[00:11.110 --> 00:15.430]  All right, so we're here at our three o'clock session.
[00:15.580 --> 00:20.100]  Just so you know, I need to make sure that everyone has their phones unstunned.
[00:20.800 --> 00:22.440]  We are staying hydrated.
[00:23.300 --> 00:26.740]  And, you know, again, the fire exits are on the side.
[00:26.740 --> 00:31.780]  In case of an emergency, look for somebody with a radio or a blue shirt or security on their back.
[00:31.780 --> 00:37.720]  So, right now, we're going to be talking about the Computer Fraud and Abuse Act, or CFAA.
[00:38.360 --> 00:44.900]  I have with us Kerry, and Kerry's going to introduce Jesselyn and William.
[00:50.420 --> 00:52.100]  Thank you so much for being here.
[00:52.380 --> 00:56.460]  How is everyone feeling in the 90-plus degree New York heat right now?
[00:59.240 --> 01:01.080]  So, my name is Kerry Shankman.
[01:01.260 --> 01:07.760]  I have the pleasure of introducing Jesselyn Radack and William Nyhaisel, and myself, Carey Shenkman.
[01:07.980 --> 01:10.560]  So, I'll start with giving a little bio about Jesselyn.
[01:10.660 --> 01:12.940]  We're actually going to talk more about the Espionage Act today.
[01:13.080 --> 01:19.100]  We'll touch on the CFAA, but I saw on the agenda there's actually a talk in a few hours in this room on that.
[01:19.300 --> 01:20.700]  So, stay tuned for that.
[01:20.860 --> 01:22.520]  But just some quick intros.
[01:22.740 --> 01:30.780]  So, Jesselyn Radack, who you may already know of, is Director of the Whistleblower and Source Protection Program, Whisper, at Exposed Facts.
[01:30.960 --> 01:44.560]  Her work focuses on issues of secrecy, surveillance, torture, and drones, where she's been at the forefront of challenging the government's unprecedented war on whistleblowers, journalists, and hacktivists, and those who reveal information that the public has the right to know,
[01:44.640 --> 01:46.080]  but the government wants kept secret.
[01:46.320 --> 01:56.780]  Among her clients are very well-known whistleblowers who have been charged under the Espionage Act, including Daniel Hale, Edward Snowden, Thomas Drake, and John Kiriakou.
[01:58.060 --> 02:06.960]  William Nyhaisel is a human rights and civil liberties advocate for the Whistleblower and Source Protection Program, and is Coordinator of StandWithDanielHale.org.
[02:07.520 --> 02:09.100]  And my name is Kerry Schenkman.
[02:09.320 --> 02:12.260]  I'm a human and civil rights lawyer and litigator.
[02:12.400 --> 02:19.020]  I work with numerous civil rights organizations on issues of freedom of speech, digital rights, and privacy.
[02:19.520 --> 02:23.760]  I'm also on the Board of Directors of the Calix Institute, which is heavily involved with HOPE.
[02:23.760 --> 02:27.920]  And I also spoke as an expert witness in the Assange extradition trial.
[02:29.280 --> 02:36.460]  I, of some relevance, actually have an upcoming book on the Espionage Act that I spent years co-authoring called A Century of Repression.
[02:36.640 --> 02:39.800]  And it's the first comprehensive political and legal history written on the law.
[02:39.980 --> 02:46.300]  So if anybody's interested in pre-ordering that, I also have some promo codes up here that you can come and grab after the talk.
[02:47.760 --> 02:57.100]  So kind of taking a step back, this talk is a reprise of one that Jessalyn and I gave back at HOPE in 2016.
[02:57.860 --> 03:02.280]  And the world was a lot different back then.
[03:02.460 --> 03:04.620]  Of course, we spoke about the Espionage Act.
[03:04.920 --> 03:06.440]  We spoke about the CFAA.
[03:07.840 --> 03:11.880]  But we didn't think that things would be getting this bad.
[03:12.580 --> 03:14.540]  Donald Trump was on the campaign trail.
[03:14.720 --> 03:22.780]  And of course, as we know, he assumed the presidency and continued the war on whistleblowers and journalists in an extremely aggressive fashion.
[03:23.980 --> 03:30.760]  Since then, of course, Julian Assange was charged by the DOJ and is facing an extradition trial in London.
[03:31.160 --> 03:38.220]  So we hope to give some updates on these cases, as well as the next steps.
[03:38.220 --> 03:46.060]  And William has been doing excellent and amazing work on legislative efforts to try to reform and hopefully repeal the Espionage Act.
[03:47.060 --> 03:54.960]  So what I'll do just briefly is give an overview of the Espionage Act of 1917, some of the political and historical context.
[03:55.260 --> 04:00.920]  And then I'll pass it off to Jessalyn and William to talk about some of the next steps.
[04:02.860 --> 04:22.540]  So the Espionage Act was passed in 1917, actually, the original description of it was a law to punish acts of interference with the foreign relations, the neutrality, and the foreign commerce of the United States, to punish espionage, and to better enforce the criminal laws of the United States for other purposes.
[04:22.880 --> 04:34.780]  And what's really interesting is from the very beginning, this law was designed to try to punish, quote, interference with foreign relations, which, in today's age, is equated with whistleblowing.
[04:35.800 --> 04:42.060]  It broadly punishes the receipt, the retention, and communication of, quote, national defense information.
[04:42.660 --> 04:46.320]  Today, it's the key law used to prosecute government whistleblowers.
[04:46.500 --> 04:52.480]  And importantly, even though it's called the Espionage Act, its use is not limited to spies by any means.
[04:52.620 --> 04:59.960]  It can apply to government employees, members of the general public, public, journalists, even non-U.S. citizens.
[05:02.120 --> 05:12.260]  So when we talk about the dissemination of national defense information, the question you might ask is, that national defense information, that sounds like important stuff.
[05:12.700 --> 05:18.460]  But it does not mean military secrets, codes, or closely guarded information.
[05:18.460 --> 05:21.140]  It does not need to be classified.
[05:21.740 --> 05:34.760]  And it can include, and in many cases has included, evidence of torture, war crimes, corruption, or government criminality that has been used in international civil and criminal court proceedings.
[05:37.240 --> 05:44.340]  So dialing back, this law was passed during World War I to limit opposition to the war.
[05:44.520 --> 05:50.060]  And what's important to realize about the Espionage Act is that its whole history is heavily political.
[05:50.380 --> 05:56.740]  And in fact, it was passed during the most... one of the most vibrant political periods in the history of the U.S. and provided criminal penalties for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in military or naval forces
[06:06.260 --> 06:14.640]  It was actually amended in 1918 to include a Sedition Act, which was then repealed, and is also amended numerous times, interestingly expanded.
