New Assange Indictment Makes Insane, Unprecedented Use Of Espionage Act On Things Journalists Do All The Time

from the whoa dept

As we noted when Julian Assange was arrested in the UK last month, it was notable how... lacking the charges were. The whole thing revolved around an apparently failed attempt to help Chelsea Manning crack a CIA password. We still had significant concerns about the way the CFAA was being used, and the fact that the description of the "conspiracy" involved actions that tons of journalists do every day -- but the original indictment didn't have what was most feared: use of the Espionage Act against the actions of a news organization. At the time, some knowledgeable observers pointed out that it was likely a superseding indictment would come, and it wouldn't surprise them if it had Espionage Act charges. And they were right.

On Thursday the DOJ unsealed the new indictment against Assange and it should absolutely terrify anyone who believes in a free press and the 1st Amendment. It takes a whole variety of things that journalists at major publications do every single day -- finding and cultivating sources, getting information and publishing that information -- as evidence of Espionage Act violations. We've always had issues with the Espionage Act, which we believe is almost certainly unconstitutional. In the past, we've highlighted how it's been used in ridiculous ways against many whistleblowers, and it doesn't even allow for a defendant to give a reason for why they leaked documents (i.e., they can't say they did it to blow the whistle on government malfeasance -- it's just automatically treated as espionage, which is nonsensical).

However, this indictment goes much further. It's not going after an actual leaker, it's going after a publisher. It's so bad that even Obama-era officials (who used the Espionage Act against leakers more times than any other President in history combined) seem horrified. This is from the former DOJ spokesperson in the Obama admin:

Much of the indictment focuses on Wikileaks/Assange cultivating sources and requesting information -- which is what lots of reporters do all the time. For example, the first count includes the following actions:

To willfully communicate documents relating to the national defense—namely, detainee assessment briefs related to detainees who were held at Guantanamo Bay, U.S. State Department cables, Iraq rules of engagement files, and documents containing the names of individuals in Afghanistan, Iraq, and elsewhere around the world, who risked their safety and freedom by providing information to the United States and our allies, which were classified up to the SECRET level—from persons having lawful possession of or access to such documents, to persons not entitled to receive them

But, that's what lots of reporters do all the time in cultivating sources within the government. Bob Woodward and Carl Bernstein became celebrated and famous by getting government officials to leak classified information. Indeed, it's what a bunch of reporters at the NY Times, Washington Post, etc. are doing right now to try to find information about this White House. And, yes, President Trump likes to refer to them as "fake news," and if you buy that you are too stupid to read this site, so go away. This is a full frontal attack on the First Amendment and basic reporting. If this works it sets a precedent to go after any investigative reporting of the government.

It's also notable -- and ridiculous -- that the indictment focuses on the supposed "danger" that Assange/Wikileaks put people into by publishing the documents that Chelsea Manning leaked.

The significant activity reports from the Afghanistan and Iraq wars that ASSANGE published included names of local Afghans and Iraqis who had provided information to U.S. and coalition forces. The State Department cables that WikiLeaks published included names of persons throughout the world who provided information to the U.S. government in circumstances in which they could reasonably expect that their identities would be kept confidential. These sources included journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government, and the political conditions within their countries, at great risk to their own safety. By publishing these documents without redacting the human sources' names or other identifying information, ASSANGE created a grave and imminent risk that the innocent people he named would suffer serious physical harm and/or arbitrary detention.

News publishers often have to make difficult decisions about publishing certain info that could cause harm, but it does not violate the Espionage Act to do so in the service of informing the public. Even worse, as has been detailed for many years now, the US government admitted back in 2013 that not a single death was caused by Manning's leaks, and former Defense Secretary Robert Gates even called claims of harm "overwrought" and said:

“Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.’’

In fact, Reuters reported (via its own cultivated sources and leaks) that the "damage" claims were purposefully exaggerated by Obama admin officials in the hopes that it would create enough to bring these bogus charges against Assange:

A congressional official briefed on the reviews said the administration felt compelled to say publicly that the revelations had seriously damaged American interests in order to bolster legal efforts to shut down the WikiLeaks website and bring charges against the leakers.

