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The thief, the party and WikiLeaks

  • 02 August 2019


The Democratic National Committee in the United States has never quite gotten over the 2016 hack of its servers that yielded emails subsequently published by WikiLeaks. For one, it showed a less than rosy picture of Democratic strategy, one aimed at marginalising and ultimately defeating Hillary Clinton's main challenger, Bernie Sanders. The power of the Clinton machine, laid bare, was exploited with relentlessness by an ultimately victorious Donald Trump.

One manifestation of this ongoing trauma, both financial and psychic, was to launch a legal suit not only against the alleged hackers — in this case, Russian intelligence operatives — but the messengers who spread the loot. These included, not only members of the Donald Trump campaign, but WikiLeaks and Julian Assange.

The case presented in the United States District Court of the Southern District of New York was beset by challenges. One allegation was key: that 'the dissemination of those [hacked] materials furthered the prospect of the Trump Campaign', a point of assistance the defendants 'welcomed'.

Reference to possible breaches under the Computer Fraud and Abuse Act, the Racketeer Influenced and Corrupted Organizations Act and Stored Communications Act, among other statutes, were made. Uniting the claim was the suggestion that the Russian theft of private emails, correspondence and other documents from the DNC computer system was directly linked to a complicit WikiLeaks in its dissemination. Would the publisher be implicated?

The DNC case provides a test run should Assange find his extradition-paved way from Britain to the United States. The running themes of the US Department of Justice charges against Assange are that he is a hacker and an agent of espionage, a coaxer of sources and a danger to necessary secrecy. In so slanting their case, the DOJ hopes to avoid the application of the US First Amendment covering press freedoms. The reasoning of District Judge John G. Koeltl suggests that this enterprise might well fail.

First came the failure of the DNC legal team to convince the judge that Russia could not avail itself of sovereign immunity protections. The second more critical point was whether the First Amendment had any role in covering the publishing operations of WikiLeaks, a point long debated in the US legal and political circles. Signs for WikiLeaks and Assange from the outset were good. The US Supreme Court decision in New York Times Co. v United States (the 'Pentagon Papers' case) upholding 'the press right to publish information