[06:14.840 --> 06:18.960]  Its biggest expansion happened in 1950 at the height of McCarthyism.
[06:21.000 --> 06:32.600]  One of the provisions that I'll focus on is Section 793E, which is the one that's most implicated in prosecutions of government whistleblowers, and now in potentially members of the general public.
[06:33.500 --> 06:42.440]  And it punishes anyone who willfully communicates national information related to national defense to any person not entitled to receive it.
[06:42.960 --> 06:47.560]  And the penalty can include a fine and imprisonment of up to 10 years.
[06:47.800 --> 06:52.480]  And in Espionage Act cases, what we typically see is piling on of these charges.
[06:52.840 --> 06:58.340]  So charges, for instance, in the Assange extradition could be up to 175 years in prison.
[07:00.140 --> 07:02.360]  It's a contentious and controversial law.
[07:02.960 --> 07:06.180]  And this extends across both ends of the political spectrum.
[07:06.480 --> 07:12.860]  So it's not just folks on the left or liberals who are opposed to the act.
[07:12.860 --> 07:16.680]  There's actually been increasing bipartisan opposition to the law.
[07:17.220 --> 07:25.140]  Numerous constitutional lawyers and law professors find it constitutionally problematic, confusingly verbose.
[07:25.860 --> 07:35.900]  The former dean of Columbia Law, wrote a seminal law review article in the 70s saying that public speech in this country since World War II has been rife with criminality.
[07:36.240 --> 07:51.420]  And one of the most interesting developments actually is that just a year ago, a consortium of former national security officials, including former Attorney General Eric Holder Jr. and former CIA director John Brennan, signed on to a statement saying,
[07:51.580 --> 07:58.260]  quote, the current system for punishing leakers is ineffective, resulting in both excessive punishment and under deterrence.
[07:58.440 --> 08:05.340]  And the Espionage Act should be amended to make clear that the press cannot be prosecuted for core journalistic activity.
[08:05.940 --> 08:07.200]  And this is wild.
[08:07.380 --> 08:12.820]  We're talking about the former CIA director and the former Attorney General under Obama making these statements.
[08:13.040 --> 08:21.320]  So there really has been an increasing movement, which William will talk more about in just a bit to try to amend this law.
[08:30.610 --> 08:35.130]  Under the Obama administration, there is an uptick in prosecutions of journalist sources.
[08:36.510 --> 08:46.590]  Under Obama, there are more media sources than all presidents combined that were charged, including Chelsea Manning, Edward Snowden, Thomas Drake, Stephen Kim, and Jeffrey Sterling.
[08:47.430 --> 08:59.590]  Journalists were increasingly implicated under the Obama administration, including surveillance of Associated Press, phone records, the naming of James Rosen of Fox News as a criminal co-conspirator, in court documents.
[09:00.190 --> 09:04.090]  And we saw this escalate under the Trump administration, unfortunately.
[09:04.430 --> 09:09.670]  So there are numerous aggressive prosecutions of several alleged intercept sources, actually.
[09:09.930 --> 09:16.050]  So there's Daniel Hale, Reality Winner, Terry Albury, also a full-scale attack on journalism.
[09:16.070 --> 09:30.490]  So just in the last year or two, we've seen numerous stories of subpoenas of journalists that occurred in secret under the Trump DOJ, increasingly implicating the journalists' relationship with media sources under aiding and abetting and conspiracy theories.
[09:31.050 --> 09:41.250]  And of course, under the Trump administration, we saw the unprecedented charging of Julian Assange, where he faces 175 years in prison if extradited to the United States.
[09:41.390 --> 09:48.550]  And one of the key issues in that case is the fact that this is not a prosecution of an alleged government source.
[09:48.550 --> 09:51.370]  This is a prosecution of somebody who's outside the U.S. government, in fact, not even a U.S. citizen.
[09:53.930 --> 10:01.310]  And what constitutional scholars are warning is that this completely eviscerates national security journalism because it opens the door.
[10:01.430 --> 10:06.850]  There's no possible legal distinction between opening up that door to non-U.S. citizens and non-government employees that doesn't impact any potential national, not just journalists, any potential national security journalists, but also members of the public.
[10:15.930 --> 10:26.230]  And, hypothetically, anybody in this room who is dealing with issues that may expose anything from criminality to issues in the public interest.
[10:30.220 --> 10:36.820]  I'll let Jessalyn talk more about the key issues of the Espionage Act, but there are numerous issues.
[10:41.060 --> 10:45.980]  One thing that I might actually... because I really want to leave a lot of time for Q&A.
[10:46.140 --> 10:50.640]  I'm really interested what folks here have to say, so I want to wrap up soon on kind of this overview.
[10:51.360 --> 11:01.960]  But one article that I would recommend, actually, is Laura Poitras wrote in the New York Times, it was almost two years ago, a really remarkable op-ed.
[11:02.120 --> 11:05.120]  And it was titled, I am guilty of violating the Espionage Act.
[11:05.240 --> 11:15.020]  And she laid out the case of how her publications related to Edward Snowden's disclosures met all the criteria for violating the Espionage Act.
[11:15.160 --> 11:20.880]  And she actually said, quote, if charged and convicted, I could spend the rest of my life in prison.
[11:21.300 --> 11:22.840]  This is not hypothetical.
[11:23.320 --> 11:27.860]  Right now, the United States government is prosecuting a publisher under the Espionage Act.
[11:28.120 --> 11:33.100]  The case could set a precedent that will put me and countless other journalists in danger.
[11:34.360 --> 11:37.740]  So, in sum, the act is contentious and controversial.
[11:38.320 --> 11:44.680]  It's never before been used to prosecute a publisher for obtaining and publishing secrets, until now.
[11:45.120 --> 11:49.560]  There's no opportunity to mount an effective legal defense, which we'll hear more about from Jessalyn.
[11:49.760 --> 11:58.480]  And its reach is potentially limitless, extending to the New York Times, the Washington Post, any media organization, and scarily enough, folks in this room.
[11:58.720 --> 12:03.160]  So, I wish that we had better news for you in terms of the state of the Espionage Act.
[12:03.160 --> 12:07.640]  But hopefully, we can hear some of the more positive aspects from William.
[12:08.180 --> 12:12.560]  And on that note, I'll pass it off to Jessalyn.
[12:12.640 --> 12:15.320]  I know that we have her on Zoom, actually.
[12:15.860 --> 12:17.180]  So... Oh, hi, Jessalyn.
[12:17.520 --> 12:22.700]  So, I will get off camera here and hand it over to you.
