By Professor David Glazier
There has been significant discussion over the past week about potential consequences of downloading and sharing WikiLeaks documents classified by the U.S. government, ranging from schools' cautions to their students about potential job consequences to government agencies restricting access or discussion. One thing missing from most of this discussion is the relevant law. It does not seem to be widely understood that the public exposure of these documents does NOT declassify them. WikiLeaks can disclose classified information, but it cannot declassify it. As a matter of law these documents retain the original classification assigned to them until such time as an executive branch official with legal authority to alter the classification formally does so, or until the period of time established for them to remain classified has expired. (Many classified documents will be marked with a specified duration for their classification). While it may seem like government agencies endeavoring to limit access to the WikiLeaks site or public discussion of the documents by their employees are engaging in politically motivated censorship, it is in fact consistent with their obligations to enforce the law.
The reason that the fact that these documents continue to be classified really matters is federal espionage law, particularly 18 U.S.C. sec. 793. Most subsections of that statute contain a mens rea requirement that the perpetrator intends or has reason to believe that the information they are accessing or distributing "is to be used to the injury of the United States." I would contend that a citizen accessing information online for the purpose of informing themselves about what the U.S. government has been doing does not satisfy this requirement and could not reasonably be prosecuted under those sections. It is not hard to see, however, that those responsible for leaking the information to WikiLeaks, and potentially those responsible for posting it--knowing it would almost certainly be accessed by foreign governments and groups with interests inimical to those of the U.S. might reasonably be prosecuted under these sections. But the way U.S. espionage law currently reads, any American who simply retains or forwards any of these documents could also find them self violating federal law.
The specific legal provision of most concern is subsection (e) of 18 U.S.C. sec. 793, which reads (with some omissions simply for clarity):
(e) Whoever having unauthorized possession of, access to, or control over any . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated . . . to any person not entitled to receive it, or willfully retains the same . . . shall be fined under this title or imprisoned not more than ten years, or both.
While obviously the possibility of average citizens being prosecuted is remote, it is still appropriate to be aware of the real risk of violating this law. So it is worthwhile to parse this language:
(1) Whoever having unauthorized possession of, access to, or control over - Anyone without an active security clearance (i.e., virtually all members of the media, academics and students) is unauthorized to have access to classified materials. Even if you do have a clearance, you still must have a "need to know" the classified information in the performance of your actual official duties. So even assuming someone has a clearance, they are still likely to be engaging in "unauthorized access" if they view or download this material in a private, as compared to official, capacity.
(2) Information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation - the fact that the information has been classified means that a U.S. government official who is legally empowered to make a determination that disclosure of the information would be harmful to U.S. national security--the only basis the law provides for classifying information--has in fact made such determination. Many reasonable people will disagree with the classification of individual documents, but as a nation we have made the decision through our constitutional processes to commit the formal authority to make those decisions to members of the executive branch. The WikiLeaks website highlights the classification assigned by the U.S. government to the individual documents. They may have done this to encourage people to look at the "sexy" documents with the highest classifications (you can even sort by classification on the website), but in any case by doing so they undermine the credibility of anyone who would later seek to claim that they did not know, or have reason to know, that the documents they were viewing "could be used to the injury of the United States."
(3) Willfully communicates, delivers, transmits or causes to be communicated . . . to any person not entitled to receive it - any effort at further dissemination, whether quoting in a blog or email, forwarding to a friend, etc. can qualify as a violation except for the extremely remote possibility that the information was only sent to a government official with both the appropriate clearance and need to know (and even then it is safe to conclude that it would not be done in accordance with the formal rules for transmitting such information). It is very important to note that there is no requirement that the transmission be intended to harm the United States, or that the recipient have such intent. This is essentially strict liability - all you have to intend is the transmission to anyone other than an authorized U.S. government agent.
(4) Willfully retains the same - e.g., keeps a copy on their hard drive or prints a copy. Again essentially strict liability--you don't have to intend any harm whatsoever, just intend to retain the information.
(5) Shall be fined under this title or imprisoned not more than ten years, or both - self explantory. So if one wants to provide a meaningful warning, I would not be advising students that the only risk is that you might get passed over for a government job.
If I were asked for advice on this subject, I would be inclined to say that it is probably lawful for concerned citizens and scholars to read these documents for the purposes of informing themselves about what their government is doing. But one should be aware that they are committing a federal offense if they knowingly retain or forward to anyone else copies of documents that have been actually classified by U.S. government officials. While as a scholar I have a strong preference to cite to original source materials whenever possible, with respect to these documents one would be on safer ground to cite to mainstream media reporting on them than to the originals.