“I think they just want to present the toughest front they can muster,” the official said.

But State Department officials have privately told Congress they expect overall damage to U.S. foreign policy to be containable, said the official, one of two congressional aides familiar with the briefings who spoke to Reuters on condition of anonymity.

The only "evidence" of harm shown in the indictment is just that Osama bin-Laden had some copies of the Wikileaks files when the US killed him:

On May 2, 2011, United States armed forces raided the compound of Osama bin Laden in Abbottabad, Pakistan. During the raid, they collected a number of items of digital media, which included the following: (1) a letter from bin Laden to another member of the terrorist organization al-Qaeda in which bin Laden requested that the member gather the DoD material posted to WikiLeaks, (2) a letter from that same member of al-Qaeda to Bin Laden with information from the Afghanistan War Documents provided by Manning to WikiLeaks and released by WikiLeaks, and (3) Department of State information provided by Manning to WikiLeaks and released by WikiLeaks.

There are a few other claims of people made "vulnerable" by Wikileaks publishing the Manning documents, but no evidence of actual harm.

So, let's be clear here: the US government has admitted to making bullshit claims about non-existent "harms" done by Wikileaks, and now it's using that to charge a news publisher with espionage for doing the same sort of work that tons of reporters do every day. It's an incredible attack on the 1st Amendment from this administration, and one that hopefully the courts will shut down.

Filed Under: 1st amendment, chelsea manning, doj, espionage act, journalism, julian assange
Companies: wikileaks

Julian Assange Arrested On Behalf Of The US, For Trying To Help Manning Crack CIA Password

from the cfaa-and-conspiracy dept

Julian Assange has been arrested in the UK on behalf of the US, as Ecuador has finally tired of their overstaying asylumed house guest. We're about to see quite a major legal battle, first in the UK and then almost certainly in the US, about Assange. The current charges seem narrowly focused on a CFAA-based "conspiracy" between Assange and Manning to try to hack a CIA computer, but if they expand to other Wikileaks activities, there should be concerns over press freedom issues.

I am no fan of Julian Assange or Wikileaks. However, for years I've made it clear that prosecuting him for publishing leaked documents would be a huge mistake by the US. The DOJ spent years trying to come up with an excuse to charge Assange, but kept realizing they had no case, because while he may have had malicious intent, none of his public actions in releasing documents were any different -- legally speaking -- than what any investigative journalism outlet did in releasing obtained documents. The Supreme Court has made it clear that publishing classified documents is protected by the First Amendment. If he went beyond just releasing documents, as the indictment alleges, it becomes a lot trickier -- but there's a fine line here.

It's been clear in the last year or so, that despite years of not finding anything, the DOJ was finally moving ahead with plans to charge him. As we noted last year, everyone who believes in a free press should be concerned about what this might mean for press freedoms in the US as the case proceeds. And that's true, even if the specific charges right now are limited to actions that are unrelated to the publishing of the documents.

A few minutes ago, the DOJ released a fairly barebones 7-page indictment, alleging he was in a conspiracy with Chelsea Manning to hack into government computers to obtain documents. From the indictment, the charges are separate from releasing the documents that everyone knows Manning provided to Assange, and specifically revolve around Manning and Assange apparently working together to try to hack the CIA after Manning had finished handing over all of the documents we already know about. The indictment claims (and I kid you not) that Manning "used special software, namely a Linux operating system... to obtain the portion of the password provided to Assange." What was obtained apparently was a hashed password to a CIA computer system, that Assange was allegedly going to try to crack, in order to enable Manning to get more info out of the CIA.

If all of this is true, then it certainly could go beyond issues related to press freedoms. It's one thing to receive classified documents and publish them. It is a different issue altogether to work with a source and participate in trying to hack a government system. There is no evidence that Assange was ever actually successful in cracking the password, but he's facing CFAA and conspiracy charges here that may have more staying power. If the indictment is accurate and there's evidence to back it up, then Assange could potentially be in (and this is the legal term) deep shit.

