by Kyung Sin Park (Open Net Korea Executive Director / Prof. of Korea University Law School Professor)
Punishing based on presumed harm
from leaked classified information
violates clear and existing principles of danger
In a free democratic state, there are few cases where civilian individuals who lawfully acquire classified information and share it with the general public are charged with espionage. In the case of South Korea, former lawmaker K is currently undergoing trial for violating of leaking classified information by sharing the contents of a telephone conversation between then-President Moon Jae-in and President Trump, which he obtained verbally from a diplomat friend of him during his tenure, through a press conference to share with the public. If convicted, this would be the first case confirmed in the jurisdiction of a democratic country. Particularly, in this case, the leaked information was predicted to be of a level that did not pose a threat to national security or diplomacy, as it involved the prediction that “President Moon requested a visit to Korea from Trump, and Trump responded that he would visit around the time of his already scheduled visit to Japan.” However, the guilty verdicts were issued in both the first and second trials, citing it as a matter “directly related to the diplomatic trust of South Korea.” Implied in between the lines is the difficulty for other heads of state to freely engage in dialogue during summits if the contents of the summit talks are leaked. However, punishing based on presumed harm from leaked information violates clear and existing principles of danger.
The United States’ first attempt to make leaking classified information as a crime occurred around 2004 in the so-called Rosen case, United States v. Rosen, 447 F. Supp. 2d 538 (E.D. Va. 2006). Similar to the case of former South Korean lawmaker K, the defendants in this case received verbally, through personal relationships, information that was “classified but not very sensitive” from relevant government officials. The defendants, employees of the American Israel Public Affairs Committee (AIPAC), received classified information leaked by a Department of Defense official and provided it to journalists and political figures as part of lobbying activities. Just as in the Rosen case, the court imposed a subjective requirement that the defendants must have known that the provision of information would actually threaten national security to apply the charge of espionage to civilians. Recognizing the difficulty of proving a threat to national security, the prosecution withdrew the indictment.
In the famous Pentagon Papers case, the US Supreme Court allowed The New York Times and The Washington Post to publish material revealing the inefficacy of US bombing strategies in the Vietnam War, leaked to them by whistleblowers (New York Times Co. v. U.S., 403 U.S. 713, 714, 91 S.Ct. 2140, 2141, 29 L.Ed.2d 822 (1971). While this precedent was set to determine the permissibility of publication by news agencies beforehand and applied stricter criteria, three judges hinted at the possibility of applying espionage charges after publication. However, even after publication, the US federal prosecutors did not prosecute for leaking classified information to the press, citing the difficulty in proving the impact of leaks on national security. In summary, while the initial leaker as a government official may be charged with espionage simply for the act of leaking due to the potential damage to “diplomatic trust,” for third parties who lawfully receive information from these officials, espionage charges are only applicable when it can be proven that the leaked “content” infringes on national interests such as national security.
Similar situations are found in Europe. In the case Stoll v Switzerland, 69698/01 (2007), the European Court of Human Rights ruled on the leaking of a Swiss government’s diplomatic strategy report on the disposal of assets left by Jewish Holocaust victims to a newspaper, which published critical articles about the Swiss ambassador, who was the author of the report. The Swiss government prosecuted the newspaper under the charge of disclosing “secret official deliberations” (Article 293 of the Swiss Criminal Code) and imposed a fine of 800 Swiss francs. While the European Court of Human Rights devoted much of its judgment to asserting that newspapers that lawfully obtain information should be exempt from liability, it ruled by a majority of 12 to 5 that the infringement was not a violation of freedom of expression, considering the sensational and aggressive nature of the article and the small amount of the fine. However, the European Court of Human Rights denied the claim that the publication of the above report harmed “national security” or “public safety,” only accepting the claim that it violated “confidential communications.” The primary reason for the court’s approval of the guilty verdict was not the act of collecting or disclosing information but the selectivity and falsity of the article.
Influenced by the above precedents, Europe is moving towards clearly distinguishing between government officials who leak information and other recipients, such as journalists. For example, Germany amended its laws in 2012 to ensure that journalists are not prosecuted for aiding in the disclosure of classified information (German Criminal Code 353(b)(3a)).
This article was also published in the “Legal Newspaper.”
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