[Nathans_Dad]

Originally posted by dd74
Post the law, then we'll discuss how it will not apply to what is, generally, good and opportunistic reporting.

Well, I'm not a lawyer, but allow me to refer to someone who is, I hope he does not mind me reposting him:

Originally posted by john_cramer
JP:

Two points strike me:

1) Hearing of the existence of a program to access the SWIFT database is surprising to me only insofar as I'm impressed by our ingenuity: I would think it a very difficult task to generate actionable intelligence out of the nonstop stream of global financial transactions.

What is NOT a shock to my "substantive expectation of privacy" is the existence of the program. Nor, for example, would be having my digital wired or wireless communications audited. Nor, for that matter, these very keystrokes, which are passed through a terminal maintained by my employer who DEFINITTELY audits them and passes them to an ISP whose terms of service are unknown to me, but who is required by law to comply with USA PATRIOT ACT. In short, the publicization of the existence of these programs that tap into my communications actually serves to DIMINISH my privacy expectations, and we can thank, in part, THE MEDIA for carrying that message broadly. Ironic, yes; and

2) Irrespective of whether or not I think disclosure of the program diminishes the harvest of intelligence, or whether disclosure greases the Constitutional skids so to speak, "the law is the law," so we have to turn to the relevant statutes to determine whether the NYT's action falls within their prohibitions: if it does, they certainly shouldn't expect any forbearance to prosecute them with absolutely no quarter given.

The most relevant, based on my 30-second survey of the applicable statutes, is Section 798 of Title 18 of the USC, ("Section 798") which provides in relevant part:

(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 use 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.


Now, before the hand-wringing ignorami here begin to bleat their hackneyed paraphrase of the First Amendment, let me preempt that ovine anvil chorus by quoting Justice Potter "I know it when I see it" Stewart's concurrence in 403 U.S. 713 (1971), popularly known as "the Pentagon Papers Case:"

The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797 makes it a crime to publish certain photographs or drawings of military installations. Section 798, also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic systems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Now, that all being said, why don't we get a couple of Uniforms and head over to 43rd street?

Now, here are a few tidbits from Section 798 to clarify (I found this stuff myself):

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;

The term "foreign government" includes in its meaning any person
or persons acting or purporting to act for or on behalf of any
faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on behalf of any government or any person or persons purporting to act as a government within a foreign country, whether or not such government is recognized by the United States;