Why the secret criminal investigation of WikiLeaks is troubling for journalists

The media is overlooking the details of an investigation that could have implications for all news organizations

Prosecutors in the Eastern District of Virginia began investigating WikiLeaks in 2010 after the site posted some of the quarter-million State Department cables leaked by Chelsea Manning.

Last month, an official from the Department of Justice publicly confirmed the investigation is still ongoing. It was the first time anyone, including WikiLeaks’ own defense team, has gotten such confirmation since April 2014.

It’s an important sign that what may be the biggest criminal investigation into a publisher in US history continues to grow. Yet the news was buried 18 paragraphs deep in a Washington Post article that instead focused on Google’s multi-year fight to be allowed to inform WikiLeaks staffers that the government had requested their data.

Free-press advocates and a few independent journalists fear that kind of coverage is a sign the media is overlooking the details of an investigation that could have implications for all news organizations.

“The WikiLeaks investigation has really been unprecedented in its scope and its scale, and also its secrecy,” Carey Shenkman, a constitutional lawyer and an associate to WikiLeaks counsel Michael Ratner, said in a phone interview. “Creating ambiguity around the investigation has a chilling effect. It leaves open questions and I think it makes any publisher wonder if they will suffer a similar fate,” investigated for releasing classified information in a way the government finds unacceptable.

Trevor Timm, co-founder of the Freedom of the Press Foundation, argued in 2013 that “virtually every move made by the Justice Department against WikiLeaks has now also been deployed on mainstream US journalists.” For example, the Department of Justice tried to secretly subpoena information from the Twitter accounts of WikiLeaks staffers more than two years before the Associated Press found the same thing had been done to its phone records.

Manning’s arrest in the summer of 2010 coincided with the peak of the Obama administration’s use of the Espionage Act as a weapon against leakers. Reports at the time indicated the DOJ was looking to prove that Assange had been a “co-conspirator” in the leak, perhaps with the idea of also charging him under the Espionage Act. Several years later, Timm noted, the world learned that Fox News reporter James Rosen had also been labeled a co-conspirator in a search warrant in the Espionage Act case against Stephen Kim.

“I think the strategy is that in a certain way the DOJ can sort of build legal precedent for future activity by even traditional media organizations trying to compete in a digital environment,” Alexa O’Brien, an investigative journalist covering both Manning and WikiLeaks, said in a phone interview. O’Brien is involved in a lawsuit aiming to unseal a dozen more court orders and search warrants related to the WikiLeaks investigation.

She also wants to see the government’s underlying applications for six court orders, which she hopes will shed light on its criminal theory in going after WikiLeaks, she said. One key question is whether prosecutors see the internet-native publisher as analogous to more traditional news publications or as a different kind of entity all together. Either answer has implications for the future of digital news.

On one hand, government officials have themselves acknowledged the so-called “New York Times problem”—that it is impossible to charge Assange or WikiLeaks with a crime for publishing classified documents without implying the Times or the Post are acting criminally when they regularly publish secret government information.

However, the simple fact that WikiLeaks has been under secret criminal investigation for five years indicates the government is treating the organization differently. O’Brien points to an unlikely source for a possible hint of the government’s mindset: In a February 2013 policy document outlining the Obama administration’s “strategy on mitigating the threat of US trade secrets,” WikiLeaks makes an appearance under a threat category titled “Hacktivists.” If WikiLeaks can somehow be connected to the actual stealing of classified or proprietary information, even in as tenuous a way as Barrett Brown was, perhaps group members can be put away on hacking charges. (It is worth noting here that hacktivist Jeremy Hammond was recently reported to have been put on a terrorist watch list after he stole a company’s internal emails. The emails were published on WikiLeaks.)

Whatever the government’s tactics, O’Brien thinks everyone should know about it.

“One has to try to understand what is the political attitude of the government towards this kind of activity,” O’Brien said. “And does the public or our representatives or our media organizations agree that this is actually a legitimate bent towards newer publication models?”

The question is less pressing for legacy newspapers, which are at little risk of being labeled hacktivist organizations by the government. But as new publications rely more and more on the internet for reporting, it is not always clear where to draw the line between a passive recipient of classified information and an active participant in procuring it. What would the government make, for example, of this recent Intercept article titled “How to Leak to the Intercept” and filled with technical advice about how to break the law?

“As media organizations become more interactive, these kinds of lines between a source and a press organization become incredibly important to understand,” O’Brien said.

Kelly J O'Brien is a freelance journalist based in Boston. Follow him on twitter at @kelly_j_obrien