Tra­di­tional jour­nal­ists may aban­don Wik­iLeaks’ As­sange at their own peril

The Buffalo News - - OPINION - Mar­garet Sul­li­van is The Washington Post’s me­dia colum­nist and for­mer edi­tor of The Buf­falo News.

For press-free­dom ad­vo­cates, Ju­lian As­sange has long been a po­lar­iz­ing fig­ure.

And his ar­rest Thurs­day in Lon­don once again ig­nited the seem­ingly end­less de­bate:

Is the Wik­iLeaks founder, who un­til Thurs­day had been holed up in the Ecuado­ran Em­bassy in Lon­don for years, es­sen­tially a pub­lisher – though a no­tably strange one – who be­lieves in tak­ing rad­i­cal steps to ex­pose gov­ern­ment se­crets, and who thus should be af­forded the same First Amend­ment pro­tec­tions given to news or­ga­ni­za­tions?

Or is he a reck­less traitor – and by no means a jour­nal­ist – who de­serves no such con­sid­er­a­tion and who should be pros­e­cuted with­out wor­ry­ing about free-press con­cerns.

The na­ture of the charge from the U.S. gov­ern­ment will make a dif­fer­ence.

As­sange is be­ing charged un­der the Com­puter Fraud and Abuse Act, with the gov­ern­ment say­ing that he con­spired with for­mer U.S. Army in­tel­li­gence an­a­lyst Chelsea Man­ning – and that he helped Man­ning crack a clas­si­fied De­fense De­part­ment pass­word.

He is not, no­tably, be­ing charged un­der the Es­pi­onage Act, which has been used in re­cent years to go af­ter jour­nal­ists and their sources. Man­ning was im­pris­oned for seven years, in part for be­ing found guilty of vi­o­lat­ing that act.

The ques­tion hinges on this: Did As­sange cross a cru­cial line by al­legedly en­cour­ag­ing the pass­word hack – a line that no le­git­i­mate jour­nal­ist would, or should, cross?

As­sange’s at­tor­ney cer­tainly doesn’t think so. The charges, Barry Pol­lack said, “boil down to en­cour­ag­ing a source to pro­vide him in­for­ma­tion and tak­ing ef­forts to pro­tect the iden­tity of that source.” And some jour­nal­ists were quick to agree.

The prom­i­nent First Amend­ment lawyer Floyd Abrams said Thurs­day that he hadn’t made up his mind fully on the case but that one thing re­lieved him. The in­dict­ment is nar­row in scope, not based on what jour­nal­ists do all the time: re­ceive and pub­lish clas­si­fied in­for­ma­tion, he told CNN.

What As­sange is ac­cused of – break­ing into se­cure gov­ern­ment com­put­ers – “is for­tu­nately not com­mon­place jour­nal­is­tic con­duct.”

Still, there’s a sub­stan­tial gray area here. And a trou­bling one.

“The in­dict­ment dis­cusses jour­nal­is­tic prac­tices in the con­text of a crim­i­nal con­spir­acy: us­ing en­cryp­tion, mak­ing ef­forts to pro­tect a source’s iden­tity, and source cul­ti­va­tion,” said Univer­sity of Ge­or­gia me­dia law pro­fes­sor Jonathan Peters.

Those prac­tices, he told me, are not only rou­tine and law­ful, “they’re best prac­tices for jour­nal­ists.”

In fact, Wik­iLeaks and As­sange – and cer­tainly Ed­ward Snow­den’s 2013 leak of vast amounts of gov­ern­ment in­for­ma­tion, bring­ing wide­spread gov­ern­ment sur­veil­lance to light – have helped to usher in a new era for jour­nal­ists. News or­ga­ni­za­tions now pro­vide se­cure drop boxes for sources.

They wisely use en­cryp­tion ap­pli­ca­tions such as Sig­nal to con­verse with, and re­ceive in­for­ma­tion from, sources.

That these prac­tices are cast as part of the con­spir­acy “should worry all jour­nal­ists, whether or not As­sange him­self is seen as a jour­nal­ist,” Peters said.

What is dis­tinct, though, is the con­spir­acy to break the pass­word on a se­cure network.

“That would dis­tin­guish As­sange in prac­tice from tra­di­tional jour­nal­ists.”

That As­sange is such a strange and, to many, un­sym­pa­thetic char­ac­ter may en­ter too much into the de­bate. He’s hard to de­fend.

“When gov­ern­ments are try­ing to restrict press rights of any kind, the in­cli­na­tion is not to go af­ter the most pop­u­lar kid in the room – it’s to go af­ter the least pop­u­lar,” Trevor Timm, ex­ec­u­tive di­rec­tor of the Free­dom of the Press Foun­da­tion, told me last year.

What Wik­iLeaks has con­sis­tently done, Timm said, “is pub­lish in­for­ma­tion that is true and that the gov­ern­ment con­sid­ers se­cret.”

Re­call the Pen­tagon Pa­pers, the se­cret his­tory of the Viet­nam War, which Daniel Ells­berg nearly 50 years ago stole from the Pen­tagon and de­liv­ered to The New York Times and The Washington Post.

Even be­fore the at­tempt to crack the pass­word, Man­ning had given Wik­iLeaks hun­dreds of thou­sands of clas­si­fied records, pros­e­cu­tors said. The ma­te­rial al­legedly in­cluded four nearly com­plete data­bases, com­pris­ing 90,000 re­ports from the Afghanistan war, 400,000 re­ports from the Iraq War and 250,000 State De­part­ment ca­bles, The Post re­ported Thurs­day.

Be­fore we turn our backs on As­sange, we ought to think deeply about what’s at stake. Cast­ing him to the wolves as noth­ing but a nar­cis­sis­tic bad ac­tor – “not like us,” of course – may seem tempt­ing. The gray area here is big­ger than it looks – and so are the dan­gers to tra­di­tional jour­nal­ism and the pub­lic in­ter­est.

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