Louis Klarevas: WikiLeaks, the Web, and the Need to Rethink the Espionage Act

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[Louis Klarevas is a member of the clinical faculty at New York University’s Center for Global Affairs, where he also serves as coordinator of graduate Transnational Security studies.]

There are likely few people reading the State Department cables released by Wikileaks with greater interest than students of international relations, who have every personal, academic, and professional reason to explore the inner workings of U.S. diplomacy. So it must have surprised the would-be diplomats of Columbia University's School of International and Public Affairs to receive an email last week from the Office of Career Services warning that -- according to an unnamed Columbia alum in the State Department -- any student who so much as tweeted about the cables could jeopardize his or her hopes of getting any job with the federal government that requires security clearance. "The documents released during the past few months through Wikileaks are still considered classified documents," the email read. "He recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter."

This school-wide warning might sound extreme or even outrageous, but it is not without merit given current U.S. law. The Espionage Act, which has been cited by members of Congress calling for WikiLeaks founder Julian Assange to be prosecuted as a spy, could be loosely interpreted as making it illegal to post a link to WikiLeaks on your Facebook page. The World War I era law, intended primarily to punish government employees and contractors who pass classified information to foreign government agents, is wildly out of date. Written long before the Internet changed how information and media work, the Espionage Act is unsuited to our era and long overdue for reform....

In New York Times v. United States (1971), the Supreme Court refused to allow the government to prevent the New York Times and the Washington Post from publishing classified excerpts of the Pentagon Papers. Several justices suggested, however, that the federal government could still bring criminal charges under the Espionage Act. Two Justices warned that they "would have no difficulty in sustaining convictions."...

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