[12:22.820 --> 12:23.320]  So, thank you.
[12:24.320 --> 12:24.880]  Hi.
[12:25.440 --> 12:26.340]  Thank you.
[12:27.360 --> 12:50.820]  Basically, you know, the first American whose name you might recognize, who was charged under the Espionage Act, famously was Daniel Ellsberg, who had blown the whistle, you know, with the Pentagon Papers, which ultimately ended up being credited with helping to end the Vietnam War.
[12:51.320 --> 12:56.080]  And in the subsequent decades, I mean, that was back in the 1970s.
[12:56.220 --> 13:00.880]  And in the subsequent decades, it was pretty dormant.
[13:01.040 --> 13:07.000]  There were a couple of cases here and there, but nothing to be alarmed about.
[13:07.220 --> 13:15.920]  And they were weird, factual allegations involving lobbyists, in one case, involving...
[13:15.920 --> 13:21.380]  I mean, it was just a... nothing... it was nothing like what happened under Obama.
[13:21.380 --> 13:44.220]  And when Obama came into office, despite being the transparency president who pledged and was elected on a platform of protecting whistleblowers and journalists, in a very alarming way, he ended up indicting Thomas Drake in 2010, his Justice Department did.
[13:44.460 --> 13:47.680]  And Tom worked at the NSA.
[13:48.240 --> 13:59.880]  And basically, the crime was that he was alleged to have provided information to a journalist, public interest information.
[13:59.880 --> 14:11.200]  He wasn't accused of giving, you know, providing secrets to hostile foreign nations for profit or anything like that.
[14:11.320 --> 14:20.080]  It was for giving truthful information to a journalist about something the government was hiding.
[14:20.400 --> 14:29.160]  And that was at the very embryonic stage of... I mean, he really was, as Snowden said, if there was no Tom Drake, there would have been no Edward Snowden.
[14:29.300 --> 14:39.760]  Because Tom Drake was the first one who was seriously blowing the whistle in a very loud way on domestic mass surveillance.
[14:40.560 --> 14:52.140]  But then soon after Tom Drake, the year 2010 ended up becoming this bloodbath, because the Espionage Act was then used against Chelsea Manning.
[14:52.360 --> 14:54.820]  But that was in a military setting.
[14:55.040 --> 14:57.640]  But again, this was an army whistleblower.
[14:58.200 --> 14:59.040]  Chelsea was.
[14:59.660 --> 15:03.320]  And then Stephen Kim, also in 2010.
[15:03.320 --> 15:06.300]  And he was a State Department employee.
[15:06.300 --> 15:13.220]  And then Jeffrey Sterling of the CIA, that was also in 2010.
[15:13.220 --> 15:16.260]  And he was a CIA employee.
[15:16.460 --> 15:19.200]  And his case was purely circumstantial.
[15:19.320 --> 15:28.360]  He ended up being convicted on metadata alone, which is a whole other category of frightening in these cases.
[15:28.360 --> 15:35.620]  And then John Kiriakou, who, again, was another CIA defendant in 2010.
[15:35.920 --> 15:51.860]  So you see this trend of not only people in the national security agencies, but people who were working on dark ops programs, including torture, secret surveillance, war crimes.
[15:52.080 --> 15:55.420]  I mean, these were the things that were being prosecuted.
[15:55.720 --> 15:59.880]  Disclosures to the media that, to me, seemed clearly in the public interest.
[15:59.880 --> 16:05.640]  The problem is, under the Espionage Act, it is a strict liability law.
[16:05.840 --> 16:10.520]  So that means you either made a disclosure or you did not.
[16:10.760 --> 16:14.740]  Your motive for doing so is completely irrelevant.
[16:14.920 --> 16:27.640]  You can't talk about your good intentions in revealing the information until sentencing, after which you have already been convicted.
[16:28.960 --> 16:38.320]  And meanwhile, most people end up pleading guilty rather than going to trial because the law is so draconian.
[16:38.760 --> 16:42.060]  Most of the proceedings occur in secrecy.
[16:42.240 --> 16:50.300]  There are probably almost a year's worth of secret hearings under the Classified Information Procedures Act.
[16:51.040 --> 16:56.580]  I was shut out of one of those proceedings and Daniel Hale's case, and he was my own client.
[16:56.660 --> 16:59.340]  And they weren't even talking about classified.
[16:59.340 --> 17:04.580]  I wasn't given a reason at all that I couldn't come in.
[17:04.720 --> 17:06.640]  It was... they were not discussing classified.
[17:06.980 --> 17:19.040]  So, I mean, this is... in any other context, this would be outrageous that a criminal defendant, that their intent doesn't matter, that their own attorneys are getting shut out of proceedings.
[17:19.040 --> 17:21.760]  This is Guantanamo Bay stuff.
[17:21.940 --> 17:23.880]  This is Abu Ghraib stuff.
[17:24.080 --> 17:27.240]  This is not supposed to be the United States of America.
[17:27.700 --> 17:32.520]  But 2010, you know, started this bloodbath.
[17:32.680 --> 17:41.060]  And I was hoping, because we had a pause, you know, Snowden occurred in 2013, but we had kind of a pause.
[17:41.180 --> 17:54.320]  And I thought maybe the government had learned that this was not a wise way to go after what it considered improper disclosures of classified information.
[17:54.720 --> 18:03.740]  But then, Trump, who famously hated the media and called the media an enemy of the state.
[18:04.020 --> 18:10.320]  I mean, think about the kind of Kafkaesque gaslighting involved in that statement.
[18:11.120 --> 18:31.720]  But Trump, his... Jeff Sessions, early on, his attorney... one of the people in his attorney general structure dusted off, said, we are going to go after leak cases with a vengeance, and dusted off a whole bunch of moldy oldies that Holder had not prosecuted.
[18:31.980 --> 18:37.060]  So that reinvigorated the case against people like Daniel Hale.
[18:37.260 --> 18:43.120]  That reinvigorated the case against Assange, which had been dormant.
[18:43.220 --> 18:44.520]  Same with Daniel Hale.
[18:44.700 --> 18:49.160]  I mean, he was first investigated and raided back in 2014.
[18:49.420 --> 19:02.200]  But suddenly, all of these cases that seemed dormant were suddenly brought to life and are poised to create disastrous precedent.
[19:02.580 --> 19:07.100]  In between, we did get some bad precedent with reality winner.
[19:07.400 --> 19:19.080]  And then just really very recently within the last week and Joshua Schulte's case, Daniel Hale ended up pleading guilty.
[19:19.440 --> 19:23.480]  His crime was blowing the whistle on the drone program.