But so much of what Assange did, even if we might disagree with his reasons for doing it, is little different than what many media organizations do. What will be necessary is watching closely how the case against Assange advances and changes (it is unlikely that these will be the only charges against Assange). If it is narrowly limited to the actions described in the current indictment, the dangers to press freedoms may be limited. However, if it strays beyond that into some of the other, more journalistic efforts of Assange, it could still represent a huge attack on a free press. Given our current President's near daily attacks on the free press, with repeated announcements that he'd like to change the laws to harm them, going after Assange legally (which may seem a bit ironic, given all the accusations that Assange's leaks in 2016 were designed to help Trump get elected), might be the best way to actually achieve that goal.

Filed Under: cfaa, chelsea manning, cia, conspiracy, doj, hacking, julian assange, passwords

DOJ Moving Ahead With Its Attempt To Prosecute Julian Assange; Subpoenas Chelsea Manning

from the all-the-bad-precedent-it-can-get dept

The DOJ is still moving ahead with its plan to attack free speech protections. More than eight years in the making, the attempted prosecution of Julian Assange for publishing leaked documents forges ahead slowly, threatening every journalist in its path.

Wikileaks isn't the only entity to publish leaked documents or shield their source. Multiple US press entities have done the same thing over the years. It seems the DOJ feels it's ok to go after Assange and Wikileaks because it's not a US newspaper. But once you set foot on a slope this slippery, it's pretty tough to regain your footing -- especially when the Executive Branch has housed people hellbent on eliminating leakers and whistleblowers for most of the last 20 years.

It appears the government wants Chelsea Manning to testify about her relationship with Wikileaks and Julian Assange. The demand Manning received may be deliberately vague, but it's pretty easy to connect the dots, as Charlie Savage does for the New York Times.

The subpoena does not say what prosecutors intend to ask her about. But it was issued in the Eastern District of Virginia and comes after prosecutors inadvertently disclosed in November that Julian Assange, the founder of WikiLeaks, has been charged under seal in that district.

Ms. Manning, who provided a copy of the subpoena to The New York Times, said that her legal team would file a motion on Friday to quash it, arguing that it would violate her constitutional rights to force her to appear. She declined to say whether she would cooperate if that failed.

It would seem like Manning already cooperated when she was being prosecuted. During that hearing, she took full responsibility for her actions and stated Wikileaks/Assange did not direct her actions. But if the DOJ can't get Manning to talk, it apparently has other options.

A former WikiLeaks volunteer who was also personal friends with Manning was subpoenaed last May. But unlike Manning, he did not fight the subpoena. He accepted an immunity deal offered by prosecutors.

It’s the second person in Assange’s broader orbit publicly known to have cooperated with prosecutors in their nearly decade-long pursuit of WikiLeaks.

The former volunteer is David House. House has been subpoenaed twice, according to The Daily Beast's Kevin Poulsen. House was uncooperative with the first, but far more accommodating the second time around, after being granted immunity for testifying.

House spoke briefly with prosecutors and then testified for about 90 minutes in front of the grand jury, he said. “They wanted to know about my meetings with Assange, they wanted to know broadly about what we talked about,” he recalled. Prosecutors seemed particularly interested in the potential for collateral damage in some of Assange’s leaks.

If the DOJ is really going to re-litigate the harms of Manning's leaks, it might want to refresh its memory about the damage they did. A classified Defense Department report said the leaked docs did no serious damage to personnel or American interests. This reiterated findings by the US military dating all the way back to 2013 which said the same thing: no Americans were harmed or killed as a result of the leaks. Unfortunately, the reality we're faced with is this: the DOJ is threatening First Amendment protections over some hurt feelings and embarrassment.

Filed Under: chelsea manning, david house, doj, indictment, journalism, julian assange, leaks, subpoenas
Companies: wikileaks

Emma Best's New Transparency Project Targets Russian Leaks She Says Wikileaks Refuses To Touch

from the actual-transparency dept

Turnabout, as they say, is only fair play.

If you hadn't noticed, Wikileaks isn't quite the transparency operation it used to be. Staffers who routinely helped rein in Assange's less noble impulses long ago left the effort behind, leaving us with the often bizarre comedy that is Wikileaks in 2019. And while that doesn't justify the misguided DNC lawsuit or the potential threat to transparency posed by government efforts to prosecute leakers, that doesn't change one undeniable fact: modern Wikileaks is increasingly seen in infosec and policy circles as a poorly-written joke, long-since buried under the rubble of numerous scandals and Assange's bulbous ego.

