Wikileaks case could be the push to update espionage laws

Lawyer Gilead Light says social media and the volume of electronic information creates new ways to leak classified data, something decades-old statutes never envisioned.

Gilead Light, an attorney at Venable LLP, is in the process of defending a client against espionage charges, which for now means he punches holes in laws that stem back to the turn of the 20th century.

Establishing liability for those who mishandle classified digital documents is murky at best, he told Nextgov on Friday. But that view is subject to change. As evidence, he pointed to a congressional hearing in May on the need to update espionage laws, and recent comments by Sonia Sotomayor, who indicated the Wikileaks exposure of thousands of classified Defense Department documents could result in a Supreme Court case.

"This is the type of situation that moves the ball," he said.

Light discussed with Nextgov senior reporter Jill R. Aitoro how espionage laws and the use of classified information could change.

Nextgov: What's the history of espionage law in the United States?

Light: The first espionage law was [written] in 1917 [called the Espionage Act], and that exact wording is still the premier statute in terms of classic, nation-versus-nation spy cases. That's the cloak-and-dagger statute. Then additional [laws] were passed in the 1950s at the peak of the Cold War, when the Russian spy cases became intense. Beyond those, with some adjustments along the way, espionage laws have remained grossly outdated.

Nextgov: In what way?

Light: For example, they have words prohibiting transmission of a signal book [which Navy ships used to communicate securely] or a cryptograph [to decipher codes and ciphers]. These are things not even used anymore, and certainly none of the laws account for electronic documents in all their forms. Courts interpret laws, so the point is not to say that our current laws are completely ineffective. For the classic situations, like Russians trying to take our secrets, these laws are mostly adequate.

But when you consider new media and the volume of electronic information and classified documents [produced], there are new permutations of espionage happening and new ways that these documents get leaked in the 21st century that the laws are not equipped to address.

Nextgov: Is part of the challenge the sheer volume of classified information being stored?

Light: The amount of classified information out there is staggering. Most people I talk to who work in government and handle this information every day say government just has a rubber stamp ready, and if it comes across their desk, it's marked classified. [They say] it could be a Mickey Mouse document, and they'll mark it classified. To that point, it loses some of its luster and people get desensitized.

Nextgov: With laptops and attached storage devices, data breaches so often are the result of someone not following policy. Does the law adequately distinguish between those cases and those that are willful theft of information?

Light: There are definitely negligence-oriented statues, some of which are misdemeanors that address the mishandling of classified information. A good example of that was Sandy Berger [who in April 2005 pled guilty to a misdemeanor charge of unauthorized removal and retention of classified material from the National Archives]. Classified documents are supposed to be maintained at what government calls a sensitive compartmented information facility, or at the very least in a secure room. When I've defended an espionage case, we aren't supposed to even talk about classified materials in our office or on the phone. Those are the regulations.

Nextgov: That becomes difficult when these documents are all maintained on a computer network.

Light: I think there's a fix that would start with clarification in the law about what constitutes classified information, so people understand what they're allowed to transmit and what they're not. But you still have to be careful how you handle electronic information, and the laws need to take into account the methods that are out there for transmitting that information.

The government uses the Secret Internet Protocol Router Network as a private Worldwide Web that can be accessed only by those with clearance. But the number with clearances is growing fast. Bradley Manning, for example, allegedly used the network to submit to Wikileaks a classified video showing the death of two journalists and was charged under the Espionage Act. If he's also the one who's behind the more recent Wikileaks dump, which all signs say he is, then he likely went back and pulled information from that network again. This was someone who was stationed in Iraq, dumping documents about Afghanistan. It sounds to me like the government needs to reevaluate how it's compartmentalizing information.

Nextgov: Manning allegedly provided the information and Julian Assange posted it on the Web. But Jacob Appelbaum, according to a Rolling Stone article, developed the hacking software people use to pass classified information to Wikileaks without being detected. Who could the government go after?

Light: They all can be charged. I just don't know if [prosecutors] could win. Since it's an uncertain area, the government might try to bring a charge with the understanding that it might not hold up. Still, this is the type of situation that moves the ball.

You can look at Wikileaks as a whistle-blower site that is acting as a facilitator for those exposing perceived injustices in governments all over the world. In that case, are they entitled to First Amendment protection? Hard to say. You could also view this site as a leak solicitation website that encourages people to break the law and divulge secrets. That's a big distinction from what a newspaper sets out to accomplish. Again, it's left up to the courts to interpret that.

Congress had a hearing on the espionage statute in May that didn't get that much attention. Had it happened now, after the Russia spy story and Wikileaks exposure, I expect the reaction would have been quite different. That's the good news: This is all under review. In the meantime, it's very hazy.

This article was updated on 10:07 am, Aug. 30, to clarify Light is defending one client in an espionage case, not numerous as reported in a release provided Nextgov, and to make more clear that establishing liability for mishandling classified documents is difficult.

NEXT STORY: Poor Tech Hampers Applicants

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.