Person of the Year

After graduating from Georgetown University’s School of Foreign Service, I had an offer in hand to work for the US State Department, but decided instead to go to law school. Many of my classmates chose to go into the US Foreign Service and I often wonder, more with curiosity than regret, where I would be if I had followed that path. With this background, I have followed the WikiLeaks publication of confidential diplomatic cables with more than a passing interest.

WikiLeak’s founder, Julian Assange, has a naïve teenager’s belief that discretion, circumspection, and confidentiality are the hallmarks of a corrupt adult world. As in most human endeavors, discretion breeds trust, which is an indispensable ingredient in diplomacy. Mr. Assange and his minions have hampered diplomatic capabilities and they should be ashamed of themselves.

I read that the Department of Justice has been considering ways to indict Assange, with most speculation centering on the Espionage Act of 1917, which prohibits the unauthorized possession and dissemination of information related to national defense.

If WikiLeaks should expand its exposés to information stolen from private enterprises, I would suggest that a prosecution under the Economic Espionage Act of 1996 (“EEA”) might be possible.

Sections 1831(a) and 1832(a) of the EEA punish any individual who:

(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice or deception obtains a trade secret;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys a trade secret;
(3) receives, buys, or possesses a trade secret, knowing the same to have been stolen or appropriated, obtained, or converted without authorization ….

Sections 1831 and 1832 differ in the parties to which they apply. Section 1831 punishes all of the acts listed above when knowingly undertaken by anyone “intending or knowing that the offense will benefit any foreign government, foreign instrumentality, or foreign agent.” Foreign companies or individuals do not fall within the scope of section 1831 unless they are “substantially owned, controlled, sponsored, commanded, managed or dominated by a foreign government.” This Section probably would not apply to the WikiLeaks case.

Section 1832, however, is a general criminal trade secrets statute. Despite its inclusion in the Economic Espionage Act, there is no requirement of foreign espionage in this provision. Rather, it applies to anyone who knowingly engages in any act of misappropriation “with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will, injure any owner of that trade secret.”

While Assange is not a US citizen, Section 1837 governs the applicability of the EEA to conduct which occurs, in whole or in part, outside the United States. The territorial reach of the statute is extremely broad. It applies not only to acts conducted entirely within the United States, but also to foreign schemes, provided any “act in furtherance of the offense was committed in the United States.”

Violations under both sections of the EEA are felonies. Section 1832 provides for a term of up to ten years in prison and fines for individuals, and fines of up to $5 million for corporations or other organizations that violate its provisions.

I would imagine that the Department of Justice is exploring using the EEA as a method to bring Assange to justice.

The irony of the whole WikiLeaks matter is that the leaked diplomatic cables, rather than unearthing shocking revelations of conspiracy, demonstrate that the US State Department is composed of hard-working, earnest, thoughtful, capable and dedicated citizens. Perhaps these professionals, toiling in relative obscurity to advance American interests abroad, are the ones who should be on the short list for Person of the Year, rather than the voyeuristic and puerile Mr. Assange.

Happy New Year and Best Wishes to All for a Happy, Healthy and Prosperous 2011 !