To be clear, I’ve never approved of Wikileaks’ release of the names of individuals who’ve provided information to the U.S. government under an expectation of confidentiality, particularly those who’ve provided information on known or suspected terrorists or foreign spies trying to steal legitimate U.S. government secrets. But right now, about the only way the public can reliably, if infrequently, learn about secret wrongdoing by their own governments is through whistleblowers exfiltrating incriminating data out of government systems and into the hands of journalists. Baraitser completely elided that issue in her ruling, much to the satisfaction of U.S. government officials I’m sure.
Assange’s only reprieve came through Baraitser’s conclusion, based on expert witness testimony in the case, that were he extradited to the U.S. Assange might well face conditions that would drive him to kill himself. “I am satisfied that, if he is subjected to the extreme conditions of SAMs, Mr. Assange’s mental health will deteriorate to the point where he will commit suicide with the ‘single minded determination’ described by Dr. Deeley,” Baraister wrote. (p. 116).
The acronym in question stands for “special administrative measures”—a Department of Justice euphemism for solitary confinement and other measures designed to maximize the isolation of an inmate or someone awaiting trial. It’s normally reserved for only the most violent of offenders, although Baraitser noted that “It is an agreed fact that there are currently nine inmates subject to a SAMs for espionage…” (p. 96) and that the U.S. government had given no guarantee that Assange would not be subjected to SAMs.
American authorities are expected to appeal Baraister’s decision, and although Assange has a bail hearing on Wednesday it’s unlikely he’ll be freed at this point. If U.S. government authorities pledge not to subject Assange to solitary confinement or other isolating measures in their appeal, it’s possible Assange could still be extradited to the United States to face trial.
What I fear here is that the CFAA argument being put forward by DoJ lawyers is a legal Trojan Horse. The password cracking and other hacking techniques they cite as violations of law are not the only kinds of technology they want to connect to the crime.
Count 18 of the DoJ indictment against Assange focuses on alleged CFAA violations by Assange (via Manning) to “knowingly access a computer … to obtain information that has been determined by the United States Government … to require protection against unauthorized disclosure” and to “willfully communicate, deliver, transmit, and cause to be communicated, delivered, or transmitted the same, to any person not entitled to receive it.”
Also getting three mentions in the indictment is Assange and Manning using “a cloud drop box” for the exchange of the exfiltrated documents. Thus, DoJ lawyers are claiming that the employment of a “cloud storage” capability was a key feature of the crime, rendering the entire chain of digital traffic between Wikileaks and Manning illegal.
The Freedom of the Press Foundation’s encrypted SecureDrop system for receiving documents from sources is used by dozens, if not hundreds, of media outlets globally. It’s a portal for whistleblowers seeking to out illegal or questionable government conduct to get relevant material into the hands of journalists. A DoJ court victory on Count 18 of the Assange indictment would put every news organization in the world utilizing SecureDrop or a similar system at risk of a future CFAA prosecution, something that would effectively nullify the Supreme Court decision in the Pentagon Papers case—all while deliberately ignoring an actual crime in this case: the deliberate misuse of the U.S. government classification system to conceal war crimes. You don’t have to be an Assange groupie (which I’m definitely not) to understand the absolutely huge First Amendment threat this prosecution represents.