On Thursday, a House panel plans to explore an update to a nearly century-old spy law as a path to prosecuting WikiLeaks founder Julian Assange following his group's release of thousands of classified diplomatic cables late last month.
House Judiciary Chairman John Conyers (D-Mich.) said the full committee hearing would consider the "Espionage Act and the legal and constitutional issues raised by WikiLeaks," a preliminary step in the push to overhaul the 1917 statute.
The hearing comes as the Justice Department has undertaken an investigation into the WikiLeaks document dump, exploring its admittedly murky options to prosecute Assange and others who might be involved.
Assange is currently jailed in Great Britain on charges relating to alleged sex crimes in Sweden. Several U.S. lawmakers have called for the Justice Department to prosecute him under the Espionage Act, including Sen. Diane Feinstein (D-Calif.), who penned an op-ed piece in the Wall Street Journal last week making the case for legal action against the WikiLeaks founder under the statute.
"That law makes it a felony for an unauthorized person to possess or transmit 'information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,'" Feinstein wrote.
"The Espionage Act also makes it a felony to fail to return such materials to the U.S. government," she added, noting that in advance of the release of the documents, the State Department had warned Assange that the publication would place diplomats, human-rights activists, journalists and others around the world at risk.
Sen. John Ensign (R-Nev.) has introduced legislation that would revise the Espionage Act to make it illegal to publish the names of informants who aid U.S. military or intelligence operations. Ensign billed the so-called SHIELD Act in an effort to close loopholes in the Espionage Act that would clear the way for the Justice Department to bring charges against Assange. The bill is co-sponsored by Sens. Joe Lieberman (I-Conn.) and Scott Brown (R-Mass.).
But the case for prosecuting Assange under the statute is not without controversy. Free speech advocates such as the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union have warned that such a move would represent a dangerous departure from First Amendment precedent.
EFF has argued that the Supreme Court ruling that vindicated the New York Times in the publication of material from the classified Pentagon Papers in the 1970s detailing the events leading up the Vietnam War would likewise shield WikiLeaks in its publication of the State Department cables.
"Importantly, the government itself can't take official action to silence WikiLeaks' ongoing publications -- that would be an unconstitutional prior restraint, or censorship of speech before it can be communicated to the public," the EFF's Rainey Reitman and Marcia Hoffman wrote in a blog post. "No government actor can nix WikiLeaks' right to publish content any more than the government could stop the New York Times and Washington Post from publishing the Pentagon Papers, which were also stolen secret government documents."
Additionally, EFF attorney Kevin Bankston has highlighted a recent legal analysis from the nonpartisan Congressional Research Service (CRS) that described the uncertainty of any case brought against Assange under the Espionage Act.
"Notably, the fine lawyers at CRS recognize a simple fact that statements from Attorney General Eric Holder, the Senators, the State Department and others have glossed over: a prosecution against someone who isn't subject to the secrecy obligations of a federal employee or contractor, based only on that person's publication of classified information that was received innocently, would be absolutely unprecedented and would likely pose serious First Amendment problems," Bankston said.
Thursday's hearing will be the first proceeding congressional proceeding to focus on the WikiLeaks release.
In the meantime, WikiLeaks has struggled to stay online as it has come under fire from cyber attacks and U.S. companies that hosted and provided other services to the site, including Amazon and PayPal, have severed relations with the group amid increasing pressure from lawmakers.
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