Nov 27, 2018

Why press fears on Assange charges are premature

Illustration: Aïda Amer/Axios

A lot of journalists fear that putting Wikileaks honcho Julian Assange on trial — a prospect that looked more likely last week thanks to an inadvertent legal revelation —could be very bad for the free press.

But, but, but: There's a good chance charges against Assange will have little to do with press freedom. Here's why saying otherwise might be jumping the gun.

The background: An errant line in a recent legal filing appears to have confirmed that sealed charges against Assange do exist, although the Department of Justice is still fighting releasing any details.

And they could be an issue for any journalists who have handled leaks — including me. In my reporting in 2016, I received and published a bunch of leaked documents from Russia. If Assange is in trouble for doing that, I logically might be as well.

  • This is sometimes called "the New York Times problem." it's hard to punish WikiLeaks without punishing every news outlet that reported on the documents it released.

The intrigue: The DOJ almost certainly has facts not available to the public. And there's no good reason to assume that charges against Assange would just be about on the publishing documents.

Leaked documents show WikiLeaks may have taken several actions that moved it far afield from the realm of journalism. The organization:

  • Hacked a website of an anti-Trump PAC and shared the ill-gotten password with the Trump campaign.
  • Directed hackers to attack a specific target. While the request was brought to those hackers by someone other than Assange, they believed the messenger was an intermediary sent by Assange.
  • Provided hackers with external support in the form of a search algorithm to sift through hacked documents.

Each of those instances could be viewed as either an outright violation of the Computer Fraud and Abuse Act or conspiracy to do so.

  • Hacking the anti-Trump PAC website may actually be two crimes: Trespassing into a computer and trafficking in the password.

Reporters don't get to break the law to create or investigate a story. "If you speed on the way to a story, you're still speeding," said Paul Rosenzweig, who teaches cybersecurity law at George Washington University. "You don't get a pass to rob a bank if you're going to write about robbing a bank."

The FBI has never contacted me about my role in the 2016 leaks. I assume that's at least in part because receiving leaked documents is not by itself a problem.

The bottom line: We don't know that the leaked documents paint an accurate picture of WikiLeaks' involvement in crimes. They do, however, at least suggest it may be worth waiting to see what the DOJ has before declaring a press emergency.

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