“I’m not a fan of Julian Assange, particularly since his unethical actions and lies he’s told since the 2016 U.S. election. But I am a proponent of a strong free press, and his case is critically important for the future of journalism in this country.”
Published
on Portside (https://portside.org/)
Crumbling Case Against Assange Shows Weakness of “Hacking” Charges Related to Whistleblowing
Micah Lee
September 30, 2020
The Intercept
By 2013, the Obama administration had concluded that
it could not charge WikiLeaks or Julian Assange with crimes related to
publishing classified documents — documents that showed, among other things,
evidence of U.S. war crimes in Iraq and Afghanistan — without criminalizing
investigative journalism itself. President Barack Obama’s Justice Department
called this the “New York Times problem,” because if WikiLeaks and Assange were
criminals for publishing classified information, the New York Times would be
just as guilty.
Five years later, in 2018, the Trump
Administration indicted Assange anyway. But, rather than charging him
with espionage for publishing classified information, they charged him with a
computer crime, later adding 17 counts of espionage in a superseding May 2019
indictment.
The computer charges claimed that, in 2010, Assange
conspired with his source, Chelsea Manning, to crack an account on a Windows
computer in her military base, and that the “primary purpose of the conspiracy
was to facilitate Manning’s acquisition and transmission of classified
information.” The account enabled internet file transfers using a protocol
known as FTP.
New testimony from the third week of Assange’s
extradition trial makes it increasingly clear that this hacking charge is
incredibly flimsy. The alleged hacking not only didn’t happen, according to
expert testimony at Manning’s court martial hearing in 2013 and again at
Assange’s extradition trial last week, but it also couldn’t have happened.
The new testimony, reported earlier this
week by investigative news site Shadowproof, also shows that Manning already
had authorized access to, and the ability to exfiltrate, all of the documents
that she was accused of leaking — without receiving any technical help from
WikiLeaks.
The government’s hacking case appears to be rooted entirely in a
few offhand remarks in what it says are chat logs between Manning and Assange
discussing password cracking — a topic that other soldiers at Forward Operating
Base Hammer in Iraq, where Manning was stationed, were also actively interested
in.
The indictment claims that around March 8, 2010, after
Manning had already downloaded everything she leaked to WikiLeaks other than
the State Department cables, the whistleblower provided Assange with part of a
“password hash” for the FTP account and Assange agreed to try to help crack it.
A password hash is effectively an encrypted representation of a password from
which, in some cases, it’s possible to recover the original.
Manning already had authorized access to all of the
documents she was planning to leak to WikiLeaks, including the State Department
cables, and cracking this password would not have given her any more access or
otherwise helped her with her whistleblowing activities. At most, it might have
helped her hide her tracks, but even that is not very likely. I suspect she was
just interested in password cracking.
Assange, however, never cracked the password.
That’s it. That’s what the government’s entire
computer crime case against Assange is based on: a brief discussion about
cracking a password, which never actually happened, between a publisher and his
source.
Therefore, the charge is not actually about hacking —
it’s about establishing legal precedent to charge publishers with
conspiring with their sources, something that so far the U.S. government has
failed to do because of the First Amendment.
As Shadowproof points out: In June 2013, at Manning’s
court martial hearing, David Shaver, a special agent for the Army Computer
Crimes Investigating Unit, testified that Manning only provided
Assange with part of the password hash and that, with only that part, it’s not
possible to recover the original password. It would be like trying to make a
cappuccino without any espresso; Assange was missing a key ingredient.
Last week at
Assange’s extradition trial, Patrick Eller, a former Command Digital Forensics
Examiner at the U.S. Army Criminal Investigation Command, further discredited
the computer crime charge, according to Shadowproof.
Eller confirmed Shaver’s 2013 testimony that Manning
didn’t provide Assange with enough information to crack the password. He
pointed out, “The only set of documents named in the indictment that Manning
sent after the alleged password cracking attempt were the State Department
cables,” and that “Manning had authorized access to these documents.”
Eller also said that other soldiers at Manning’s Army
base in Iraq were regularly trying to crack administrator passwords on military
computers in order to install programs that they weren’t authorized to install.
“While she” — Manning — “was discussing rainbow tables and password hashes in
the Jabber chat” — with Assange — “she was also discussing the same topics with
her colleagues. This, and the other factors previously highlighted, may
indicate that the hash cracking topic was unrelated to leaking documents.”
I’m not a fan of Julian Assange, particularly since
his unethical actions and lies he’s told since the 2016 U.S.
election. But I am a proponent of a strong free press, and his case
is critically important for the future of journalism in this country.
Journalists have relationships with their sources.
These relationships are not criminal conspiracies. Even if a source ends up breaking
a law by providing the journalist with classified information, the journalist
did not commit a felony by receiving it and publishing it.
Whether or not you believe Assange is a journalist is
beside the point. The New York Times just published groundbreaking
revelations from two decades of Donald Trump’s taxes showing obscene tax
avoidance, massive fraud, and hundreds of millions of dollars of debt.
Trump would like nothing more than to charge the New
York Times itself, and individual journalists that reported that story, with
felonies for conspiring with their source. This is why the precedent in
Assange’s case is so important: If Assange loses, the Justice Department will
have established new legal tactics with which to go after publishers for conspiring
with their sources.
Micah Lee is First Look Media’s Director of
Information Security. He is a computer security engineer and an open-source
software developer who writes about technical topics like digital and
operational security, encryption tools, whistleblowing, and hacking using
language that everyone can understand without dumbing it down. He
develops security and privacy tools such
as OnionShare, Dangerzone, and semiphemeral.
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"The master class has always declared the wars; the
subject class has always fought the battles. The master class has had all to
gain and nothing to lose, while the subject class has had nothing to gain and
everything to lose--especially their lives." Eugene Victor Debs
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