WikiLeaks Draws Congressional Ire: Is Repeating Leaks Part of Free Speech?

By Dave Wieneke | in Free speech / censorship, Highlights, State secrets, Web 2.0: The Social Web | 13 Jan 2010 | One Comment

Back in 2007, I suggested that snitching was one of the killer apps of Web 2.0. Since then, WikiLeaks.org, the site for snitching secrets about governments and corporations, has been a success.

How do you measure success? Perhaps by the zeal with which legislators seek to investigate the website. Of course, judges have quickly raised free speech issues that  trump the desire to quiet those who spread secrets leaked by the powerful.

Here the latest from Harvard’s Citizen Media Law Project:

Unless you’ve been under a rock for the past few months, you’ve probably heard about some of the recent high-profile “releases” on WikiLeaks.

Back in November, WikiLeaks published nearly 573,000 intercepted pager messages sent on September 11, 2001. The week before that, WikiLeaks published thousands of documents and correspondence between British and U.S. climate scientists just in time for the U.N. climate conference in Copenhagen. WikiLeaks followed up these feats by releasing the air-traffic control recordings from the British Airways flight 038, which crash landed on December 2, 2008, and reposting a TSA operations manual that had been improperly posted on a government website.

All of this has certainly raised the profile of the three year old whistle-blower site.  But WikiLeaks is about to learn what happens to those that rise above the crowd: they become a target to have their head chopped off.

You see, the government doesn’t appreciate being made to look foolish.  Always ones to shoot the messenger, various Congresscritters are calling for an investigation and considering potential criminal sanctions against WikiLeaks and other sites that repost such material in the future.

Not to be outdone, Rep. Peter King has asked his staff to take time out of their busy schedules wringing their hands over the White House party crashers to investigate the release of those 9/11 messages. Even our friends across the pond are getting in on the act, issuing a take-down notice to demand removal of the BA flight 038 recordings.

So how successful are the Congressional challenges likely to be? Probably not very.  As Marc Rotenberg of the Electronic Privacy Information Center has pointed out (and as our own Sam Bayard explained in connection with the Twitter-leak brouhaha), back in 2001 the U.S. Supreme Court ruled in a case called Bartnicki v. Vopper that the First Amendment protects the reposting of even illegally-obtained material in situations where the speech is about a matter of public concern.  (Of course, if the material is posted by a WikiLeaks user, Section 230 would likely also come into play).  Similarly, additional legislation to expand criminal sanctions for republication of classified information is likely to run afoul of the Constitution, for many of the reasons articulated in the concurring opinions in New York Times Co. v. United States.

But don’t expect that to keep some Congresspeople from trying.