OBSERVER: Do you think Assange broke the law by releasing illegally obtained classified information?

Joel Reidenberg: He certainly didn’t break American privacy laws. The person who hacked the computer to get the data likely did. If Assange didn’t solicit the person to hack, I don’t think he will have a major problem. However,

OBSERVER: Do you think Assange broke the law by releasing illegally obtained classified information?

Joel Reidenberg: He certainly didn’t break American privacy laws. The person who hacked the computer to get the data likely did. If Assange didn’t solicit the person to hack, I don’t think he will have a major problem. However, it is possible that he has violated U.S. espionage statutes.

OBSERVER: Should the government take documents that could potentially threaten nationally security offline?

J.R: This [WikiLeaks] example is a case where internal government communications stored digitally are being pirated and publicly released. Suppose the documents were the detailed instructions for disabling American nuclear weapons, or were for hacking into and launching our nuclear missiles. Should the U.S. government be able to use all means possible to get those off the Net?  Yes.  But, in this case, it’s harder to say. It is possible that some of the information will cause wars. It’s possible it will cause deaths of people. It is hard for us to calculate who should be making that evaluation.

OBSERVER: Do you think it was acceptable for the New York Times and other publications to print WikiLeaks documents?

J.R: The First Amendment gives them the right to publish—that may break down in the future.  This case will begin a conversation about what is right and wrong in disseminating information on the Internet.  The WikiLeaks release creates a chilling effect on diplomatic relations, both internal and external.  This case so graphically demonstrates how easy it is to access and disseminate this kind of information. All it took was a junior officer with a thumb drive.

OBSERVER: Should the U.S. government arrest Assange?

J.R.: We can’t arrest him unless we can charge him with a crime in the U.S. and obtain his extradition.  If this is to be an espionage case, the prosecutor will have to demonstrate that Assange was trying to aid American enemies and harm the United States.  They would have to prove intent—that someone intended to commit the crimes. [Editor’s Note: British police arrested Assange in London on Dec. 7 for alleged sex offense crimes warranted by Sweden.]

OBSERVER: Do you think Assange was trying aid American enemies?

J.R.:  Probably.

OBSERVER: Do you think Assange is anti-American?

J.R.: Yes.

OBSERVER: If arrested, what crime will the court charge Assange?

J.R.: The prosecutor has to be able to come up with the charge.  If the Justice Department cannot find a crime with which to charge Assange, I would not be surprised to see Congress try to create a new criminal offense by enacting a statute defining as a crime the disclosure of classified communications, like the one revealed in WikiLeaks.  In trying to create a crime for the online disclosure of classified information, there will be a back and forth with the Supreme Court over the scope of First Amendment rights.  I expect that this will take place over the next 10 to 20 years.

OBSERVER: How was Manning able to download so many classified documents from a military computer system without raising any red flags with the CIA?

J.R.: Poor data security. The State Department was not effectively handling its own data. If it’s Manning, what he did was a crime.  This reflects the ease of disclosures: all you need is one gigabyte thumb drive and the information can be stolen and released.

OBSERVER: The incoming Chairman of the House Homeland Security Committee, Peter King, says WikiLeaks is a foreign terrorist organization. Do you think that is warranted?

J.R.: I think that’s exaggerated. I think that rhetoric ill serves the public debate.  Calling someone a terrorist cheapens the effectiveness of combating real terrorists.

OBSERVER: What is effect on investigative journalism? How will it change?

J.R.: We have a view of press freedom that is far broader than most other Western democracies. A case like this may push the public away from the consensus on  unfettered liberty that has been developed over time in the U.S. One of the things this is reflecting is that institutional journalism is facing an enormously significant challenge from the Internet.  Websites like WikiLeaks show how one person, or a small operation, can really channel and dictate the day’s news.  We typically think of freedom of the press in the context of having a check on government. If something like WikiLeaks ends up undermining the ability for a political institution to exist, that will be something countries have to respond to.

OBSERVER: Can we shut down Swedish servers that host WikiLeaks?

J.R.: Technologically, yes. There are technological ways to make the server impossible to function. What we’ve seen over the past week is that it is possible to cause disruption to the server.  But, it is also like a cat and mouse game where the server then moves elsewhere.  Legally, it’s complicated. If the attempt to take it offline is something done by the U.S government, then the U.S might be considered to be taking police action in the territory of a foreign country and the legal ability to do that under international law is unclear. Other countries who have been embarrassed have every reason [to take it offline] as well.

OBSERVER:  What would you recommend be done to protect our privacy in the future?

J.R.: People have to be more careful about encrypting online information—a lot more information needs to be password protected. In the case of government communications, we are going to have to see more segregation of networks. Why a low level person sitting on a military base was able to gain access to a State Department computer is unexplainable.