It's Come To This: Commentators Arguing That The Press Commits A Crime In Exposing NSA Surveillance

from the sad dept

Marc Thiessen, a former speechwriter for President Bush, apparently really hates it when government overreach is exposed. We last mentioned him when he attacked Wikileaks in the aftermath of its publishing of various State Department cables. Now, with the new NSA surveillance scandal, he’s back (of course) and taking the lovely position that it’s perfectly fine to charge journalists who publish information about NSA surveillance with crimes.

Greenwald’s crime is violating 18 USC § 798, which makes it a criminal act to publish classified information revealing government cryptography or communications intelligence.

The law is absolutely clear. It states: “Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes , or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information— (1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes— Shall be fined under this title or imprisoned not more than ten years, or both.”

Of course, there’s also that fancy First Amendment, which Thiessen would prefer to ignore:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

It would appear that 18 USC 798 is exactly what is forbidden by the First Amendment. It is a law abridging the freedom of the press and freedom of speech. Defenders of Thiessen and the NSA will point out that there are lots of times the courts have said this is okay, but I’m not sure what kind of defense that is, other than nitpicking why the First Amendment is something to ignore. Personally, I think that the First Amendment is fairly important, and worry about any laws that appear to push back on the basic concept of it.

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Comments on “It's Come To This: Commentators Arguing That The Press Commits A Crime In Exposing NSA Surveillance”

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Anonymous Coward says:

Our system of government is broken. Perhaps irreparably. The government does whatever it likes because first they have to be caught, then we the people have to get past the state secrets hooey. Next, we have to show standing, then we have to demonstrate real harm. All the while we have to have immeasurably deep pockets to afford the legal experts to pursue such a case.

230+ years of unnecessarily complex jurisprudence, 100+ years of the federal reserve pushing 2-3% inflation, 30+ years of this credit bubble coupled with 30+ years of EMTALA… its no wonder that education costs so much, legal fees costs so much, healthcare costs so much and the cost of living costs so much. It’s all designed to enslave We The People under an unbreakable chain and make the fruits of our labors solely for the profit of the state.

Anonymous Coward says:

Re: Re:

We as a country are screwed?
We now effectively have a one party system thanks to the lying cheating thieving progressive party.
Say anything against the current administration and you?re a racist or bigot usually both.
They have made voter fraud a spectator sport, arm our enemies (their allies) and are preparing tax us to death?thanks to barrycare?
Or maybe it?s really just the prelude to us all singing kumbaya in front of the bonfire and farting rainbows?

Anonymous Coward says:

Re: Re:

The Federal Reserve is part of the problem, I agree!

The other parts of the problem are the 16th and 17th Amendments passed by those early 20th century “Progressives”

16th concentrates massive amounts of money in one place, the Federal Government. Money leads to power and power leads to corruption.

17th allowed mob rule eliminating the ability of individual states to have a say in how the federal government is run.

PRMan (profile) says:

Re: Re:

I know it’s popular to rant on stuff like this (and I agree the First Amendment is extremely important), but:

* education costs so much

Actually, more people are more educated than at any other point in history.

* legal fees costs so much

Lawyers were always ridiculously expensive, good ones even more so. But because the university factories keep churning them out in record numbers despite a demonstrated lack of demand, they are actually getting cheaper all the time.

* healthcare costs so much

While it is more than say, the 80s, the amount of things they can do to save and prolong lives and improve quality of life combined with the number of people that have access to health care (which far exceeds the 80s levels), it really isn’t THAT bad. And certainly better than 100 years ago, where you would DIE from 90% of the things you go to the doctor for now.

John Fenderson (profile) says:

Re: Re: Re:2 To be fair...

Only 25% of the United States is the richest nation in the world

Good point, but still. The immorality of the health care situation is staggering.

To your point, I recently learned that my own income is in the top 10% of the income range in the US. This struck me as deeply disturbing because I’m not anything like wealthy. I’m not poor, but I don’t get to snort coke off of the asses of strippers or anything, either.

That One Guy (profile) says:

So wait...

1. Government commits crime.
2. Government classifies any data or evidence relating to said crime.
3. Government makes it illegal to leak or even talk about classified information.
4. Government finds itself in the position of being completely unaccountable for anything it does, as to expose their actions to public scrutiny and the possibility of justice one has to first break the law to do so, and even then evidence is forbidden from being presented, as it’s ‘classified’, making any court case against the government impossible.

And the whistleblowers are supposed to be the enemies of the country?

Anonymous Coward says:

Re: So wait...

Pretty good point, but how would you avoid this unless you completely give up on any kind of secret services or armies? Sure, if every country did things right, there would be no need for either, but that is an utopia given the situation in some or most countries on every continent of the world.

When that is said, the judgement about if a leak is compromising national security is not for politicians or secret services to make. In Denmark we had a case about a special troop writing a book about his missions in Afghanistan. The secret service found the book to involve too specific informations and he lost his contract with publishers. A newspaper published the book and the cases were running for treason. Some right wing politicians were calling for his blood etc.

The end result? Two higher officers of the secret service were fired and sued for fabricating evidence and the court found it to be completely unreasonable to withhold the information… Sure the court was not secret which is why the fabrication of evidence was revealed at all, but that is another story.

nasch (profile) says:

Re: Re: So wait...

