Wikileaks case could be the push to update espionage laws

Gilead Light, an attorney at Venable LLP, is in the process of defending a client against espionage charges, which for now means he punches holes in laws that stem back to the turn of the 20th century.

Establishing liability for those who mishandle classified digital documents is murky at best, he told Nextgov on Friday. But that view is subject to change. As evidence, he pointed to a congressional hearing in May on the need to update espionage laws, and recent comments by Sonia Sotomayor, who indicated the Wikileaks exposure of thousands of classified Defense Department documents could result in a Supreme Court case.

"This is the type of situation that moves the ball," he said.

Light discussed with Nextgov senior reporter Jill R. Aitoro how espionage laws and the use of classified information could change.

Nextgov: What's the history of espionage law in the United States?

Light: The first espionage law was [written] in 1917 [called the Espionage Act], and that exact wording is still the premier statute in terms of classic, nation-versus-nation spy cases. That's the cloak-and-dagger statute. Then additional [laws] were passed in the 1950s at the peak of the Cold War, when the Russian spy cases became intense. Beyond those, with some adjustments along the way, espionage laws have remained grossly outdated.

Nextgov: In what way?

Light: For example, they have words prohibiting transmission of a signal book [which Navy ships used to communicate securely] or a cryptograph [to decipher codes and ciphers]. These are things not even used anymore, and certainly none of the laws account for electronic documents in all their forms. Courts interpret laws, so the point is not to say that our current laws are completely ineffective. For the classic situations, like Russians trying to take our secrets, these laws are mostly adequate.

But when you consider new media and the volume of electronic information and classified documents [produced], there are new permutations of espionage happening and new ways that these documents get leaked in the 21st century that the laws are not equipped to address.

Nextgov: Is part of the challenge the sheer volume of classified information being stored?

Light: The amount of classified information out there is staggering. Most people I talk to who work in government and handle this information every day say government just has a rubber stamp ready, and if it comes across their desk, it's marked classified. [They say] it could be a Mickey Mouse document, and they'll mark it classified. To that point, it loses some of its luster and people get desensitized.

Nextgov: With laptops and attached storage devices, data breaches so often are the result of someone not following policy. Does the law adequately distinguish between those cases and those that are willful theft of information?

Light: There are definitely negligence-oriented statues, some of which are misdemeanors that address the mishandling of classified information. A good example of that was Sandy Berger [who in April 2005 pled guilty to a misdemeanor charge of unauthorized removal and retention of classified material from the National Archives]. Classified documents are supposed to be maintained at what government calls a sensitive compartmented information facility, or at the very least in a secure room. When I've defended an espionage case, we aren't supposed to even talk about classified materials in our office or on the phone. Those are the regulations.

Nextgov: That becomes difficult when these documents are all maintained on a computer network.

Light: I think there's a fix that would start with clarification in the law about what constitutes classified information, so people understand what they're allowed to transmit and what they're not. But you still have to be careful how you handle electronic information, and the laws need to take into account the methods that are out there for transmitting that information.

The government uses the Secret Internet Protocol Router Network as a private Worldwide Web that can be accessed only by those with clearance. But the number with clearances is growing fast. Bradley Manning, for example, allegedly used the network to submit to Wikileaks a classified video showing the death of two journalists and was charged under the Espionage Act. If he's also the one who's behind the more recent Wikileaks dump, which all signs say he is, then he likely went back and pulled information from that network again. This was someone who was stationed in Iraq, dumping documents about Afghanistan. It sounds to me like the government needs to reevaluate how it's compartmentalizing information.

Nextgov: Manning allegedly provided the information and Julian Assange posted it on the Web. But Jacob Appelbaum, according to a Rolling Stone article, developed the hacking software people use to pass classified information to Wikileaks without being detected. Who could the government go after?

Light: They all can be charged. I just don't know if [prosecutors] could win. Since it's an uncertain area, the government might try to bring a charge with the understanding that it might not hold up. Still, this is the type of situation that moves the ball.

You can look at Wikileaks as a whistle-blower site that is acting as a facilitator for those exposing perceived injustices in governments all over the world. In that case, are they entitled to First Amendment protection? Hard to say. You could also view this site as a leak solicitation website that encourages people to break the law and divulge secrets. That's a big distinction from what a newspaper sets out to accomplish. Again, it's left up to the courts to interpret that.

Congress had a hearing on the espionage statute in May that didn't get that much attention. Had it happened now, after the Russia spy story and Wikileaks exposure, I expect the reaction would have been quite different. That's the good news: This is all under review. In the meantime, it's very hazy.

This article was updated on 10:07 am, Aug. 30, to clarify Light is defending one client in an espionage case, not numerous as reported in a release provided Nextgov, and to make more clear that establishing liability for mishandling classified documents is difficult.