That's not to say that Wikileaks didn't provide an invaluable service in its prime. Its early operations lit a much-needed fire under a press routinely terrified of speaking truth to power, especially in regards to the United States' often bipartisan, mindless unchecked international militarism. These days, however, Wikileaks is more about pandering to MAGA kids for bitcoin donations, selectively avoiding transparency, and levying silly legal threats against the press rather than actually adhering to its core mission of a decade ago.

Still, there's no doubt that Wikileaks of old contributed to a marginally braver press, even if it remains obvious that a lot of work on this front still needs to be done. And its influence continues to be mirrored by subsequent incarnations looking to improve on the formula, even as those efforts criticize Wikileaks' increasingly erratic behavior in the wake of a percussive parade of unflattering revelations.

Case in point: transparency activist and long-time infosec reporter Emma Best has unveiled the creation of Distributed Denial of Secrets. The organization is expected to make waves this week with the publication of hundreds of thousands of hacked emails and gigabytes of leaked documents, some of which come from previous hacks of Putin aides like Vladislav Surkov.

Unlike Wikileaks, DDoS will focus more on compiling and curating information, much of it coming from past hacks and breaches, building a sort of museum and library of now easily-accessible information. Especially information related to the Russian government and its bone-grafted relationship to Russian organized crime; stuff, project supporters claim, Wikileaks has steered clear of in recent years:

"A lot of what WikiLeaks will do is organize and re-publish information that’s appeared elsewhere,” said Nicholas Weaver, a researcher at the University of California at Berkeley’s International Computer Science Institute. “They’ve never done that with anything out of Russia."

DDoS differs from WikiLeaks in that it doesn’t solicit direct leaks of unpublished data—its focus is on compiling, organizing, and curating leaks that have already appeared somewhere in public. “Emma Best, I think, is someone who will actually do a good job,” said Weaver, citing Best’s aggressive use of the Freedom of Information Act to extract documents from recalcitrant U.S. agencies. “Things get so scattered that putting it all into one place is a huge benefit."

According to the group's FAQ, the biggest difference between itself and Wikileaks is it won't advocate for any particular ideology, putting the data itself back as the priority, a concept pretty clearly lost by Wikileaks in recent years:

"Distributed Denial of Secrets (“DDOS”) is a transparency collective, aimed at enabling the free transmission of data in the public interest. We aim to avoid any political, corporate or personal leanings, and to act as a simple beacon of available information. As a collective, we do not support any cause, idea or message beyond ensuring that information is available to those who need it most - the people."

Needless to say, Best and company are trying to manage the "creeping paranoia" that comes with playing information patty cake with Vlad and friends, having already mitigated what she calls "cyber shenanigans" the group believes was aimed at disrupting Friday's information dump. Also needless to say, this new operation, like operations before it, will likely be challenged by criticism when it comes to determining how far such transparency efforts should go (in fact it already has). But the fact remains that as long as the press refuses to fully embrace transparency, there's an evolving role for organizations just like this one.

In the interim, Best has been having fun with Wikileaks supporters who haven't been handling her criticism of the organization particularly well:

If you've been tuned in to Wikileaks and its newer supporters' aggressive disdain for even the most tempered criticism, things should definitely get interesting when the full data trove drops this week.

Filed Under: emma best, journalism, julian assange, leaks, russia
Companies: ddos, distributed denial of secrets, wikileaks

Irony Alert: Wikileaks Sends Reporters A List Of 140 Things Not To Say About Julian Assange; Tells Them Not To Publish

from the i-mean,-come-on dept

Either Julian Assange is the least self-aware person in the British Isles (currently), or Wikileaks is playing some sort of weird joke on the press. The organization, whose entire reason for being is publishing documents whose authors don't wish them to be published has bizarrely sent a list of 140 things reporters are not supposed to say about Assange (if this is a troll by Assange, you have to wonder if the 140 -- Twitter's original character limit -- is somehow on purpose). We'll get to the list in a moment, but first, the list included this hilarious statement:

CONFIDENTIAL LEGAL COMMUNICATION
NOT FOR PUBLICATION.

