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No Matter What You Think Of Julian Assange, It Would Be Harmful For Press Freedoms For The US To Prosecute For Publishing Leaks

from the the-first-amendment-is-important dept

Let’s be clear: I know that many people — perhaps entirely reasonably — really, really dislike Julian Assange and Wikileaks. For some people that feeling has been there for years. For others it’s related directly to the role that Wikileaks played in helping to release hacked emails designed to impact the 2016 election. There certainly appears to be plenty of evidence that, at the very least, Wikileaks was in contact with Russian operatives and made plans to try to get and release documents at times that would have the maximum impact on the election. As I’ve said over the years, I don’t have much respect for Assange who, among other things, often appears to be a total hypocrite. However, I have also made clear that prosecuting him and Wikileaks for doing nothing more than publishing leaked documents would set a horrible precedent. I feel similarly about the DNC’s silly lawsuit as well.

The DOJ has apparently has been trying to indict Assange for more than 8 years now with nothing to show for it yet. In large part, this is because what Wikileaks has done is really no different than what any news publication does when publishing leaked documents. There may be laws against leaking certain documents to the press, but the First Amendment completely bars lawsuits against the recipients of leaks then publishing them.

This is in the news again as reports are brewing that Ecuador is expected to withdraw asylum for Assange, possibly handing him over to British officials, who may in turn hand him over to the US. When I discussed this on Twitter recently, a bunch of people responded angrily that Assange deserves to be in jail because of his role in the 2016 election. But when pressed to explain how what he did was any different than the NY Times or CNN in publishing leaked documents, people go quiet — or the say something silly like “but those other news orgs are based in fact.” But, that’s a silly argument. First of all, nothing that Wikileaks has published has been shown to be false or faked (the DNC made some claims to that effect but no one ever presented any evidence or pointed to any faked documents). Second, given the propensity of some — including the President of the United States — to argue that the NY Times, CNN, the Washington Post and others are “fake news,” do we really want to be setting the precedent that if you publish something false you can get prosecuted for it?

Earlier this year, Avi Ascher-Schapiro published a piece for the Committee to Protect Journalists focusing on the DNC’s silly case against Wikileaks, but much of it could apply to a federal prosecution as well:

The case raises a number of important press freedom questions: Where should courts draw the line between source-building and “conspiring”? What activities could implicate a journalist in a source’s illegal behavior? Would putting a SecureDrop link soliciting leaks count as illegal conspiracy? And if a reporter asked for documents on an individual while indicating that they think the person deserves to be exposed, would that count as shared motive, or is the only truly protected activity passively receiving leaks, like radio host Vopper?

“There is a spectrum that run on one side from someone dropping a plain manila envelope, to the other extreme where you actually steal the documents yourself,” said David McCraw, deputy general counsel for The New York Times. “The line in the middle is still being determined by the courts.”

David Bralow, an attorney with The Intercept, added, “It’s hard to see many of WikiLeaks’ activities as being different than other news organizations’ actions when it receives important information, talks to sources and decides what to publish. The First Amendment protects all speakers, not simply a special class of speaker.”

Some will argue that Assange should be prosecuted for conspiring with the Russians, but again let’s see what actual evidence there is to support such a claim. And, as we see above, what counts as “conspiring” is pretty important here. Tons of news sites now use SecureDrop or similar means to recruit sources and documents. Is that “conspiring”? Because if it is, that’s a huge blow to press freedom.

Even if you hate Assange and Wikileaks, please take a moment to consider how a prosecution of him for publishing documents, even if they were taken by nefarious means by a hostile foreign government, would set an absolutely terrible precedent for press freedom in America.

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Comments on “No Matter What You Think Of Julian Assange, It Would Be Harmful For Press Freedoms For The US To Prosecute For Publishing Leaks”

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David says:

Re: Re:

Well, that’s what the Sweden angle was supposed to be good for. Get him to Sweden for whatever reason, then nab him. Extraterritorial CIA torture chambers (in Obama times, this would have needed a bit more smoke screen, possibly Gitmo, but now that Assange hid out until Trump, this is going to be a lot more fun). There will be some lukewarm protestation and a charge under the Espionage Act, making sure that Assange may not have the right to defend his actions and the verdict is predetermined.

Trump will get to choose whether he wants a kangaroo court verdict or have Assange suicided, and he’ll love that choice. Really, this would have been half the fun under Obama, even though Obama was chief whistleblower hunter in his own time.

The problem with coming up with an indictment as a reason of triggering a formal extradition request is that one needs to restrain oneself to internationally legal charges and procedures in return for the delivery.

And the DOJ really, really, really wants an Espionage Act charge and procedure which is unfortunately (and for good reason) not in line with international law.

