by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
That’s my quote for the day. It’s the closing line of a post in which Marc Randazza explains why, “It is not illegal to read Wikileaks.” From the post:
On CNN, [Chris] Cuomo said:
“Also interesting is, remember, it’s illegal to possess these stolen documents,” Cuomo says. “It’s different for the media, so everything you’re learning about this, you’re learning from us.” …
Lets do this with feeling… ready? Repeat after me:
It is not illegal for you to read Wikileaks.
It is not illegal for you to download documents from Wikileaks.
You do not need to rely on “the media” to spoon feed you the documents from Wikileaks.
The Olive Garden is not Italian food.
Cuomo might be confused because of a couple little things.
In 2001, the Supreme Court held in Bartnicki v. Vopper … that the press has a right to report on materials that might have been created or gathered illegally – as long as the media outlet took no part in the illegal activity. In that case, a radio reporter got ahold of the tape of an illegally recorded phone call. Since it was a matter of public concern, the press had a right to use it. So, the Wikileaks documents may have been illegally obtained in the first place, but once the genie is out of the bottle, you can’t put it back in. The press can report on it.
Of course, in 2001, the lines between “you” and “the media” weren’t so blurred. And, I could see Mr. Cuomo thinking that since Bartnicki addresses the press, that this somehow excludes the rabble from that same privilege. However, the press doesn’t actually get any special privileges here, just because Bartnicki did not address you downloading these documents to your hard drive. In fact, it wouldn’t make too much sense for it to be legal for CNN to report on the documents, and to publish them, but you could then be prosecuted – unless you can show that you downloaded them from CNN.
Now maybe Cuomo was also confused by a 2010 memo where government employees were warned that they couldn’t access leaked classified documents. Yeah, that might be true. If you work for the government, it can probably impose some limits on what you can possess when it comes to leaked classified material. Even if they can’t prosecute an employee, they could certainly condition continued employment or continued security clearance on you being a good little doggie. And, perhaps if you’re seeking employment with the federal government, you might not want to say “yeah, I did” if they ask if you ever read the Wikileaks releases.
Now what about “receiving stolen property?” Someone steals a car. They drop it off in front of my house with the keys in the ignition and a note that says “a gift from a friend.” That doesn’t mean I can hope in and go for a spin. But, laws governing receipt of stolen property are a bit hard to apply to documents and information. Further, even if some prosecutor wanted to prosecute you for it, they’d be hard pressed to get anywhere with that when it comes to information that is a matter of public concern — like this information.
And then, you get back to the question of “who is ‘the media’?” How do we really draw a distinction there? Luckily, we don’t have to. The Same Bartnicki case that we discussed before makes it clear that we “draw no distinction between the media respondents and” a non-institutional respondent.” …
So go ahead. Read those documents. Talk about them. Publish them on your blog or your Facebook feed. And do that no matter who is in office. It isn’t just your right, but it is your patriotic duty.