would "fire at anything or anyone that tries to censor WikiLeaks, including multibillion-dollar companies . …

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