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Document Type

Note

Publication Date

Spring 2018

Publication Citation

93 Indiana Law Journal 533 (2018)

Abstract

On September 17, 2016, The Washington Post (“the Post”) made history by being the first paper to ever call for the criminal prosecution of its own source —Edward Snowden. Yet, two years prior to this editorial, the Post accepted the 2014 Pulitzer Prize in Public Service for its “revelation of widespread secret surveillance by the National Security Agency”—an honor which would not have been bestowed had Snowden not leaked the documents through this news outlet. The other three major media outlets that received and published Snowden’s documents and findings—The Guardian, The New York Times, and The Intercept—all have taken the opposite approach and stood by their source, calling for Snowden’s pardon. The unprecedented actions of the Post raise questions regarding the responsibilities of news outlets under the Espionage Act, the effect of selfimplication when condemning one’s own source, and the extent of public policy exceptions afforded to journalists.

Constitutional law has set a precedent for protecting journalists, and subsequently media organizations, although decisions to this effect may at times be difficult for the Court to make. For example, the Court’s findings and concurring opinions in the Pentagon Papers Case state that any action that resembles prior restraint bears a “heavy presumption against its constitutional validity.” Specifically, Justice Black stated in his concurring opinion that “the word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.” These types of protections have allowed media organizations to both take on controversial topics and to support their source, as was evident during the Pentagon Papers controversy when the New York Times refused to discuss whether Daniel Ellsberg was their source. Despite this history of protection by the Court—the Post decided to support the idea of criminal punishment and stated that it “might be a bargain . . . [if] Mr. Snowden accepts a measure of criminal responsibility for his excesses and the U.S. Government offers a measure of leniency.” The Post claims that the only program that was justifiably exposed was the domestic metadata program—because it was “a stretch, if not an outright violation, of federal surveillance law”—and that there was no public interest in exposing the NSA Internet-monitoring program, PRISM. Notwithstanding PRISM’s lack of public value, the Post reported on the program in detail and won an accolade for this reporting. If the Post truly believes that disclosing information on PRISM is unlawful because it exposes details of international intelligence operations, then by publishing articles on this topic of “no public value” the Post is exposing these details, which could be used to harm, to a larger audience. Further, if the Post believed that the disclosure of details surrounding the PRISM program were potentially illegal, then new questions can be raised about the reasonability of the Post being a disseminator of this illegal information.

This Note analyzes the role of the Post in the Snowden leaks and how the Post’s surprising call for legal action against Snowden directly contradicts the Post’s instrumentality in the initial reporting. Major news outlets have a long-established history of standing by their sources or, at the very least, abstaining from suggesting prosecution for the very individuals who provide them with information that they voluntarily published. Without this consistency, the source faces additional inquiry and accusations, and the news outlet opens itself up to criminal scrutiny by signaling certain legal concerns with its own published materials. While there is an oft-applied public policy exception that applies in many instances involving factual reporting by newspapers, this Note will examine whether this exception should stand in these unusual circumstances.

Part I of this Note provides background information on the controversy surrounding Edward Snowden by giving a timeline and describing the documents that were released to journalists and the public. Part II discusses the criminal charges that were levied against Snowden in relation to his wide-reaching leaks of confidential government data, as well as the history behind the statutes under which he is charged—including the Espionage Act of 1917. Part III seeks to elucidate the ramifications of the Post’s new stance that Snowden should in fact face some criminal penalties for his actions. Part III then analyzes the reach of the Espionage Act, and whether the Post is in fact implicating itself by claiming that the extraction and distribution of this data was criminal in nature. Finally, Part IV explores the historical basis for the policy exceptions that have generally protected newspapers and other reporting outlets in instances in which reported data was factual. This Part includes discussion about whether the Post’s recent pivot against Edward Snowden impacts the Post’s protection under this public policy exception, and how similar cases might impact the relationships between media outlets and their sources.

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