Much of the discussion over the recent arrest and indictment of Wikileaks founder Julian Assange has revolved around whether or not his activities qualified as journalism. This is a key element in the government's vendetta against the transparency activist.
However, the indictment justifying Assange's extradition to the United States is based on alleging hacking. But Assange didn't do much in the way of "hacking" at all. In truth, much of the government's affidavit against Assange describes perfectly legal and legitimate technology-assisted journalism.
By conflating hacking and journalism, prosecutors kill two birds with one stone. They can take down their public enemy number one while setting a precedent that could harm future would-be muckrakers.
In December of 2017, the FBI filed an affidavit to support a criminal complaint against Assange based on an alleged conspiracy to violate the Computer Fraud and Abuse Act (CFAA). This law, which got kicked into gear after President Reagan was spooked by the hacking movie WarGames, makes it a crime to "knowingly access a computer without authorization or exceeding authorized access" to obtain information.
As you might expect from a movie-hacker-inspired '80s-era computer law, the CFAA is muddled and vague. What exactly does "without authorization" mean? If a company like AT&T accidentally leaves customer information publicly accessible, and someone stumbles upon that data, does that qualify? Big companies caught with their pants down obviously think so, as do others who ideologically oppose the outcomes of such "hacks."
Prosecutors have taken advantage of this unclear language to throw the book at a wide range of activities that aren't obviously "hacking" or even in violation of the spirit of the law.
A famous and tragic victim of CFAA prosecutorial excess is Aaron Swartz, Reddit co-founder and internet activist, who committed suicide in the face of a possible $1 million fine and lengthy prison sentence. His crime? Violating academic journal terms of service to publish open access scholarly publications.
Assange will now get the Swartz treatment. His enemies are legion; Wikileaks' activities have exposed powerful groups across the world.
You would think the FBI has had enough time to put together an ironclad legal assault. But when you look at the affidavit, the charges the government has whipped up to take down its enfant terrible are actually pretty weak tea.
Here is the sole charge: that in 2010, Julian Assange gave Chelsea Manning (known then as Bradley) suggestions on how to crack a password. That's it. We don't know if they were successful, by the way—not that it matters in the eyes of the CFAA. But it's pretty incredible that for all of Assange's supposed black hattery, the only thing the government could nab him on is a passing conversation on rainbow tables.
It's ridiculous, but the 29 words of Assange's chat to Manning could cost him five years in the slammer. (It's quite possible that the feds will add other charges as well.)
This is crazy world of the CFAA. The affidavit admits that "there is no other evidence as to what Assange did, if anything, with respect to the password." The New Yorker's Raffi Khatchadourian suggested that Assange's offer was merely bluster to make Wikileaks's shoestring five-person operation appear more sophisticated to a nervous source.
No matter. The very fact that password guessing was brought up in the course of hundreds of chats discussing the publication of newsworthy documents is enough under the CFAA. As the affidavit crows, "the recovered chats described above reflect an agreement between Manning and Assange to crack the hash." Gotcha.
It's worth pointing out that none of this is news—these chat logs surfaced back in 2013, and WIRED discussed the allegations in 2011. Nor was this relatively minor infraction worth including in the government's separate case against Manning. This may just be all that the feds could pin on Assange, at least for now.
If that's all that Assange is accused of, why the 40 pages of exhaustive detail in the affidavit? This brings us to one of the more troubling and less discussed elements of the Assange indictment: It demonizes standard journalistic tools like encryption technologies by association.
An analysis by the Electronic Frontier Foundation, a nonprofit organization spearheading the effort for CFAA reform, provides context. The FBI affidavit darkly describes things like Manning's use of the open source OS Linux. Another report from the Reporters Committee for Freedom of the Press echoes EFF: The chat platform Jabber, identity-concealing encryption, and cloud drop boxes are all lumped into the "manner and means" of the alleged conspiracy. This makes these innocuous and useful technologies appear sinister.
The FBI does not shy away from directly impugning Assange's journalistic interest. For example, the Bureau's press release condemns Assange for "actively encouraging Manning to provide more information." Well, what investigative journalist hasn't? You want to get the full story right.
Some have argued that this is an appropriate use of the CFAA. It's not journalism, it's like helping your source to pick a lock. Well, I would say it's actually more akin to discussing whether and how to access information with an essential source who has provided solid leaks over several months. Anyway, Assange isn't charged with "helping to pick a lock" but rather the more nebulous "agreeing to conspire to maybe help to pick a lock that wasn't actually picked."
But all of that largely misses the point.
As The Intercept's Micah Lee points out, considering "measures to conceal Manning as the source of the disclosure of classified records to Wikileaks" as part of a criminal conspiracy sets a dangerous precedent for all investigative journalists.
A lot of people don't like what Assange did. (It's kind of funny to compare people's opinions on Wikileaks over time.) Or maybe they just don't like the guy himself. Fine.
But it's hard to deny that the federal government is wielding the CFAA as it often does: a catch-all pretext to crack down on troublemakers.
The Reporters Committee notes that this CFAA pseudo-technicality gives the government a way out of potential First Amendment problems involved with prosecuting the actual publication of the leaks. (This is the justification the Obama Administration gave for failing to prosecute.) They nab their guy without the constitutional fuss. Is such prosecutorial opportunism really something that Assange critics in the media wish to defend? Would their tune change if it was directed at one on their own team?
No one honestly believes that the FBI is going after Assange on a good faith mission to uphold the Computer Fraud and Abuse Act. We know it's because Wikileaks exposed government operatives. You may think he's a hero. You may think he's a scoundrel. Either way, we should all be worried about such abuses of "hacking" laws to crush ideological enemies.