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Wikileaks: a Guide for American Law Librarians*

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Wikileaks: a Guide for American Law Librarians* LAW LIBRARY JOURNAL Vol. 104:2 [2012-20] WikiLeaks: A Guide for American Law Librarians* James p. Kelly, Jr.** In posting confidential and classified information, WikiLeaks has become one of the world’s most controversial web sites. This paper examines the federal law concerning WikiLeaks and the use of WikiLeaks as an information source. It raises questions librarians must ask themselves as technology advances and leaks continue. Background . .246 Legal Troubles. .248 Financial Troubles . .249 The Espionage Act. 250 New York Times Co. v. United States. .251 United States v. Rosen. .253 Other Relevant Statutes . .254 18 U.S.C. § 641. 254 50 U.S.C. § 421. 254 18 U.S.C. § 1030(a)(1). 254 Prosecuting WikiLeaks Under Current Law. .254 Proposed Legislation. 255 Cases Involving WikiLeaks. .257 A Host of Research Problems. .258 The Congressional Research Service and the Library of Congress. 258 Reliability and Moral Quandaries. .259 Conclusion . 261 ¶1 WikiLeaks has become one of the world’s most controversial web sites. In posting confidential and classified information from governments, businesses, and organizations around the world, it has become a target for those in power. Others have vigorously defended the web site, saying it promotes and defends the ideals of a free press and free speech that are vital to democracy. For librarians generally, WikiLeaks represents a new source for information that might otherwise be unavailable. However, how this information was acquired can present significant legal and ethical problems for its users. ¶2 This article examines WikiLeaks from a legal and a library perspective. While the legal status or problems of WikiLeaks in other countries is occasionally * © James P. Kelly, Jr., 2012. ** Access Services Research Librarian, Alyne Queener Massey Law Library, Vanderbilt University, Nashville, Tennessee. 245 246 Law LIBRARY JOURNAL Vol. 104:2 [2012-20] mentioned, it is devoted solely to the legal status of WikiLeaks in the United States and concerns only the legal status of the web site, Julian Assange, and the organiza- tion with regards to the information posted there. It does not address Assange’s other legal troubles or the status of WikiLeaks in other nations, except incidentally. The last part of the article discusses some of the issues WikiLeaks presents for librarians, particularly those of using WikiLeaks as a source for useful and other- wise unavailable information. No solutions are offered—the issues are raised for the purposes of awareness and debate. Background ¶3 WikiLeaks describes itself as “a not-for-profit media organisation.”1 Formed in 2007, the organization publishes “original source material” and news stories on its web site.2 WikiLeaks claims it is based on “the defence of freedom of speech and media publishing, the improvement of our common historical record and the sup- port of the rights of all people to create new history.”3 It sees itself as a news orga- nization and an outlet for whistle-blowers. Although it presents its news stories in a Wikipedia-like style, it has no relation to Wikipedia. Despite its name, WikiLeaks is not a wiki, so general users cannot edit documents.4 ¶4 Since its inception, the web site has stirred controversy for its publication of documents “of political, diplomatic, or ethical significance.”5 This has included, in many cases, publishing documents that have been classified by governments. The web site accepts anonymous sources of information and vets this information for accuracy and authenticity.6 The web site contains “a high security anonymous drop box fortified by cutting-edge cryptographic information technologies,”7 and places a high value on anonymity and protection of its sources: We use traditional investigative journalism techniques as well as more modern technol- ogy-based methods. Typically we will do a forensic analysis of the document, determine the cost of forgery, means, motive, opportunity, the claims of the apparent authoring organisa- tion, and answer a set of other detailed questions about the document. We may also seek external verification of the document.8 ¶5 One of the most important features of WikiLeaks, from a legal perspective, is that it claims it does not solicit information. It sees itself as a site for enabling 1. About, WiKileAKs, http://www.wikileaks.ch/About.html (last visited Jan. 4, 2012) [hereinaf- ter About WikiLeaks]. 2. Id. 3. Id. 4. Id. 5. Wikileaks: Submissions, WiKileAKs, archived version available at http://web.archive.org/web /20080419013425/http://www.wikileaks.org/wiki/Wikileaks:Submissions (last visited Jan. 27, 2012) (as of this writing the current WikiLeaks site has no active submissions page). 6. Submissions, WiKileAKs, http://www.wikileaks.org/Submissions (last visited Jan. 9, 2012). 7. About WikiLeaks, supra note 1. 