Demanding the indictment of Julian Assange under the 1917 Espionage Act in a Wall Street Journalop-ed, Senator Diane Feinstein (or her resident ghost writer) quoted everyone’s favorite rationale for restricting speech: “the First Amendment is not a license to yell ‘Fire!’ in a crowded theater.” Actually, like most people, she (or her staffer) misquoted this canard: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a crowded theater and causing a panic,” (emphasis supplied) Justice Holmes wrote in 1919, in Schenck v U.S. Given the truths exposed by WikiLeaks, you might argue that Assange was truly shouting fire in a crowded theater, and you might even characterize the ensuing “panic” as a kind of heckler’s veto.
Not that Holmes would have been at all sympathetic to Julian Assange (at least not in 1919). He offered his famous “falsely yelling fire in a crowded theater” analogy in upholding an early conviction under the Espionage Act. What terrible act of treason did this case entail? Charles Schenck was convicted of circulating pamphlets urging men to resist the draft. According to Holmes (writing for a unanimous Court), these pamphlets presented a “clear and present danger” to the republic.
Today, Schenck is mainly survived by its famous one-liners. It was decided before the First Amendment was regarded as an essential restraint on federal and state power to restrict speech, when Justices Holmes and Brandeis, in particular, were just beginning to articulate theories of First Amendment rights. (In the immediate aftermath of World War I, the Court also upheld the Espionage Act conviction of Eugene Debs who, like Schenck, was prosecuted for speaking against the draft: he told his audience that they “were fit for something better than slavery and cannon fodder.” Emma Goldman was deported for criticizing the draft.)
I like to assume that the Supreme Court would not uphold the these convictions today, even though it recently re-authorized the criminalization of political advocacy, in Holder v Humanitarian Law Project. Still, I don’t think the Court is quite ready to approve the prosecution of anti-war activists for circulating pamphlets or exhorting people not to regard themselves as cannon fodder. (Although the FBI might illegally monitor their activities and police might corral and arrest them.) But if the criminalization of anti-draft rhetoric seems anachronistic, Charles Schenck’s rhetorical defense of liberty was timeless, and could easily be echoed tomorrow by a right or left wing civil libertarian, or even a Tea Party activist, if Congress were to re-authorize a draft (and unleash a strong anti-war movement).
Schenck regarded the draft as an unconstitutional usurpation of power, a violation of the 13th Amendment’s prohibition on slavery. He insisted that citizens had an obligation to protest the violation of their rights:
In lending tacit or silent consent to the conscription law, in neglecting to assert your rights, you are (whether knowingly or not) helping to condone and support a most infamous and insidious conspiracy to abridge and destroy the sacred and cherished rights of a free people. You are a citizen: not a subject! You delegate your power to the officers of the law to be used for your good and welfare, not against you. … Are you willing to submit to the degradation of having the Constitution of the United States treated as a mere scrap of paper … You are responsibile. You must do your share to maintain, support, and uphold the rights of the people of this country … In this world crisis where do you stand? Are you with the forces of liberty and light or war and darkness?
Waging war in the early 20th century, the federal government naturally saw itself on the side of “liberty and light” and its critics as purveyors of “war and darkness,” as governments waging war invariably do. Today, the U.S. at war is officially engaged in “Operation Enduring Freedom” and the Espionage Act is effectively framed as an instrument of freedom. The House Judiciary Committee will begin holding hearings on the Espionage Act this week; too bad its free-speaking victims–Charles Schenck, Emma Goldman, and Eugene Debs — aren’t around to testify.
MOSCOW (Reuters Life!) – Russian spy Anna Chapman showed up at President Dmitry Medvedev’s showcase science park on Tuesday, the latest in a long line of celebrities invited to add a touch of glamour to Moscow’s answer to Silicon Valley.
Wearing a knee-length black dress, with a green velvet corset, Chapman said she was enjoying life since the spy scandal which led to her arrest and expulsion from the United States alongside nine other Russian sleeper agents.
The redhead capitalised on her popular “sexy spy” image with a photoshoot and interview in the November issue of the Russian edition of Maxim magazine, where she appeared in lace and leather and waxed poetic about her love of romantic men.
When asked whether she was pleased with her new job as a banking advisor, she told Reuters: “Well, yes.”
