The Publication of National Security Information in the Digital Age

From the Introduction: In one of her speeches on Internet freedom, Secretary of State Hillary Rodham Clinton said that “[t]he fact that WikiLeaks used the internet is not the reason we criticized its actions.” Although Clinton is correct that it is essential to separate the technology WikiLeaks uses from its actions, the digital age has raised new concerns about the unauthorized dissemination of sensitive national security information. New technology has made it much easier to leak and otherwise disseminate national security information. At the same time, leaks continue to play an essential role in checking governmental power and often make invaluable contributions to our public debate. WikiLeaks has prompted renewed debate concerning when the disclosure of national security information by nongovernmental actors should be protected, both as a policy matter and as a matter of constitutional law. One dominant theme in the discussion of how to strike the balance between an informed public and the need to protect legitimate national security secrets is whether new media entities like WikiLeaks are part of “the press” and whether Julian Assange and his cohorts are engaging in “journalism.” As the gathering and distribution of news and information becomes more widely dispersed, and the act of informing the public more participatory and collaborative, however, determining who is engaging in journalism and what constitutes the press has become increasingly difficult. It is not possible to draw lines based on the medium of communication, the journalistic background of the publisher, the editing process, the size of the audience, or the methods used to obtain the information. Rather than attempt to define who is a journalist or what is the press, Congress and courts should give careful consideration to the relevant scienter requirements that would apply in cases involving nongovernmental actors. In such cases, the relevant laws should require that the offender acted with a subjective intent to harm the United States or with reckless indifference to any such harm. Such a test provides a means of protecting those who disseminate national security information responsibly and with a good-faith purpose to inform the public debate. This intent requirement would be in addition to proof of imminent and serious harm to U.S. interests