Espionage Act Reform Bill Would Protect Journalists Like Julian Assange
Senator Ron Wyden and Representative Ro Khanna introduced a bill to reform
the Espionage Act, the archaic piece of legislation used to prosecute Julian
Assange and other Whistleblowers.
by Kevin Gosztola
March 06th, 2020
By Kevin Gosztola
Shadowproof - Under legislation proposed in Congress, the United States
government would not be able to prosecute journalists like WikiLeaks founder
Julian Assange who publish classified information.
Democratic Senator Ron Wyden and Representative Ro Khanna introduced the
Espionage Act Reform Act to reaffirm "First Amendment protections for
journalists" and ensure "whistleblowers can effectively report waste, fraud,
and abuse to Congress."
Wyden declared in a press statement, "The Espionage Act currently provides
sweeping powers for a rogue attorney general like Bill Barr or unscrupulous
president like Donald Trump to target journalists and whistleblowers who
reveal information they'd rather keep secret. This bill ensures only
personnel with security clearances can be prosecuted for improperly
revealing classified information."
It would protect the rights of members of the press that "solicit, obtain,
or publish government secrets" from prosecution.
The legislation would also protect disclosures of classified information
related to signals intelligence to any member of Congress.
Whistleblower protections would be able to provide classified information to
the Federal Communications Commission (FCC), Federal Trade Commission (FTC),
Privacy and Civil Liberties Oversight Board (PCLOB), and inspector generals
to help them investigate privacy abuses. The government would not be able to
invoke secrecy laws to shut down reviews of their conduct.
Additionally, a summary [PDF] indicates it would shield "cybersecurity
experts from prosecution when they publish research showing discoveries of
government backdoors in encryption algorithms."
In 2014, H.D. Moore, the creator of Metasploit, which is an "ethical hacking
tool, told the Guardian that U.S. law enforcement warned him he may be
vulnerable to prosecution because he operated a project called Critical.IO.
"The initiative sought to find widespread vulnerabilities using automated
computer programs to uncover the weaknesses across the entire internet."
Law enforcement pressure was so significant that Moore took a break from his
work in the internet security industry.
NSA whistleblower Edward Snowden's disclosures saw an increased focus in
expanding government protections against privacy abuses, but the bill's
summary does not attribute this amendment to Snowden's impact. It relies on
a much older example of government abuse of secrecy laws.
"After the NSA's SHAMROCK program was revealed by the press in 1976, the FCC
opened an investigation, as the disclosure to the NSA by the phone companies
of customer communications violated federal communications law." FCC
Chairman Richard Wiley told Congresswoman Bella Abzug during a hearing that
carriers "refused to answer the FCC's questions" because of secrecy rules in
18 U.S.C. 798, which is a part of the Espionage Act that applies to
"communications intelligence."
The FCC had to shut down their investigation into the SHAMROCK program,
which was an international telegram-spying program that existed from August
1945 to May 1975. At the time, it was "probably the largest governmental
inspection program affecting Americans ever undertaken."
President Barack Obama's administration, which included Vice President Joe
Biden, prosecuted more leakers or whistleblowers under the Espionage Act
than all previous presidential administrations combined.
The Obama Justice Department's use of the 1917 law enabled the government to
institute "insider threat programs" to effectively intimidate and discourage
whistleblowers from revealing corruption. The administration intercepted the
communications of journalists in Espionage Act prosecutions and even treated
journalists as co-conspirators in leak cases.
President Donald Trump has intensified Obama's war on leaks to silence
whistleblowers, who bring scrutiny to his administration, and the impact on
journalists is largely unknown.
Since Trump was elected, the Trump Justice Department has prosecuted Daniel
Hale, alleged drone whistleblower, Joshua Schulte, alleged "Vault 7"
materials leaker, Terry Albury, an FBI whistleblower, who pled guilty and
was sentenced to prison, and Reality Winner, an NSA whistleblower who pled
guilty and was sentenced to prison.
The Trump administration also crossed a line the Obama administration would
not and charged Assange with 18 offenses-17 of which are Espionage Act
violations. The indictment specifically criminalized Assange and WikiLeaks
for seeking, obtaining, and disseminating classified information from the
U.S. government.
The bill may reflect an interest in narrowing who can be prosecuted under
the Espionage Act to those who pass information to "foreign agents,"
however, the bill summary declares, "Every single person convicted to date
under the Espionage Act would still have been convicted had this bill been
law at the time they were prosecuted."
Khanna told The Intercept "prosecutors and judges should have discretion to
weigh the consequences" of leaks "against the motives of the source." But
simply the language of the legislation is silent on the matter of rights
defendants should have to defend themselves under the Espionage Act.
Both Wyden and Khanna say Assange could still be prosecuted for allegedly
helping Chelsea Manning hack passwords, though defense attorneys might have
a reasonable challenge. The computer crime offense was written with language
from the Espionage Act, and they could argue it was improperly charged to
show prosecutors were skirting protections for journalists.
Alex Abdo, litigation director at the Knight First Amendment Institute of
Columbia University, concluded, "This is a crucial effort to ensure that it
isn't a crime for national security journalists to do their jobs. The bill
would make clear that the everyday work of journalists isn't an act of
espionage."
"These protections for journalists are vital. It is also vital that Congress
enact additional protections for national security whistleblowers, who must
risk personal and professional sanction to expose government malfeasance and
corruption."
