Subramaniam Vincent is the director of Journalism & Media Ethics at the Markkula Center for Applied Ethics at Santa Clara University. Views are his own.
The arrest of Julian Assange of Wikileaks in the UK a few weeks ago and the U.S. indictment and extradition request has generated a lot of press coverage. The U.S. Department of Justice (DOJ) charged Assange with one count of conspiracy to commit computer intrusion (aka "hacking") of classified information. However, the DOJ’s charges on Assange have also raised concerns of infringement on press freedoms.
One worry over Assange’s arrest is that it has implications for journalistic collaboration with hackers of classified information and whether the charges throw any light on the government’s real intentions. On April 15, The Daily, the New York Times’ news podcast dove headlong into the topic. The headline of the podcast itself, “The Moral Complexities of Working With Julian Assange,” invoked questions of the journalistic ethics of collaboration with Wikileaks-like organizations. The Daily podcast’s editors deemed it fit to add the lines, “We spoke with a New York Times reporter who collaborated with WikiLeaks about the ethical dilemmas involved in doing so.” (Emphasis mine).
In line with this concern, Assange’s indictment makes for interesting reading. Notably, the charges get into espionage -- Sections 793(c) and 793(e) of U.S.C. Title 18. Does the government’s narrative in the indictment indicate that it is opening the doors to go after news organizations that receive material from hackers? Is this going to be a new case where established precedent in the United States for journalistic work with hacked materials is going to be opened up? (Pentagon Papers verdict).
18 USC 793(c) and (e) - Reprinted from Cornell Law Institute
Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of this chapter; or
Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or
The First Amendment clearly protects the right to publish, and the consensus on the indictment thus far seems to be that the government is not running afoul of its protections of the press. Despite this, two eminent Constitutional Law scholars at Santa Clara University (SCU), Margaret Russell and Pratheepan Gulasekaram, are guarded in their observations. Margaret Russell is an associate professor and has taught constitutional law and civil procedure there for over twenty-five years. She is also a scholar affiliated with the Markkula Center for Applied Ethics. Pratheepan Gulasekaram is a professor at the SCU’s School of Law where he teaches Constitutional and immigration law.
Russell pointed out in her emailed response to my questions that there are certainly First Amendment (freedom of the press) implications in the broader context of Julian Assange's arrest and prosecution. “If the indictment had gone farther and sought to criminalize the actual publication of the stolen information, then the government would have crossed the line into violations of the First Amendment.”
Russell predicted that Assange will likely argue that he is being prosecuted to "send a message" to journalists to stay away from any investigation of confidential information that might reveal government misconduct. And indeed, her prediction bore out on May 2nd at the first extradition hearing in the UK. “I do not wish to surrender myself for extradition for doing journalism that has won many awards and protected many people,” Assange was quoted by The Associated Press in his refusal to accept extradition. He spoke via video link from prison in Southeast London.
For Russell, the Nixon era "Pentagon Papers case" makes it clear that “publishers cannot be held accountable for the unlawful conduct of others in providing crucial information to the public.” Russell pointed out that, “So long as the prosecution focuses on Assange's alleged hacking rather than the information that resulted from it, the prosecution will be on solid ground.”
Pratheepan Gulasekaram’s starting point is the same broad view on the First Amendment’s protections. “The First Amendment allows publication of truthful material, no matter how it was obtained. In particular, one of the core purposes of the First Amendment is to protect the publishing of material critical of the government, candidates running for office, etc.”
“Obviously in the background is the fact that this particular hack (Wikileaks 2010) led to the publishing of confidential material damaging to the government. And, it was media organizations including the New York Times that published Wikileaks-released material even though they did not participate in garnering them. Those organizations are in the clear, as long as the government does no more than prosecute the hacking; but to the extent this prosecution -- or the government's legal rhetoric around it -- reaches beyond the hacking to the publishing, then first amendment concerns begin to be implicated and major news organizations could find themselves in prosecutorial crosshairs in the future,” says Gulasekaram.
The ethics of collaboration with Wikileaks
First Amendment protections for publishing aside, does this case raise any new questions about news organizations being implicated ethically in working with Wikileaks dumps? That does not seem to be the case. First, news organizations will typically not themselves engage in illegal activity to produce top secret information. Russell makes the legal point doubly clear. “There is no First Amendment right for a journalist to engage in hacking, even if the act was intended for the higher purpose of exposing government wrongdoing,” she says.
Second, even when news organizations receive such information from other parties, they follow journalism’s codes of ethics. They account for ethical concerns as a filter on what to publish or redact. For instance, loss of privacy and risk of harm to people simply if identities are outed. In general, journalistic codes of ethics also allow news organizations to set their terms for working with people like Assange.
Reason to worry
The reason both Russell and Gulasekaram are being guarded is the narrative in the indictment itself.
For Gulasekaram, the charges against Assange indeed open the door for the government to go further down a path that can cause worry to media organizations, so he can see why the media might rightfully be concerned. “It appears to be broader than necessary to merely support the narrower hacking charge. The government invokes the espionage act, which deals with statements or actions that damage or undermine the government. One might be rightfully concerned because of this. Is the DOJ building a case that is broader than hacking?” asks Gulasekaram.
If the federal government becomes more aggressive in these prosecutions, he says, then media organizations and reporters might be concerned about statements or actions that fall short of actual hacking or illegal activity, but may be cast as encouraging or promoting the illegal activity. “At what point does the government’s scrutiny fall on media organizations for encouraging a hacker to cross the line?” he asks.
This case may be a precedent-setter
For Russell, there is danger inherent in this kind of prosecution. In going after Assange, “What message does the government send about the press's freedom to publish important (albeit stolen) information of public concern? Will there be a chilling effect on journalists who will fail to pursue leads because of fear of prosecution? These are questions I will be looking out for answers to as this case proceeds,” she says.
Pratheepan says that this case may have precedential value or maybe be a big nothing burger. “There may be repercussions or the Court may also say they will only discuss charges of hacking. This is what makes the case interesting.”
For now, we will wait and watch for what is likely a tough extradition battle ahead.
Assange’s next hearing is scheduled for May 30, according to news reports. Prior to the first extradition hearing on May 2nd, he was remanded to 50 weeks of custody for violation of bail terms in the UK.