It's Dangerous For Free Speech When We Confuse Leakers With Spies

from the they're-not-the-same dept

We’ve tried to make similar points a few times in the past about our concern with the Obama administration going after whistleblowers and the journalists who publish their leaks by using the Espionage Act more than all other Presidents in history, combined (more than twice as much, actually). But the NY Times has a great piece highlighting how the federal government now seems to completely blur the lines between being a leaker and a spy.

“Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,” Mr. Goodale wrote. “The former is espionage, the latter is not.”

This is dangerous for a whole host of reasons — including having an informed and knowledgeable public. But it’s also dangerous from a First Amendment standpoint. Remember, the First Amendment protects freedom of expression and freedom of the press — and both are closely linked when we’re talking about whistleblowers leaking information to the public via the press. When we start turning the leakers and the press into “spies” we make that much more difficult, and as a result we have a less free society, and a much more controlling and abusive government.

Of course, some would argue that this is the goal. The very same article quotes former Bush administration apologist lawyer John Yoo — infamous in part because of his tortured legal defense, twisting the clear meaning and intent of the Geneva Conventions in order to pretend that the US could use torture as an interrogation technique without violating the rules. Not surprisingly, Yoo doesn’t have any problem at all with condemning leakers as spies.

“Manning’s defenders will say that Manning only leaked information to the 21st-century equivalent of a newspaper, and that he could not have known that Al Qaeda would read it,” Professor Yoo wrote in National Review Online.

“But WikiLeaks is not The New York Times or The Wall Street Journal, and it does not have First Amendment rights,” he added. “Manning communicated regularly with WikiLeaks’ founder and would have known about the group’s anarchic, anti-U.S. mission.”

Of course, Yoo is either woefully ignorant or flat out lying — neither of which makes him look good. First of all, the Manning/Lamo transcripts make it quite clear that Manning had very little communications with Assange. But, even more important, as research from professor Yochai Benkler made clear, prior to Manning’s leaks, Wikileaks was not seen as anti-US in its mission at all. Its earlier leaks had been focused on mostly corporate and government malfeasance around the globe (mostly outside the US), such as with Bank Julius Baer. As Benkler explained:

When you read the hundreds of news stories and other materials published about WikiLeaks before early 2010, what you see is a young, exciting new media organization. The darker stories about Julian Assange and the dangers that the site poses developed only in the latter half of 2010, as the steady release of leaks about the U.S. triggered ever-more hyperbolic denouncements from the Administration (such as Joe Biden’s calling Assange a “high-tech terrorist”), and as relations between Assange and his traditional media partners soured.

In early 2010, when Manning did his leaking, none of that had happened yet. WikiLeaks was still a new media phenom, an outfit originally known for releasing things like a Somali rebel leader’s decision to assassinate government officials in Somalia, or a major story exposing corruption in the government of Daniel Arap Moi in Kenya. Over the years WikiLeaks also exposed documents that shined a light on U.S. government practices, such as operating procedures in Camp Delta in Guantanamo or a draft of a secretly negotiated, highly controversial trade treaty called the Anti-Counterfeiting Trade Agreement. But that was not the primary focus. To name but a few examples, it published documents that sought to expose a Swiss Bank’s use of Cayman accounts to help rich clients avoid paying taxes, oil related corruption in Peru, banking abuses in Iceland, pharmaceutical company influence peddling at the World Health Organization, and extra-judicial killings in Kenya. For its work, WikiLeaks won Amnesty International’s New Media award in 2009 and the Freedom of Expression Award from the British magazine, Index of Censorship, in 2008.

Furthermore, the idea that Yoo has that Wikileaks somehow “does not have First Amendment rights” because it’s “not the NY Times or the Wall Street Journal” makes no sense. It’s just assuming that because one brand is established and another is new that the established one automatically has greater rights than the new one. That’s an argument based on nothing more than historical bias, rather than any sort of recognition of reality. Wikileaks was never focused on the US, but was focused on revealing conspiracies of all kinds — that the US just happened to be involved in many speaks more to problems with the way the US government works, than to Wikileaks itself.

But there’s a larger, more troubling, point in all of this. When we redefine whistleblower and leaker to the point that they’re considered “spies,” and, at the same time, accuse journalists and media outlets of being co-conspirators and not being covered by the same basic rights that we supposedly honor in this country, the further and further we get from the basic ideals of a free and fair society. Again, those in power don’t seem to much care for a free and fair society — because they’re in power. But for people who would like to have a government that actually represents the people, this should be a major concern.

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Comments on “It's Dangerous For Free Speech When We Confuse Leakers With Spies”

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Anonymous Coward says:

Just a definition

The definition of a leaker and a spy is far more about the information than the informant. As is the definition of a whistle blower, leaker or spy.

You can see that one group would consider industrial espionage, when another group could see them as leakers or whistle blowers.