So they’ll dillydally until they are dead sure that they have no chance whatsoever to just kidnap Assange and then proceed with complete disregard to international law and human rights.

James Burkhardt (profile) says:

Re: Re: Re: A side note

Interesting note. See the icon next to your name? An individual AC will generally have a consistent image for the entirety of an article. I assume based on IP, but possibly another factor. Without knowledge of what is happening, I figure it is possible to switch your icon mid thread, but its unlikely to happen without intent. You needn’t have worried.

Thad (user link) says:

Re: Re: Re:2 A side note

I don’t post anonymously, but I do post without logging in, and I notice that my icon changes sometimes, without me changing anything (IP, browser, or anything else). It doesn’t always stay consistent through the same article. I think it might stay consistent through the same thread (eg a series of replies that all have the same root post) but I’m not sure.

James Burkhardt (profile) says:

Re: Re: Re:3 A side note

Interesting, there was a period I had serious issues with techdirt remembering my login, and I couldn’t use my password manager on my work computer. So I was posting with my email, but not logged in, and not always with a name. It always was the same for me. Perhaps it is thread based though. I admit, I can’t guarentee I saw the same icon in multiple threads.

Thad (user link) says:

Re: Re: Re:5 A side note

Here’s a comments section where I have four posts and two icons. I posted all four from the same browser on the same computer. The icons are the same within an individual thread but different from one thread to another.

Post 1 — 17 Jul 2018 @ 12:35pm, Icon 1

Post 2 — 17 Jul 2018 @ 2:32pm, Icon 2

Post 3 — 18 Jul 2018 @ 9:40am, Icon 2; part of the same thread as Post 2

Post 4 — 18 Jul 2018 @ 10:47am, Icon 1; part of the same thread as Post 1

Mike Masnick (profile) says:

Re: Re: Re:6 A side note

Very interesting. I checked and the different icons are associated with comments coming from different IP addresses. I looked at the other post you mentioned below… and again your comments show up from two different IP addresses (the same two, FWIW). If you’d like I can email you the details or the providers of each IP address (as they are both different). I’m not sure why, but it appears you bounce back and forth between different IP addresses.

Ehud Gavron (profile) says:

Espionage Act, and EFF time

As has been covered here at TechDirt before in discussions about Edward Snowden and Chelsea Manning, being charged with the espionage act would be a heinous violation of Assange’s rights, the rights of the press to publish, and the right of the press to be free of government oppression.

The Washington Post as recently as June 30th discussed US Attorney General Jeff Sessions’ obsession with charging Assange under this and “theft of government property” charges.

I think that it’s time for a movement led by a leader in the fight for freedom, such as the EFF, to send a message to our elected “lawmakers”. We need to let them know we support a free press. We support the press’ right to report on information they are given regardless of from where it came. We support Julian Assange not because we love him or hate him but because what HE DID is not in violation of the laws of the United States as we have known them since The Pentagon Papers.


Anonymous Coward says:

Re: Re: Re: Espionage Act, and EFF time

There’s probably a fine line here. Proprietary information is considered intellectual property. Classified government information can easily be considered proprietary information, especially if it’s generated by the government itself. While it’s also publicly owned, as long as it’s classified there are some protections afforded it and it is not publicly accessibly even though it’s publicly owned. There is probably a good opportunity for some legal debate along these lines.

Ehud Gavron (profile) says:

Re: Re: Re:2 Espionage Act, and EFF time

The debate you wish to start about who owns the rights to the material is not the topic here. What is being discussed is the right of the press to publish information given to them REGARDLESS of whose it is.

There’s no fine line. Wikileaks was given information which they published, just like WashPo and NYT do every day.


Anonymous Coward says:

Re: Re: Re:3 Espionage Act, and EFF time

Well, the other point was about “theft”. If anyone “stole” the data, it would be someone who walked out of a government office with a hard drive, which wasn’t Assange. If that HD was mailed to Wikileaks, he might be guilty of receiving/possessing stolen property, but not of theft. More likely, the data was copied in both instances, not taken.

The Wanderer (profile) says:

Re: Re: Re:5 Espionage Act, and EFF time

I read him not as suggesting that you didn’t sign the comment, but that what you should have signed it as is "QED", with the implication that you had just demonstrated something and so QED as a sign-off would have been appropriate.

I don’t think I agree with the conclusion (that’s not what signatures are for), but I think that interpretation makes more sense.

James Burkhardt (profile) says:

Re: That's what trials are for

The point is to comment that we have heard murmurs that the DOJ is seeking to extradite Assange for far longer than the recent spats, and that reports indicate it is for the ‘crime’ of publishing leaks that make the US look bad. And public calls for his prosecution are founded in those same claims. And despite the wide discourse over the 2016 hacks, little time has been spent on a Wikileaks ‘conspiracy’ angle.

