Is WikiLeaks intelligence porn, or legitimate news?
© Greg Nash

It’s the little things.

Much ink has been spilled on President Trump’s “bigly” disdain for the media, including his Stalinist moniker for the press: “enemy of the people.”

Not enough, however, has been written about smaller efforts afoot at the Department of Justice and FBI that would, in a much more direct sense, imperil basic press freedoms in the United States.

These efforts came up last week in testimony by FBI Director James Comey. Though much of the coverage focused on comments about the Clinton investigation, he touched on two other discrete issues that deserve scrutiny.

The first is WikiLeaks — specifically reports that the DOJ is considering filing charges under the Espionage Act against the radical transparency site for releasing classified information.

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Many, especially on the left, have questioned WikiLeaks’s motives and actions since the election. But often the most unpopular defendants present the most important cases under the First Amendment. Given that, Comey’s rhetoric about WikiLeaks should concern us all. Comey spoke at length about the “difference,” as he sees it, between WikiLeaks and other news outlets.

 

Though he refused to confirm or deny the existence of charges against WikiLeaks founder Julian Assange, Comey at least implied that WikiLeaks could be subject to prosecution under the 1917 Espionage Act. 

Echoing similar comments by the new CIA director, Mike Pompeo, who called WikiLeaks a “non-state hostile intelligence service” (whatever that means), Comey said:

“To my mind it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly, just pushing out information about sources and methods without regard to interests.”

Say what you will about WikiLeaks, if Comey is suggesting WikiLeaks crossed a legal line, this is a big problem.

There are two main theories the DOJ could put forward in pressing charges against WikiLeaks under the Espionage Act. 

First, the DOJ could argue that by urging leakers to leak, WikiLeaks conspired to violate the law.

Second, DOJ could say that release of the material by WikiLeaks independently violated the Espionage Act (because it knowingly disclosed classified information to those not authorized to have it: the public).

In both cases, such a prosecution would create a troubling precedent. While it might be easy to label WikiLeaks as “intelligence porn” or a “non-state hostile” spying agency, actually distinguishing between WikiLeaks and a “mainstream” outlet will be both exceedingly difficult in practice, and will invite retaliatory and inconsistent enforcement to chill critics of the government. 

Put another way, this really has nothing to do with WikiLeaks. It’s about the fundamental truth that no journalist has ever been prosecuted, nor should they be, for reporting truthful information, irrespective of the source or secrecy. That’s what reporters do every day.

The second point that Director Comey raised is even more in the weeds, but equally important. Were Congress to accede to this request, the FBI would be able to secretly demand detailed web browsing records without going to a judge (let alone getting a warrant). 

Responding to questions from Sen. John CornynJohn CornynIt’s possible to protect national security without jeopardizing the economy Archivist rejects Democrats' demand for Kavanaugh documents Senate Judiciary announces Kavanaugh's confirmation hearing MORE (R-TX), Comey asked Congress to expand national security letters (NSLs), issued without court approval, to “electronic communications transactional records.” 

Worse, he mischaracterized the law when doing so. He said that because of a “typo,” the FBI is barred from using NSLs to get subscriber information from internet companies.

In reality, the FBI absolutely can get this information using NSLs. What Director Comey wants is for the FBI to be able to compel an internet provider to disclose web browsing history, detailed email header information, and other digital “transactional records” in national security cases without going through a court (as they must do even in normal criminal cases).

With respect to national security leak investigations, this would make 2013 dragnet subpoena for the phone records of more than 100 Associated Press reporters look quaint.

The FBI would be able to secretly gather thousands of records, without prior court oversight, from third parties that would easily allow the bureau to identify confidential sources. Indeed, internal procedures expressly suggest that NSLs should be used as source-hunting tools.

All of this might look like inside baseball, but consider this. What if President Trump were to get America into another war?

 As we’ve seen from wars past—from Vietnam to the Iraq War—foreign hostilities tend to heighten the natural tension between the government and the fourth estate.

It doesn’t take much to see a new war against name-your-adversary turn into a war on the press. And it’s these little things that will allow the administration to wage such a war.

Gabe Rottman is the Washington director of PEN America, a nationwide community of novelists, journalists, editors, poets, essayists, playwrights, publishers committed to promoting free expression. 


The views expressed by contributors are their own and are not the views of The Hill.