The Bradley Manning Verdict Will Create Massive Chilling Effects For Whistleblowers And Journalists

from the shameful dept

Following the Bradley Manning verdict, a number of individuals and organizations have weighed in to highlight just how big the chilling effects of the guilty verdict will be. While being found not guilty of “aiding the enemy” meant that it wasn’t the “worst case” scenario, it’s still bad. Dan Gillmor does an excellent job laying out the simple facts about how the “unrelenting war” on leaks and whistleblowing will have damaging impact on the press, and by extension, the public.

For those who want to tell the public what the government is doing with our money and in our name, there are new imperatives. Governmental secrecy, surveillance and the systematic silencing of whistleblowers require updated methods for journalists and journalism organizations of all kinds. Americans pursuing this craft have to understand the risks and find countermeasures.

That is not enough. The public needs to awaken to the threat to its own freedoms from the Obama crackdown on leaks and, by extension, journalism and free speech itself. We are, more and more, a society where unaccountable people can commit unspeakable acts with impunity. They are creating a surveillance state that makes not just dissent, but knowledge itself, more and more dangerous. What we know about this is entirely due to leakers and their outlets. Ignorance is only bliss for the unaccountable.

Gillmor also quotes another journalist, Jeremy Scahill, who points out that: “We’re in a moment when journalism is being criminalized.”

Many in the journalism world are realizing this. Reporters Without Borders put out a statement about how damaging this is for investigative reporters and their sources:

The verdict is warning to all whistleblowers, against whom the Obama administration has been waging an unprecedented offensive that has ignored the public interest in their revelations. It also threatens the future of investigative journalism, which risks finding its sources drying up.

“The information that Manning allegedly passed to WikiLeaks — used by newspapers such as The New York Times, The Guardian, Der Spiegel and Le Monde in coordination with Julian Assange’s website — included revelations of grave abuses in the ‘war on terror’ launched by the Bush administration,” Reporters Without Borders said.

Similarly, the Freedom of the Press Foundation is worried about the consequences, specifically over the conviction over the CFAA and how this will impact future cases:

Manning is now the most high profile conviction under President Obama’s crackdown on leakers. As has been well documented, his administration has prosecuted more leakers under the Espionage Act that all other administration’s combined, and has cast a distinct chill over investigative journalism.

The Espionage Act, a draconian statute written in 1917 as a way to punish non-violent opponents of World War I, has unfortunately been used in recent years to equate leakers and whistleblowers with spies and traitors. Facilitating that warped view in Manning’s trial, the judge ruled early on that the defense was not allowed to put forth evidence of Manning’s sole intent to inform the American public, or evidence showing that none of the information materially harmed national security.

Today’s ruling also opens up a new avenue for charging leakers and whistleblowers—section (a)(1) of the Computer Fraud and Abuse Act, which until now, has never led to a conviction. It’s was crafted in the 1990s by using some of the worst parts of the Espionage Act and adding the phrase “with a computer.”

Michael Calderone, over at the Huffington Post noted that future whistleblowers of government fraud and abuse are likely to think twice now — which some might argue was the entire point of the overzealous prosecution.

That Manning was convicted of six counts of espionage, out of 19 counts total, highlights the Obama administration’s unprecedented use of the Espionage Act to prosecute individuals for leaking information not to foreign governments, but to the media. The Obama administration has invoked the Espionage Act seven times, with the most recent example being in the case of Edward Snowden, a former NSA contractor who shed light on the extent of the U.S. surveillance state with leaks to The Guardian and the Post.

Elizabeth Goitein, co-director of the Liberty and National Security Program at the Brennan Center for Justice, said it’s a “very scary precedent” that “despite the lack of any evidence that he intended any harm to the United States, Manning faces decades in prison.”

If basic whistleblowers are frightened, it’s going to make the press’s job harder, and it’s going to make the government’s ability to commit fraud and abuse that much easier.

Meanwhile, the EFF has pointed out the ridiculousness of the CFAA conviction as a part of the ruling against Manning:

the decision today continues a trend of government prosecutions that use familiarity with digital tools and knowledge of computers as a scare tactic and a basis for obtaining grossly disproportionate and unfair punishments, strategies enabled by broad, vague laws like the CFAA and the Espionage Act. Let’s call this the “hacker madness” strategy.  Using it, the prosecution portrays actions taken by someone using a computer as more dangerous or scary than they actually are by highlighting the digital tools used to a nontechnical or even technophobic judge.

