A thoughtful piece worth reading from @YBenkler, but I think it ends up inadvertently making the case for how thorny & problematic a prosecution even in this case would be.
Consider Benkler’s “two hypothetical cases”. First he imagines a case of journalistic “coordination” with a foreign intelligence service that he believes (reasonably) should nevertheless enjoy First Amendment protection. He calls out two features of his hypothetical.
First, the information is clearly “newsworthy,” and second, the “coordination” with the agency that provided it is within the parameters of “normal” press coordination with a source in the course of reporting a story.
Newsworthiness is sometimes considered in privacy tort cases, but especially when we’re talking about political news, there’s an obvious problem of subjectivity here.
I thought there was relatively little of significance in the DNC/Podesta dumps. Many Republicans, some probably sincerely, thought otherwise, and most mainstream news outlets found at least portions worthy of substantive coverage.
In any event, it seems contrary to the purpose of the First Amendment to let the government determine which facts embarassing to political actors are sufficiently “newsworthy” to enjoy protection, even if in this case I tend to agree *most* of the facts had little public value.
Then consider what falls within the bounds of “normal” coordination. We don’t really know the details of Wikileaks’ coordination here, but then, we don’t known what counts as “normal” practice for dealing with sensitive sources across thousands of publications either.
That’s perhaps especially the case at a time when journalists doing unambiguously protected national security reporting are having to become more skilled at tradecraft than probably ever before, and experimenting with different mechanisms for maintaining good opsec.
On the other end of the spectrum, Benkler imagines a reporter (at some otherwise legitimate news outlet) knowingly working as an asset of a FI service within to inject propaganda into the news, though also doing some real journalism in the course of their job.
That would make a difference vis a vis the applicability of the CFAA or Espionage Act in cases specifically involving classified information, but even in this extreme case it’s less clear to me it gets you to conspiracy on the underlying CFAA violation for private correspondence.
Maybe most importantly, though, think about what it means for the process of newsgathering. How is the government supposed to establish whether a particular news outlet is engaged in an “abnormal” degree of knowing coordination with a FI source?
Well, obviously they need a great deal of visibility into both the reporter/source communications and, probably, the editorial process at the outlet in question. But they also need a baseline to determine whether that case falls far enough outside the norm to lose protection.
Which is to say, opening the door to prosecution for publishers that fall within some narrow exception for coordination seems likely to lead to an undesirable level of gov’t scruitny of journalistic process.