Ha, ha. Good one, Julian. Very funny. First of all, you don't send "confidential legal communications" to the media. That's not how it works. Second, unless there's already a pre-agreed upon deal not to publish certain materials, you don't get to email reporters willy nilly and insist that they can't report on it. That is also not how it works. Finally, this is Wikileaks we're talking about. I mean, come on.

Incredibly, Reuters, who first wrote about the existence of this list did not publish the list. Instead, that was initially left to FOIA/transparency/national security guru Emma Best who published the full list on her site. A few other publications followed later.

It is entirely possible that this is some sort of reverse Streisand Effect attempt, in which Assange purposefully put the idiotic "not for publication" line atop the email knowing that would make it more likely that the document would get attention, but no matter where you sit, for reporters, this now seems like a list of 140 things that Julian Assange is now calling for everyone to investigate. Of course, some of them are really just silly. For example:

It is false and defamatory to suggest that Julian Assange stinks.
It is false and defamatory to suggest that Julian Assange has ever tortured a cat or dog.
It is false and defamatory to suggest that Julian Assange does not use cutlery or does not wash his hands.
It is false and defamatory to suggest that Julian Assange lives, or has ever lived, in a basement, cupboard or under the stairs.

Um... what? Why even bring up any of these? Of course, much of the list involves some of the more serious claims that people have made against Assange over the years, especially regarding any connection with Russian Intelligence and or any attempt to influence the US election. And, while these don't necessarily break new ground, for investigative reporters, it seems like there could be some interesting breadcrumbs in the list of things Julian Assange really, really doesn't want the press to say about him.

Also, it appears that in a later version of the list that was posted to Pastebin, Wikileaks removed the line about Assange stinking and living in a cupboard under the stairs (that was Harry Potter, you see...). Emma Best set up a comparison of the two "leaked" copies of the list, if you're interested in delving into the details of what I guess is now up for discussion (does Assange have a scar in the shape of lightening bolt?).

Separately, each of the items on the list begin "it is false and defamatory to...." At the very least, this suggests that Assange has a fairly limited understanding of what "defamatory" actually means. Defamation requires a bit more than saying that Julian Assange stinks. Others may be false, but would hardly be "defamatory." For example:

It is false and defamatory to deny that Julian Assange co-founded the Freedom of the Press Foundation with John Perry Barlow.

I mean, it is a false statement since Assange did not co-found the Freedom of the Press Foundation with JPB (he was just one of their first beneficiaries). But, what is possibly "defamatory" about that sentence?

Either this is all an elaborate troll by Assange, or he's so freaking full of himself that he doesn't realize how petty and immature this whole thing looks (oops, is that on the list of things we can't say?).

Filed Under: defamation, emma best, julian assange, leaks, secrecy, streisand effect, transparency
Companies: wikileaks

Wikileaks Refused To Publish Manafort Family Texts, So Someone Else Did

from the hypocrisy? dept

Update: A quick correction/clarification here. The hacked texts in questions were from Manafort's daughter, rather than Manafort himself, but included texts between Manafort and his daughter, as well as other texts about Paul that his daughter sent or received. Wikileaks, for its part, says it didn't publish the texts because they weren't verified. Except that multiple people confirmed the legitimacy of those texts including Paul Manafort himself. The point of the article still stands.

We just wrote about why it would be a dangerous move for press freedom for the DOJ to prosecute Julian Assange for publishing leaked documents. In that post, we noted that even if you think Julian Assange is a horrible human being and proactively trying to undermine US electoral sovereignty, the mere act of publishing leaked documents should not be criminal. But, that doesn't mean that Assange can't be hypocritical and one-sided. Obviously, during the 2016 election, when Wikileaks helped spread both John Podesta's emails and the DNC's emails, some wondered if Assange would have published similar messages from the Trump campaign. While publicly Assange insisted he disliked both campaigns equally, other reports and leaked (of course) chat messages certainly suggested otherwise, as did at least some of his apparent attempts to ingratiate himself with Trump insiders, including asking Don Jr. to leak his father's tax returns to Assange to "dramatically improve the perception of our impartiality."

