Congress and courts should consider intent when investigating those disseminating national security information, rather than focusing on the medium, the publisher's background or the complicity in the leak, suggests notes a new paper (.pdf) by Mary-Rose Papandrea, an associate professor of Law at Boston College, published in the Journal of National Security Law & Policy.

WikiLeaks has blurred the definition of who is a journalist and what is the press, so "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," writes Papandrea. Historically, government has sought the information leaker and has never prosecuted a media organization for publishing national security information, says Papandrea.

While the government has been able to prosecute Bradley Manning, the alleged source of information leaked to WikiLeaks' Julian Assange, "technology has developed to make it possible for individuals to exchange information anonymously, making it impossible for the government to subpoena the identity of leakers from the website that received the information."

When considering leaker prosecution, Congress must distinguish between protections for government employees or contractors, and those who are not in a position of trust and confidentiality with the government, writes Papandrea.

All leaking is not bad, notes Papandrea. In fact, she argues that leaks are an important part of checking government as the Freedom of Information Act is "a cumbersome and limited mechanism" and wistleblower protection laws provide minimal protection.

"Relying on leaks is hardly a perfect way of making sure the public receives essential information or of checking excessive government power; it does not guarantee that improperly classified information will come to light, or that genuinely sensitive information will remain secret," writes Papandrea.

"Nevertheless, this imperfect system is the best we have for checking the virtually unbridled power of the government to control the dissemination of national security information," she adds.

For more:
- see the report (.pdf)

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