[19:23.480 --> 19:43.060]  And in particular, that 90% of the people that we targeted had nothing to do with terrorism, and that most of the casualties were not enemy combatants or even people who were suspected of being involved, but rather innocent civilians.
[19:43.060 --> 19:45.380]  And most of the time, we didn't get our target.
[19:46.440 --> 19:51.760]  That was only kind of... This is the first year after a mistaken drone strike.
[19:53.220 --> 20:02.320]  This is the first year ever in 2021-22 where the U.S. said, oops, we made a mistake.
[20:02.740 --> 20:06.620]  That was the first time I heard us have any admission of that.
[20:06.800 --> 20:11.600]  But Daniel is currently in prison for one of the longer sentences.
[20:12.240 --> 20:18.060]  He's been in there for a year already, and he's still... It's a 45-month sentence.
[20:18.060 --> 20:20.760]  These sentences have been getting longer.
[20:21.040 --> 20:26.660]  Reality Winner was kind of the outer edge because she had to face five years.
[20:27.080 --> 20:35.840]  Again, most of the cases before her had been two and a half years to maybe three years of potential time.
[20:36.080 --> 20:44.420]  And then now you look forward and you see Assange facing 175 years.
[20:44.720 --> 20:56.800]  And Assange, unfortunately, is also crossing the Rubicon because, as Kerry mentioned, I had always warned that the war on whistleblowers was a backdoor war on journalism.
[20:56.800 --> 21:01.900]  But Assange, we crossed that Rubicon and we are going after journalists.
[21:02.320 --> 21:08.060]  And to the extent people are trying to argue, well, I don't know if he's a real journalist or not.
[21:08.280 --> 21:27.080]  Legally, that's not what's important, especially in today's digital landscape where media, blogging journalists, New York Times mainstream, hard copy journalists, digital journalists, citizen journalists, this puts everyone at risk.
[21:27.600 --> 21:45.760]  And if people are trying to draw this artificial distinction that Julian Assange is not really a journalist, what he is charged for is purely journalistic activity, like cultivating sources, using encryption, and publishing classified information.
[21:46.040 --> 21:53.900]  This is what the New York Times, the Washington Post, the Guardian, all major papers do on a regular basis.
[21:54.180 --> 22:07.740]  But because Julian Assange is politically unpopular at the moment, and because it's very easy to caricature a whistleblower, it makes him low-hanging fruit.
[22:07.740 --> 22:24.220]  And he can't defend himself publicly right now because he's in Belmarsh and effectively cut off, just like Daniel Hale is in a communications management unit, which were initially created to house terrorists, terrorists, not whistleblowers.
[22:24.820 --> 22:37.080]  Currently, I mean, Daniel's in prison with, you know, people who tried to overthrow this country, with neo-Nazis and a bunch of other people who were not trying to promote democracy.
[22:37.080 --> 22:41.340]  And I think that's the fate that Assange faces.
[22:41.580 --> 22:51.980]  Part of what has been so disingenuous is when the U.S. assured everybody that Assange would not be placed in a supermax, guess what?
[22:52.580 --> 23:06.820]  They're going to place him in a communications management unit, like Daniel, which is in many ways worse than a supermax, because even at a supermax, you can communicate with your own attorney and friends and family.
[23:07.120 --> 23:20.000]  In the communications management unit, they manage your communications by not letting you communicate with anyone absent serious strictures that I don't think would pass constitutional muster.
[23:20.660 --> 23:25.280]  Anyway, I feel like I'm maybe exceeding my time here.
[23:25.420 --> 23:30.820]  So I'm glad to pass it on and ask, you know, answer any further questions during the q&a.
[23:39.590 --> 23:41.590]  Hi, so my name again is William Neuheisel.
[23:41.770 --> 23:44.710]  I work with Jess at the whistleblower and source protection program.
[23:45.250 --> 23:49.290]  And I just wanted to talk quick about the Espionage Act reform attempts.
[23:50.210 --> 23:52.910]  We've seen get a little bit of stirring in the past two years.
[23:53.710 --> 23:55.170]  So just a quick history of that.
[23:56.710 --> 24:12.010]  This kind of started during the Trump administration when, as Jess mentioned, the Espionage Act was increasingly abused against cases like Reality Winner, against Terry Aubrey, and then against Daniel Hale, who are really cases of really purely conscientious whistleblowers.
[24:12.670 --> 24:16.770]  And they're getting more and longer sentences against these cases.
[24:17.050 --> 24:28.190]  But then it was really with the prosecution of Assange, when that indictment came out, I think, was when it really started waking people up on the hill to the really wider threat that this faces.
[24:30.370 --> 24:37.170]  So we were starting to have more discussions as these indictments were coming out with colleagues in the civil liberties and press freedom space.
[24:37.990 --> 24:45.310]  And there was a sort of frustration sometimes because, you know, every time the indictment came out, there was this kind of feeling of powerlessness, like, you know, we should be doing something.
[24:46.570 --> 24:54.370]  And so as we were talking about it, a lot of the sentiment we got was, well, you know, the Espionage Act is kind of a dangerous can of worms to open up.
[24:54.770 --> 24:55.850]  Now is not the right time.
[24:56.050 --> 24:58.210]  You know, we support you, but now is not the right time.
[25:00.610 --> 25:08.130]  But my question, you know, that was left of this, and I don't think probably now is the right time or soon, but the question was, you know, when will be the right time?
[25:08.450 --> 25:10.270]  How will we know when the time is right?
[25:10.370 --> 25:12.630]  And will we be ready when that window comes?
[25:12.750 --> 25:24.270]  Will we have run the traps and, you know, gone through the legwork to get some language figured out and figured out sort of the landscape on the Hill, who our political allies are, who, what's the coalition that can do this?
[25:25.010 --> 25:36.470]  And so started having conversations with counterparts in the organizations, primarily with Chip Gibbons at Defending Rights and Dissent, whose DRAD has been a great supporter of whistleblowers, great partner of ours.
[25:37.150 --> 25:43.230]  And Chip started having conversations with some officers on the Hill who were very concerned after the Assange indictment.
[25:43.230 --> 25:45.650]  Um, primarily there was kind of two separate tracks.
[25:46.090 --> 26:06.750]  Um, one was the sort of approach taken by the, um, by Senator Wyden, uh, in the Senate side and Ro Khanna on the House side, who drafted a bill that was very comprehensive in terms of the approach they took sort of widened, um, the amount of channels that whistleblowers could go to,
[26:06.750 --> 26:08.090]  to disclose lots of information.
[26:08.730 --> 26:12.470]  But they really, they wanted to stay sort of on the journalist side, protecting journalism.