Of course, when faced with an opportunity to post the equivalent of the Podesta emails on the Trump side, it appears that Assange decided not to do it. Public records-savant Emma Best recently chose to publish the entire collection of leaked Manafort family texts in a searchable database. These texts have long been out there and available if you knew where to look -- and had received widespread reporting in early 2017. However, beyond the excerpts, they were not fully available in a way that was searchable for most users.

Best communicated with Wikileaks, who admitted that it had the entire collection as well, but chose not to publish it -- which certainly can be read as hypocrisy on Assange's part, considering the similarities with the Podesta emails. As Best notes in discussing the decision to publish these in a more accessible format:

The public haven’t had access to the messages, and the press (including high profile and high budget outlets) haven’t had access to an easily searchable version – instead only to an unwieldy database.

This was nearly not the case, however – WikiLeaks had a copy of the database, but ultimately didn’t publish it, despite its newsworthiness and their willingness to publish unredacted information on the Democrats. Their unexplained decision not to put the database into a searchable format and make it public struck me as questionable at the time, but in light of the disclosure of their preference for the GOP it has become not only questionable, but hypocritical. WikiLeaks’ decision can no longer be trusted prima facie or viewed in terms of presumed good faith.

[....]

This noteworthy refusal, along with ongoing probes and charges filed against Manafort by the Special Counsel’s office, makes the text messages and their contents undoubtedly newsworthy. Their relevance to the general public may go beyond this, as the personal reality reflected in the messages presents the Manaforts as real people, rather than merely as abstract figures. This same reality is, of course, also relevant to news and current events, and to understanding the character and actions of those involved.

There may be reasons why Wikileaks chose not to publish these texts, but the fact that it eagerly published the Podesta emails, yet held back on publishing these texts should at least raise serious questions. Obviously, every publisher makes different decisions on what to publish and what not to publish. And there's no rule saying that you absolutely must publish every "equivalent" set of data or stories. But given all of the background here, and the high profile nature of this, it is noteworthy to point out the different approaches Wikileaks chose to take with two similar sets of data on different sides of the 2016 election.

Filed Under: emails, emma best, hypocrisy, john podesta, julian assange, paul manafort, texts, transparency
Companies: wikileaks

Both Democrats And Republicans Blame The Messenger When Leaked Emails Are Made Available

from the stop-it dept

Back during the 2016 election, when Wikileaks published John Podesta's leaked emails, Democrats freaked out and blamed Wikileaks, and even tried to lie about the validity of those emails. Many supporters of the Democratic party, to this day, believe that Wikileaks and/or Julian Assange should face legal consequences for publishing those hacked emails. Of course, Republicans cheered on that effort. Sean Hannity, who back in 2010 was screaming about how Assange was "waging his war against the U.S." by publishing the leaked documents from Chelsea Manning and demanding that Obama "arrest" Assange, is now seen as one of Assange's most vocal supporters even having him on his show.

But, of course, when the shoe is on the other foot, things change. Just recently, various news organizations started reporting on shenanigans by top Trump fundraiser, Elliott Broidy, based on a leak of Broidy's emails. Broidy's not taking this very well, issuing a subpoena to the Associated Press to try to uncover the news organization's source for his emails.

No one is saying that it's okay to hack into someone'e email. But in both cases we're talking about those who are upset about an email leak going after the organization publishing the details of the leak and blaming the messenger. Just because documents are leaked or hacked or obtained through questionable means, it does not mean that news organizations can't publish them. Nor does it mean that they have to hand over the details of their sources. But it is worth noting that I don't see anyone who was screaming about Wikileaks now supporting Broidy's demands to the AP. Nor do I see those who were defending Wikileaks now defending the Associated Press against Broidy.

It's almost as if most of the people on either side of this political horse race are determining which news orgs to support based on whose side the revelations help. That's... bad. We should support a free press and condemn attacks on news organizations when they're revealing newsworthy leaked information, no matter whether the news helps or hurts "your" side. Treating politics as a "red team" v. "blue team" sport leads to bad outcomes for everyone's rights.

Filed Under: elliott broidy, emails, john podesta, journalism, julian assange, leaks