WikiLeaks in the Crosshairs

The holiday season is in full swing, as evidenced by the marked uptick in the number of gift-giving guides clogging up my browser.

We here at CMLP, ever the helpful sort, wanted to get in on the action. But rather than offer yet another list of plastic doodads that are sure to be relegated to the bottom of the sock drawer by January 1 (but how cool are the R2D2 lights?), we thought we'd offer a helpful suggestion for the WikiLeaks editor in your life: a copy of How to Win Friends and Influence People. Why, you might ask? Because, after the past few weeks, they're going to need all the help they can get. 

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.

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And yet...

You tried to use a comment about it to promote a male enhancement product.  Edited out, obviously...