In the Manning case, the prosecution used Manning’s use of a standard, over 15-year-old Unix program called Wget to collect information, as if it were a dark and nefarious technique. Of course, anyone who has ever called up this utility on a Unix machine, which at this point is likely millions of ordinary Americans, knows that this program is no more scary or spectacular (and far less powerful) than a simple Google search. Yet the court apparently didn’t know this and seemed swayed by it.

You can argue that Manning didn’t follow the chain of command to blow the whistle (even though he tried) and that he released documents that he shouldn’t have (even if there’s no evidence that they did any real harm), but the impact of this ruling, and the eventual sentencing is going to have far-reaching implications, beyond just Manning. The government’s overzealous prosecution is going to have serious chilling effects, and has opened up some highly questionable legal theories just because this leak happened “with a computer.”

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Comments on “The Bradley Manning Verdict Will Create Massive Chilling Effects For Whistleblowers And Journalists”

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52 Comments
Anonymous Coward says:

Let's review the rules

Here’s how it works. The President makes decisions. He’s the decider. The press secretary announces those decisions, and you people of the press type those decisions down. Make, announce, type. Just put ’em through a spell check and go home. Get to know your family again. Make love to your wife. Write that novel you got kicking around in your head. You know, the one about the intrepid Washington reporter with the courage to stand up to the administration? You know, fiction!

Kevin H (profile) says:

Re: Re:

While I agree with the overall point of this post there is a level of distinction that needs to be made. Manning was active duty military when he did what he did. Active duty military do not have the same rights as someone working for a newspaper does. His trial was a military one that also works from a different set of rules than a standard civilian court. Was Manning guilty? Yes, technically. Did he do evil? No, and I do not believe that there was malice in his decision.

flintwingel (profile) says:

Re: Re:

VPNs have readily identifiable endpoints so of limited value. Even Tor cannot be fully relied upon as you’re never really sure who’s running the nodes. The very act of using encryption, VPNs or Tor is appears to be enough to raise your profile.

With the latest revelations over XKeystore it’s now clear that staying truly anonymous on the Internet when up against the resources of the NSA et al is damn difficult.

It really comes down to how hard they want to look for you. Start divulging their nasty little secrets and they’ll try hard.

Hephaestus (profile) says:

Re: Re: Re:

The simple ways to leak information.

– CD ROM or datastick and mail the files from someplace far from home.

– Cheap throw away tablet or laptop bought for cash, new email account, and an open Wi-Fi to do your emailing.

– Torrent file and mail or email to notify people where it is. Adding the info as a zip to a big name movie torrent would keep the info alive for a long time. This way you could dump it months in advance. Leaving the trail cold.

– A wikileaks type site, a throw away laptop, and open wifi.

flintwingel (profile) says:

Re: Re: Re: Re:

If the NSA have access to any traffic logs between you and the VPN server that delay will be all of about 3 seconds… and you can bet they’ve got the IP address of every commercially available VPN server programmed into their “and these are particularly interesting” list.

If you were a whistleblower would you want to trust the rest of your life to KillDisk given the resources the NSA can bring to bear?

horse with no name says:

whistleblowing or data dump?

Part of the problem with the Manning case is that the scope of his actions were outside of the general scale of whistleblowing. Basically, he dumps a huge amount of data and documents without ever having the chance to read them, without matching them up with any relevancy to any specific wrongdoing.

Basically, he wasn’t whistleblowing a specific operation, he was exposing everything that the US was doing worldwide.

Whistleblowing is specific, data dumping is just tossing everything out and hoping someone else sees something interesting. Whistleblowing is motivated by the desire to make things better or stop a specific wrong, and the other is basically to f–k things up.

(PS: it’s been over a month of Techdirt censorship of my posts… everything goes to moderation. Free speech, just watch what you say!).

horse with no name says:

Re: Re: whistleblowing or data dump?

No, the post is as you see it. Mike and his gang don’t like my posts, so they all go to moderation. I don’t spam, and i have never spammed. Just their way of shutting people up long enough that their posts are no longer relevant – you know, censorship.

