In his testimony yesterday in front of the Senate Judiciary Committee, FBI Director James Comey became the latest government official to speak out against Wikileaks. In doing so -- even though he very carefully worded his answers to Sen. Ben Sasse's softballs -- Comey also made a very dangerous insinuation about what separates "real" journalists from Wikileaks.
From the transcript published at the Washington Post:
SASSE: [T]here is room for reasonable people to disagree about at what point an allegedly journalistic organization crosses a line to become some sort of a tool of foreign intelligence. There are Americans, well-meaning, thoughtful people who think that WikiLeaks might just be a journalistic outfit. Can you explain why that is not your view?
COMEY: Yes and again, I want to be careful that I don't prejudice any future proceeding. It's an important question, because all of us care deeply about the First Amendment and the ability of a free press, to get information about our work and -- and publish it.
To my mind, it crosses a line when it moves from being about trying to educate a public and instead just becomes about intelligence porn, frankly. Just pushing out information about sources and methods without regard to interest, without regard to the First Amendment values that normally underlie press reporting. And simply becomes a conduit for the Russian intelligence services or some other adversary of the United States just to push out information to damage the United States. And I realize, reasonable people as you said, struggle to draw a line…
So, where does the journalistic publishing of leaked documents cross the line into "intelligence porn?" Comey says the difference between real journalists and Wikileaks is real journalists seek input from the government before publishing.
Comey: [T]here's at least a portion and people can argue that maybe this conduct WikiLeaks has engaged in, in the past that's closer to regular newsgathering. But in my view, a huge portion of WikiLeaks's activities has nothing to do with legitimate newsgathering, informing the public, commenting on important public controversies, but is simply about releasing classified information to damage the United States of America. And -- and -- and people sometimes get cynical about journalists.
American journalists do not do that. They will almost always call us before they publish classified information and say, is there anything about this that's going to put lives in danger, that's going to jeopardize government people, military people or -- or innocent civilians anywhere in the world. And then work with us to try and accomplish their important First Amendment goals while safeguarding those interests. This activity I'm talking about, WikiLeaks, involves no such considerations whatsoever. It's what I said to intelligence porn, just push it out in order to damage.
The First Amendment contains no such requirement to run leaked documents past the government first. This can be an ethical decision on the part of the publisher, but the notion that the First Amendment only covers publishing after government input has been sought is a dangerous one. This assertion by Comey also just isn't true. As Trevor Timm pointed out on Twitter, Wikileaks has attempted to contact the US government in the past before publication, but has been ignored.
Furthermore, Comey and Sasse both claim Wikileaks' publications have caused some sort of damage to government employees. They offered unproven assertions it has endangered lives, even though the evidence shows the worst the US government (and its employees) suffered is some embarrassment.
The only mitigating factor was Comey's assertion that the DOJ isn't interested in using espionage laws to prosecute journalists for publishing leaked documents. As he correctly points out, the culpability lies with the person leaking the documents, not the journalists publishing them. Of course, this statement isn't being made in a vacuum. It's being made in the current political climate where the president has expressed an interest in reducing free speech protections. The DOJ itself appears to be working towards prosecuting Julian Assange for publishing leaked documents. All that can really be gathered from Comey's assertions is that the DOJ may not prosecute journalists who run everything past the government before publication.
This delineation between "legitimate" journalism and "intelligence porn" is disturbing. It suggests the government still wants to have the final say on who is or isn't a journalist and punish accordingly. If this had been the attitude since the beginning of this nation, it's doubtful we'd have as many protections as we enjoy today. Rob Graham of Errata Security sums up Comey's statements in a single, unforgettable sentence:
If this were 1776, Comey would of course be going after Thomas Paine, for publishing "revolution porn", and not being a real journalist.
