The thief, the party and WikiLeaks

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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.

A protester demonstrates in support of Wikileaks founder Julian Assange outside Southwark Crown Court in London, on 1 May 2019 in London, England. Assange was sentenced to 50 weeks in prison for breaching his bail conditions when he took refuge in the Ecuadorian Embassy in 2012 to avoid extradition to Sweden over sexual assault allegations, charges he denies. (Photo by Jack Taylor/Getty Images)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 of public concern obtained from documents stolen by a third party' was cited as a benchmark.

The even more apposite 2001 Supreme Court decision of Bartnicki v Vopper was also considered. It featured the public airing of a stolen recording noting a conversation between a teachers union's president and its main negotiator. In doing so, the radio host in question succeeded in using the Amendment to deflect liability for breaching federal and Pennsylvania wiretapping statutes, despite knowledge that the recording had been obtained illegally. Action on the part of a state 'to punish the publication of truthful information seldom can satisfy constitutional standards'.

 

"The claim did not convince the judge; merely assisting in disseminating material, even with foreknowledge of its stolen nature, did not defeat the application of the First Amendment."

 

Koeltl noted that the DNC raised 'a number of connections and communications between the defendants and with people loosely connected to the Russian Federation, but at no point does the DNC allege any facts in the Second Amendment Complaint to show that any of the defendants — other than the Russian Federation — participated in the theft of the DNC's information'.

The Bartnicki case loomed as a heavy, and ultimately persuasive precedent: WikiLeaks had played no part 'in the theft of the documents and it is undisputed that the stolen materials involve matters of public concern'. Publishing material, albeit pilfered, enabling 'the American electorate to look behind a curtain of one of the two major political parties in the United States during a presidential election' was very much deserving of the 'strongest protection that the First Amendment offers'.

It was left to the DNC to distinguish its own circumstances from that of the fortunate radio host in Bartnicki. The legal submission attempted to do so by arguing that WikiLeaks had been involved in an intimate, coordinating effort with Russian intelligence operatives, making them an 'after-the-fact co-conspirator'.

The claim did not convince the judge; merely assisting in disseminating material, even with foreknowledge of its stolen nature, did not defeat the application of the First Amendment. 'A person is entitled to publish stolen documents that the publisher requested from a source as long as the publisher did not participate in the theft.'

What impressed and troubled the judge was the broader implications of the case, should the DNC succeed. It would 'render any journalist who publishes an article based on stolen information a co-conspirator in the theft'. Whether this has any influence on the current DOJ charges remains to be seen. Assange and his legal team, however, have been granted some valuable legal ammunition.

 

 

Binoy KampmarkDr Binoy Kampmark is a former Commonwealth Scholar who lectures at RMIT University, Melbourne.

Main image: A protester demonstrates in support of Wikileaks founder Julian Assange outside Southwark Crown Court in London, on 1 May 2019 in London, England. Assange was sentenced to 50 weeks in prison for breaching his bail conditions when he took refuge in the Ecuadorian Embassy in 2012 to avoid extradition to Sweden over sexual assault allegations, charges he denies. (Photo by Jack Taylor/Getty Images)

Topic tags: Binoy Kampmark, Hillary Clinton, Bernie Sanders, Donald Trump, WikiLeaks, Julian Assange, Russia

 

 

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Existing comments

Whether or not to whistleblow and how to go about it is akin to driving to the conditions, the underlying principle being to do no harm to others. Exposing covert events in a way which might identify an operative’s exposure and lead to his or her harm or death should be sanctioned. Exposing and compromising a nation’s competitive or strategic advantage is less straight-forward. What causes harm to these interests might reduce harm to others. Perhaps all whistleblowers should be protected by a mandatory amnesty if they submit their work first to a judicial agency whose job it is to weigh harms. A potential disclosure is embargoed until it passes a balance-of-harms test. If it cannot pass the test, it is embargoed until revised to pass the test. What will go into building such a specialised court is anyone’s guess but the fact remains that whistleblowers are useful and whistleblowers are harmful.
roy chen yee | 03 August 2019


This is the only place I have seen any commentary on this case in Australia, the MSM have wilfully ignored it after years of vilifying Assange and I still have lazy people on twitter claiming Assange campaigned for Trump merely by publishing the documents that this judge clearly saw to be in the public interest.
Marilyn | 04 August 2019


That is very encouraging Binoy. If Assange can indeed invoke the protection of the first amendment, the second claim of co conspirator, should fall by the wayside. In retrospect it seems the Russian inspired hacking, was in part designed to assist Trump's campaign. But that aside, the US wants to silence and make an example of him for espionage and computer hacking when wikileaks claim they received the material from third parties. In May 2010, WikiLeaks said it had video footage of an alleged massacre of Afghan civilians by the U.S. military, which it said it was preparing to release. Revenge for embarrassment is in all probability the key reason the US wants Assange's head on a plate.
Francis Armstrong | 05 August 2019


"Hacking"? Google Bill Binney or Craig Murray for a rather persuasive explanation of how the materials came to light.
Terence | 05 August 2019


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