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Monday, August 21, 2006

The Times, Pedophilia, and Espionage

New York Times reporter Kurt Eichenwald has been writing a series of disturbing articles on what an editors' note calls "an online subculture of pedophiles."  The most recent articles ran yesterday and today.  Yesterday's article includes the following statement, which is echoed in that editors' note:

The Times did not subscribe to any sites, which it first saw referenced in online conversations among pedophiles. The Times followed a link posted in those conversations to forum postings and images on freely accessible pages of the modeling sites. Because those sites appeared to be illegal, The Times was required by law to report what it had found to authorities. Federal law enforcement officials were notified in July about the sites.  [Emphasis added.]

I have no quarrel with Eichenwald's investigation or his reports, which have been detailed and, as I said, quite disturbing.  I am curious about the implications of the statement I quote above, however.  It is clear that Eichenwald's reports have been closely vetted by Times editors.  But I wonder which set of editors vetted that statement, and whether they considered its broader implications for another set of Times stories -- the stories disclosing various heretofore confidential aspects of NSA surveillance programs and other aspects of the administration's "war on terror." 

The editors' note on the pedophilia stories expands on Eichenwald's statement, noting that "United States law makes it a crime to purchase, download or view child pornography, unless the images are promptly reported to authorities and no images are copied or retained."  Compare that statement to 18 U.S.C. section 793, a provision of the Espionage Act, which states (in brief) that anyone who has unauthorized possession of any information relating to the national defense that the possessor has reason to believe could be used to the injury of the United States, and who willfully communicates that information, or "willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it," is guilty of a crime under the Espionage Act. 

Under the apparent logic employed by the Times editors in divulging information about pedophilic web sites to federal law enforcement officials, was the Times not equally obliged to surrender to the relevant government official any information or documents it had with respect to national security that might fall under the scope of the Espionage Act?  I'm not arguing that it should have done so, although certainly many critics of The Times have said as much; but doesn't the same logic apply?  Did the Times editors vetting the statement in Eichenwald's story consider whether it had any implications for the paper's position on its national security stories?

To be sure, the question whether the Times could be prosecuted for its actions under the Espionage Act for its national security disclosures is a much-debated one.  A recent decision by a district court judge in Virginia in the ongoing AIPAC case, if read broadly, suggests that it could be prosecuted.  There are, nevertheless, compelling reasons to interpret the law narrowly, or to hold that it does not apply at all, in cases raising significant First Amendment interests.  (For discussions, see this post by Geoffrey Stone of Chicago and this chain of posts by Jonathan Adler at VC.)  So, if the Times editors looking at Eichenwald's piece thought about the NSA stories at all, they may have concluded that no matter what the Espionage Act says, the First Amendment negated any obligations the newspaper might have under that statute.  But why did the Times editors conclude that the First Amendment might not similarly negate any reporting obligations it had with respect to the pedophilia sites?  And how does this compare to the position that paper took (and, I'm guessing, still takes) in, say, the  consolidated cases decided under the lead case name of Branzburg v. Hayes?  Or any positions the Times took with respect to the availability of post-publication criminal prosecution in the Pentagon Papers case?

Of course, for many, the moral case for disclosing information about online pedophiles may be much more compelling than the moral case for surrendering, and refusing to report, information about national security programs that may be unconstitutional, unwise, or intrusive.  And I might understand if the paper decided for strategic reasons not to stand on its rights, if any, in the case of the pedophilia web sites.  But those weren't the justifications the Times offered in Eichenwald's piece.  The story, and the editors' note, simply assume that if the Times is required by law to surrender to the government any covered information that comes to its attention in the course of its reporting, that law is presumptively valid and the Times will comply.  As I said above, I think it is possible to reconcile the Times' position in the Eichenwald story with its position in the NSA etc. stories, but not without more footwork than I see at work in the statement I've quoted.  I wonder, again, if the Times editors vetting Eichenwald's piece fully considered the connection between the two sets of stories.      

Posted by Paul Horwitz on August 21, 2006 at 08:56 PM in Current Affairs | Permalink


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I don’t think one can surrender information if they tried. Only tangible things can be surrendered.

Posted by: S.cotus | Aug 22, 2006 6:07:26 AM

FWIW, I believe the Times is stating the law incorrectly. Under federal law, there is an affirmative defense in cases of accidental possession of three images or fewer, but it does not apply to intentionally searching for and knowingly receiving child porn.

Here's the text of the defense, 18 U.S.C. 2252(c):

It shall be an affirmative defense to a charge of violating paragraph (4) of subsection (a) [the mere possession offense] that the defendant—
(1) possessed less than three matters containing any visual depiction proscribed by that paragraph; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any visual depiction or copy thereof—
(A) took reasonable steps to destroy each such visual depiction; or
(B) reported the matter to a law enforcement agency and afforded that agency access to each such visual depiction.

Posted by: Orin Kerr | Aug 21, 2006 9:58:21 PM

great post and juxtaposition of the two stories. Your last paragraph hints at the reason one might feel differently about the two stories. And as someone who wrote a piece about the first amendment and cognitive biases, you are in a particularly good position to identify the problem here: vividness. As I see it, with child porn sites, the evil presented is stark, and indeed, essentially res ipsa loquitor. With the nat'l security stories, the evil to be prevented (terrorist attacks resulting from stories resulting from unauthorized leaks) is farther down the causal chain. Moreover, the tradeoffs are different in each scenario. With kiddie porn, there's virtually no social gain by keeping the sites a secret. With stories about data mining or illegal tapping, we gain information critical to keeping our government tethered to the rule of law. (Which is not to say the decision re: Lichtblau's stories have been an easy choice to trade that off against imminent terrorist threats.) If I were sitting in the NYT GC's office, those would be my considerations at least.

Posted by: Dan Markel | Aug 21, 2006 8:55:50 PM

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