The government recently released a superseding indictment[1] against Wikileaks editor in chief Julian Assange, currently imprisoned and awaiting extradition in the United Kingdom. As we’ve written before, this prosecution poses a clear threat to journalism, and, whether or not Assange considers himself a journalist, the indictment targets routine journalistic practices such as working with and encouraging sources during an investigation.

While considering the superseding indictment, it’s useful to look at some of the features carrying over from the previous version. Through much of the indictment, the government describes and refers back to a page on the Wikileaks website describing the “Most Wanted Leaks of 2009.[2]” The implication in the indictment is that Wikileaks was actively soliciting leaks with this Most Wanted Leaks list, but the government is leaving out a crucial piece of nuance about the Most Wanted Leaks page: Unlike much of Wikileaks.org, the Most Wanted Leaks was actually a publicly-editable wiki. 

 Rather than viewing this document as a wishlist generated by Wikileaks staff or a reflection of Assange’s personal priorities, we must understand that this was a publicly-generated list developed by contributors who felt each “wanted” document offered information that would be valuable to the public.

Archives of the page show evidence of the editable nature of the document:

 The Most Wanted Leaks page shows that it has visible “edit” links, similar to what one might find on any wiki page.

Language on the page says that one can "securely and anonymously" add your nomination by directly editing the page:

And goes on to encourage contributors to "simply click "edit" on the country below" to make changes to the page:

While we don’t know how many people contributed to the page at the time, the different formatting and writing styles across the page support the idea that this page was edited by many different people. But the government’s indictment, which names this document no less than 14 times and dedicates multiple pages to describing it, never explains the crowd-sourced nature of the Most Wanted Leaks document.

It’s easy to understand why. The government prosecutors are trying to paint a picture of Assange as a mastermind soliciting leaks, and is charging him with violating computer crime law and the Espionage Act. It doesn’t suit their narrative to show Wikileaks as a host for a crowdsourced page where activists, scholars, and government accountability experts from across the globe could safely and anonymously offer their feedback on the transparency failures of their own governments. But as we analyze the indictment, it’s important that we keep this context in mind. It’s overly simplistic to describe the Most Wanted Leaks list, as the government does in its indictment, as “ASSANGE’s solicitation of classified information made through the Wikileaks website" or a way "to recruit individuals to hack into computers and/or illegally obtain and disclose classified information Wikileaks." This framing excises the role of the untold number of contributors to this page, and lacks an understanding of how modern wikis and distributed projects work.

We’ve long argued that working with sources to obtain classified documents of public importance is a well-established and integral part of investigative journalism and protected by the First Amendment. Even if Assange had himself written and posted everything on the Most Wanted Leaks page, then the First Amendment would protect his right to do so. There is no law in the United States that would prevent a publisher from publicly listing the types of stories or leaks they would like to be made publicly. But that’s not what happened here—in this case, Wikileaks was providing a forum where contributors from around the world could identify documents and data they felt were important to be made public. And the First Amendment clearly protects the rights of websites to host a public forum of that nature.

Many of the documents on the Most Wanted Leaks page are of clear public interest. Some of the documents requested by editors of the page include:

• Lists of domains that are censored (or on proposed or voluntary censorship lists) in China, Australia, Germany, and the U.K.
• In Austria, the source code for e-Voting systems used in student elections.
• Documents detailing the Vatican’s interactions with Nazi Germany.
• Profit-sharing agreements between the Ugandan government and oil companies
• PACER - the United States’ federal court record search database.

While today it’s in the government’s interest to paint Wikileaks as a rogue band of hackers directed by Assange, the Most Wanted Leaks page epitomizes one of the most important features of Wikileaks: that as a publisher, it served the public interest. Wikileaks served activists, human rights defenders, scholars, reformers, journalists and other members of the public. With the Most Wanted Leaks page, it gave members of the public a platform to speak anonymously about documents they believed would further public understanding. It’s an astonishingly thoughtful and democratic way for the public to educate and communicate their priorities to potential whistleblowers, those in power, and other members of the public.

The ways Wikileaks served and furthered the public interest doesn’t fit the prosecution’s litigation strategy. If Assange goes to court to combat the Espionage charges he is facing, he may well be prevented from discussing the public interest and impact of Wikileaks’ publication history. That’s because the Espionage Act, passed in 1917, pre-dated modern communications technology and was never designed as a tool to crack down on investigative journalists and their publishers. There’s no public interest defense to the Espionage Act, and those charged under the Espionage Act may have no chance to even explain their motivation or the impact—good or bad—of their actions.  

Assange’s arrest in April 2019 was based on a single charge, under the Computer Fraud and Abuse Act (CFAA), arising from a single, unsuccessful attempt to crack a password. At the time, it was clear to us that the government’s CFAA charge was being used as a thin cover for attacking the journalism. The original May 2019 Superseding Indictment added 17 additional charges to the CFAA charge, and clarifying it was charging both conspiracy and a direct violation. In the Second Superseding Indictment, however, the direct CFAA charge is gone, leaving the charge of Conspiracy to Commit Computer Intrusion. The government removed the paragraphs specifying the password cracking as the particular factual grounds, now basing this Count vaguely on the acts “described in the [27 page] General Allegations Section of this Indictment.”

Removing the direct CFAA charge does not make this indictment any less dangerous as an attack on journalism. These General Allegations include many normal journalistic practices, all essential to modern reporting: communications over secure chat service, transferring files with cloud services, removing usernames and logs to protect the source’s identity, and, now in the Second Superseding Indictment, having a crowd-sourced list of documents that the contributors believed would further public understanding. By removing the factual specificity, the Second Superseding Indictment only deepens the chilling effect on journalists who use modern tools to report on matters of public interest.

Regardless of how you feel about Assange as a person, we should all be concerned about his prosecution. If found guilty, the harm won’t be just to Assange himself—it will be to every journalist and news outlet that will face legal uncertainty for working with sources to publish leaked information. And a weakened press ultimately hurts the public’s ability to access truthful and relevant information about those in power. And that is directly against the public interest.

Read the new charges against Assange.

[1] A superseding indictment means that the government is replacing its original charges with new, amended charges.

[2] The Most Wanted Leaks document was also submitted in Chelsea Manning’s trial. https://www.sandiegouniontribune.com/sdut-wikileaks-most-wanted-list-admitted-in-trial-2013jul01-story.html