The media is clearly unbiased. So when CNN’s Chris Cuomo informed Americans that only CNN could possess and interpret the Wikileaks emails, America was shocked … or not.
On Wednesday, Cuomo informed the CNN audience that “It’s illegal to possess these stolen documents,” but that “it’s different for the media” and that everything Americans learn about these emails should be learned from CNN. uhh, what?
First, the possession of a printout/display of an email hacked from a computer is not necessarily a crime. So what parts of the United States Code of laws might apply?
First, if there were any classified information released (and so far there is not) then 18 U.S.C. 1924 might apply [emphasis added]:
18 U.S. Code § 1924 – Unauthorized removal and retention of classified documents or material
In this section, the term “classified information of the United States” means information originated, owned, or possessed by the United States Government concerning the national defense or foreign relations of the United States that has been determined pursuant to law or Executive order to require protection against unauthorized disclosure in the interests of national security.
So clearly, if you are NOT an officer, employee contractor or consultant of the United States – this statute does NOT apply to you.
Next up, 18 U.S.C. 798 [emphasis added] – also requires the information to be classified… :
18 U.S. Code § 798 – Disclosure of classified information
a)Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for usre by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.
The term “classified information” means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution;
So, using the Clinton defense, none of the emails, so far, have been marked classified, secret, top secret or even confidential by any recognized U.S. government agency.
When looking at precedent, Cuomo’s statements make even less sense. Bartnicki v. Vopper sets out the primary “test,” holding that a broadcaster (or anyone else) could not be held civilly liable for publishing documents or tapes illegally procured by a third party. The court set out three criteria for legitimate first amendment protection: (1) the media outlet played no role in the illegal interception; (2) media received the information lawfully; (3) the issue was a matter of public concern.
The Wikileaks documents fit all three tests and are legally transmissible by any media outlet and everyone else for that matter – as long as the played no role in the “interception” of that information. Only Wikileaks is possibly criminally or civilly liable in the case of the Podesta emails. Everyone else is re-publishing newsworthy information freely available in the public domain that is not otherwise “classified.”