People blur the definition because the definitions are blurred !!

Just as some consider Snowden a hero and other a traitor.

He is at the very least a spy. After all that was his job !

Anonymous Coward says:

Re: Just a definition

I am not sure how common it is for a person to leak secrets from secret soervices in western countries to news sources. A consensus on what is covered, by what laws, seems to be lacking.

It would seem like a complete injustice for the US secret services POV if a leaker did not carry a potential for serious punishment. On the other hand, leaking information to media and not being able to pressure that media to withhold the information is new and it does not play too well with the old kind of spying or aiding and abetting the enemy. In these new cases, the problem is no longer exposure to a foreign power, but rather the information exiting the confidential circles and spilling out. Unfortunately the secret services has done this for years as the medias anonymous sources, when they had something to gain from the leak spilling out and that is the real problem.

Now, you can analyze the leaks and get to a conclusion of if the leaks are “dangerous” to named people, indirectly identifyable people, the “integrity of the operations” or cooperating corporate entities. Now, the first 2 are serious seen from public view, while the 2 latter is a problem for the secret service or their corporate friends, which eventually is a problem for the politicians.

In the case of Manning, there were too little care shown to hide secondarily identifiable people and that is bad.

When it comes to Snowden on the other hand, all that has happened is that secret service and friendly corporations have been exposed as doing some, at least, gray area stuff that should warrent a lot of investigations. The problem is that the political ties to secret service contractors lobbying is turning the story into a manhunt for Snowden.

So Snowden and Manning are nowhere near being the same kind in terms of what they exposed, but if Manning is convicted of spying, so will Snowden be, and that lack of distinction is part of what is appalling in terms of spy/whistleblower since Snowden is basically doing what other “secret” sources from NSA do: Informing media of general principles of the work. The only difference is Snowdens intentions are not in the interest of NSA, so basically what he should be tried for is disloyalty.

Haudenosaun (profile) says:

Re: Just a definition

No, it’s not about content but rather the recipient of that content.

If information is stolen from a company and given to a competitor(s) that is industrial espionage. Whereas if information is stolen and passed to a journalist demonstrating illegality, that is whistleblowing.

The definition of spy and whistleblower are are not blurred in my mind. Nor were they blurred (in the public’s mind) during Daniel Elsberg’s time.

The blurring and confusion we see today have been purposely created.

Anonymous Coward says:

It’s Dangerous For Free Speech When We Confuse Leakers With Spies

But it’s your free speech rights that you can say it is a leak or a spy, it’s dangerous to say you cant to that.

It’s the RIGHT of Free Speech to say he’s a leaker, OR a spy, that’s your free speech rights.

Not to be told what we can say or think, that’s not what free speech is about.

Again, those in power don’t seem to much care for a free and fair society

We’ll then let’s have the ‘free and fair’ society, that should extend to the “FAIR” allowing of comments here on TD with the same status of comments agreeing with the article.

It is NOT a free and FAIR society where you are unfairly censored behind a “REPORT” hidden link because your free speech is not what everyone agrees with.

Anonymous Coward says:

Re: Re: Re:

“What’s the point of continuing on about something you know the rest of us here don’t agree with? “

That’s why !!!..

Because you like to censor things you don’t agree with !!!
The worst abuse of censorship you can get, by doing it you show us all how you don’t believe in free speech, or constitutional rights.

But you use censorship as a power to stifle comment you don’t agree with. I’m sure Masnick is proud of your actions.

Anonymous Coward says:

Re: Re:

If you hadn’t written that last bit you probably wouldn’t get reported.

Since you did the whole thing is a troll post so I get to hit the red button.

I’m using the freedom of this site to tell you to quit yapping. Discuss the article not your imagined censorship war with the rest of us.

PaulT (profile) says:

Re: Re:

“But it’s your free speech rights that you can say it is a leak or a spy, it’s dangerous to say you cant to that.”

No, saying you can’t do that is also free speech. Unless the government takes action to remove or restrict your ability to exercise free speech, your 1st amendment rights are fine.

I can say that anyone posting here anonymously is a lying moron. But you can disagree. It’s only “dangerous” when your ability to post here is removed – something this site has opted not to remove from you despite the litany of reasons you provide to show that it’s a good idea. You can still lie and act like a moron with impunity, even if people are given the option to choose to hide your drivel.

It’s dangerous when words are twisted to justify taking actions that would otherwise be unacceptable if the person was called a “leaker” rather than “spy”, but that’s why people have free speech rights to counteract this.

“where you are unfairly censored behind a “REPORT” hidden link”

The link isn’t hidden, you moron. Stop whining and trolling, then you will find your post magically avoids getting hidden. Not censored – since I wouldn’t be able to read your idiocy if it were censored.

