Harder to suppress leaks in Internet age
The publication this week of classified military reports from Afghanistan has brought home to the nation’s capital what Hollywood has seen of late with the raw tapes of Mel Gibson’s angry voice: the Internet has fundamentally transformed how secrets are disclosed.
No longer can lawyers for the government or a big star rush to court or phone a top news executive to head off a damaging disclosure in a newspaper or on television. Now raw secrets can be posted online for all the world to see or hear. WikiLeaks, the website that obtained the documents, operates mostly outside the United States, making it difficult if not impossible for the government to block publication.
“In the digital age, once classified information has been leaked by a government employee, there is no practical remedy available to the government” to stop its disclosure, said Rodney Smolla, a 1st Amendment expert and president of Furman University in South Carolina. “Even if the government were to march into an American or foreign court to seek an injunction against the release of the documents, there is no way to recall the millions of cites and retransmissions that occur almost instantly on the Internet.”
The Obama administration has said it may pursue a criminal case against the leaker of the classified reports, but it made no effort to stop their publication or availability on WikiLeaks.
Floyd Abrams, a lawyer who represented the New York Times against the Nixon administration’s effort to halt publication of the Pentagon Papers in 1971, said the Internet left the Obama administration with no practical options when faced with a similar disclosure on a foreign-run website.
“We seem to be moving to a world in which few secrets are safe from disclosure, including genuine ones,” he said.
Several Hollywood websites have gained fame by posting embarrassing information about celebrities. This month, RadarOnline posted audio of Mel Gibson ranting over the phone to an ex-girlfriend.
What has changed is not the law, but the number and variety of sources of information, said Cindy Cohn, legal director for the Electronic Frontier Foundation in San Francisco. “The Internet has given all the rest of us a megaphone,” she said. “Now, the government can’t arm twist a publisher and convince him not to publish.”
Websites can be sued for disclosing trade secrets or for an invasion of privacy, just like other publishers. However, they also have the same free-speech and free-press protections. And as a practical matter, WikiLeaks may be out of reach of many courts anyway, legal experts say.
If WikiLeaks founder Julian Assange or anyone else associated with the website stays in a country that won’t honor a subpoena or an extradition order from a court in the United States, Britain or elsewhere, they probably will continue to enjoy a level of protection not available to a more traditional publisher or broadcaster.
Julia Love in the Washington bureau contributed to this report