Pretty good point, but how would you avoid this unless you completely give up on any kind of secret services or armies?… Sure the court was not secret

I think you hit on a big point right there. If this were not all handled through a court that by default makes everything secret, it would be a better situation. These things should go through regular federal courts where they might get examined with a critical eye rather than rubber stamped.

Anonymous Coward says:

forgive me for being so ill informed, but:

why would anyone ever want to purposefully contravene the Constitution, when it is what your country is built on and what people hold most dear?

why would anyone ever want to bring in a law that makes contravening any part of the Constitution legal?

even more to the point, why is a person(s) who wants to bring in a law that contravenes the Constitution even allowed to try??

sounds a bit sus to me!

Anonymous Coward says:

Re: Re:

You make a false assumption in that the majority of people in the Northeast and California do not believe in the principals you state instead believing in the principals of total totalitarianism and slavery of the masses for the benefit the correct elitists as defined down by Stalin, Mow, and Pol Pot.

SmarterThanYall (profile) says:

Re: contravening constitution

Why? Because for those whose financial standing places them above the need for such protections, said protections are an impediment to getting richer and/or more powerful. The ideals embodied in The Constitution were revolutionary, put in place by men with both vision and a desire to end the kind of tyranny and abuse that has always been the sequelae of concentrated power.

Lance (profile) says:

I reject his premise. Greenwald didn’t violate 18USC798. The information release was not “prejudicial to the safety or interest of the United States” because WE are the United States, and WE need to know our gov’t. is doing this crap. Neither was it “for the benefit of any foreign government to the detriment of the United States”.
So no law has been violated. I do agree that it is a first amm. violation to prosecute the publisher if he did not personally break a law in obtaining the information.

Anonymous Coward says:

Re: Re:

You forgot to include Microsoft. What Microsoft? If you ask that question then you probably are dumb enough to believe that Microsoft is a computer company that produces the Windows operating system not a cartel of individuals and companies with a law firm at its center devoted to world domination and control by means of computers, media, and news.

bob (profile) says:

does not apply

the first amendment argument aside for a second..

I don’t know that the quoted law (as I read the excerpt above) is relevant in this case. (Mind, I have not read the details of what has been revealed, but, I have not seen mention of the following qualifying criteria)
that it had anything to do with item (1) or (2) cryptography or devices used,it was touched on by (3) – communication activity of US or foreign govt, but that’s ANY news story.. and it also did not qualify under item (4)method used to obtain the information.

Mind, this is from a layman, not a lawyer, but this event really doesn’t seem prosecutable under this law, as only 1 of 3 criteria are met.

And then there’s the first amendment.

Anonymous Coward says:

Re: Re:

Back in your box moron.
I read some of your drivel, and you were wrong.

I’m not from the US and IANAL… But the reason you disagree is that you clearly have your own interpretation of the law… and it is wrong.
Your BS article is all about Kim Dotcom, who at this point has not been served with anything, and almost certainly had nothing to do with any piracy, other than providing the platform on which piracy was performed.
Your argument is about as logical as charging MS or Apple with conspiricy to comit ect. for allowing their OS to connect to the site, or indeed the internet at all.

You don’t have to like pirates to see that the law is being played fast and loose for the benefit of hollywood.

The same Safe Harbour exceptions that these AGs want to remove, are the ones that basically mean the case against Kim Dotcom is fairly bogus. You may disagree with the existing safe harbour laws, but at the end of the day it is the current law.

Uriel-238 (profile) says:

Humans are too stupid for democracy

The lawr’s the lawr is as instinctive to human beings as Hulk SMASH both of which are two reasons I cringe when some politician appeals to common sense: Common sense is pretty stupid.

Thomas Jefferson was similarly concerned that the common people are just not smart enough to govern by popular opinion. His arguments were that the laity were just generally dimwitted. Nowadays we recognize that we are prone to certain automatic notions (such as only people who look and smell like themselves should be regarded), and that most of us can’t be bothered to apply some critical scrutiny (or even mere empathy) to an issue before we decide on policy.

The hope of our founding fathers was the notion that we’d at least be able to elect someone wiser than ourselves to represent us, but given that people voted against Obama because he is a Kenyan Muslim (and not because, say, he lied about increasing transparency of the current administration) that hope is pretty much lost.

All empires fail sooner or later. Two-and-a-half centuries will be a short run if ours turns sour so quickly.

Anonymous Coward says:

POLL: released today by ABC News / Washington Post

Results from another poll were released today. This one finds strong, general support for Congressional hearings on the NSA surveillance program.

?Most Back NSA Surveillance Efforts ? But Also Seek Congressional Hearings?, by Gary Langer, ABC News, June 19, 2013

? The public by 58-39 percent supports the NSA collecting ?extensive records of phone calls, as well as internet data related to specific investigations, to try to identify possible terrorist threats.??

See PDF with full results, charts and tables here.

At the same time, in a strikingly nonpartisan result, 65 percent of Americans favor congressional hearings on the subject ? a view expressed by more than six in 10 Democrats, Republicans and independents alike, as well as by virtually equal numbers across the ideological spectrum.?

This ABC News/Washington Post poll was conducted by landline and cell phone June 12-16, 2013, in English and Spanish, among a random national sample of 1,017 adults. Results have a margin of sampling error of 3.5 points.&helip;

Anonymous Monkey (profile) says:

?Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes , or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information?”…

thus the published information is for the interest of the United States, not against, as recorded by the Constitution (We the People).

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