[26:12.990 --> 26:21.110]  They didn't go after, um, the main sort of constitutional defects of the Espionage Act that make it difficult to defend yourself once you are charged.
[26:21.630 --> 26:30.410]  And so we were talking with, um, at the time Tulsi Gabbard and a few others who wanted to take a more comprehensive approach and say, no, we want to stop this abuse.
[26:30.730 --> 26:36.930]  And so we drafted a bill with them that was first introduced, uh, in the fall of 2020 by Tulsi Gabbard.
[26:38.150 --> 26:47.010]  And that, that bill, the approach that it took, um, you know, we said, look, we, this bill is, the statute is so flawed that we'd like to just get rid of it.
[26:47.310 --> 26:55.850]  But what can we do that takes sort of the, the abolitionist framework that we're, you know, we're not gonna, we don't want to just reform it in a way that's going to leave it, uh, in place, but not really defang it.
[26:56.850 --> 27:02.230]  And, you know, have the unintended con side effect of, of ensconcing it further.
[27:03.050 --> 27:09.110]  So we wanted to really, uh, look at, okay, what are the, what are the chief obstacles that people face defending themselves?
[27:10.370 --> 27:14.970]  And we were able to consult with the offices on the Hill to draft legislation that would do that.
[27:15.070 --> 27:17.670]  So there are basically five things that we've done.
[27:17.910 --> 27:20.170]  One is to require the government to prove specific intent.
[27:20.310 --> 27:32.170]  This is one of the most important aspects because as Jess mentioned, as Carrie mentioned, currently, uh, you don't have to intend to harm the United States or advantage a foreign adversary.
[27:32.430 --> 27:35.230]  If you're a whistleblower, you can still be charged with this act.
[27:35.330 --> 27:39.170]  And the only thing that matters is did you transmit the information or retain it improperly or did you not?
[27:39.250 --> 27:46.690]  And so this would force the government to prove that there was at least some, uh, intent to commit something closer to classic espionage.
[27:48.310 --> 28:01.210]  It would also create a public interest defense that there'd be some test to say that, look, this information was, relates to abuse of power, threat to public safety, um, classic reasonable concern of whistleblowing.
[28:03.530 --> 28:17.910]  Third, it would require the government to be, uh, to prove that the information was properly classified in the first place because we've had such a big problem with over classification and things, you know, that were more designed to cover up abuses or embarrassment to the government than to actually protect national security.
[28:19.610 --> 28:30.930]  Uh, fourth, it would permit a defendant charged under the act to testify as to their purpose for disclosing information because, as was mentioned previously, you were not even allowed to talk about what your motive was.
[28:31.190 --> 28:47.070]  In these cases, there are rulings pre-trial that you are banned, I maybe just mentioned this, I don't remember, but you are banned specifically from saying even the words whistleblowing or good motive or other things that would potentially get in front of the jury that might cause them to think maybe there was some sort of disculptor,
[28:47.210 --> 28:49.470]  uh, excuse me, uh, exculpatory motive here.
[28:53.780 --> 29:13.420]  And, finally, it would amend the, the covered persons part of the statute to limit it, to exclude journalists, publishers, and members, members of the public because, as was mentioned before, technically the government still asserts the power to charge people who merely download these documents off of WikiLeaks and maybe forward them to a friend.
[29:13.960 --> 29:21.940]  You could still, just as a member of the public, not having ever held a privileged, you know, a clearance or a privileged position in the U.S. government could still be charged with espionage.
[29:22.440 --> 29:27.620]  And so this would require the government to actually only be able to bring this against, uh, people who were actually insiders.
[29:30.120 --> 29:40.600]  And so, as I mentioned, the, um, the Gabbard bill was the first, uh, it was introduced around the same, I forget which one was actually first, actually, it was introduced around the same time as the Wyden-Kana bill, and these were really the first time,
[29:40.780 --> 29:44.920]  uh, since its passage of religion in 1917, to try to improve the bill.
[29:45.220 --> 29:51.900]  Uh, and all the previous amendments up until that point had only merely expanded the power, uh, of the bill to prosecute.
[29:53.100 --> 30:03.400]  And so we didn't get much traction in the first round, um, but subsequently representatives Tlaib and Omar have taken up this legislation.
[30:03.900 --> 30:12.780]  And most recently we got it inserted as an amendment to the, um, well, they got a vote on it to the amendment to the national defense authorization amendment.
[30:15.120 --> 30:18.660]  We got killed at the rules committee, but, um, this is the first time we've seen a lot of interest.
[30:18.780 --> 30:26.780]  We got a lot of, um, staffers reaching out to us on the Hill, a lot of organizations, um, finally, you know, taking interest and, um, wanting to do something along these lines.
[30:26.960 --> 30:28.480]  So we're starting to see a little bit of stirrings here.
[30:28.540 --> 30:31.160]  We really need to bring more, um, interest and attention on this.
[30:32.000 --> 30:40.680]  As I mentioned, you know, I think this is probably something that's going to take years, if not decades to fix, but, um, we need to start probing and seeing, you know, where our allies work, what alliances can we make?
[30:40.860 --> 30:50.920]  I think there's an older generation of politicians who are still in this sort of the war on terror mindset, who are less, you know, willing to sort of give up the powers inherent under the Espionage Act.
[30:51.080 --> 31:02.140]  But I do, I'm starting to see this younger generation of politicians come in, um, right now with the squad and, um, on the Republican side, some of the, uh, and the more libertarian-minded folks are coming in and are willing to take a look at this.
[31:02.460 --> 31:04.160]  So we're seeing some real opportunity there.
[31:04.400 --> 31:13.600]  Um, I think we, I think this is a time, you know, when the war on terror is fading a little bit from, and there's, there's a sort of a new era that we're in between and we're not really sure what's going to come yet.
[31:13.700 --> 31:26.680]  And so I think this is a key time to sort of start shaping this and building allies so that we can make some progress on this, hopefully before a new Cold War, you know, sets in and really, again, expands, you know, the, the, the state's, um, you know,
[31:26.760 --> 31:30.140]  like driving motive to use this and abuse it.
[31:30.520 --> 31:33.260]  So, yeah.
[31:39.180 --> 31:42.140]  So we wanted to leave plenty of time for Q&A.
[31:43.980 --> 31:45.180]  Well, you can hear it.
[31:45.260 --> 31:51.120]  We wanted to leave plenty of time for Q&A if folks have any questions or concerns.
[31:51.460 --> 31:53.340]  We really wanted to make this a conversation.
[31:53.380 --> 31:55.700]  So I guess, is there a microphone?
