DNC may re­gret hack­ing law­suit

Woonsocket Call - - OPINION - By NATHANIEL A.G. ZELINSKY Spe­cial to The Wash­ing­ton Post Zelinsky will grad­u­ate from Yale Law School this month.

Many Amer­i­cans might be sym­pa­thetic to the Demo­cratic Na­tional Com­mit­tee’s law­suit against the Rus­sian gov­ern­ment, Wik­iLeaks and the Trump cam­paign, al­leg­ing that they con­spired to hack the DNC’s servers and dis­sem­i­nate stolen emails dur­ing the 2016 elec­tion. After all, Moscow as­saulted our democ­racy and should pay for it.

But Amer­i­cans – and the courts – should think hard be­fore em­brac­ing all of the DNC’s le­gal the­o­ries. As it ap­plies to the Trump cam­paign, the case presents im­pli­ca­tions for the First Amend­ment and, if suc­cess­ful, could trans­form freespeech law in the United States in wor­ri­some ways. Down the road, the DNC it­self might re­gret pre­vail­ing on the le­gal claims that it ad­vances to­day.

The DNC law­suit boils down to a sim­ple ques­tion: When may the law pe­nal­ize some­one who dis­sem­i­nates truth­ful but il­le­gally ac­quired in­for­ma­tion about a mat­ter of pub­lic con­cern? Un­der cur­rent First Amend­ment case aw, most re­cently ad­dressed in the 2001 Supreme Court de­ci­sion in Bart­nicki v. Vop­per, the an­swer is al­most never – un­less the per­son who pub­lished stolen in­for­ma­tion also par­tic­i­pated in the ini­tial theft. This means, for ex­am­ple, that the First Amend­ment should pro­tect the right of a jour­nal­ist to pub­lish leaked clas­si­fied ma­te­rial. But if the jour­nal­ist stole the clas­si­fied ma­te­rial, the law can pe­nal­ize the theft and sub­se­quent publi­ca­tion.

The DNC claims that the Trump cam­paign con­spired with Rus­sia and Wik­iLeaks to hack the DNC and pub­li­cize em­bar­rass­ing, stolen in­for­ma­tion to swing the pres­i­den­tial elec­tion. We know that then-Repub­li­can-can­di­date Don­ald Trump and oth­ers hyped the hacked emails to stoke con­tro­versy. We also know that mem­bers of the Trump cam­paign com­mu­ni­cated with Krem­lin-linked Rus­sians and Wik­iLeaks. But there is no real ev­i­dence yet that any­one as­so­ci­ated with the Trump cam­paign helped Moscow hack the DNC’s servers or or­ches­trated the cy­ber­at­tack in ad­vance. Nor is there pub­licly known ev­i­dence that the Trump cam­paign com­mu­ni­cated with Rus­sia be­fore the hacks or agreed to Rus­sia’s in­for­ma­tion theft.

As a re­sult, un­der Bart­nicki, the First Amend­ment may well pro­tect the Trump cam­paign’s ac­tions. Just as the Con­sti­tu­tion guar­an­tees a re­porter’s right to pub­lish the DNC hacks, so too can a po­lit­i­cal cam­paign take ad­van­tage of emails stolen by a third party.

How­ever, the Supreme Court has not had the chance to defini­tively weigh in on the is­sue. As is com­mon in First Amend­ment cases, the jus­tices de­cided Bart­nicki nar­rowly – lim­it­ing their rul­ing to the spe­cific cir­cum­stances of the case. The jour­nal­ists in Bart­nicki acted pas­sively, re­ceiv­ing stolen in­for­ma­tion from an anony­mous source. But this may not be the case in the DNC’s law­suit, so it is plau­si­ble that a de­ci­sion might push First Amend­ment law to­ward a different re­sult if a pub­lisher ac­tively co­op­er­ates after the fact with an in­for­ma­tion thief.

Con­sider the un­in­tended con­se­quences that might arise if the DNC’s law­suit suc­ceeds in hold­ing the Trump cam­paign legally re­spon­si­ble for Moscow’s hacks. In the future, a jour­nal­ist who closely co­op­er­ates with a leaker might also be la­beled a con­spir­a­tor and held li­able for the leaker’s ac­tions. Put more sharply: Un­der the DNC’s le­gal think­ing, the Trump ad­min­is­tra­tion to­day could pros­e­cute those many re­porters who rely on sources leak­ing clas­si­fied ma­te­rial to un­cover ac­counts of gov­ern­men­tal in­com­pe­tence (or worse).

To be sure, as with any com­plex le­gal sit­u­a­tion, we might be able to dis­tin­guish be­tween jour­nal­ists co­op­er­at­ing with leak­ers and can­di­dates who col­lude with for­eign hack­ers. For in­stance, in Bart­nicki, the Supreme Court noted that the gov­ern­ment’s abil­ity to pros­e­cute do­mes­tic in­for­ma­tion thieves jus­ti­fies the me­dia’s First Amend­ment right to print stolen in­for­ma­tion. When it comes to state­spon­sored hack­ing, how­ever, that equa­tion breaks down. The gov­ern­ment pos­sesses far fewer means to de­ter or pun­ish the hack­ers, thus open­ing the door to plac­ing li­a­bil­ity on down­stream pub­lish­ers – or so that par­tic­u­lar the­ory might go. In prac­tice, how­ever, it would be ex­tremely hard to draw such a fine fac­tual and le­gal dis­tinc­tion – and the broader free­doms of the press would suf­fer.

The First Amend­ment cal­cu­lus is quite different for Rus­sia and pos­si­bly Wik­iLeaks, de­pend­ing on the lat­ter’s in­volve­ment from the be­gin­ning. As the in­for­ma­tion thief, Moscow and its spies for­feited any con­sti­tu­tional right to pub­lish the emails they stole. But in­di­vid­u­als with the Trump cam­paign, like other Amer­i­cans, de­serve the free­dom to speak.

As more facts come to light, the Trump cam­paign’s le­gal ex­po­sure might in­crease, es­pe­cially if the Trump cam­paign planned in ad­vance for the Rus­sians to breach the DNC’s servers. But un­til then, we should not con­fuse the Trump cam­paign’s con­sti­tu­tional rights with its civic re­spon­si­bil­ity. When Trump and his as­so­ciates will­ingly took ad­van­tage of a for­eign power’s in­ter­ven­tion in our elec­tion, they be­trayed the na­tion’s ba­sic val­ues and, in my view, ren­dered Trump un­fit for of­fice. To com­bat that prob­lem, how­ever, the DNC and all Amer­i­cans should look to the po­lit­i­cal process, not the courts.

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