This article is not commentary that they shouldn’t prosecute Assange, but commentary that they shouldn’t prosecute Assange for these specific crimes they have been reportedly trying to prosecute him for for a decade.

Anonymous Coward says:

considering the attitude of this government, it isn’t going to give a toss what is or isn’t harmful or what or whom to!! all this and just about every other government in the supposed ‘free and democratic world’ wants to do is control the Internet so it/they can control what the people learn about the lying, cheating, two-faced, easily bribed assholes who are in government!

Observing says:


Think the fight is going to be about jurisdiction, which country does he hold citizenship in now that Ecuador is removing his asylum.

He can leave the embassy, but what passport will he have will determine his fate, if he even has a valid passport now?

The U.K. isn’t his home yet that court system ruled he was a journalist.

Australia is his native origin but do they want him?

Anonymous Coward says:

I don't want him prosecuted

I wanted him tortured. Forever. Not allowed to die. Just kept in screaming agony every day from now on. I would love to be able to turn on a livestream of his agonized face contorted in pain 24×7, as he’s burned and electrocuted and slashed with razor blades and pissed on and shit on.

Maybe on special occasions we could use some of blubber sliced off of Dotdom — there’s enough of it — to boil him alive for a little while.

Oh, such happy thoughts!

Anonymous Coward says:

First they came for the Communists, and I did not speak out—

Because I was not a Communist.

Then they came for the Trade Unionists, and I did not speak out—

Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out—

Because I was not a Jew.

Then they came for me—and there was no one left to speak for me

Anonymous Coward says:

Some will argue that Assange should be prosecuted for conspiring with the Russians

Which is a whole other discussion on it’s own. Assange is, after all, not a citizen of the United States or indeed affiliated with the United States at all. While he has visited the United States before, it has been years since that has occurred and it would be nigh impossible to prove that he was a Russian agent during that time period, considering the 2016 election is the only Russian conspiracy he might have participated in. If he was not acting as a Russian agent while in the United States, and he is not otherwise affiliated with the United States, then him being a Russian agent is not illegal by US Law. While it is possible that either Australia or Ecuador could prosecute him for acting as a foreign agent, it is rare that such laws in one country apply to agents working against a different country.

If he was involved in the actual hacking of of the DNC, then he could potentially be prosecuted under anti-hacking laws, but it seems rather unlikely that would be true (as opposed to being informed of the hacking after the fact). But that’s about it as far as legal prosecutions go.

Ultimately, any prosecution would be a simple political show, rather than anything built on actual violations of US Law. Which is about what everyone is expecting anyway.

Anonymous Coward says:

Does the U.S. have jurisdiction over an Australian conspiring with the Russians? I know the U.S. fancies themselves the world’s policeman, but I don’t see jurisdiction here.

Assange is a publisher. He publishes selectively, but I don’t think that matters legally. In order to prosecute Assange, I think they need to make a showing that he participated in stealing the information he publishes.

One other thing. The U.S. could have indicted him, but kept the indictment sealed. That was always Assange and Ecuador’s objection to him being extradited to Sweden, Sweden and the U.K. wouldn’t give assurances that if Assange was extradited to Sweden, somewhere along the line, he would be extradited to the U.S. for what Ecuador deemed a political prosecution.

Anonymous Coward says:

Under what jurisdiction?

He isn’t a U.S. citizen. Anything he did that the fed doesn’t like, was done outside of the U.S. Everything he published was published on equipment hosted outside of the U.S. I doubt there is any evidence the guy ever touched U.S. equipment himself.

The only jurisdiction they can conceivably prosecute him under that I can think of is military. But since he wasn’t ever in the United States, that would make him an enemy combatant… in a war with no formally declared enemy … that was ratified three POTUS’s ago … with a largely different congress.

They would have to call him a terrorist, though I doubt he has ever used kind of weapon other than his mouth and his dick, and in the latter case, against a woman who was a prostitute and could probably kick his ass. Not to mention the fact that he has probably never been to any of the countries that make up the operational zone where the “war on terror” has been prosecuted.

The guy is too public to just disapear his ass into some black site dungeon. Legally speaking he is a live hand grenade. The only good I can see coming of this, is that IF they are stupid enough to prosecute him, this may be used to force SCOTUS to address the legality of perpetual war.

The other issue this raises, is that document leakage by domestic persons, could risk changing the venue of their prosecutorial jurisdiction if they leave the country. So if you write a journalistic piece and then take a vacation, they can arrest you abroad, and prosecute you as a terrorist instead of a citizen.

The unholy trinity may have whipped up a frenzy about “russian” whatever. But this guy isn’t that. So it would probably be a misjudgement that they can just hide a bullshit trial under all of that public outrage. Because I for one, would pay to sit in that particular court room gallery.