Wikipedia founder Jimmy Wales was also present on Tuesday to speak with Russian government leaders about the science park.
California Governor Arnold Schwarzenegger came to Russia in October to give a public endorsement to the project, which has also attracted a multi-million dollar investment from Microsoft.
Chapman became one of Russia’s most famous spies when photographs she posted on social networking site Facebook were plastered across the front pages of tabloid newspapers around the world.
Although celebrated by the Kremlin and Russian media, the Russian spy ring was reported to have failed to secure any major intelligence before their arrests.
Medvedev awarded the group of spies the country’s highest state honours in October.
(Reporting by Alexei Anishchuk, Writing by Thomas Grove, editing by Paul Casciato)
GDC 2011 organizers have revealed an initial set of Artificial Intelligence Summit talks for the February/March 2011 event, including talks from Rockstar, Double Fine, Electronic Arts and Blizzard notables.
The always-popular summit, taking place on February 28th and March 1st during Game Developers Conference 2011 at the Moscone Center in San Francisco, will feature panels and lectures from more than two dozen of the top game AI programmers in the industry.
Organized as a collective effort by the AI Game Programmers Guild, this event promises to “give you an inside look at key architectures and issues within successful commercial games, as well as let you eavesdrop on conversations, debates, and rants on how game AI can move forward.”
Advisors for the much-anticipated Summit include Intrinsic Algorithm’s Dave Mark, author of the book “Behavioral Mathematics for Game AI”, and Nintendo of America’s Steve Rabin.
With a final set of lectures to be announced soon, a number of major talks have been revealed on the Summit homepage and the AI Summit section of GDC’s Schedule Builder. Highlights include the following:
– ‘AI Unplugged: How Experienced Devs Think Through AI’ sees sequential microlectures from notables including Blizzard’s Brian Schwab, Double Fine’s Chris Jurney, Rockstar Leeds’ Brett Laming and more, building on the premise that “designing good AI depends upon analyzing the specific behavior or problem that needs to be addressed and decomposing it in such a way that it can be dealt with in the first place.”
In the panel, the Summit presents experienced game AI designers and programmers “with examples of typical (or odd!) game behaviors and watch as they walk through the process of tackling the problem — long before the programming suite is ever opened.”
– In ‘AI Pr0n: Maximum Exposure of Your Debug Info!’, developers, including Big Huge Games’ Michael Dawe and Electronic Arts/The Sims Division’s Rez Graham “will expose the creative and unique approaches they used to visualize the complexity of their AI for debugging and development.”
The speakers will deal with the “very difficult task” of debugging complex AI, with the description noting: “Often the best approach involves visualizing the data and the relationships instead of staring at code. After all, nothing is more revealing than getting a peek at all that private activity going on behind closed doors!”
– The session ‘People in Your Pocket: High-Quality AI on Mobile Devices’ sees discussion on “AI-driven people simulators with low-fi graphical fidelity but hi-fi behavioral fidelity”, featuring Black White/The Sims 3 AI designer Richard Evans, who is now working on “an unannounced text-based simulation”, as well as Ngmoco’s Andrew Stern (Touch Pets) and noted interactive fiction developer Emily Short.
More information on GDC 2011’s AI Summit — part of the UBM TechWeb Game Network, as is this website — which can be attended via All-Access or Summit-specific GDC 2011 passes, is available on its official webpage.
news analysis If WikiLeaks co-founder Julian Assange is indicted by the U.S. government for disseminating classified information, as even his own lawyer now expects, his defense is likely to face long legal odds.
The 1917 Espionage Act, enacted by the U.S. Congress during World War I, has been a mainstay of national security prosecutions ever since. And it’s been upheld as constitutional by every court that has examined whether its invocation in a criminal prosecution complies with the First Amendment’s guarantee of freedom of speech.
A CNET review of Espionage Act cases shows that judges have generally favored the government and, in a 1985 case, even allowed an extraterritorial prosecution of a non-U.S. citizen. In the 1978 case of U.S. v. Dedeyan, the Fourth Circuit upheld the Act against arguments that it was vague and overly broad. A year later, in U.S. v. Boyce, the Ninth Circuit ruled it was “constitutionally sufficient.”