[31:56.420 --> 31:57.460]  Yep, perfect.
[31:58.660 --> 32:00.520]  So we actually have an online question.
[32:00.760 --> 32:04.200]  Are there proponents of this positive reform within the three-letter agencies?
[32:08.910 --> 32:15.470]  Not that I'm aware of actively, but I think, as Kerry mentioned with this commission recently, are you able to hear me?
[32:19.040 --> 32:19.480]  Okay.
[32:20.240 --> 32:28.120]  As Kerry mentioned, you know, we've seen former members come out in support of doing something about this and realizing that this is a real threat to press freedom.
[32:29.040 --> 32:29.640]  Yeah.
[32:29.960 --> 32:39.840]  So historically there, there have actually been members of three-letter agencies who've been opposed to the act, was, was really interesting actually under Reagan.
[32:40.240 --> 32:52.360]  There was the, it was, I believe it was the CIA's general counsel, Anthony Lapham, who gave congressional testimony, just ripping the act to shreds, saying that this is, this law is, is BS.
[32:52.540 --> 32:56.360]  Those weren't his words, specific, but basically like coming up to that line.
[32:56.660 --> 33:08.180]  And also what was interesting is taking the position that it was never meant to publish, or sorry, it was never meant to prosecute someone outside of government.
[33:08.460 --> 33:13.740]  So there actually happened folks, I read the statement from a former CIA director, John Brennan.
[33:13.960 --> 33:30.420]  So we're, we're, I think politically at a very interesting moment because there, there are many folks that actually don't like the Espionage Act and the confusion and vagueness around the law actually doesn't serve hardliners that well either.
[33:30.980 --> 33:39.280]  I don't know that that creates much political opening to improve the law because there are definitely folks who don't like the Espionage Act because they think it should be worse.
[33:41.100 --> 33:55.140]  But I, I, I do think absolutely there is emerging consensus that it is a cumbersome and unhelpful piece of legislation.
[33:55.500 --> 34:05.660]  And I, I think that is important because it gives us cover, you know, it's, it's hard for these members to stick their head out and stick their neck out on this issue and take a risk politically, um, when they're not sure, you know, what the reception will be.
[34:05.840 --> 34:06.380]  So, yeah.
[34:09.640 --> 34:10.190]  Uh, hi.
[34:10.340 --> 34:13.360]  So my question is about the legislative, uh, effort.
[34:13.920 --> 34:30.150]  Um, you had said that you would like to, or there was some, some interest on the Hill of, um, making it so that the government has to prove something closer to traditional espionage that you actually had intended to harm the United States or help a foreign adversary.
[34:30.340 --> 34:30.420]  Right.
[34:31.020 --> 34:45.650]  Um, but my understanding of traditional espionage is that it is, the motivation is often the financial, the, the, you know, if someone is leaking or selling advanced radar systems to a foreign intelligence agency, you know, they're trying to pay off their mortgage.
[34:45.840 --> 34:50.800]  It's not like they have an ideological feeling that they want to hurt the United States or something like that.
[34:50.940 --> 35:09.180]  So I, I guess if you're not going to try to scrap the law entirely and, you know, beyond just carve outs for traditional journalists or something like that, what exactly, you know, would, uh, you still be trying to prohibit or how would you define it so that it's not going to capture the stuff we actually like?
[35:14.230 --> 35:14.670]  Yeah.
[35:14.850 --> 35:21.950]  So I, I think the biggest issue is just providing the space to mount an actual defense because right now there just simply is none.
[35:22.270 --> 35:41.130]  And so giving the ability for a defendant, for example, to testify as to their purpose, um, and, you know, forcing the government to actually provide proof that it, you know, because right now the standard is so loose, as you mentioned, um, right now it's simply that you have to be aware that it may be used to the injury of the United States.
[35:41.510 --> 35:49.130]  And for government employees, that intent requirement is already covered when you sign, I think it's standard form 312.
[35:49.450 --> 35:58.910]  If you're in a job with classified information, they make you form, sign this form that says, I'm aware that any release of disclosures could harm the national security, will harm the national security of the United States.
[35:59.070 --> 36:07.070]  And so therefore, if you've released any information, no matter what the purpose, you, they, the government has already met its burden effectively under that.
[36:07.210 --> 36:08.950]  That's the judicial gloss that's sort of been put on this.
[36:08.950 --> 36:14.050]  And so if you are a whistleblower, you effectively, you have no avenue there.
[36:17.550 --> 36:39.270]  Jess, if you have anything to add, jump in, but, um, yeah, I would also, I would also add that there are about a dozen other laws that exist to, um, to take care of and penalize unauthorized disclosure of classified or other sensitively closely compartmented,
[36:39.450 --> 36:40.850]  closely held information.
[36:41.170 --> 36:49.190]  And those laws are not used because the penalties are far less severe than the Espionage Act.
[36:49.350 --> 36:58.190]  And so the fact that the government is deliberately choosing to use a very antiquated, problematic, clunky law.
[36:58.670 --> 37:00.510]  I mean, that that's a deliberate choice.
[37:00.630 --> 37:14.750]  It is so punitive and people can't defend themselves, but constitutional challenges to the Espionage Act have not been successful, even though back in the day, it was found to be virtually unconstitutional.
[37:14.750 --> 37:22.930]  And that's why an intent requirement was grafted on to the Espionage Act to try to make it constitutional.
[37:23.070 --> 37:27.870]  But now that intent requirement doesn't come into play until you're being sentenced.
[37:28.490 --> 37:36.890]  So it's, it's a very problematic law, but I think it's also a deliberate choice, um, that the government is choosing this law.
[37:37.030 --> 37:44.670]  There have been, um, there have been other people in the national security establishment who have criticized it though.
[37:44.950 --> 37:49.030]  Usually it's long after the fact or said, maybe we should take another look.
[37:50.050 --> 37:50.110]  Yeah.
[37:51.130 --> 38:08.930]  And another thing I'll add too, is that probably as no surprise, the U S is an outlier and how punitive it is with disclosures of public interest information or classified information, actually going back to Chelsea Manning's court martial.
[38:09.170 --> 38:18.330]  I believe it was in the appeal because one of the issues was the the insane nature of the original sentence, which was 35 years.
[38:18.570 --> 38:20.990]  And this was before Obama commuted her sentence.
[38:21.850 --> 38:35.070]  And the Open Society Foundations actually submitted a really important brief where they did a survey of, of laws around the world for punishing disclosures of information.
[38:35.070 --> 38:42.990]  The U S was just exponents beyond other countries, which punished disclosures in months, maybe a few years.
