Sen. Wyden And Rep. Khanna Introduce Bill That Would Protect Journalists And Whistleblowers From Bogus Espionage Prosecutions

from the you-know,-the-protections-they're-already-supposed-to-have dept

Two consecutive administrations have engaged in wars on whistleblowers. President Obama used the Espionage Act to punish more whistleblowers and leakers than all other previous administrations combined. President Trump promised to "drain the swamp" and reverse all the damage he believes Obama had done to this nation. Apparently that doesn't include ejecting yes men from prominent government positions or scaling back Obama's anti-whistleblower activities.

Now that it's clear Bill Barr's DOJ is just an Oval Office lapdog, Senator Ron Wyden and Representative Ro Khanna are trying to do something to protect journalists who receive and report on leaked documents and other whistleblower activity.

The Espionage Act Reform Act [PDF] would strengthen protections for journalists and whistleblowers, shielding them from vindictive prosecutions for engaging in acts protected by the First Amendment and (supposedly) by the federal government itself.

A FAQ [PDF] released with the bill makes it clear the new law would not prevent legitimate deployment of the Espionage Act to prosecute government employees who hand government secrets to those not authorized to receive them, as well as foreign spies and other agents of foreign powers.

What it would do is keep journalists from being prosecuted under the law and make it easier for whistleblowers to bring their concerns up through the proper channels. Here's what the bill does:

● Protects journalists who solicit, obtain, or publish government secrets from prosecution.
● Ensures that each member of Congress is equally able to receive classified information, including from whistleblowers. Currently, the law criminalizes the disclosure of classified information related to signals intelligence to any member of Congress, unless it is in response to a “lawful demand” from a committee. This puts members in the minority party and those not chairing any committee at a significant disadvantage.
● Ensures that federal courts, inspector generals, the FCC, Federal Trade Commission, and Privacy & Civil Liberties Oversight Board can conduct oversight into privacy abuses.
● Ensures that cybersecurity experts who discover classified government backdoors in encryption algorithms and communications apps used by the public can publish their research without the risk of criminal penalties. It is up to governments to hide their surveillance backdoors; academic researchers and other experts should not face legal risks for discovering them.

This will prevent this administration (and the ones that follow it) from targeting whistleblowers and journalists -- something the Trump administration has been openly doing. It will also open up the official channels, making it easier for whistleblowers to take their concerns to Congress, rather than forcing them to navigate a complicated maze of deterrents with the omnipresent threat of prosecution hanging over their heads.

The protections for security researchers is also a welcome addition. Researchers often become the subject of legal threats and criminal charges just for doing the important work of ensuring data and systems that should be secured are actually secure.

Of course, this bill is being sent into hostile territory. The administration certainly doesn't want to see whistleblowers and journalists protected, and neither do far too many legislators. But if it does become law, it will reset the status quo -- turning the Espionage Act back into the law it was always supposed to be: something to wield against foreign spies and federal employees seeking to do harm to the nation, rather than those who actually wanted to make America better by reporting on wrongdoing.

Filed Under: doj, espionage act, free speech, journalism, leaks, ro khanna, ron wyden, whistleblowers


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  • identicon
    Anonymous Coward, 6 Mar 2020 @ 5:11pm

    The Free Press is the enemy

    The Free Press keeps revealing the evil that is done by our government. Instead of using this to clear out the corruption and rot, they double down and attack one of the last voices of reason. The constitution is dead therefor the government is no longer valid either. You can't have one without the other.

    reply to this | link to this | view in chronology ]

    • icon
      Uriel-238 (profile), 6 Mar 2020 @ 5:30pm

      Constitutional governments vs. Neofeudalism

      The constitution is dead therefor the government is no longer valid either.

      Feudalism was rule by swordpoint, and constitutional monarchy was begun at swordpoint. I'm pretty sure our courts only hold legitimacy because the bailiff has a gun and no-one else does.

      And Trump👑 is eager for someone to defy him enough that he feels justified sending troops and drones to sort them out. Something tells me watching enemies get massacred is, for him, funny and relaxing.

      reply to this | link to this | view in chronology ]

      • identicon
        OGquaker, 7 Mar 2020 @ 1:16am

        Re: Constitutional governments vs. Neofeudalism

        "Something tells me watching enemies get massacred is, for him, funny and relaxing."
        You have something against video games?

