Julian Assange, WikiLeaks, and information as a weapon

By Adam L. Penenberg , written on December 9, 2012

From The News Desk

US Defense Secretary Leon Panetta warns that America faces the threat of a cyber Pearl Harbor, a sneak digital strike over a virtually illimitable digital battlefield that could cripple our nation’s power grid, financial networks, and transport systems. The White House recently confirmed that Chinese hackers broke into its computers, and for more than a decade state-sponsored digital spies have treated American business as a giant R&D lab. Shortly after taking office, President Obama ordered attacks on computers linked to Iran’s nuclear enrichment programs, and the US remains one of the biggest buyers of black market code that can be used to infiltrate or destroy foreign networks. The headless hacker collective known as Anonymous unleashed a series of website defacements and takedowns dubbed “OpIsrael” to retaliate for Israel shelling the Gaza Strip and live-blogging (and -tweeting) assaults on Hamas targets.

If one man understands the powers and possibilities of information – and its use as a weapon – it’s Wikileaks founder Julian Assange, who has kept a relatively low profile since holing up in the Ecuadorian embassy in London to avoid police questioning on sexual assault charges. Ecuador’s president, Rafael Correa, granted Assange asylum, but Britain will not grant him safe passage out of the country. For now Assange resides in a single room and faces arrest if he ventures beyond embassy property. Adding to his legal woes, a secret grand jury looking into the passing of hundreds of thousands of state secrets to WikiLeaks has been impaneled in Alexandria, Virginia.

Assange wants to avoid extradition to Sweden because he fears the US will force him to stand trial for espionage over the Bradley Manning case. It’s impossible to know how this will turn out. Maybe London police will storm the embassy – like they threatened to earlier. Perhaps a friend will cram him into a car trunk and drive him to safety. Or maybe he’ll continue to live in the Ecuadorian embassy for decades to come. If he does somehow end up in Sweden, that’s when things could get interesting.

First, there’s the matter of the sexual assault claims. If Assange manages to beat these charges he’d face the likelihood that the U.S. would try to extradite him. Success is by no means guaranteed. As Elias Groll, a blogger for Foreign Policy, points out, “the extradition agreement between Sweden and the United States, first signed in 1961 and updated in 1983, prohibits extradition on the basis of ‘a political offense’ or ‘an offense connected with a political offense.’ The treaty does not explicitly define what constitutes a political offense, and if U.S. authorities were to seek Assange's extradition, that decision would likely be rendered by the Swedish supreme court.”

If the Swedish courts rule against Assange and he’s spirited across the Atlantic to stand trial, it’d be hard to gauge how strong a case prosecutors have put together. One of the first things Assange’s attorneys might do is claim he’s a journalist and should receive any and all protections under the First Amendment. He has long referred to himself as a publisher and editor, and when Wikileaks About page existed (it's down now)  it described itself as a “not-for-profit media organization” with its primary goal of bringing “important news and information to the public.”

The problem, though, is that it is virtually impossible to define what a journalist is. (Try it.)  The best we have comes from laws and proposed legislation to protect reporters from having to divulge confidential sources in court. In conjuring these shield laws – about two-thirds of states have shield laws on the books – legislators grappled with the nebulousness of the profession to determine who and what must be protected and why.

Based on the wording of some of these statutes, Assange would seem to fit the definition of a journalist, and what WikiLeaks does qualifies as journalism. The District of Columbia, for example, views news media as “any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.” New York offers protection to anyone “engaged in gathering, preparing [or] collecting . . . news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public.”

Others are more restrictive: In Indiana, a journalist is someone “connected with or employed by" a newspaper, wire service, or "licensed radio or television station,” period. Kentucky opts for even greater simplicity: “Newspaper, radio or television broadcasting station personnel need not disclose source of information.” Meanwhile, the House of Representatives in 2007 passed a federal shield law, which included a last-minute amendment that required anyone seeking protection to earn “a substantial portion of [their] livelihood” from journalism. None of these would cover Wikileaks, and the Senate never adopted one so there is no federal shield law anyway.

Whether Assange is defined as a journalist may not matter. Wired’s Threat Level reporter, Kim Zetter, reported that chat logs show that Assange (under a pseudonym) may have helped Manning crack the main password on a classified SIPRnet computer so he could log on anonymously. If Assange assisted Manning with purloining military secrets, being a journalist wouldn’t help him.

Then again, he has spent the last several years using the American government’s own words and documents against itself. If department of justice lawyers try to prosecute him, Assange will probably find other data points to use.

Because Assange, a man of his time, has mastered the art of information as weapon.