[38:43.190 --> 38:47.050]  But this, this sentence of over 30 years was astronomical.
[38:47.570 --> 38:52.450]  Uh, and now we see that the sentences and the punishments are only increasing.
[38:52.450 --> 38:59.890]  And of course, uh, the other thing which Jessalyn touched on is that we're not just talking about the time of the sentence.
[39:00.130 --> 39:12.090]  There's the element of the treatment during pre-trial, during trial and behind bars where really the MO is to nail people to a cross and send the message.
[39:12.530 --> 39:15.750]  And that's, what's really the most horrifying about it.
[39:15.810 --> 39:36.290]  When you read the press releases in these cases, like the press release and Reality Winner's case, when she was convicted and sentenced, I mean, there's a, there's a amount of glee that these prosecutors have in setting examples of government employees who are simply acting in conscience and,
[39:36.290 --> 39:40.330]  and exposing information that's the public's right to know.
[39:40.510 --> 39:44.790]  So I think that's really one key takeaway is it's not just about numbers and sentences.
[39:45.050 --> 39:54.350]  These are cases about people and their lives being effectively ruined over these cases.
[39:55.410 --> 39:56.130]  Yeah.
[39:56.270 --> 39:57.610]  And it's not in that regard.
[39:57.790 --> 39:59.070]  I would also add that.
[39:59.250 --> 40:07.990]  I mean, in Chelsea Manning's case, there was a finding that during her confinement, she was tortured.
[40:08.570 --> 40:11.150]  That was an actual finding.
[40:11.150 --> 40:16.850]  I, I look at what's going on with, in Assange's case and Daniel Hale.
[40:17.030 --> 40:19.410]  Daniel Hale was held part of the time.
[40:19.670 --> 40:22.030]  I mean, it was, he was in solitary confinement.
[40:22.510 --> 40:38.410]  Now I think they're going to say, oh, we had to do that because of COVID or we had to do that for whatever, you know, the government's always going to try to find an excuse, but really the, these are inhumane kinds of treatment.
[40:38.690 --> 40:42.630]  And, you know, I it's, people are actually have been tortured.
[40:42.850 --> 40:49.350]  I think Assange has literally been held in conditions that are tantamount to torture.
[40:50.070 --> 41:08.530]  And, and that is always kind of swept under the rug or, or ignored, or maybe factored into sentencing and they'll shave off a couple of years because you were tortured or held in inhumane, uh, conditions that, you know, were cruel, cruel detention and,
[41:08.530 --> 41:13.990]  and violated all sorts of other human rights, um, laws, but.
[41:14.610 --> 41:15.050]  Yeah.
[41:15.150 --> 41:17.610]  I see we have two more questions.
[41:18.770 --> 41:20.690]  You actually just answered a little bit of it.
[41:20.750 --> 41:23.410]  Um, but my question is, um, like, who's the opposition to this?
[41:23.510 --> 41:27.270]  Is there another conference with three people saying the Espionage Act is great and we should do it?
[41:27.690 --> 41:32.170]  Um, like, you know, torturing people, secret trials, these are not things that seem very American to me.
[41:32.410 --> 41:35.750]  Um, and, you know, who are the people pushing this and are doing that?
[41:35.870 --> 41:41.610]  You know, you mentioned prosecutors, you know, who else are sort of, you know, these incredibly immoral people that are, you know, doing these actions?
[41:44.610 --> 41:55.410]  Well, again, I, I, I, what I've seen is, is I think this, again, there's this older generation of politicians who's still very much in the cold, in the, um, like the cold war summary, but on the war on terror mindset also.
[41:55.910 --> 42:02.150]  And, you know, I think the, the concept of, of national defense has expanded so much since this law was passed.
[42:02.350 --> 42:06.830]  I mean, there wasn't even a classification system when this law was passed, as Jess has mentioned previously.
[42:07.390 --> 42:19.290]  Um, but the idea that, you know, we had this permanent, I think when it was passed, the idea was more that, you know, when we're at a state of war, you maybe would reveal something that would cause us to lose a battle or to, for a ship to be sunk.
[42:19.870 --> 42:33.850]  But now there's this sort of permanent, just ongoing state of expanding securitization that any disclosure, you know, no matter, you know, if it's about something that's going on in Afghanistan, halfway around the world, is this, you know, grave threat to national security.
[42:33.950 --> 42:36.110]  And that just wasn't there when this law was passed.
[42:36.350 --> 42:39.490]  And so, you know, that, that concept is just wildly expanded.
[42:40.250 --> 42:54.090]  And there is still this, um, we've heard from people on the Hill that, you know, senior Democrats even, uh, would be willing to respond with proposing a, an actual official secrets act.
[42:54.290 --> 43:08.450]  If we were to, you know, get this, if this, if our reforms ever came up more seriously, we've heard that people would actually counter by proposing an actual official secrets act, which the espionage act has morphed towards, but the official secret act actually has prior restraint,
[43:08.450 --> 43:09.490]  which we don't have yet.
[43:09.930 --> 43:18.210]  Um, so there is still this appetite to sort of, you know, there's just this loyalty to the defense and intelligence agencies.
[43:18.510 --> 43:26.010]  And part of it is that I, a lot of these members, their staffer, they're staffed by these former, um, employees of these three other agencies.
[43:26.250 --> 43:32.530]  And that's where they get their expertise because they don't, you know, they don't have the funds to sort of develop their in-house expertise on these issues.
[43:32.530 --> 43:39.070]  And so they'll, they'll hire out, you know, these people for, who are coming in from these three other agencies and that's where they get their expertise.
[43:39.270 --> 43:50.510]  And that's, that's who I'm talking to when I go over the hill sometimes is, you know, I'll get this, you know, sometimes I can see the way that people will stare at me, you know, when I'm proposing these changes and I go, okay, I can tell I've got not got a fan here.
[43:50.690 --> 44:02.190]  So on what Williams said also, I mean, it's not just politicians, it is the national security and intelligence establishment.
[44:02.610 --> 44:04.830]  And it's not just one party.
[44:05.070 --> 44:18.750]  I mean, if you look at Gina Haspel, who played such a role in, in the actual torture program and in running a black site and then becomes the current CIA, it becomes a CIA director.
[44:19.050 --> 44:20.850]  I mean, it's a revolving door.
[44:21.230 --> 44:23.750]  Both parties are guilty of it.
[44:23.830 --> 44:25.670]  And it's not just politicians.
[44:25.670 --> 44:38.450]  You have, like William said, a lot of people who were entrenched on both sides of the aisle in, in kowtowing to the national security and intelligence establishment.
[44:38.450 --> 44:42.170]  And I think Obama had very much been in that camp.
