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> But if Snowden violated the Espionage Act, then didn't the small number of reporters he gave the NSA docs to? And the larger number of reporters who reproduce

by mpyne 12y ago

> But if Snowden violated the Espionage Act, then didn't the small number of reporters he gave the NSA docs to? And the larger number of reporters who reproduced them? And anyone forwarding a Glenn Greenwald article with embedded PDFs? And sites like HN that "make available" classified documents by allowing links to the docs to be posted here? Prosecutorial discretion is still a thing, even if "common sense" has disappeared. Nor has competing interests gone away; there is a natural tension for the American government in maintaining freedom of the press while enforcing the law which would (and should!) act to make the question of suing the NYT, WaPo, etc. not as easy as you make it sound. But for Snowden there is no such dilemma. On the contrary, he even explicitly promised he would not do what he did, something the press has never guaranteed. Either way, surely you're not trying to claim that there are not gradations in severity, or that the law (even as it stands today) should or does treat crimes apart from their severity. Even our drug laws, abusive as they are, understand the concept of possession of large amounts or small amounts of a given drug, severity categories, etc. Hell, even murder and rape carry different charges for different levels of the crime, so I'm disappointed that you'd try to undermine the logic of a law against espionage by such shoddy reasoning. If Carmen Ortiz declines to charge the HN webteam with espionage it says nothing about the logic of charging Snowden with the same.

declan 12y ago
> act to make the question of suing the NYT, WaPo, etc. not as easy as you make it sound No, not "suing" the NYT, WashPost, etc. The Espionage Act is armed with felony criminal sanctions. The nuclear option would be for FedGov to indict the news organization, do no-knock raids on the homes of their reporters and editors involved in the story, seize computers (ala GCHQ), etc. The reason FedGov has not is left as an exercise to the reader. But more broadly, you're attributing views to me I do not hold. I wrote about the Espionage Act at some length here -- this may set you straight (I don't have time or the inclination to do it here): http://www.cnet.com/news/wikileaks-could-be-vulnerable-to-espionage-act/ http://www.cnet.com/news/wikileaks-could-be-vulnerable-to-es...
- mpyne 12y ago
  > The reason FedGov has not is left as an exercise to the reader. There's no exercise at all: They'd get pilloried for it in the very same media, on top of what I already mentioned regarding the tension around facilitating a mostly free press. I mean, even the Guardian's editors noted that they preferred working on the Snowden leaks from their New York office rather than their London office. That wasn't an accidental or hasty decision. Your article is very informative, actually. And to your great credit, I'm not actually sure what specific views you hold after reading it, other than an apparent opposition to the Espionage Act. Some of the points brought up appear to be in the sense of "look how ridiculous this is", but I don't agree with the ridiculousness at all. E.g. the intent of someone doing the spying shouldn't any bearing on whether someone is guilty under Espionage Act or not; either your spying could have hurt the nation (for some definition of "hurt") or it couldn't. Intent would certainly have bearing into the severity of a sentence, and we could even envision having entirely separate charges for different categories of harm (just as we split murder into attempted murder, manslaughter, premeditated murder, etc.), but whether you spied or not is effectively a binary question at the end, and that very well should possibly extend all the way up a felony. Maybe your point is that we need to revisit the law as it stands to have those separate categories of harm instead of what amounts to a giant "reasonable man" test, and I wouldn't oppose that. But the law is in many ways demand-paged; it only gets changed in response to obvious miscarriages of justice, and I'm not sure that all possible prosecutions of Assange under the Espionage Act would represent that. He's not a journalist and he's certainly trying to harm the USG (and thereby, the US people) so it's not as if such a prosecution would be obviously mistaken.
  - declan 12y ago
    > There's no exercise at all: They'd get pilloried for it in the very same media Unfortunately you only get a C+ on this exercise. :) The short answer is that portions of the Espionage Act likely violate the First Amendment's guarantees of freedom of speech if the EA were used to prosecute journalists who obtained the materials over the transom. (Whether this applies to Wikileaks is a different story. Different facts.) The slightly more detailed answer is that the modern jurisprudence relating to the First Amendment is far more speech-protective than it was when the EA was codified a century ago. And DOJ doesn't want to risk having parts of the EA declared unconstitutional. So Glenn Greenwald and other reporters were (properly) not indicted for violations of the Espionage Act, which makes it a federal felony to publish classified NSA SIGINT or cryptographic material.

by mpyne 12y ago

declan 12y ago

> act to make the question of suing the NYT, WaPo, etc. not as easy as you make it sound No, not "suing" the NYT, WashPost, etc. The Espionage Act is armed with felony criminal sanctions. The nuclear option would be for FedGov to indict the news organization, do no-knock raids on the homes of their reporters and editors involved in the story, seize computers (ala GCHQ), etc. The reason FedGov has not is left as an exercise to the reader. But more broadly, you're attributing views to me I do not hold. I wrote about the Espionage Act at some length here -- this may set you straight (I don't have time or the inclination to do it here): http://www.cnet.com/news/wikileaks-could-be-vulnerable-to-espionage-act/ http://www.cnet.com/news/wikileaks-could-be-vulnerable-to-es...

mpyne 12y ago
> The reason FedGov has not is left as an exercise to the reader. There's no exercise at all: They'd get pilloried for it in the very same media, on top of what I already mentioned regarding the tension around facilitating a mostly free press. I mean, even the Guardian's editors noted that they preferred working on the Snowden leaks from their New York office rather than their London office. That wasn't an accidental or hasty decision. Your article is very informative, actually. And to your great credit, I'm not actually sure what specific views you hold after reading it, other than an apparent opposition to the Espionage Act. Some of the points brought up appear to be in the sense of "look how ridiculous this is", but I don't agree with the ridiculousness at all. E.g. the intent of someone doing the spying shouldn't any bearing on whether someone is guilty under Espionage Act or not; either your spying could have hurt the nation (for some definition of "hurt") or it couldn't. Intent would certainly have bearing into the severity of a sentence, and we could even envision having entirely separate charges for different categories of harm (just as we split murder into attempted murder, manslaughter, premeditated murder, etc.), but whether you spied or not is effectively a binary question at the end, and that very well should possibly extend all the way up a felony. Maybe your point is that we need to revisit the law as it stands to have those separate categories of harm instead of what amounts to a giant "reasonable man" test, and I wouldn't oppose that. But the law is in many ways demand-paged; it only gets changed in response to obvious miscarriages of justice, and I'm not sure that all possible prosecutions of Assange under the Espionage Act would represent that. He's not a journalist and he's certainly trying to harm the USG (and thereby, the US people) so it's not as if such a prosecution would be obviously mistaken.
- declan 12y ago
  > There's no exercise at all: They'd get pilloried for it in the very same media Unfortunately you only get a C+ on this exercise. :) The short answer is that portions of the Espionage Act likely violate the First Amendment's guarantees of freedom of speech if the EA were used to prosecute journalists who obtained the materials over the transom. (Whether this applies to Wikileaks is a different story. Different facts.) The slightly more detailed answer is that the modern jurisprudence relating to the First Amendment is far more speech-protective than it was when the EA was codified a century ago. And DOJ doesn't want to risk having parts of the EA declared unconstitutional. So Glenn Greenwald and other reporters were (properly) not indicted for violations of the Espionage Act, which makes it a federal felony to publish classified NSA SIGINT or cryptographic material.