Congress May Probe WikiLeaks Over 9/11 Pages

(CBS)
The senior Republican on the House Homeland Security committee has begun an investigation into how the WikiLeaks.org Web site obtained thousands of pager messages from September 11, 2001.

Rep. Peter King, who represents a congressional district east of New York City on Long Island, has directed his staff to look into last week's release of about 573,000 lines of messages sent to pagers on that day. The logs included Secret Service, FEMA, FBI, and private sector messages.

"The staff is in a preliminary investigation period," Kevin Fogarty, an aide to King, told CBSNews.com on Tuesday. He said that his office was currently focused on the White House party crashing, and would return to the WikiLeaks disclosure after a hearing on the White House breach scheduled for Thursday.

WikiLeaks did not immediately respond to a request for comment.

Some of the disclosed pager messages appear to show a less-than organized response from federal agencies. The Secret Service was deluged with alerts both true and false. One internal FEMA message at 12:37 p.m. ET, four hours after the attacks, says: "We have no mission statements yet."

It's not clear how far a congressional investigation into WikiLeaks, even if it becomes formalized, can go. Although the organization's domain name is registered through a San Mateo, Calif.-based company, the Web site is hosted in Sweden at an Internet provider known for once providing a home to The Pirate Bay.

In addition, the principals of WikiLeaks remain anonymous, and were not unmasked during the admittedly-brief lawsuit filed last year by a Swiss bank upset that some of its internal documents had been leaked. If congressional investigators can secure international cooperation, they could try to unearth which people are linked with WikiLeaks postal addresses at the University of Melbourne and Nairobi, Kenya. (One person affiliated with WikiLeaks who has gone public is programmer-activist Julian Assange, listed as a member of the group's advisory board who acts as an occasional spokesman.)

To be sure, there's some embarrassment for the U.S. government after the logs apparently revealed that the Secret Service's presidential protective detail used unencrypted pagers for sensitive communications about the location of Air Force One and threats against President Bush -- even though news reports four years earlier had revealed that a hacker intercepted the unencrypted pager messages of President Clinton's entourage.

But there's also a federal law, 18 USC 2511(c), that criminally punishes anyone who "intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection." (Emphasis added.) Violators are punished with fines and up to five years in prison.

Marc Rotenberg of the Electronic Privacy Information Center in Washington, D.C. points out that a 2001 Supreme Court case called Bartnicki v. Vopper dealt with illegally intercepted broadcasts and found that their disclosure by a third party was permissible. The majority opinion said that the third party "played no part in the illegal interception. Rather, they found out about the interception only after it occurred... their access to the information on the tapes was obtained lawfully, even though the information itself was intercepted unlawfully by someone else."

"Wikileaks would have a good First Amendment defense," Rotenberg says.

To point out the obvious: A congressional investigation is one thing; there are no reports of a criminal investigation of WikiLeaks. Its armor of anonymity has survived other legal assaults in the past. Then again, it has never irked certain federal law enforcement agencies and members of Congress so thoroughly either.

Update 7:09 p.m. ET: I should have mentioned the visualizations of the 9/11 logs that have started to appear, including a frequency chart, a keyword graph, and a remarkable visualization.

Declan McCullagh is a correspondent for CBSNews.com. He can be reached at declan@cbsnews.com and can be followed on Twitter as declanm. You can bookmark Declan's Taking Liberties site here, or subscribe to the RSS feed.
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    Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.