“We find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law,” the U.S. Supreme Court ruled unanimously in 1941. “The language employed appears sufficiently definite to apprise the public of prohibited activities and is consonant with due process.”
The Pentagon’s criminal investigation of WikiLeaks–especially Assange, its frontman and spokesman–began over the summer after the Web site published thousands of military dispatches from Afghanistan. By August, the FBI had been drawn in, and after last month’s recent leaks of confidential Iraq and State Department communications, Attorney General Eric Holder confirmed that the probe is ongoing.
Some of the more hawkish members of Congress have egged him on. Rep. Peter King (R-N.Y.), the incoming head of the House Intelligence Committee, asked Holder to charge Assange under the Espionage Act, as did Senate Intelligence Committee chiefs Dianne Feinstein (D-Calif.) and Kit Bond (R-Mo.). Senate Homeland Security Chairman Joseph Lieberman (I-Conn.) has been publicly wondering why an indictment and extradition “hasn’t happened yet.”
It’s true that prosecuting Assange, who is in a London facing an extradition hearing tomorrow on unrelated charges lodged in Sweden, is engaging in something that’s closer to informational activism and not what most people would think of as spying.
The actual text of the Espionage Act, 18 USC 793(e), is nevertheless breathtakingly broad. It says that anyone who has “unauthorized possession” of documents “relating to the national defense” and publishes them, believing they “could be used to the injury of the United States or to the advantage of any foreign nation,” is guilty of a federal felony. (This is narrower than a version proposed by President Wilson, which would have given the executive branch the power to censor information “of such character that it is or might be useful to the enemy.”)
On Fox News over the weekend, Bush Attorney General Michael Mukasey called the law “an oldie but goodie.” He said that there’s no question in his mind that a prosecution against Assange, an Australian citizen, could proceed “because the First Amendment doesn’t protect speech that causes certain prescribed–certain defined injury.”
In the 1971 Pentagon Papers case, a 6-3 majority of the U.S. Supreme Court rejected a prior restraint prohibiting the New York Times and Washington Post from publishing classified documents on the Vietnam war.
But even the justices in the majority acknowledged at the time that criminal prosecutions after publication would still be possible. “If a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought,” wrote Justice Potter Stewart.
And Justice Byron White added that the drafters of the Espionage Act “appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed.”
Rep. King told Fox Business News over the weekend that Assange could be prosecuted because “the Pentagon Papers case was limited to prior restraint” before publication.
The full contours of what limits the First Amendment places on the Espionage Act have never been outlined by a court. In part, that’s likely because the Justice Department has not been eager to learn the answer: no criminal charges were lodged against either newspaper in the Pentagon Papers case. And prosecutions since then have typically targeted leakers, not publishers or journalists.
This is hardly a universal view. Civil libertarians have already taken up the defense of WikiLeaks’ First Amendment rights. White collar defense attorney Baruch Weiss suggests any prosecution of Assange “will not be easy.” Writer Naomi Wolf has even called for Americans to “rise up and insist on repeal of the Espionage Act.”
A review of Espionage Act cases shows that judges have tended to chip away at obstacles for government prosecutors. In a 2007 conspiracy case, for instance, a court ruled that the Justice Department did not need to prove that the information disclosed was closely held and damaging to national security.
In July 2010, the U.S. Court of Appeals for the Armed Forces ruled there did not have to be “bad intent” for someone to be convicted of disclosing information covered by the Espionage Act. What was important, the court concluded, was “the conscious choice to communicate covered information.” (Assange would presumably claim to be acting out of the best of intentions; his an op-ed in The Australian last week said WikiLeaks is “fearlessly publishing facts that need to be made public.”)
Nearly six decades ago, in what may have been the most famous Cold War prosecution, the Second Circuit allowed Julius and Ethel Rosenberg to be executed. “We think the statute valid under the First Amendment,” the court concluded. “The communication to a foreign government of secret material connected with the national defense can by no far-fetched reasoning be included within the area of First Amendment protected free speech.”
Even an unsuccessful attempt to pass on “national defense” information is illegal. In the 1958 U.S. v. Abel case, the Second Circuit acknowledged “there is no evidence” that the defendant and his co-conspirators “ever succeeded in gathering or in transmitting any unlawful information.” But “the conspirators’ lack of success, if indeed they were unsuccessful, does not lessen the criminality of their activities.”