Anonymous Coward says:

agree with you but the problem is, those that dont want a ‘free and fair society’ are the ones that have all the power, all the money and all the armed, security (and i use the term very loosely) forces already. the people have the numbers but as is being found out more and more, numbers mean less and less. i appreciate what happened over the SOPA/PIPA and ACTA introductions but it should never have had to get to the stage it did! if the people that are in office who are there to represent the people dont do that but concentrate instead on doing whatever they possibly can for industries, corporations, companies, individuals AND THEMSELVES with no thought whatsoever for the people, they should not be in office! tell me how many have been ousted/replaced, i bet it’s none! you only have to look at the Snowden episode. look at the representatives that are more concerned with getting him strung up for any reason they can get to stick than thanking him for making the world aware of what was going on. why is that? because those representatives have been doing absolutely nothing that they should have! those that have been doing their job are continuously being shouted down, being ridiculed and abused. until the ones that think it’s ok for the people to be spied on continuously, for no reason are replaced, the government is never going to be ‘of the people, for the people’ again!

Anonymous Coward says:

First of all, the Manning/Lamo transcripts make it quite clear that Manning had very little communications with Assange

The quoted article states he had communications with Wikileaks, not necessarily with Assuage, clearly he also communicated with Assuage.

“Manning communicated regularly with WikiLeaks? “

Clearly, if Manning sent 750,000 documents to Wikileaks, he must of communicated to them QUITE A BIT !!!

That’s ALOT of communications !!!

Rikuo (profile) says:

Re: Re: Re: Re:

So now you’re backpedaling. Your previous comment suggested that Manning must have been in extensive communication with Wikileaks simply due to the amount of documents he sent. Now you’re saying that a one-time communication is “enough”…enough to be considered extensive?
And talk about obsessing…so saith the person who’s constantly screaming about censorship.

Anonymous Coward says:

Re: Re: Re:2 Re:

“Your previous comment suggested that Manning must have been in extensive communication with Wikileaks simply due to the amount of documents he sent. “

That’s true, I do suggest that, as does the 750,000 documents he sent.
It not only suggests that, it confirms that FACT.
If you consider 3/4 of a million ‘extensive’!

AND, I am also saying 1 time communication is enough, as I said it’s not frequency, it’s content and intent.

I’m also not obsessing about anything, just providing some balanced commentary.

Malor (profile) says:

Obama apparently cannot distinguish between communicating information to the enemy and communicating information to the press,? Mr. Goodale wrote. ?The former is espionage, the latter is not.?

But, if you combine this with the fact that who we’re at war with is now classified:

it makes perfect sense. The American people are the enemy.

You may think I’m kidding. You may think I’m paranoid. The latter may be true, but I think I’m absolutely correct, and that history will prove me out.

All this surveillance state stuff isn’t to protect you from terrorists. It’s to protect the government from you.

Over the short to medium term, only those with ‘acceptable outlooks’, according to those doing the surveillance, will be able to prosper in politics, because people who disagree with the surveillance state will, mysteriously, be ruined. Old contacts will pop up to impugn them, or damning facts will ‘accidentally be unearthed’ by news agencies. They’ll be able to pinpoint your opinion on surveillance almost exactly, because they’ll be able to track your whole social network. And, if you or any of your friends have ever been deemed “interesting”, they’ll be able to read almost everything electronic you’ve ever sent to anyone. If your opinions aren’t acceptable, your missteps from your past will mysteriously arise to dog you. If you support vast surveillance, then you’ll sail right through, while your saner opponents struggle and fail as ‘coincidences’ keep piling up.

Those who don’t like the surveillance state will not have viable political careers in this country, no matter how good they might otherwise be.

Eventually, the subtle sabotage will start to become obvious, as the bureaucracy gets lazy and/or stupid, but by then the policies and procedures will be so ingrained in the government that it will be impossible to root out except through a total overthrow of the entire system — and that’s precisely what all these programs are explicitly designed to make impossible.

If you are an American, you are living in a police state. If you’re a racial minority, you probably already know it, but if you’re white, you probably haven’t internalized it yet. That doesn’t make it not true, it just means you haven’t caught up.

Anonymous Coward says:

Yoo's mistake

Freedom of the press is an individual right not a corporate one that protects the ability to distribute speech en masse. At the time, the printing press was the only method for mass distribution and because they were expensive only the very wealthy publishers in the business operated them. The term “the Press” referring to established news organizations grew later out of this. In the first amendment context, the press refers to the actions of any individual that has the desire and ability to disseminate information to a wide audience, not an entity.

Anonymous Coward says:

Skewed perceptions

Okay folks, if someone takes an oath to not share sensitive/classified material and then does with the world, how does this help? How does this fall into the argument of free speech? both manning and snowden had opportunities to say there was things going on that they did not like. However, there is the other side — in court, it would appear that manning was determined to become famous. He liked having attention, this was his cause. I am bradley manning? WTF. He was and is a weak person who thought this would bring him attention and it did. Narcissist at its best, not a hero.

