No, it is not illegal to read Wikileaks

This is also me when a Cuomo thinks he understands the First Amendment

This is also me when a Cuomo thinks
he understands the First Amendment

Chris Cuomo seems to be following his big brother's lead when it comes to the First Amendment.

On CNN, Cuomo said:

"Also interesting is, remember, it’s illegal to possess these stolen documents,” Cuomo says. “It’s different for the media, so everything you’re learning about this, you’re learning from us.”

Mr. Cuomo… I don't say this lightly…. but YOU EAT AT THE OLIVE GARDEN! (I just can't think of a worse insult to lob at an Italian. But yes, I went there.)

I'm not sure if he's confused, lying, or just mis-spoke. But, lets just make sure that no matter what his motivation, you, my dear readers, understand that a) it isn't true, and b) don't eat at the Olive Garden. Lets just skip point B for the sake of brevity.

Lets do this with feeling… ready? Repeat after me:

  1. It is not illegal for you to read Wikileaks.
  2. It is not illegal for you to download documents from Wikileaks.
  3. You do not need to rely on "the media" to spoon feed you the documents from Wikileaks.
  4. The Olive Garden is not Italian food.

Cuomo might be confused because of a couple little things.

In 2001, the Supreme Court held in Bartnicki v. Vopper ,532 U.S. 514 (2001) that the press has a right to report on materials that might have been created or gathered illegally – as long as the media outlet took no part in the illegal activity. In that case, a radio reporter got ahold of the tape of an illegally recorded phone call. Since it was a matter of public concern, the press had a right to use it. So, the Wikileaks documents may have been illegally obtained in the first place, but once the genie is out of the bottle, you can't put it back in. The press can report on it.

Of course, in 2001, the lines between "you" and "the media" weren't so blurred. And, I could see Mr. Cuomo thinking that since Bartnicki addresses the press, that this somehow excludes the rabble from that same privilege. However, the press doesn't actually get any special privileges here, just because Bartnicki did not address you downloading these documents to your hard drive. In fact, it wouldn't make too much sense for it to be legal for CNN to report on the documents, and to publish them, but you could then be prosecuted – unless you can show that you downloaded them from CNN.

Now maybe Cuomo was also confused by a 2010 memo where government employees were warned that they couldn't access leaked classified documents. Yeah, that might be true. If you work for the government, it can probably impose some limits on what you can possess when it comes to leaked classified material. Even if they can't prosecute an employee, they could certainly condition continued employment or continued security clearance on you being a good little doggie. And, perhaps if you're seeking employment with the federal government, you might not want to say "yeah, I did" if they ask if you ever read the Wikileaks releases.

Now what about "receiving stolen property?" Someone steals a car. They drop it off in front of my house with the keys in the ignition and a note that says "a gift from a friend." That doesn't mean I can hope in and go for a spin. But, laws governing receipt of stolen property are a bit hard to apply to documents and information. Further, even if some prosecutor wanted to prosecute you for it, they'd be hard pressed to get anywhere with that when it comes to information that is a matter of public concern — like this information.

And then, you get back to the question of "who is 'the media'?" How do we really draw a distinction there? Luckily, we don't have to. The Same Bartnicki case that we discussed before makes it clear that we "draw no distinction between the media respondents and" a non-institutional respondent." But, this was hardly revolutionary. See, e.g., Cohen v. Cowles Media Co., 501 U.S. 663 (1991) (press gets no special privileges when it comes to laws governing communication); Henry v. Collins, 380 U.S. 356, 357 (1965) (applying New York Times v. Sullivan to non-media defendant); Garrison v. Louisiana, 379 U.S. 64, 67–68 (1964) (same).

So go ahead. Read those documents. Talk about them. Publish them on your blog or your Facebook feed. And do that no matter who is in office. It isn't just your right, but it is your patriotic duty.

Ask not what you can do for your country; demand to know what your country has been doing to you.

Last 5 posts by Marc Randazza


  1. says

    Good one, Marc. There is an element of eliteism that I have observed with the Cuomo's that is unattractive, to say the least.

    I wonder if he would have been so protective of the documents if they concerned Trump.. I think not.

  2. says

    Sadly, to the best of my knowledge those of us with security clearances aren't allowed to look at classified stuff on Wikileaks even if we're no longer employed by the government just like we aren't allowed to talk about things we learned then. But of course I can still read DNC leaks to my heart's content.

  3. Matthew Cline says

    Tangential question: to what extent is reading a document online "possessing" the document, legally speaking? Just reading something on the web will most probably put a copy of in your browser's cache, and even if you prevent caching there'll be a complete copy of it in your computer's RAM while you read.

  4. Jordan says

    I'm not sure if he's confused, lying, or just mis-spoke.

    His last name's Cuomo, so all of the above.