JJJoseph (profile) says:

Re: who is "Us"?

NSA is not a “they”, it is “us”. We voted for our representatives to maintain and protect us, and the NSA is part of it. We didn’t vote for Reporters Without Borders or the Arab Spring or Manning to watch over us, we voted for our reps to do the dirty work. I’m really suspicious of people calling for anarchy & bloodshed.

Anonymous Coward says:

Re: Re: who is "Us"?

The purpose of having these discussions is to determine if we are voting for a government that represents the people. Do we, as voters, want whistle blower protection laws? I say yes. and yes we did vote for our reps to look over us but we also want the ability to look over our reps. That’s the whole point of having freedom of the press, so that anyone, including reporters, can look over our reps and keep the public informed about how they are doing their job. In order to be good voters we need to be informed voters which requires transparency. The whole purpose of having votes isn’t to just let the government and the NSA do what they want once we cast our vote but it’s so that we can have a say in how the government governs us. and if voters think the government is hiding too much then the government needs to stop concealing everything so that we can make informed votes.

What are you, an NSA shill. I get suspicious of people tossing the word anarchy around who have no idea what the word means. The government needs to follow rules before simply spying on everyone, we can not have a government of anarchy where the government can do whatever it wants as it pleases, like putting whistle blowers in jail for no good reason.

WhatMeWhistle? says:

Blowback

I’ll be very surprised if the egregious “hang a few admirals” approach to soiled political laundry doesn’t invite more trouble than it prevents.

Manning’s document release was an opportunity to teach us all how difficult diplomacy is. What we get to take away instead is that there is a small class of folks that would rather hang the messenger than explain the message. Making the world safe for mercenary contractors is a poor choice. Doubling down instead of responding and reforming seems to be a recipe for Yet More Trouble, making the American Voter the enemy.

If I recall correctly, the US military spent some time in the 1990s detailing how assigning civil and humanitarian issues to the war makers led to a couple of troubling things: compromised war making, and increasing the likelyhood of military intervention in US civil affairs, of things like coups. Manning’s great mistake was not his Thoreau moment of disobedience, it was being in the military while wanting to aid civil society – that has cost him his freedom for life.

The April 20, 2008 New York Times article, “Behind Military Analysts, the Pentagon?s Hidden Hand” is a good read on the precedent ‘chilling effects’ of compromised reporting. That Manning’s trial has been essentially ignored in this country (USA), and that the best national scale reporting comes from foreign papers follows naturally from those compromises. I’d feel a lot worse about the chilling effects if they were new. That Manning or Snowden, or any other person trying to improve civli society by admitting our shortcomings as preamble to doing better, gets ignored by the US media makes their concerns of chilling effects pretty meaningless.

I’d argue that the modern whistleblower’s use of new media outlets is the leading edge of a future full of blowback. I expect to see more critical facts emerge if, rather than addressing the root of the problems, all that happens is killing the messenger.

Anonymous Coward says:

Amazing…until recently I never realized I live in the most despicable country in the world, a country where ordinary citizens are regularly rousted from their homes and hauled off to government facilities to be tortured, a country where the First Amendment is accorded the exact same meaning and rights are its counterpart in the then USSR’s Constitution, that laws are regularly and deliberately enacted to hold back the tide of progress in the arts and sciences, we start armed conflicts with other nations to line the pockets of fat cats, we commit the most heinous forms of human rights violations known to man, that (Here fill in the blank to state whatever suits our fancy).

I am convinced. We live in a society that shames all others that have come before us and are in existence today, we should be ashamed of what our society represents, and we should all simply leave for parts unknown to escape this cesspool. Now that I think about it, this might serve as a grand bargain for immigration reform…you know, the act where people risk all to come here so that they too can share in our cesspool.

JJJoseph (profile) says:

Re: Re: Re: being attacked?

How is it possible that we’d ever be “under attack”? Isn’t everyone else on this planet kind, peaceful, and generous? What do we have that anyone else would want? Perhaps we should let all the Afghan youth come here peacefully, no restrictions, to help us become gentler. We could bring the Arab Spring here to help us become more civilized and democratic.!

Jasmine Charter (user link) says:

Libertarian

While I am a libertarian and would have the government bud out of things and be more transparent…

I really don’t consider Manning a whistleblower. He didn’t just blow the whistle on a program or two or government indiscretion… he release TONS of related and un-related info and some that put Americans in harms way.

