To what extent are Wikileaks’ actions protected under First Amendment rights?

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Answered by: Andrew, An Expert in the Matters and Views Category
How do you handcuff a man with no hands? Or lock somebody up in jail, when there is no physical body to confine? This is the digital era, where online exploits running the gamut from honest to treasonous are all normalized under the veneer of facelessness. It is in this wild, shadowy space where WIkileaks operates.Wikileaks' legal situation is uniquely nebulous, namely because the site is structured as a convoluted system of proxies and anonymous liaising in order to circumvent laws that punish groups for actively soliciting the submission and publication of illegally-obtained documents.

Legal precedent--such as the 1971 case New York Times v. U.S., which ruled that the Times could not be prevented by the Nixon administration from publishing the Pentagon Papers--seems to fall in favor of Wikileaks, and subsequent cases (e.g. Landmark Communications v. Virginia, which determined that even if a fairly-obtained published document might present an imminent, "clear and present danger," freedom of expression almost always assumes higher priority) confirm that the site cannot face legal consequences for publishing classified documents, as long as it acted passively in obtaining those documents. By its own carefully-worded definition, Wikileaks is a "whistleblower protection intermediary," and it acts merely as a liaison between sources and the press so that both the site itself and the sources are safeguarded from retribution, though clearly this interpretation of the site's duties has been called into question.

Most free-speech scholars agree that even if somehow Wikileaks were not protected under First Amendment rights, it could not be prosecuted for violating the power of the press as the majority of its servers are located in various countries in Europe, beyond American jurisdiction. Swedish law, in particular, is extremely protective of the confidential source-journalist relationship, and the WIkileaks site's Swedish host PRQ refused to release any server logs despite intense pressure by American prosecutors. The site is proving a slippery target for European sanctions as well; Julian Assange, the figurehead of Wikileaks, was detained in England without being formally charged, until he was eventually tried for an unrelated crime (sexual assault).

Nevertheless, although First Amendment rights shield the Wikileaks site itself, these same liberties are not afforded to non-anonymous whistleblowers who leak unscrupulously-obtained, confidential information. Pfc. Bradley Manning, the soldier who provided Wikileaks with hundreds of thousands of documents on U.S. military operations in Afghanistan and Iraq, is currently in a military jail, in solitary confinement for 23 hours a day, awaiting a court-martial.

In other countries--like China or Russia--leaking of government documents can lead to prolonged imprisonment or even execution. As Wikileaks is only considered to be an intermediary between the whistleblowers and the press, its legal protection under freedom of expression cannot be extended to those who actually commit the crime of unauthorized disclosure of classified data.

Wikileaks has escaped prosecution for now, but this is primarily due to antiquated property-protection laws and a First Amendment that cannot possibly accommodate the daunting technological intricacies of the Internet age, an age of proxies, intermediaries, and anonymous liaising. Assange and others at Wikileaks studied and garnered information from Chinese hackers sniffing around the Tor network--software intended to guarantee online anonymity--and discovered innumerable secret transmissions among foreign governments. Bradley Manning was a competent hacker as well, and he would very probably have been legally shielded from the fallout of his clandestine operation had human fallibility not intervened, as Army CID tracked Manning down because he had bragged about his exploits to a loose-lipped fellow hacker in a hubristic series of online chats.

If anything, the Wikileaks saga has shown that notions of confidentiality have changed profoundly since the rise of the Internet, and that current free-speech laws are incapable of navigating a digital environment of which anonymity has become the norm rather than the exception to the rule. In the future of data-leaking, and of the Internet in general, there won't be a Julian Assange, or a Bradley Manning. There might be an online alias, perhaps an IP address; but more likely, there will be nothing at all.

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