  5. Jason says

    One of the most dangerous ideas the Progressives have is that being a member of "the media" requires State sanction.

  6. Brian Z says

    @Dan T.

    To paraphrase Voltaire (or not):

    I disapprove of [your choice to patronize this pseudo-restaurant], but I will defend to the death your right to [eat there].

  7. says

    Thanks Marc, this is a good and informative piece.

    @Jason: Oh, come on. You read Popehat; that means you're well aware that censorious views cross party lines and the political spectrum. It's not just progressives who think they should get to decide who is and isn't press.

    Why, just this morning I saw somebody over on the Techdirt comments section arguing that Amy Goodman is not a member of the press because "freedom of the press" only refers to organizations that own a printing press. The gentleman in question was, presumably, not a progressive.

  8. Bert Difig says

    WARNING: I know nothing of the law, or legal matters, or more than a vague concept of what is going on most of the time… Really.

    That said.
    I was concerned/confused here, for one reason. That reason being the DMCA.

    Yes this isn't "copyright" but given the bizarre expansion of who was liable for the "anti-circumvention" clauses in that, it seemed minimally plausible Cuomo might be accurate.

    I'm glad to find out that's not the case here.

  9. Guy says


    Just what makes you think that's the exclusive property of "progressives," whatever they are?

    Where I live, there ain't nobody more camera-shy than Republicans and cops. Maybe it's their version of "safe spaces."

  10. Jason says

    @Guy @Thad I was specifically referring to the idea that the government decides who can be "the press" and who can not. My general perception is that that is a more progressive notion.

    The notion of telling "the press" to shut up and/or limit their action is I think more the angle conservatives take.

  11. Rob says

    Marc Randazza says

    October 17, 2016 at 10:00 am

    Yeah, we didn't hear this shit from them when the Bush administration was the one on the criticism block, did we?

    Well, not from the same group of party hacks, anyway.

  12. Robert What? says

    One important point missed: is it legal to download from WikiLeaks while you are eating at Olive Garden?

  13. IRS says

    I was a subcontractor at NASA when one of the major sets of classified documents came out on wikileaks–we were told off the record that while it was officially forbidden to access them, no one would really care if we did from home (none of us had clearances–the worst we worked with was ITAR). If we were found to have accessed them from government computers, however, they would have our head: since they are still officially classified, that would be a breach of classified/public network separation and cause them a huge headache. Interestingly for Cuomo's argument, we were also very explicitly told that accessing even a summary in a news article counted, and was thus forbidden–technically information is classified, not wordings. By my understanding, if I can legally possess his summary I can legally possess the original.

  14. Lex says

    A very tangential note:

    "Perhaps if you're seeking employment with the federal government, you might not want to say 'yeah, I did' if they ask if you ever read the Wikileaks releases."

    Please, do not do this. If you are asked this question it will likely be (1) by an agency that takes both security clearance and candor very seriously, and (2) during the context of a formal interview and/or polygraph. Plus, even if you have visited Wikileaks, much like past drug use or pirating movies, it's unlikely to sink your application. Lying about it, however, will. Seriously. Maybe half the candidates for the Bureau, CIA, etc. who make it way through all the hard parts get bounced for some dumbass non-disclosure or lie that didn't matter.

  15. Bob says

    Just more guerrilla marketing for Outback Steakhouse. I can't be the only one to notice if you rearrange the letters of this "article" it clearly spells out, "Try a Bloomin' Onion!" As if you didn't know I was allergic to them.

  16. Dragoness Eclectic says

    What we were told about the still-classified documents on WikiLeaks was that it would cause "spillage" (improper transfer of classified documents to non-secure computers) if we read them on government computers, which requires a complete wipe of the tainted computer and will really piss off the IT guys, and you get dinged for security violations. If you read it at home, you are now a security-clearance holder with classified material on your non-secure home computer, which tends to make you an ex-security-clearance holder, if not subject to criminal charges.

    So yeah, no one in government could safely read WikiLeaks when it was classified material. Non-classified material is a big "who cares?", officially.

  17. Lex says

    Just a reminder that Chris Cuomo is a repeat offender when it comes to bad legal analysis ["You are a disgrace to Fordham Law School, which only admitted you because of your famous father."]

    Just guessing? For Pete's sake, he went to Fordham c. early 90s . You really think he was the dumbest/least-qualified student there? Pretty tacky ad hominem even if he is a tool who wears suits made out of old upholstery.

  18. Dwight F says

    @Matthew Cline

    Since nobody else has spoken up:

    The law around computer caches has, to my understanding, generally been fleshed out by a string of copyright cases. My [lay] understanding is that the gist is that as long as you aren't storing the data to pass on, actively/intently passing the data on unmodified, or otherwise treating it as anything other than inadvertent residue of the initial transmission process then it is simply part of the transmission process that is just natural, inherent part of the viewing process. So NOT a possession.

