The Dead Trees Give More Shelter

The American government continues to investigate Wikileaks director Julian Assange, more than a month after the organization first released diplomatic cables to five newspapers.  Prosecutors have yet to charge Mr. Assange, who has already weathered rumors of possible indictment while under house arrest in a supporter’s British manor.

There has been a great deal of discussion over the ambiguities of the Espionage Act, an oft-amended law originally adopted to punish protesters during World War I.  Commentators, and especially journalists, would have you know that it is a bad idea to charge a self-proclaimed editor-in-chief with a law designed to prosecute spies and government employees.  Using the Espionage Act in such a way would be an unprecedented curtailment of the freedoms accorded to the media.

But a recent revelation has brought up the more pressing issue.  Last December, a federal magistrate judge in Virginia ordered Twitter to reveal identifying information of several accountholders, including Mr. Assange and an American supporter, Jacob Appelbaum.  The original request provided for a gag order, which Twitter succesfully fought in court.  The lawyer for Mr. Assange claimed that similar requests were made of other American companies, including Google, Skype, and Facebook.  (The primary law governing internet privacy, the Electronic Communications Privacy Act, is a product of 1986, making it the same age as the hacker manifesto.)

As one Economist technology correspondent pointed out, Mr. Assange is something of a legal innovator.  He placed his servers in countries with strict legal protection, but has made every attempt to exist as a permanent expatriate, outside any legal jurisdiction.  It is possible that closing this loophole through extradition and prosecution would have a chilling effect on the press, particularly journalists who make their living trafficking national security information.

But if Mr. Assange had been distributing pamphlets or writing letters to his organization, he would have made any investigation next to impossible.  Instead, he used social media and electronic communication services provided by American companies.  In doing so, Mr. Assange was given the same legal privacy as every other American customer: which is to say, not much.

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