Of Whistleblowers and Leakers

On May 30th, 2012 Attorney General Yehuda Weinstein announced his intention to indict Haaretz journalist Uri Blau, who was accused of illegal possession of classified IDF documents stolen by former soldier Anat Kamm, for aggravated espionage. In this article, IDI Senior Researcher Dr. Tehilla Shwartz Altshuler explains why Uri Blau's prosecution is erroneous and notes that there is a difference between "whistleblowers" and "leakers." She warns that Israel's failure to distinguish between the two may have a "chilling effect" on freedom of speech, and asserts that in the digital age, a new thought paradigm is necessary regarding information and national security.

The decision to prosecute journalist Uri Blau for possession of confidential material is unfortunate and misguided. There is a vast difference between Anat Kamm, the former soldier who secretly copied thousands of classified documents during her military service and passed them on to the press, and Uri Blau, the Haaretz journalist who received the documents from Kamm. This is the same difference as there is between Bradley Manning, the American soldier who leaked an enormous amount of classified documents to Wikileaks, and the New York Times.

Modern Hebrew lacks a word for the term "whistleblower." In Hebrew, it is common to refer to people who "leak" information rather than blow whistles. A leaker can be someone who passed classified information to others in order to harm national security or take revenge, or for reasons of greed or even boredom. Whistleblowers, in contrast, see themselves as the Little Dutch Boy with his finger in the dike. In terms of damage to national security, it doesn't usually matter whether a person is a leaker or a whistleblower; in terms of responsible, inquisitive, and courageous journalism that can serve as an effective force in monitoring the government, on the other hand, there is a vast difference between the two.

There is a reason for this linguistic lacuna. It reflects a deeper perception. Indeed, in the Israeli legal system, there is no criminal defense in a case where the leaking of important information was motivated by a desire to bring a matter to public attention so that the crime or violation can be addressed. This lack of defense is what essentially enabled the Attorney General to decide to indict Blau on charges of aggravated espionage. According to Section 113(c) of the Israeli Penal Law-"If a person obtained, collected, prepared, or recorded, or kept any secret information without being authorized to do so, he is liable to seven years imprisonment." Secret information, according to Section 113(d) of the Penal Law, refers to "information that national security requires be kept secret, or information that relates to a category of subjects that the government-by an order published in the protocols with approval by the Knesset Foreign Affairs and Defense Committee-has declared to be secret subjects." It further defines secret information as "information for which the contents, form, ways of storage, source, and circumstances under which it was obtained indicate that national security requires the information to be kept secret, unless it is proven differently."

This section of the penal law is nothing short of draconian: In the case of the transfer of "secret information," the punishment is imposed not only on the leaker but also on the journalist who publishes the leak. Even worse, even if journalists only possess the leaked material without publishing it, they are liable to be punished nonetheless. Almost any type of information, even incorrect information, falls under the definition of espionage. This section of the law is a perfect example of a case in which overprotection of an important interest-in this case, (real) State secrets-does more harm than good. And indeed, in the history of the Israeli legal system there have been cases where journalists have been questioned (and once even punished) for transgressing Section 113 of the penal law. Presumably, this is the reason that the authorities successfully coerced Blau to sign the agreements that he signed. A journalist in Israel cannot afford to be exposed to the risk of being prosecuted for such a broad and severe violation.

There is a reason why the prosecution authorities (and the courts) in enlightened countries have always distinguished between the sources of a leak, on the one hand, and the journalists and well-established newspapers that publish leaked material, on the other. The United States also tries to take steps against leakers, whether it's Daniel Ellsberg of the "Pentagon papers," Israeli translator Shamai Leibowitz, who worked for the FBI and was tried for leaking classified information to a blogger, or Bradley Manning, the U.S. soldier arrested on suspicion of sharing classified information with Wikileaks. However, the interpretation of the prohibitions on the possession and passing of classified information found in the American Espionage Act (which itself was deemed to be constitutional in the 1919 Schenck case), was restricted, both because of concerns about limiting the First Amendment and in order to expand the protection of the constitutional right to freedom of the press. As a result of this interpretation, there is no precedent for bringing charges against journalists or media for the possession of confidential information in and of itself, because it is assumed that the court will reject such charges on the basis of restriction of freedom of speech.

The affair that came closest to being a threat to journalists was the 2010 prosecution of Thomas Andrews Drake, a senior executive in the U.S. National Security Agency, who was a whistleblower for the Baltimore Sun. Drake was indicted on charges of violating a section of the Espionage Act that deals not with providing classified materials to others but with possessing the materials themselves. The public and academic criticism of the fact that he was being prosecuted was based on the concern that his conviction would constitute a legal precedent for prosecuting journalists under the Espionage Act for possession of classified documents. Eventually, the charge was dropped.

All the claims raised so far aim to strike a balance between the right to freedom of the press and the needs of national security. However, the Attorney General's decision reveals another problem that is no less complex: it is an expression of digital ignorance-that is, a lack of awareness of the implications and ramifications of the decision in the digital age.

The prosecution of Uri Blau will not necessarily have a chilling effect on freedom of the press in Israel. It will simply ensure that the next leaker, the new Anat Kamm, who is currently finishing her high school matriculation exams, will leak the documents directly to Wikileaks rather than to a journalist. Maybe she will come up with this up on her own, or maybe that's what the next Uri Blau will recommend that she does when she contacts him and offers to give him classified documents.

The statement released by the State Attorney included the following: "The potential damage of the unsecured possession of documents, which arises from the expert opinions presented during the Anat Kamm trial, was enormous. The disclosure of these documents, or the possibility that they may fall into the hands of hostile forces, would damage national security and endanger the lives of Israeli Defense Forces soldiers."

And what will happen if and when the documents are leaked directly to Wikileaks?

Two things will happen. Firstly, Wikileaks cannot be prosecuted, due to reasons of territorial jurisdiction. Second, the Israeli press will use the documents published on the Wikileaks website, this time without actually possessing the documents. It will publish them under the well-known byline: "The London Times reports that..."

If the prosecution is concerned with preventing these documents from falling into enemy hands, its decision reflects that same digital ignorance found in the court's decision to issue a three-month gag order in the Anat Kamm case in 2010. Whoever decided to issue a gag order for such a long period should have understood that in today's connected world, the affair would be made public, either in Israel or abroad. And when information about it indeed was published-the systems responsible for this absurdity became the subjects of ridicule.

The digital literacy required of decision-makers (legislators, government officials, and judges) is the understanding that the correct approach to cases such as the Kamm-Blau affair is not to punish for information that has already been leaked, but rather to change the thought paradigm regarding information security. The dominant paradigm rests on the assumption that individuals with a certain level of security clearance can have unrestricted access to information as long as they do not misuse this access by copying material, publishing material, or otherwise abusing their office. Since every eighteen year-old in Israel becomes a soldier who is required to protect military secrets, and since some three million Americans have security clearance that gives them access to the American SIPDIS network from which the diplomatic cables were leaked, this approach is simply outdated.

It is difficult not to feel that the authorities, embarrassed by the fact that technology is changing the scope of discourse and the range of expression, and perplexed because it is expanding the possibilities of transferring and using information, are on a vengeful campaign of intimidation against anyone who not only exposed the army's disregard for the rulings of the High Court of Justice, but also highlighted a severe systemic failure in the IDF's information security.

Dr. Tehilla Shwartz Altshuler is a Senior Researcher at the Israel Democracy Institute and the head of its Media Reforms Project.