    A real lawperson may want to interject at this moment if the above is misguided misinformation. :)

  19. Malc. says

    The problem for those with clearances is the separation one that someone mentioned: is that doc on your device there because you got it from Wikileaks or because you got it from the classified side? Related but different is the "need to know" issue: if I have a clearance, but no need to know, then it is a violation of security hygiene for me to know stuff even it is on the front page of the Washington Post/New York Times/Whatever.

    On a completely-barely related note: polygraphs do not work and never have. Their utility comes from the same dynamic as summoning a bunch of kids to the Principal's office hand have some authority figure declare "I know you did it… it will better for you if you just own up". That works, surprisingly well. But the polygraph itself is *less* accurate than simply tossing a coin marked True/False. Or a Ouija board. These facts are not popular with the Defense Polygraph Institute or whatever it's calling itself, but they are facts.

    On the critical Olive Garden issue: I find it amusing that Americans get so inflamed about the authenticity of food types. I mean, "Italian Restaurant" in this context does not mean "as in Italy", but rather refers to a type of American food. Ditto "Chinese Restaurant".

  20. anne mouse says

    @Dwight F:

    You are correct that [U.S. and E.U.] copyright law has provisions whereby caches incidental to transmission do not in themselves violate copyright (so long as they are used only for purposes of transmission). Whether that body of law has much relevance to "possession" under criminal espionage law is rather doubtful.

  21. DRJlaw says


    Just guessing? For Pete's sake, he went to Fordham c. early 90s . You really think he was the dumbest/least-qualified student there? Pretty tacky ad hominem even if he is a tool who wears suits made out of old upholstery.

    You don't get to add the ad hominem and then complain about it. Nobody mentioned Fordham or in-school performance until you.

    The first and only impression that I took from what was actually written — "Just a reminder that Chris Cuomo is a repeat offender when it comes to bad legal analysis" — is that he's repeatedly provided bad legal analysis in public. That goes to credibility concerning a conclusory position,* and is not an ad hominem attack upon the presenter of an argument.

    Example 1:

    * "[A]sk the question: is the person being criticized arguing or testifying? Are reasons being presented, or must we take the person's word for something? If the person is arguing, the argument should be evaluated on its own merits; if testifying, then credibility is important."

  22. says

    Thank you for posting this. It is sad that this needs to be explained in modern America, but it obviously does.

    There is very little difference in the law between the press and the public. One example where the law does make a distinction can be found in NRS 293.274 where members of the general public are prohibited from photographing in a polling place, but there are exceptions for certain members of the media acting within a professional capacity. However, that law might be unconstitutional. Also, as mentioned, the line regarding what constitutes the press is quite blurry now.

    Incidentally, since you are obviously passionate about Italian food, do you have any suggestions for affordable Italian places in the Las Vegas area?

  23. Dan says

    Olive Garden has good salads and affordable prices. Complaining that Olive Garden is not authentic Italian food is like complaining that Budweiser is not an authentic Czech lager.

  24. Dwight F says


    If Anheuser-Busch had written on the label "Budweiser: A Czech lager", yes. :D Check out the standard Olive Garden store signage. It claims "Italian Restaurant" right there on it (some promotional materials use "Italian Kitchen" instead).

  25. Manta says

    I've never been to Olive Garden.
    So I'll ask a simple test:
    Do they put cream everywhere (e.g., with seafood)?

    Positive answer means that the food served there is as Italian as the stuff you get at a Chinese restaurant.

  26. Jon Marcus says

    Budweiser is a Czech lager. It's been brewed in České Budějovice for hundreds of years. (It's also a brand owned by InBev. They sued the Czech brewery for the name…and lost.

  27. Ron J says

    It's more like someone stole a car. They took a picture of it, and posted it on a web page. You downloaded the picture.

  28. Lex says


    First, that comment was directed at Ken, not anyone else. He may defend the tacky comment he linked to, or not. Your 2¢ certainly wasn't solicited.

    Second, yes, Ken's comment was literally ad hominem.

  29. DRJlaw says


    First, I don't care. You made a public comment, and got a public response.

    Second, the the linked article was not ad hominem. Popehat's included tweet, made more than a year ago, was not either since Ken wasn't arguing against the proposition. You're also conveniently ignoring the rest of the content of the article.

    Third, the Politifact article was not ad hominem. And shows that Cuomo is indeed a repeat offender.

    So, not ad hominem.

  30. Careless says

    This made me strangely curious about what food at Olive Garden is like. It can't possibly be that bad, can it?

  31. Sami says

    Definitely in the public interest: Podesta's risotto recipe is something the people have a right to know.

