Wikileaks has just been cleared by the Australian Federal Police of accusations that they broke Australian law.
Now, were they in possession of stolen Australian cables?
As far as I'm aware, Wikileaks doesn't have any stolen Oz cables.
However, let's look at it from the US' perspective. Do they have stolen US cables? Well, no, because they wouldn't have the actual cables, just the information.
As far as I'm aware, the information - some of which is classified secret and confidential to the US government - was supplied to wikileaks.
Now presumably, receipt of this information cannot itself be a crime.
After all, if Bradley came up to you and told you something that was a state secret, you could not be prosecuted for hearing it.
And if he said here, check this out, and then showed you a document that said 'classified' on it, again, presumably, although you have seen something you were not cleared for, I would not think you could be charged for having seen it.
But if you then publish it?
Interesting question.
Chasing the legal situation from the US angle:
Here's discussion from ten years ago (2000 CE : pre 9/11):
The Attorney General discusses unauthorised disclosure of classified materials at a Senate committee.
http://www.fas.org/sgp/othergov/renoleaks.html
Pertinent information beginning with this paragraph:
"You also asked me to address the adequacy of the criminal statutes currently available to us to prosecute leaks. As you know, there is no general criminal statute penalizing the unauthorized disclosure of "classified information.""
Implying: free press, publish what you want: after all, is there even any law that says it must be true (hello The World; The Truth; and other such tabloids)
However, it then talks about possibly bringing in some law changes to this. Beforehand it also says it's been policy "to focus the investigation on the universe of potential leakers rather than on the reporter" with the implication that they *could* focus on the reporter if need be. And the final and most damning lines are just a little further along, saying
"Several statutes address conduct, including disclosure, with respect to certain categories of information such as classified information concerning the communication activities of the United States (18 U.S.C. §798) and Restricted Data relating to atomic weapons or energy"
and
"the Espionage Act [...] make it a crime punishable by 10 years' imprisonment for an authorized or unauthorized possessor of documents or information 'relating to the national defense' to 'willfully communicate' the same to 'any person not entitled to receive it.'
I'll comment further on the Espionage Act later on.
The above becomes more interesting once we look at classification levels.
The material published by wikileaks is a mix of unclassified, confidential and secret. None is classified as top-secret, which is the highest classification level.
Descriptions of the categorisations can be found as follows:
http://en.wikipedia.org/wiki/Classified_information_in_the_United_States#Levels_of_classification_used_by_the_U.S._government
We can see that the three classified levels are all rated in terms of damage to national defense. Hence from the above quote regarding the Espionage Act, it would actually seem to be applicable to anyone who communicated *any* classified material to people not cleared for it - in other words, what wikileaks (and every other paper out there today) has been doing lately.
For a look at an earlier case involving actual top-secret material, we have the Pentagon Papers case.
http://en.wikipedia.org/wiki/Pentagon_Papers
Top Secret information regarding the US Government's policy toward the Vietnam War, was leaked to the papers and published, on the front page of the New York Times.
"Prior to publication, the New York Times sought legal advice. The paper's regular outside counsel, Lord Day & Lord, advised against publication, but house counsel James Goodale prevailed with his argument that the press had a First Amendment right to publish information significant to the people's understanding of their government's policy."
Ah, the people's right to know.
Which comes under the Freedom of the Press - which is part of the First Amendment. Forget the fact that the US is ranked 20th by Reporters Without Borders in terms of press freedom, up from 36th the year before. The First Amendment protects the press from the government interfering in the distribution and publication of information and opinions.
But, as brought up earlier, what about the Espionage Act?
http://en.wikipedia.org/wiki/Espionage_Act_of_1917
Well, it turns out that it's fairly focused on information during war time.
What is war time? Is it always war time?
Furthermore, Freedom of the Press cases have been successfully fought since, and the First Amendment rights reinforced since, the Act's introduction in 1917 during WW1.
The Espionage Act has been brought up recently as some have wondered whether wikileaks would be prosecuted for breaching it.
http://www.washingtonpost.com/wp-dyn/content/article/2010/11/29/AR2010112905973.html
Some choice quotes include:
Perhaps the most significant issue is the Constitution's protection of people's right to speak freely and to exchange ideas.
"If the government were to prosecute the person who received and disseminated the classified information - as opposed to the individual who leaked it from within the government - mainstream media would express the concern that they could face prosecution for reporting information they routinely receive from government insiders," Wainstein said.
Fundamentally, Weiss said, the WikiLeaks case "is not about the disclosure of troop movements to al-Qaeda or giving the recipe for the plutonium bomb to North Korea. This is the widespread publication of information that is important in determining the future policy of the United States, that could be very important for people in assessing how well our government is doing its job. It's a good example of the problems created by the First Amendment clashing with criminal law, the law protecting national defense information."
Finally, the quote:
All the experts agreed that it may be difficult for the United States to gain access to Assange, who apparently has avoided traveling to the country. Most nations' extradition treaties exempt crimes viewed as political. "I can imagine a lot of Western allies would view this not as a criminal act, but as a political act," Weiss.
Postscript:
Welcome to the brave new world: UN considers moving to total internet regulation in the wake of wikileaks. China, eat your heart out.
http://www.itnews.com.au/News/242051,un-mulls-internet-regulation-options.aspx
