Wikileaks As Security Breach

Affiliate scholar Marvin Ammori offers eight good reasons why the United States should not prosecute Wikileaks founder Julian Assange. I mostly agree with Ammori’s analysis and write to emphasize one point: an Assange trial, regardless of outcome, would help the government gloss over one of the worst security breaches in modern history. And the First Amendment could supply this distraction’s brightest fireworks.

Ammori argues quite convincingly that prosecuting Assange would upset a delicate constitutional balance and set a bad free speech precedent. No doubt First Amendment scholars the country over will continue to weigh in on why Assange cannot be held criminally liable for posting or even soliciting leaked documents. The government has very good attorneys who, in turn, will argue that they are punishing conduct, that Assange has no First Amendment rights as a non-resident or citizen, or that prosecuting Assange after the fact differs significantly from halting publication.

I tend to think Ammori, Jack Balkin, and others are exactly right. Prosecuting Assange is against the interest of free speech. But consider the push and pull of this narrative: either Julian Assange did a bad thing and can be prosecuted, or Julian Assange did a bad thing and cannot be. Lost in all this is the atrocious job the United States did in safeguarding private communications with enormous stakes.

When Daniel Ellsberg and Anthony Russo leaked the Pentagon Papers—in essence, a confidential history report—they had to photocopy thousands of pages and smuggle them out of the Pentagon over time in briefcases. Bradley Manning, an intelligence officer in his early twenties, allegedly downloaded hundreds of thousands of private, sensitive communications to a single disk. He then uploaded those documents to a website. He did this not from within the heart of the State Department but from a random military base in Iraq.

The leak represents an appalling security breach—one that makes TJX look like a misplaced diary. As I argue in a previous post, the leak threatens a set of classic privacy harms. One of the central roles of privacy is to help preserve the conditions for intimacy. The leak means that leaders will be less candid with U.S. diplomats going forward, who in turn will report back insights only with great caution. No one will take U.S. promises of confidentiality seriously. At the margins, this shattering of intimacy may take certain diplomatic options off the table. All because the government failed to take minimal steps to keep information within its proper context.

The government can—and in my opinion, should—prosecute Manning. Still, the responsibility for this breach lies squarely with the state. The U.S. hired, trained, and supervised Manning, and it built the system that permitted this young adult to undermine global diplomacy with a Lady Gaga CD.

When a company loses data, it has to come clean. Sometimes it must pay to recompense or monitor victims. It might fire employees. At a minimum, the company must address whatever problem made the breach possible—often under the supervision of a court or agency. What a company cannot do is blame everything on the hacker or identify thief. There will always be thieves; that is why we have locks.

Yet transferring blame is precisely what government officials may be trying to do in isolating and indicting Assange. Rather than own up to, fix, and apologize for an incredible failure—one that may even remove options for soft over hard power—the government may use its monopoly over coercion to transfer attention away from that failure. And it will be quite a show, in part because free speech is at stake. Even if a court ultimately throws out the case against Assange, the government will have succeeded in cementing a decoy narrative.

As Jack Goldsmith concludes over at Lawfare: “The best thing to do – I realize that this is politically impossible – would be to ignore Assange and fix the secrecy system so this does not happen again.” Amen to that.