  32. C. S. P. Schofield says

    In every city I have been to in Italy (Rome, Firenze, Milano), there were 'Trattoria', some marked highly in the standard guidebooks, that served 'food' that makes Olive Garden provender look positively gourmet. They are aimed at 'tourists' almost exclusively; the locals avoid them like the plague.

    No, Olive Garden does not come off well in comparison to actual Italian Restaurants such as are found in Little Italy in New York. That isn't who they are competing with. They are competing with the thousands of Pizza Joints that have added "Baked Ziti" or something similar to the menu alongside the Pizzas and Subs. They are in competition with the Spaghetti Platter at Denny's. On that basis, they aren't half bad. They are certainly better at 'Italian' than Red Lobster is at 'Seafood'.

  33. Albert says

    Now maybe Cuomo was also confused by a 2010 memo where government employees were warned that they couldn't access leaked classified documents.

    I remember when this memo came out, and the message was actually more like: You cannot access leaked classified documents on government machines.

    This is because although you could read them in the comfort of your own home, on your own computer, the machines for most government employees were not cleared to house classified information. For this reason: if you accessed wikileaks, and downloaded a classified document for reading, your machine now had a copy of classified material it wasn't supposed to have, and now you lit up a firestorm of process under you to fix the situation: sanitize the computer of the classified material, review all systems that computer touched, verify the classified data did not go onto those machines, sanitize them as required, and so on. And for your trouble, you not only lost at least a day's worth of work, you also got either a healthy reprimand or a box to hold your stuff as the security guards escorted you out of the building. Mostly due to the expense and trouble of making sure your error in judgement didn't cause classified information to be mismanaged.

  34. Olives Belong In Martinis Not In Gardens says

    Olive Garden is a restaurant that serves restaurant-supply pasta covered with restaurant-supply sauces, sometimes paired with restaurant-supply meat. They also serve a pretty good salad with a merely adequate Italian-style vinaigrette dressing, as well as a selection of Italian-y soups. Everything can be covered with restaurant-supply parmesan cheese (which is actually really cheese, and is shredded at the table) at your option. They also serve restaurant-supply breadsticks, which are often quite fresh. And wine. They try to tempt you with a sample of wine. It shows up at the table in bottles, but they probably refill those bottles from a box in the kitchen.

    The food is probably all sourced from standard restaurant supply companies (US Foods, Sysco, etc.) and tastes like it (whether it is or not).

    All-in-all, it's a mediocre approximation of Americanized food containing traditional Italian seasonings.

    Oh, and their prices are idiotically high. They charge something like $12 for a plate of spaghetti. The "cheap" lunch option for soup+salad is around $8.

    Marc is not wrong when he urges you to avoid eating at Olive Garden.

  35. mcinsand says

    Something I've said for years about many chains is what I think Olives might be getting at: Olive Garden does a good job of everything, but they don't do a great job of anything. This is the approach of a lot of restaurants (Applebee's, Chili's, O'Charlies, etc.) where the goal is to be as non-unappealing to as broad of a swath of people as possible, and the result is that these places will be good choices for groups of people.

  36. Jim Tyre says

    One wonders whether Marc expected as much commentary on the Olive Garden as on the substance of the post. (The Olive Garden has no substance.)

  37. IForgetMyName says


    I don't accept this as true:

    One of the most dangerous ideas the Progressives have is that being a member of "the media" requires State sanction.

    But assuming for the sake of argument that this is, it's only true because it's a moot point for Republicans, who don't seem to believe that "the media" have any sort of special protection or rights to begin with. Look at the state and municipal laws that make it illegal for anyone (including "the media") to record police (as if it weren't already easy enough for police to create a de facto ban by ordering "the media" away under the pretext of public safety,) and look at who voted those laws into existence.

    It's correct to note that both sides tend to fight a lot harder for their ideals when their side is directly benefiting, but if you want to be honest, a great number of the guys who fought for recognition of press freedom called themselves Progressives. This isn't necessarily because their political beliefs are necessarily more pro-press, but rather because we had a few decades where the conservatives were the ones in power and made a strong effort to stifle the press.

  38. Matt says


    And for your trouble, you not only lost at least a day's worth of work, you also got either a healthy reprimand or a box to hold your stuff as the security guards escorted you out of the building. Mostly due to the expense and trouble of making sure your error in judgement didn't cause classified information to be mismanaged.

    Reminds me of an Arlo Guthrie line about "the FBI man":

    ..and that's a drag for you, and it's an expense for the government, and that's a drag for you.

  39. OrderoftheQuaff says

    Olive Garden isn't haute cuisine and doesn't pretend to be, it's pretty good for what it is. LOL@all the snooty eaters in here.
    If you know how they work, polygraphs are trivial to defeat.
    I'm legally allowed to look at anything I can find on the internet by typing addresses into the address bar, except child porn.


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