8. Id. Vol. 104:2 [2012-20] WIKILeaks: A gUIde FOR AMeRICAN law LIBRARIANS 247 whistle-blowing. Rather than go directly to the press, whistle-blowers can go to WikiLeaks, and WikiLeaks can then leak to the press and public at large.9 ¶6 The web site’s “home,” the Internet host Bahnhof, is currently located in a bomb shelter in the mountains of Sweden.10 Because of its troubles and interna- tional scope, the web site has multiple URLs and has moved over time, but is cur- rently available at both http://www.wikileaks.org and http://www.wikileaks.ch. Most notably, WikiLeaks at one point moved its site to Amazon.com’s servers fol- lowing an attack by a hacker on its old servers. Amazon then ousted WikiLeaks, claiming WikiLeaks did not follow Amazon’s terms of service.11 ¶7 When Amazon ousted WikiLeaks, a group of hackers calling themselves “Anonymous” targeted the web sites of Amazon and other companies that had stopped working with WikiLeaks, such as Paypal, MasterCard, and Bank of America, along with critics of WikiLeaks like Senator Joseph Lieberman and former vice presidential candidate Sarah Palin, with distributed denial of service (DDoS) attacks, designed to shut the sites down.12 The attack against Amazon was not suc- cessful, but Paypal was down for a time.13 It does not appear that WikiLeaks was responsible, but the organization said the attacks reflected public opinion in sup- port of WikiLeaks.14 Indeed, the attacks seem to have been a coordinated effort by hackers who supported WikiLeaks’ cause.15 In July 2011, sixteen people in the United States and five in Europe were arrested for their alleged roles in the cyber attacks.16 ¶8 The public face of WikiLeaks is Julian Assange, an Australian publisher, jour- nalist, and former computer hacker. His status in the United States indicates how divisive a figure he has become: U.S. officials have called for his arrest, and Vice President Joseph Biden has characterized him as a terrorist,17 but he was voted Readers’ Choice for Time magazine’s 2010 Person of the Year.18 As of this writing, he resides in England while appealing an order of extradition to Sweden on charges 9. Id. 10. W.J. Hennigan, Wikileaks’ New Home Is in a Former Bomb Shelter, l.A. times: teChnology (Dec. 2, 2010, 11:07 A.m.), http://latimesblogs.latimes.com/technology/2010/12/wikileaks-bahnhof -amazon.html. 11. Id.; W.J. Hennigan, Amazon Says It Dumped Wikileaks Because It Put Innocent People in Jeopardy, l.A. times: teChnology (Dec. 2, 2010, 6:40 p.m.), http://latimesblogs.latimes.com /technology/2010/12/amazon-wikileaks-servers.html. 12. Sean-Paul Correll, ’Tis the Season of DDoS—WikiLeaks Edition, pAndAlAbs blog (Dec. 4, 2010), http://pandalabs.pandasecurity.com/tis-the-season-of-ddos-wikileaks-editio/. 13. Georgina Prodhan, WikiLeaks Supporters’ Group Abandons Cyber Attacks, reuters (Dec. 11, 2010), http://af.reuters.com/article/cameroonNews/idAFLDE6BA05O20101211. 14. David Meyer, Wikileaks Refuses to Back, Condemn Anonymous Attack, zdnet uK (Dec. 9, 2010), http://www.zdnet.co.uk/blogs/communication-breakdown-10000030/wikileaks-refuses-to -back-condemn-anonymous-attacks-10021275/. 15. Prodhan, supra note 13. 16. Press Release, Fed. Bureau of Investigation, Sixteen Individuals Arrested in the United States for Alleged Roles in Cyber Attacks (July 19, 2011), http://www.fbi.gov/news/pressrel/press-releases /sixteen-individuals-arrested-in-the-united-states-for-alleged-roles-in-cyber-attacks. 17. Andrew Ross Sorkin, A WikiLeaks Problem for Enforcers, n.y. times, Dec. 21, 2010, at B1. 18. Megan Friedman, Julian Assange: Readers’ Choice for TIME’s Person of the Year 2010, time neWsfeed (Dec. 13, 2010), http://newsfeed.time.com/2010/12/13/julian-assange-readers-choice-for -times-person-of-the-year-2010. 248 Law LIBRARY JOURNAL Vol. 104:2 [2012-20] of sexual assault.19 Assange claims the charges are false and politically moti- vated.20 Legal troubles ¶9 The nature of WikiLeaks and the information it has published has brought the organization into direct conflict with many governments, businesses, and orga- nizations. According to its web site, “since formation in 2007, WikiLeaks has been victorious over every legal (and illegal) attack, including those from the Pentagon, the Chinese Public Security Bureau, the former president of Kenya, the Premier of Bermuda, Scientology, the Catholic & Mormon Church, the largest Swiss private bank, and Russian companies.”21 Among some of the more contentious documents posted on WikiLeaks are more than 91,000 U.S. military reports related to the war in Afghanistan22 and almost 400,000 reports related to the war in Iraq.23 On April 5, 2010, WikiLeaks released one of its most controversial stories: a classified U.S. military video of a helicopter attack in Iraq in 2007 that resulted in the death of, among others, two Reuters correspondents.24 ¶10 In November 2010, WikiLeaks, along with several newspapers including the New York Times, released 250,000 U.S. diplomatic cables.25 Prior to the release, however, Julian Assange sent a letter to the U.S.
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