[44:42.330 --> 44:47.090]  Because he had been seen as weak on national security and intel coming into office.
[44:47.350 --> 44:51.950]  And then Biden, of course, is very Obama-esque.
[44:52.210 --> 45:04.650]  And then Trump was just, he very much, I mean, he had his own battle with the deep state, but at the same time ended up continuing these prosecutions.
[45:04.650 --> 45:11.310]  So as much as he hated the deep state, I'm like, you're actually furthering the deep state's agenda by going after whistleblowers.
[45:11.470 --> 45:15.170]  But he hated whistleblowers in the media even more than the deep state.
[45:16.290 --> 45:16.730]  So...
[45:16.730 --> 45:26.950]  Yeah, and I would just add to what Kerry was saying, you know, on the day that Daniel Hale was sentenced, the Justice Department, you know, put out their press release, as Kerry mentioned.
[45:27.290 --> 45:28.290]  It was just gleeful.
[45:28.770 --> 45:37.850]  And the former, I think it was the former senior counsel for the NSA, I think his name is George Croner, tweeted, like, this is awesome.
[45:37.970 --> 45:38.870]  I'm so glad they got him.
[45:38.950 --> 45:40.710]  But why didn't they prosecute the journalist?
[45:41.050 --> 45:42.850]  I don't see why they didn't get him too.
[45:43.410 --> 45:45.110]  You know, so they're not even trying to hide it.
[45:45.210 --> 45:48.690]  Like, they're just, they're so empowered now by this continuing expansion.
[45:48.850 --> 45:51.090]  They don't even, you know, he was clearly off message, but he didn't care.
[45:51.170 --> 45:51.570]  He's retired.
[45:52.610 --> 45:53.750]  He's saying what he thinks.
[45:53.870 --> 45:58.050]  But this is a, this is a sentiment that has just spread and been empowered throughout the government.
[45:59.770 --> 46:06.190]  And the journalist in these cases, I mean, in Daniel's case, it's well known, it was Jeremy Scale.
[46:06.550 --> 46:16.750]  But again, the journalists and their publications end up not being able to talk about or attend the proceedings.
[46:17.010 --> 46:20.990]  I mean, that there was no one from the intercepted Daniel sentencing.
[46:22.210 --> 46:29.330]  And I don't know if that was just because of optics, or them not caring, or them knowing they had gotten a black eye in the case.
[46:29.470 --> 46:29.830]  I don't know.
[46:29.950 --> 46:33.410]  But the point is, and they were like, we're just as much a target of the government.
[46:33.530 --> 46:38.410]  And I agree, the government hates the intercept as much as it hates these defendants.
[46:39.230 --> 46:59.790]  But it creates these toxic dynamics between whistleblowers and the outlets that they that they've gone to, where reporters are being threatened to be dragged in and testify against sources, which was certainly an issue in Jeff Sterling's case, when Jim Risen was worried about that.
[47:00.030 --> 47:04.190]  And in Tom Drake's case, where Siobhan Gorman was worried about that.
[47:04.350 --> 47:16.270]  And I think certainly some of the intercept reporters who also done reporting on these cases, like Matt Cole, have been concerned about being called into these proceedings.
[47:16.970 --> 47:30.690]  And as much as I may differ with the way some journalists have behaved in terms of source protection, I certainly do agree that they should not be held into court, especially to testify against a source.
[47:30.970 --> 47:34.450]  Yeah, I think we, yeah, I think we have time for one more question.
[47:34.650 --> 47:38.670]  And we'll, we can stick around either here or in the hallway for folks that didn't have a chance to ask.
[47:39.690 --> 47:40.110]  Thanks.
[47:40.470 --> 47:56.370]  Um, so I, I feel like I'm, might be asking a really obvious question, but I, I think the thing that's kind of, um, implied in all of this is that the, the harm done or, or I'd say the accusations that I often hear levied against something like Chelsea Manning's leaks was,
[47:56.510 --> 48:03.350]  you know, harm done to national security in the form of like actual lives lost or, or, or some, you know, some kind of destruction.
[48:04.030 --> 48:10.770]  Um, is that something that, that is, is being challenged in like the proposed legislation?
[48:10.910 --> 48:12.930]  Is that something that has to be addressed directly?
[48:13.090 --> 48:17.130]  Like, you know, how much certain information may or may not?
[48:17.230 --> 48:21.330]  And I mean, I understand that that's very much disputed by this, you know, community.
[48:21.470 --> 48:37.390]  And I, I, I'm on board with that, but is that something that has to be addressed in order to get more people on board or, um, you know, and again, sorry if that's kind of an obvious question, but, uh, I, I, I guess I'm interested in, in, in figuring how to capture more support for,
[48:37.390 --> 48:42.150]  um, the legislative efforts that you guys are putting forward.
[48:44.850 --> 48:49.550]  I guess we just have like a, about a minute to respond, but I'm fine with one of you taking that.
[48:50.610 --> 48:50.910]  Yeah.
[48:51.030 --> 48:54.690]  So I, that it's, it's, it's all, this is very complex and there's a lot of edge cases.
[48:54.690 --> 49:09.830]  And so, you know, it's difficult to sort out, but I think the, the approach really is that we don't want to give up is simply to provide the opportunity for defense to claim that back, to sort of take this defense because this, this statute is such a steamroller that,
[49:09.890 --> 49:11.650]  you know, it's, and that's why the government goes to it.
[49:11.890 --> 49:14.650]  And so really to sort of just, the idea is just to restore the balance.
[49:14.750 --> 49:18.690]  We're not saying, we're not, we're not actually saying that, you know, there's no possibility of harm for these leaks.
[49:18.910 --> 49:25.970]  We're just saying that the government should have to do a little more to actually prove their case and that the defendant should be able to testify as to their purpose.
[49:26.590 --> 49:30.490]  And, you know, to these basic things that you'd expect in a fair trial, right?
[49:31.470 --> 49:38.090]  Also the damages assessments in a number of these cases, they have not been able to pinpoint any harm.
[49:38.270 --> 49:48.430]  And in fact, in a couple of the cases said, we don't have any evidence of harm right now, but it's going to create future harms that continue in perpetuity into forever.
[49:48.790 --> 49:52.330]  And that was literally a government argument, um, in two of the cases.
[49:53.130 --> 49:53.610]  Great.
[49:53.790 --> 49:54.430]  Thank you so much.
[49:54.530 --> 49:55.890]  That's all the time that we have.
[49:57.050 --> 49:59.550]  Thank you so much.
[50:04.570 --> 50:08.790]  And if you want a promo code for the book, come in, come and find me.