Federal guidance on WikiLeaks raises legal questions

The government might not have the right to restrict federal employees and contractors from viewing on their personal home computers the classified material that WikiLeaks posted, said Kathleen Clark, a law professor at Washington University in St. Louis School of Law with expertise in whistleblower protections and national security.

On Dec. 3, OMB's general counsel office sent a notice to agency general counsels instructing them to remind employees they should not view materials that WikiLeaks posted because the information remains classified.

The memo said federal employees and contractors "shall not . . . access documents that are marked classified," on computers that access nonclassified government systems, including employees' or contractors' personally owned computers.

Clark said the guidance is unclear as to whether employees could access the leaked documents on a personal computer that does not access government systems. OMB did not return a call or e-mail seeking clarification.

"It seems to be fear-mongering," Clark said. The notion that agencies would tell employees they could not view the documents on their home computers "is inexplicable to me," she said.

"I don't think there's any legal authority to assert employees who have security clearances cannot access particular information through their home computers," Clark said.

Both the Defense and State departments told employees and contractors not to access the information, but neither made a distinction between personal and private computers.

Defense's guidance says U.S. military, civilian and contractor employees "should not access the WikiLeaks website to view or download publicized classified information," according to Maj. Chris Perrine, a Defense Department spokesman. Doing so could introduce classified information on unclassified networks, creating "spillage," which is costly to clean up, Perrine said.