He could just as easily gotten information about a couple of programs and released that. Instead, he is really no better than the NSA casting it’s wide dragnet and hoping to come up with something.

Speaking of which, Snowden IS a whistleblower. He had specific information about programs which ARE illegal, despite what the government might claim – because the Constitution trumps FISA and the Patriot act, since neither are amendments. These are illegal programs which needed to be brought to light and which, revealed, won’t overtly put our people in harm’s way.

Disgusted (profile) says:

The Real Whistleblowers

There will come a time, in the not too far distant future, when a new class of reporters/whistleblowers will come to be. These people will be dedicated to the truth at all costs. They will release their reports and acquired Government documents, outlining government abuses of all sorts, knowing they will probably be arrested and perhaps executed for doing so. They will do this willingly in the name of the greater good.

Sounds nice, doesn’t it? Too bad it probably won’t happen. No one has the guts any more.
.

Wally (profile) says:

No...it won't.

The key difference between Edward Snowden and Bradley Manning is that Edward Snoweden kept vital information preserved. Bradley Manning leaked information that needed to stay preserved.

Snowden is a whistle blower and has not committed any treasons to this nation by calling out the NSA to be accountable for its actions. He cherry picked the information he carefully gathered evidence to constitute blowing the whistle.

Manning leaked roughly 750,000 documents without question straight to Wikileaks and a few other sources. He didn’t pick and choose information. All he basically said was “They are misbehaving” and handed over 750,000 documents and briefs…most of which were deemed classified.

Mike Masnick (profile) says:

Re: No...it won't.

Manning leaked roughly 750,000 documents without question straight to Wikileaks and a few other sources. He didn’t pick and choose information. All he basically said was “They are misbehaving” and handed over 750,000 documents and briefs…most of which were deemed classified.

This is contrary to what Manning has claimed and no one has presented any evidence to support this.

Similarly, you don’t know how many documents Snowden leaked either. Just as with Manning’s leaks, the original documents are being dribbled out slowly after the press has had a chance to go through them. How can you say one is different than the other?

Cloudsplitter says:

We are at the start of the new information war, it is a war that will decide the future of our constitution, and our freedoms. Manning is just one of the first freedom fighters engaged in the battle, it will be a long war and a hard fight, but we will win it, if we have as much courage as our fathers, and use the brains god gave us. Leaks of government data are the currency in this war, this American Republic can not operate or survive without information, governments, and those in power, will always seek to control, information, because it is power, we on the other hand know that, that power belongs to the people, and is the only way that the people can order, and control their government. fundamentally if we as a people fail to get back, and keep under control this ravenous government, that is running completely out of control, we will have no country left, and we may all be seeking exile someplace. It is the duty of all who love this country, to hold its leaders, and government officials to account for their actions, that they take in our name and with our money, to do less is to invite into our homes the chains of slavery, because that is where we will end up if they win. But they can only win if the rest of use keep our heads down, and remain silent, the “good” Germans, tried that as Hitler rose to power, look what it got them. Government by its very nature is an evil, a useful evil, but an evil non the less, let it get out of control, and it will eat us all. Manning is not the first guy to fight in this war, non the first guy to fall in it, but he can not as this utterly corrupt, unlawful, and unconstitutional operation in Washington, will have us believe, is the last. Leaks strip governments, and their henchmen of immunity, and impunity, Sunlight is the Great Disinfectant, and Elixir of Freedom. Learn how to fight better, your children may thank you for it someday.

JJJoseph (profile) says:

Black Panthers said . . .

Yeah, so smug, and look what eventually happened to the Black Panthers. Like Manning, Snowden, et al, they were a bunch of self-righteous, self-centered, anarchists with no understanding of the world around them. Sociopaths like the Panthers and the leakers are always stunned to find themselves on the losing end of our affections.

That One Guy (profile) says:

Re: Re: Re: Black Panthers said . . .

Eh, everyone has a group they don’t care for, just keep in mind the rule you list, that of ‘hurling insults = not being taken seriously’ holds regardless of who it’s being applied to.

Don’t like a group, present your reasons, back them up with evidence, and that’ll get you a lot farther than just calling names and hurling insults.

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