Pushing out info without regard to the implications is not only dangerous, but reckless. If everyone and I mean everyone worked in this manner, we would be in a pretty bad place.

What if someone pushed out your personal info to the world? Is that free speech? or is that reckless? or just plain stupid?

Now consider it was your son or daughter’s info, picture, address, etc. Now, does that make it different? Is that free speech, or again, reckless disregard of the impact of the information being released?

Most people voicing an opinion on this matter do not know what was released, how it has impacted our country, our future or our safety. There are always second and third order impacts. Some are instant and some take time to surface. I am just sick of uninformed individuals defending people or a cause without knowing all aspects.

Malor (profile) says:

Re: Skewed perceptions

It is always the duty of any government employee to refuse unlawful orders, and to report on illegalities that the government is engaged in, no matter how uncomfortable the government is made as a result.

Snowden had the courage to live up to his true oath, to protect and defend the Constitution of the United States, not the hired staff presently in charge of the government supporting that Constitution.

Anonymous Coward says:

Re: Re: Skewed perceptions

what manning did and Snowden as well, was not ‘refuse unlawful orders’, they decided they are the legal authority and determined on their own that they felt was illegal activity.

Although it is impossible to think that Manning identified 750,000 incidents of illegal activity, and felt he had no choice but to break the law and oaths he took to ‘expose’ these ‘crimes’.

Snowden felt NSA were committing crimes, but instead exposed a possible mechanism of these crimes but not the crimes themselves.

It’s “possible crimes”, but it’s also been confirmed these ‘crimes’ are in fact LEGAL, and Constitutional.

The previous poster is correct, Manning wanted fame, as did Assange and Snowden. Nothing more. Self aggrandisement at it worst.

Anonymous Coward says:

Re: Re: Skewed perceptions

“It is always the duty of any government employee to refuse unlawful orders”

Not in the military, if you have served in the military you would know, you follow the order THEN formally complain.

And how do you know if the order is unlawful or not, it’s lawful because it’s an order. If it ends up being unlawful, the person giving that order is guilty of the crime.. not you.

That One Guy (profile) says:

Re: Re: Re: Skewed perceptions

Holy crap, talk about the ultimate in authoritarian logic… ‘It’s legal/lawful because the boss says so. If you disagree, do it anyway, but make your complaint known after(where it will be promptly ignored, as the boss is always right)’.

Sorry to say but ‘I was just following orders’ didn’t fly post WW2, and it still doesn’t, a solider, by the very fact that he has free will, is just as responsible if he knowingly commits an unlawful act as the person who ordered the act.

Bon says:

Re: Re: Re: Skewed perceptions

I think you’re missing the point. You always have a choice to not follow orders if they’re not ethical. The only things you HAVE to do are be born and die. Sometimes laws get in the way of the greater good. It’s also not true that “the person giving that order is guilty of the crime.. not you”. You would be a criminal for plowing an illegal order.

Gwiz (profile) says:

Re: Skewed perceptions

Okay folks, if someone takes an oath to not share sensitive/classified material…

The foremost part of Manning’s oath was to “…support and defend the Constitution of the United States against all enemies, foreign and domestic…”. Anything after that is secondary.

I have no idea what oath Snowden might have taken since he was just an employee of a government contractor. My guess would be some sort of non-disclosure employment contract, not any kind of oath. People, companies and governments break legal contracts every single day.

azazel1024 says:

I certainly have a problem labeling and prosecuting leakers as spies. However, leaking information IS illegal and often times for a good reason. However, charges like aiding the enemy, etc are BS.

Simple divulging of classified information, or violating a court order (in the case of trail leaks), termination of employment etc seem pretty sufficient without trying to stick people in jail for the rest of their life.

wec says:

Skewed perceptions: How do we become informed on what our government is doing in our name, so we can then have informed discussions and debates?

Also, I believe all persons in government(military or not) first responsibility is to defend the Constitution above all ,not protect governmental corruption. How do we find out about the corruption?

As to:
it would appear that manning was determined to become famous.

Appears is a subjective term.(citations need)

As to:
Pushing out info without regard to the implications is not only dangerous, but reckless. If everyone and I mean everyone worked in this manner, we would be in a pretty bad place.

What evidence that this was done(Citation, PLEASE)?

It seems some of your comments are as uniformed as you seem to think the people defending these persons are.

teka (profile) says:

Re: Re:

But that is just the problem.
When we let the definitions be blurred by apathy or even good intentions (for the children! Terrorism!) it is a free pass for misuse.

Why do you think that so many talking heads and lying officials have come out swinging? If we let them change the meaning of words it means that anyone can be convicted of anything, as long as an overzealous prosecutor or funding-hungry congressperson is willing to redefine things enough.

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