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Mar 2020 @ 6:25am

          Re: Re: Constitutional governments vs. Neofeudalism

          donny thinks he is playing a game

          reply to this | link to this | view in chronology ]

        • icon
          Uriel-238 (profile), 12 Mar 2020 @ 1:49am

          Video game killing

          You have something against video games?

          Not at all. I'm happy to shoot bad guys in video games, and enjoy it. I also am clear it's a game, and would feel very differently shooting real people, even if I knew they were dastards.

          Notably, our predator drone teams also are aware that they're not playing a video game, and have to deal with the serious psychological consequences of blowing up a village with a Hellfire missile. It doesn't help that they get to scan and analyze the carnage in hopes that among them is a person of interest that the US actually wanted to kill. (As opposed to all the Afghani / Pakistani civilians that they did kill.)

          We can love the hell out of video games and action movies and simultaneously be shocked and aghast of when similar violence happens in real life.

          Fuck, I'm still not over the 9/11 attacks which feel like they're right out of a comic book. (Recently the Heartland Institute recently employed Naomi Seibt as an anti-Thunberg nemesis figure to Greta Thunberg, and very much seems like a Draco Malfoy, to Greta's Harry Potter. Comic-book tropes manifesting in the 21st century, especially since the Trump👑 regime.)

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 Mar 2020 @ 5:53pm

    Constitution is dead

    The Espionage Act is outrageously unconstitutional at its face and directly violates the 1st Amendment rights of EveryBody -- not just journalists and whistleblowers.

    That Wyden merely seeks minor reforms to the Espionage Act instead of immediate abolition -- demonstrates that he is just as big a part of the problem as Trump and Obama.

    The American public has no clue how the Federal rulers really operate.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 6 Mar 2020 @ 7:06pm

      Re: Constitution is dead

      I'm interested! How is all of the Espionage Act unConstitutional? What is it we don't know about operation of Federal rules? I'm well aware of certain classes of secret (or formerly so) legal opinions on interpreting some law (say, regarding violating human rights and torture), but we already know the effects those have, if not the exact wording.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Mar 2020 @ 9:09am

        Re: Re: Constitution dead

        a simple web search on this EspionageAct will give you its sordid history and details

        basically, this WW I wartime hysteria legislation grants any US President very broad authority to restrict the speech of all US residents if it relates to national defense, national security or classified information. Details of what is restricted are not speciified, and left to the whims of the government.
        penalties are severe; historically it's been used to punish war protestors and political opponnents of the federal government.

        reply to this | link to this | view in chronology ]

        • icon
          Scary Devil Monastery (profile), 9 Mar 2020 @ 3:55am

          Re: Re: Re: Constitution dead

          "...historically it's been used to punish war protestors and political opponnents of the federal government."

          And very rarely invoked for actual espionage. The "espionage act" is only ever useful when it comes to not having an actual legal reason to make a person or newspaper shut up.
          European nations often have similar laws on the tablets, though those tend to invoke national security from the get-go so the invocation of it wakes people up properly.

          You could argue that every nation needs legislation enabling it to act swiftly if information of actual national security is at stake - like someone publishing a list of undercover FBI agents, for instance, or the international contacts of the CIA.
          But legislation like that needs some form of checks imposed on it, and the US, manifestly, has none of those. And yet often invokes it at the drop of a hat.

          reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 7 Mar 2020 @ 6:28am

      Re: Constitution is dead

      Criticize an effort to accomplish something because that something does not fix everything everywhere all the time, good job!

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 7 Mar 2020 @ 1:10pm

        Re: Re: Constitution is dead

        yeah, it's always best to treat a symptom of a problem rather the root cause

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 7 Mar 2020 @ 2:05pm

          Re: Re: Re: Constitution is dead

          Ok, I'll bite ..... what is the root cause?

          Also, why do you think that complete removal of this legislation will result in the elimination of your root cause.

          reply to this | link to this | view in chronology ]

          • icon
            Scary Devil Monastery (profile), 9 Mar 2020 @ 4:01am

            Re: Re: Re: Re: Constitution is dead

            "what is the root cause?"

