Ever since WikiLeaks became a household word, traditional news media have had every reason to try to replicate its technology for receiving leaked documents, via the Internet, on an anonymous and secure basis.
Traditional media may be at war with Julian Assange and disagree fundamentally with his methods in vetting and disseminating classified documents, but they can still see the appeal of a technical mechanism to frustrate eavesdropping on journalists and sources. If you're in the investigative journalism business, anything that protects confidential sources, enhancing the security of their communications with reporters, is an obvious benefit.
Even more important is the media's desire to neutralize WikiLeaks' advantage in the competition for access to sensitive government records. WikiLeaks, on the strength of its promise of anonymity, has managed to insert itself as an intermediary between news sources and the news media, relegating the latter to a secondary role on some of the biggest stories of the past year. This change in status is a source of considerable resentment among affected news organizations, particularly the New York Times, whose editor lashed out at Assange in a recent Times' magazine article.
So, will mainstream media be able to match WikiLeaks' leak technology? Of major U.S. news organizations, the Wall Street Journal is the first to try. Unveiled last week, the Journal's system for secure receipt of documents, called SafeHouse, is on a new website with its own domain. Like WikiLeaks, SafeHouse enables users to upload documents directly to a secure server, bypassing email services. Access to the server is limited to the Journal's editors, who use an encrypted connection to retrieve documents.
Although SafeHouse is a commendable effort, it is handicapped by limitations that do not affect WikiLeaks. I am referring not to any technical shortcomings of the Journal's service (which, in any case, I would not be competent to judge), but to the fact that the Journal, as a legitimate company with assets, employees and shareholders to worry about, is constrained by legal considerations that WikiLeaks is more or less free to ignore.
Consider the terms of service for SafeHouse. Sources who submit documents must "agree not to use SafeHouse for any unlawful purpose" and to represent that they "have all the necessary legal rights to upload or submit such content and it will not violate any law or the rights of any person."
Hmmm. That pretty much rules out all classified government documents (and even unclassified documents that a would-be source is not authorized to disclose). Also ruled out by the terms of service are leaks of any documents belonging to private corporations, since they would be copyrighted in nearly all cases (and in some instances would also constitute "trade secrets").
The SafeHouse terms of service go on to warn that, unless the source and the Journal agree otherwise, the Journal has the "right to disclose any information about you to law enforcement authorities or to a requesting third party, without notice, in order to comply with any applicable laws and/or requests under legal process... "
Translation: If the Journal receives a subpoena demanding copies of documents that you submitted confidentially through SafeHouse, don't expect Journal editors to pay fines or go to jail to keep them secret. Don't even expect the Journal to give you a heads up about a subpoena; it may turn over your documents and tell you after the fact (or not at all).
The SafeHouse disclaimers seem laughably out of place: OK for freelance articles submitted for publication, but not for a website whose purpose, after all, is to encourage submission of documents by persons who, if exposed, could be fired, sued or prosecuted. But, while the legal fine print might have been phrased more felicitously, the Journal's lawyers had no choice but to include these warnings in some form.
The Journal can't ignore a subpoena or court order. Neither can the New York Times, Washington Post, Los Angeles Times, etc. Although they might choose to go to the mat in a particular case, they certainly can't commit in advance to do so for a source they don't know, offering government records they've never seen. The best they can do (or, that the lawyers will let them do) is leave open the door to possible negotiations of different terms of service, at the news organization's option, in appropriate cases.
But those subtleties will be lost on confidential sources working, say, for the National Security Agency or Apple Computer. WikiLeaks, on the other hand, needn't deter them with legalese. Court orders against WikiLeaks, for all practicable purposes, are unenforceable. Attempts to shut it down are of no avail because its content is "mirrored" on dozens of other websites and servers. If one iteration of WikiLeaks is disabled by court order (or other government action) others pop up in its place.
WikiLeaks is a rogue news outlet that is both stateless and virtual. Unfortunately for mainstream media, those characteristics give it a permanent leg up in protecting confidential documents and sources.
Peter Scheer, a lawyer and journalist, is Executive Director of the First Amendment Coalition.
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