Andy says:

Nope ...just Nope...

Sadly i find i am disagreeing with more and more posts on techdirt and this is one that i feel is important.

Assange is not a reporter he is a data source of info leaked to him and he as been proven beyond any doubt to be using this data not to report on politicians but to use it to further his own political goals.

If he was a real journalist he would be providing all the data he receives with only redacting things that could put peoples lives at risk…i.e outing a cia spy.

Assange used the data so many sent him to attack democrats and collude to hide information about trump and republicans, this is not journalism this is political manipulation people have sent information that should out any wrongdoing by politicians.

Ehud Gavron (profile) says:

Re: Made up definitions of "reporter"

You made up the definition of reporter based on your own personal criteria.

Fox News regularly doesn’t “provide all the data they receive”, yada yada yada.

Stop making up stuff.

Assange is just as much as a reporter as anyone who publishes information not previously known, or opines on it.

If you don’t like it, find a country where there’s a ‘requirement’ to equally report on all information received, show every side, etc. It’s not on this Earth.


Ehud Gavron (profile) says:

within is one word

There should be “justice” period, first as a concept, and then as implemented policy, long before you call for “equal justice”. “Equal justice” is a nonsense term. Either something is just or it’s not. You can’t get “more just[ice]” or “less just[ice]”… just … Justice.

Further, justice or lack thereof doesn’t dictate reporters knowledge or beliefs. “…reporters should know…” has nothing to do with what reporters report (hopefully, just the facts!)

In sum, you made two arguments:
1. There should be equal justice
2. Reporters should stick to their lane

My response
1. There’s no such thing, and bringing it up demonstrates you know nothing
2. There’s no such thing, and bringing it up demonstrates you know nothing.

Please don’t reply — your reply will be not of equal justice, and outside your limit areas.

Act appropriately, and BE CAUTIOUS! (–djt)


The Wanderer (profile) says:

Re: within is one word

It’s not "more justice" or "less justice"; it’s "people from group X should get something as close to true justice as do people from group Y".

In many cases, it can be prohibitively difficult to completely guarantee that justice has actually been done. All we can practically do is come as close to that as possible. However, past a certain minimum, trying to come closer to a certainty of true justice requires disproportionately more effort.

The concept of "equal justice" is about making sure that society puts in the effort to come equally close to true justice regardless of who is involved, rather than putting in more effort in cases which involve the privileged or not-socially-disapproved-of.

Ehud Gavron (profile) says:

Justice is a subjective cultural ethic

Members of our American society are pro-justice. To be anti-justice is to purposefully refuse to treat someone in a just way.

However, our ides of -what- that “just way” (or justice) is varies by culture, religion, upbringing, values, etc.

Then when it’s taken a step further moving it from “justice” to “equal justice”… then we’re no longer discussing justice…


Wnt says:

First, let’s be clear on how Assange gets charged: according to https://www.cnn.com/2017/04/20/politics/julian-assange-wikileaks-us-charges/index.html the federal prosecutors have “evidence” that he “played an active role in helping Edward Snowden”.

Now in order to understand how they got evidence, or why he would have ended up in that position, you have to bear in mind that Snowden’s supposedly world-changing leaks had no effect except to allow formerly “secret” NSA files to be used by any branch of government, such as the DEA, as evidence in court cases. He made public what the NSA wanted public. He told absolutely nothing about stuff we *know* is going on, like the use of antivirus programs to hunt for classified material on hard drives. He gave us a bunch of Powerpoint presentations and instruction manuals. In short, Snowden is a triple agent, working for the NSA posing as working for the public while posing as working for the NSA.

Assange, therefore, is like any other person with dissident beliefs who gets tricked by an undercover agent into doing something that doesn’t seem wrong or unusual, but is taken by courts to have *tremendous* legal significance. Somehow they will say he “conspired” to do the original breach with Snowden and hence is fully culpable for anything and everything he published even if he thought he was doing ordinary reporting, or was. Think of Roby Ridge, that guy talked into sawing off a shotgun half an inch too short because the agent made him think they rounded. The agent didn’t really need somebody else to saw the barrel for him, but boy they claimed that made a legal difference.

Now that we’ve clarified that, there’s the fight. The crackdown types always tell us that “ignorance of the law is no excuse”. But should an Australian really be required to know UNITED STATES law before answering some probably minor request for technical assistance, while working in Europe? The U.S. is trying to make itself the law of laws over everyone in every country, and it doesn’t have half the superpower it thinks to back that up. Someone has to find or make an international law argument that you shouldn’t have to worry about being set up by foreign agents for technical violations of foreign laws while you’re trying to do what is right in your own country. And Americans have to help with that. Because every right we establish for a superpower today — will be used against us by China, a lot sooner than we think.

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