            I don't know about his argument but mine would be that legislation mainly aimed at selectively counteracting a constitutional amendment on the sole say-so of POTUS erroneously named espionage act is a pretty big root cause.

            It's one of those early 19th-century laws expressly designed for wartime use which has become very convenient boilerplate for when some journalist comes up with something profoundly embarrassing.

            It's bad that it affects actual whistleblowers but unless I'm much mistaken it also has the even more serious effect of allowing the US government to charge or hold journalists actively digging in certain areas of interest, under terms not normally reconcilable with criminal law or civil rights.

            reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 9 Mar 2020 @ 7:50am

              Re: Re: Re: Re: Re: Constitution is dead

              Or, maybe a cause that is a bit closer to the root might be corruption.
              What drives bad legislation? Seems it is just a a symptom.

              reply to this | link to this | view in chronology ]

              • icon
                Scary Devil Monastery (profile), 10 Mar 2020 @ 4:16am

                Re: Re: Re: Re: Re: Re: Constitution is dead

                "Or, maybe a cause that is a bit closer to the root might be corruption."

                Not corruption per se. More like "We're lazy and this looks convenient".

                From the start this was a knee-jerk WW1 war law meant to allow the government to put a stopper on any media channel or individual who could reveal information which would impact the war effort - whether that was through deliberate espionage or by revealing incompetency was egal.

                Ever since it's just become that convenient way of sidestepping first amendment principle by calling the revelation of sufficiently bad government fsckups a "national interest".

                reply to this | link to this | view in chronology ]

            • identicon
              Anonymous Coward, 9 Mar 2020 @ 8:05am

              Re: Re: Re: Re: Re: Constitution is dead

              ...a specific piece of horrendous, non-constitutional legislation is the root cause.

              Wyden is apparently OK with the 1917 Espionage Act, but now feels that some types of people he likes (journalists, whistlers) should be exempted from that law.
              Everyone is supposed to be equal under American laws, except if the Congress favors some types of people over the rest of us common folks.

              reply to this | link to this | view in chronology ]

              • identicon
                Anonymous Coward, 9 Mar 2020 @ 11:14am

                Re: Re: Re: Re: Re: Re: Constitution is dead

                What is that chip on your shoulder wrt journalists and whistlers?

                Why do you think they get preferential treatment?

                reply to this | link to this | view in chronology ]

              • icon
                Scary Devil Monastery (profile), 10 Mar 2020 @ 4:18am

                Re: Re: Re: Re: Re: Re: Constitution is dead

                "Wyden is apparently OK with the 1917 Espionage Act, but now feels that some types of people he likes (journalists, whistlers) should be exempted from that law."

                I think we can all agree that government should not be able to shutter whistleblowers and journalists.

                The existence of the law itself, however, has already scuttered the "equality under the law" principle you seem to be looking for.

                reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 7 Mar 2020 @ 9:32pm

    The hole in the espionage act hole was created by inadequate first amendment protections and the UN resolutions about sharing information related to terrorism.

    It's already in our law but isn't enforced very well, just like every other law at the moment.

    reply to this | link to this | view in chronology ]

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  • icon
    flyinginn (profile), 8 Mar 2020 @ 4:01am

    Apparently unlikely to help Julian Assange then, since he's branded a foreign spy. Or indeed any other non-US journalist who can be conveniently excluded for the same reason?

    reply to this | link to this | view in chronology ]

    • icon
      Scary Devil Monastery (profile), 9 Mar 2020 @ 4:02am

      Re:

      "Or indeed any other non-US journalist who can be conveniently excluded for the same reason?"

      Or any actual US journalist who can, by some stretch of the imagination, be classified as an "enemy combatant" under the patriot acts?

      I think they get you coming and going.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 9 Mar 2020 @ 8:31am

    President Trump promised to "drain the swamp" … Apparently that doesn't include ejecting yes men from prominent government positions

    One is either a yes man or a Never Trumper, and you can't expect Trump to fill his office with Never Trumpers can you?

    reply to this | link to this | view in chronology ]


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