Espionage Act should exempt journalists — whether Assange is a ‘real’ reporter or not

The new indictment of Julian Assange, adding charges of spying to the original “hacking” charges, highlights the loaded gun pointed at journalists who publish classified information — the threat of selective prosecution under the 1917 Espionage Act. The Espionage Act should be clarified so it cannot be used to threaten persons who do nothing more than publish classified information — regardless of whether prosecutors believe they qualify as “journalists.”

The Espionage Act makes it a crime for anyone to publish classified information even if the person had no role in taking the information. The act is so vague that one Supreme Court justice described it as a “singularly opaque document.” Yet, before now, no prosecutor has ever charged a journalist with violating the Espionage Act merely for publishing classified information.

The Justice Department suggests that it has not broken that unwritten rule, claiming that Assange is “no journalist” because he participated in hacking the classified information he later published. This flimsy distinction highlights rather than ameliorates the First Amendment threat.

The hacking charge revealed in April, which the government now relies upon to distinguish Assange from “real” journalists, is gossamer-thin. That first indictment charged Assange with conspiracy to gain “unauthorized access” to national defense information and communicate it to others. Assange allegedly conspired with Former Army intelligence analyst Chelsea Manning to help Manning obtain unauthorized access and conceal Manning’s identity. That unauthorized access is the core of the hacking that the government now points to as the reason Assange is unlike other journalists.

But what did Assange do to assist Manning’s unauthorized access? The original indictment is extraordinarily vague on that point. Assange allegedly “encouraged” Manning’s attempts to overcome the password protection that blocked unauthorized users. He also accepted a “partial” password from Manning, asked for more information about the password, then later reported back to Manning that he had “no luck so far” in cracking the password. The new indictment adds no further details about Assange’s actions to facilitate the hacking.

As far as we can tell, Assange’s efforts were fruitless and amounted to little more than ineffective cheerleading. Standing alone, this is thin gruel for criminal prosecution, and it is doubtful that the government would have charged Assange if his assistance had been limited to the hacking.

Of course, Assange did much more. As the new indictment reveals, when Manning finally cracked the code Assange published Manning’s papers wholesale, apparently causing substantial harm to undercover operations around the world and allegedly endangering lives.

Prosecutors have never charged “real” journalists with violation of the Espionage Act and most legal scholars agree that prosecution of a journalist for doing nothing more than publishing classified information would be vulnerable to a First Amendment challenge.

The government’s hacking rationale for breaking that taboo gives little comfort to journalists, real or otherwise. The acts charged in the new indictment — “encouraging” the hacking, “receiving” the hacked material and “publishing” it — are often performed by mainstream journalists working with sources of classified information. Substitute “the New York Times” for “WikiLeaks” and “Daniel Ellsberg” for “Chelsea Manning,” and the new indictment could be applied to the Pentagon Papers.

Assange is charged with conspiracy to hack rather than conspiracy to “steal” because, unlike the Pentagon Papers, the country’s secrets today are recorded in bytes rather than on paper. While the conduct and participants in the two situations are worlds apart, the government’s rationale provides no principled way to distinguish Assange’s actions from what the Times did 50 years ago, and mainstream journalists do today.

The First Amendment threat is especially acute in light of President Trump’s public hostility toward journalists. The president has famously referred to the media as the “enemy of the people.”

More ominously, the Times reported in 2017 that the president had asked former FBI Director James Comey to consider putting journalists in prison for reporting classified information, a suggestion that Comey apparently did not follow. Yet, as Comey chillingly observed, even real journalists are not exempt from the Espionage Act. And, in any event, this president apparently views the Times as practicing no more “real” journalism than Wikileaks.

The fear of selective prosecution is only heightened by the Justice Department’s previous decision, under Obama, not to indict Assange, despite its knowledge of the hacking since at least 2013. Criminal prosecution for particular conduct should not vary from one administration to the next, based on the political preferences of the incoming regime. Clear and unambiguous criminal laws provide protection against such arbitrary decisions. Yet, the breadth of the Espionage Act and vague distinctions about who is a journalist are invitations to selective prosecution.

Finally, the argument that the law need not be changed because mainstream journalists will never be prosecuted is exactly backward. A law that is never applied can have only one purpose — allowing the government to chill certain behavior and simultaneously claim not to do so. The Espionage Act deters journalists just as the anti-miscegenation laws, even if not enforced in some states, deterred interracial couples. If the act will never be used against journalists it should be amended to make that clear.

As a whistleblower attorney, it is not in my personal interest to suggest that the government focus its wrath solely on those who purloin classified information. But the First Amendment will be eroded if reporters who publish classified information need to rely on prosecutorial restraint to avoid the threat of federal prison. As a former prosecutor, I do not want my colleagues at the Justice Department to have that power. Congress should stop claiming that the gun pointed at the media is unloaded and take it away entirely. 

Eric Havian is a partner at Constantine Cannon and has represented whistleblowers for 25 years. He was an assistant United States attorney in the Criminal Division of the U.S. Attorney’s Office in San Francisco. He is a former co-chair of the American Bar Association Health Law Litigation Committee. Havian has taught fraud seminars at Stanford Law School and Berkeley Law School.