5 ms·

I'm pretty sure this _is_ actually a point of law. Being released via Wikileaks (or similar) does not change the classification of the information released.

rhizome 16y ago
Correct, but classification does not cover regular citizens. The only people who can be prosecuted for revealing classified information are those who have sworn to protect it, i.e. people who have previously agreed to respect the secrecy. It's a covenant.
- lucasjung 16y ago
  Not true. Classified documents have cover pages explaining that they are classified and warning that you can be prosecuted for distributing classified information even if you haven't made the normal agreements associated with a security clearance. People who do have access, and who have signed the corresponding agreements are open to additional charges as well as pre-emptive extra-legal action for purposes of preventing or investigating security leaks (background investigations, polygraphs, etc.). Actual prosecutions for people without clearance revealing classified information are generally rare because it's usually done as a form of journalism, which brings first ammendment issues into play. That's probably why wikileaks has made such an effort lately to re-cast themselves as a journalistic organization instead of just a clearinghouse for "whistle blowers."
  - rhizome 16y ago
    Prosecuting the possession of information without clearance is done so rarely because a conviction on any of the points that touch the act is impossible. The scenario you describe simply doesn't exist, it has nothing to do with journalism, and the onus is on those advocating for the validity of these kinds of prosecutions to distinguish acts from those which AIPAC members had charges dropped in the Franklin case just a few years ago. I'd be interested in hearing about any successful prosecutions, so consider me eager to be proven wrong.
    - lucasjung 16y ago
      I didn't say anything about possession: I said distribution. Huge difference. I also didn't describe any scenario for prosecution, so I'm not sure what you're referring to when you say that the scenario I describe simply doesn't exist. The only scenario I described was the kind where prosecution doesn't happen. My overall point was that your statement regarding the illegality was wrong: the illegality of distributing classified materials is not based on covenant, it is based on statute. The covenant part gives prosecutors a few extra charges to pile on for people who have clearances, but it's not the main piece. Whether or not such laws are enforceable in a practical sense does not change the fact that distributing classified material is, under current law, illegal regardless of who you are.
      - rhizome 16y ago
        The US does not have a state secrets law the way the UK and others do. If I find a piece of paper on the street, post a scan of it on the chans, then find out it was classified, what law have I broken? If you're going to say The Espionage Act, I don't agree. My understanding is that the prohibition on distribution covers only people who have previously agreed to respect classification.
        lucasjung 16y ago
        If you had no idea it was classified before you distributed it, you probably wouldn't have broken any laws. Given the way classified documents are labeled, that's an incredibly unlikely scenario: classified documents are marked with the classification level on every page and paragraph (individual paragraphs may be classified at a lower level than the overall document), and have cover sheets explaining exactly what the classification level means, which includes a statement warning the reader that anyone can be prosecuted for unauthorized distribution, not just people who have agreed to protect it. So your understanding is wrong: the prohibition extends to everyone. There are also directions for what to do with it if you aren't supposed to have it (e.g. "Return to nearest office of [appropriate federal department or agency].") If the hypothetical piece of paper on the street were a single page marked with a classification level, but without the cover sheet and its explanation, you might be able to argue that you didn't think that you were legally prohibited from distributing that information. Then again, "I didn't know that was illegal, your honor," generally doesn't play well in the courts. IANAL, so I can't tell you what would happen in this situation, but I can tell you that even if you were to avoid conviction the overall experience would probably be time consuming, expensive, and generally unpleasant.

rhizome 16y ago

Correct, but classification does not cover regular citizens. The only people who can be prosecuted for revealing classified information are those who have sworn to protect it, i.e. people who have previously agreed to respect the secrecy. It's a covenant.

lucasjung 16y ago
Not true. Classified documents have cover pages explaining that they are classified and warning that you can be prosecuted for distributing classified information even if you haven't made the normal agreements associated with a security clearance. People who do have access, and who have signed the corresponding agreements are open to additional charges as well as pre-emptive extra-legal action for purposes of preventing or investigating security leaks (background investigations, polygraphs, etc.). Actual prosecutions for people without clearance revealing classified information are generally rare because it's usually done as a form of journalism, which brings first ammendment issues into play. That's probably why wikileaks has made such an effort lately to re-cast themselves as a journalistic organization instead of just a clearinghouse for "whistle blowers."
- rhizome 16y ago
  Prosecuting the possession of information without clearance is done so rarely because a conviction on any of the points that touch the act is impossible. The scenario you describe simply doesn't exist, it has nothing to do with journalism, and the onus is on those advocating for the validity of these kinds of prosecutions to distinguish acts from those which AIPAC members had charges dropped in the Franklin case just a few years ago. I'd be interested in hearing about any successful prosecutions, so consider me eager to be proven wrong.
  - lucasjung 16y ago
    I didn't say anything about possession: I said distribution. Huge difference. I also didn't describe any scenario for prosecution, so I'm not sure what you're referring to when you say that the scenario I describe simply doesn't exist. The only scenario I described was the kind where prosecution doesn't happen. My overall point was that your statement regarding the illegality was wrong: the illegality of distributing classified materials is not based on covenant, it is based on statute. The covenant part gives prosecutors a few extra charges to pile on for people who have clearances, but it's not the main piece. Whether or not such laws are enforceable in a practical sense does not change the fact that distributing classified material is, under current law, illegal regardless of who you are.
    - rhizome 16y ago
      The US does not have a state secrets law the way the UK and others do. If I find a piece of paper on the street, post a scan of it on the chans, then find out it was classified, what law have I broken? If you're going to say The Espionage Act, I don't agree. My understanding is that the prohibition on distribution covers only people who have previously agreed to respect classification.
      - lucasjung 16y ago
        If you had no idea it was classified before you distributed it, you probably wouldn't have broken any laws. Given the way classified documents are labeled, that's an incredibly unlikely scenario: classified documents are marked with the classification level on every page and paragraph (individual paragraphs may be classified at a lower level than the overall document), and have cover sheets explaining exactly what the classification level means, which includes a statement warning the reader that anyone can be prosecuted for unauthorized distribution, not just people who have agreed to protect it. So your understanding is wrong: the prohibition extends to everyone. There are also directions for what to do with it if you aren't supposed to have it (e.g. "Return to nearest office of [appropriate federal department or agency].") If the hypothetical piece of paper on the street were a single page marked with a classification level, but without the cover sheet and its explanation, you might be able to argue that you didn't think that you were legally prohibited from distributing that information. Then again, "I didn't know that was illegal, your honor," generally doesn't play well in the courts. IANAL, so I can't tell you what would happen in this situation, but I can tell you that even if you were to avoid conviction the overall experience would probably be time consuming, expensive, and generally unpleasant.