Yesterday, the Justice Department unsealed its 2018 one-count indictment against Wikileaks founder Julian Assange.
#1 – The Indictment Charges Assange with Conspiring to Hack Classified Files
The indictment, which was filed under seal in federal court in Virginia on March 6, 2018, alleges that:
On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense Computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications
That is the offense. It does not appear that Manning and Assange were successful, but one attempt is enough to charge and convict.
#2 – Are Additional Charges Likely
There is a question of whether additional charges will be brought against Assange, such as in connection with the 2016 hacking of the Democratic National Committee, but that is uncertain. Any superseding indictment would need to be filed within 65 days under the US-UK extradition treaty.
As to the 2016 DNC hack, unless there is evidence that Assange engaged or conspired in the hack itself, a publication reporting on information that it obtained lawfully is protected by the First Amendment even if the source providing the information obtained it unlawfully. Bartnicki v. Vopper, 532 US 514 (2001).
#3 – Will He Be Extradited
It appears that the British police arrested Assange under the U.S. indictment, indicating that they intend to extradite him for prosecution in the U.S. In 2018, hacker Lauri Love was able to defeat extradition from the UK for charges under the Computer Fraud and Abuse Act. Jeremy Corbyn, the leader of the Labor Party, has come out against Assange’s extradition.
#4 – Will Statute of Limitations Be An Issue?
The indictment was filed two days before the eighth anniversary of the attempted hack. Federal law extends the statute of limitation for certain terrorist-related offenses to eight-years. The Patriot Act added the Computer Fraud and Abuse Act to the list of offensive qualifying (the statute of limitation for CFAA offenses is normally five-year). Assange likely will challenge the application of this extension.
Assange also may be expected to challenge the Virginia venue but the Pentagon, whose records Assange sought, is in northern Virginia.
#5 – Is the Court Punishing Assange for His Speech?
The indictment is focused on the act of conspiring to hack into a government computer and not for publication of any information – i.e., conduct and not speech. This is not a Pentagon Papers type case.
#6 – What is Assange’s Exposure?
As the Justice Department’s press release explains:
If convicted, [Assange] faces a maximum penalty of five years in prison. Actual sentences for federal crimes are typically less than the maximum penalties. A federal district court judge will determine any sentence after taking into account the U.S. Sentencing Guidelines and other statutory factors.
#7 – Are There Any Other Parties Who Might Be Charged?
Maybe . . .
The full indictment is below.
- Andy Greenberg, Breaking Down The Hacking Case Against Julian Assange, Wired Magazine
- Charlie Savage, Press Freedoms and the Case Against Julian Assange, New York Times