The phrase “information relating to the national defense” isn’t actually defined in the Espionage Act. A federal judge in Connecticut, however, ruled last year in U.S. v. Abu-Jihaad that it was a “generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness,” as long as the information was reasonably accurate and it was intended to be kept secret.
WikiLeaks has disclosed more than 75,000 confidential files related to the war in Afghanistan, nearly 400,000 classified documents from Iraq, and about 1,300 of 250,000 State Department cables so far.
Perhaps the closest legal parallel with WikiLeaks arose when two employees of the AIPAC pro-Israel lobbying group were charged with violating the Espionage Act. They weren’t government employees themselves — they were more akin to WikiLeaks, or the media, because they obtained sensitive information through a leak. (The Obama administration dropped the case last year.)
“Both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense,” Judge T.S. Ellis wrote in 2006 in the AIPAC case. He noted that with the lone exception of Justice Hugo Black, eight of the Pentagon Papers justices indicated “that they would have upheld a criminal prosecution of the newspapers.”
Correction at 10:40 a.m. PT: Sen. Kit Bond’s home state has been corrected.
Every time I get to travel with a group to more exotic places, one of the inevitable questions asked is the location of the nearest flea market or place where – to use the vernacular – “”kabutingtings” (almost literally: knick-knacks or odds ends) can be found. The Saturday fleas markets of Rome and Amsterdam come to mind. But there was also this rather seedy open market right in the middle of a Hanoi square where I found a great selection of East bloc watches – sturdy rather than fancy – selling for only $2 – 5 each, and a gem of a Praktika German camera with a Zeiss lens no less. Of course, the original makers of Zeiss optics transferred to West Germany then, and I guess the factory left behind just went on making camera lenses using the venerable name.
But when it comes to gadgets, there is only one place in the world that has it all – the gadget heaven that is Akihabara in a northern section of Tokyo. In my first visit there sometime in the 60s, the place was a warren of shops with probably one or two larger buildings containing yet more shops. But the impression was one of total chaos, with all kinds of electronic doodads on sale, with a product-selection available to suit even the most discriminating or ridiculous demand or craving. It has been some time since I have had a chance to visit the place, and so, this early, I am planning on visiting the district again, but with a wiser agenda of spending more than just a day over there. Based on reports I have read, the place has grown by leaps and bounds, and has actually gone mainstream. Even respectable manufacturers find it an honor to have their products on display over there side by side with the inevitable funky or almost useless gadgets. Trust the Japanese inventiveness and imagination to come up with gadgets you never knew you needed – or maybe, didn’t need but bought anyhow because they were so “cute”.
Well-known electronics or consumer manufacturers often showcase their products in Akihabara first before foisting them on the general public. Maybe to test market reaction in one of the world’s most gadget-crazy environments, one whose buyers get bored real fast with a product or a technology and look immediately for the next trend.
Toshiba, for example, is ready with a line-up of Tablet PCs that seem to cover the three main operating systems: Android, Chrome, and Windows 7. Maybe they are still smarting over losing out to the Blue-Ray technology of Sony in another area, and don’t want to be left out in the cold this time. Meanwhile, Google is said to be bringing out a laptop (the CR-48) for testing the Chrome OS further, making this an exciting battle to see which system wins out in the end.
But if all you want is the latest in massage chairs, or a really good back-scratcher that does it all, or a gadget that can listen in to cellphone conversations – then you need not look any further. These and many more gadgets guaranteed to bust your wallet are available at a price.
You think I am kidding? Well, one product I saw featured in an online publication showcased the ultimate in fountain pens. Now, what does a fountain pen do other than write? Why, the inventors who drive Akihabara found that some people actually want a pen that can also double as a voice recorder, with MP3 playback available plus as much as 4G storage capacity. Bet you never thought of that particular use for a fountain pen, right? And we have to thank the wonderful people of Thanko, who also make spy pens and other similar gadgets, for this innovative pen. The Thanko voice recording pen is available right now – in Japan, but especially in Akihabara.
Now, I think I really want to get that spy pen instead….or will my choice be the device that will allow me to eavesdrop on cellphone conversations? Perhaps this latter one should be a gift to any number of gossip-mongers who inhabit coffee shops to exchange the latest in sordid tales.
