Despite the challenges in dealing with large scale leaks from state hackers, it has become an increasingly routine practice. In the most recent, attorneys for Republican fundraiser Elliot Broidy filed a subpoena May 16 for documents from The Associated Press as part of a civil suit against the Qatar government, which he accuses of hacking his emails and leaking them to journalists at the AP and other news organizations. The AP told the Freedom of the Press Foundation that it intends to fight the subpoena. And the Qataris denied any role in the hack, The New York Times reported.
The U.S. government already uses vague terminology, which is potentially damaging to publishers, to describe WikiLeaks. Last year, Secretary of State Mike Pompeo--then CIA Director--labeled WikiLeaks a "non-state hostile intelligence service." The language was also inserted into a Senate appropriations bill. Senator Ron Wyden of Oregon, who accused WikiLeaks of participating in an "attack" on American democracy, nonetheless raised alarms about the terminology. In a statement issued by his office last August, he said, "The use of the novel phrase 'non-state hostile intelligence service' may have legal, constitutional, and policy implications, particularly should it be applied to journalists inquiring about secrets."
The notion that journalistic activity such as cultivating sources and receiving illegally obtained documents could be construed as part of a criminal conspiracy is, according to Goodale, the "greatest threat to press freedom today." "It will inhibit reporters' ability to get whistleblower information, because as soon as you talk to them in any aggressive fashion you could be guilty of a crime," Goodale said.
The DNC goes a step further, Wheeler argued, by classifying its emails as "trade secrets," and claiming that WikiLeaks and Assange broke federal laws specifically crafted to punish economic espionage. "If Forbes publishes information about what [a] business is doing that they got as a leaked document, given this precedent, the business could say that Forbes was engaged in economic espionage," Wheeler said.
Jesse Eisinger, a reporter and editor with ProPublica, described leaked documents as the "lifeblood of all journalists," and said that without them, "reporters would be severely crippled in our ability to do accountability journalism of any kind." Eisinger is part of a joint ProPublica and WNYC team which is soliciting tips and crowdsourcing as part of its investigation into Trump's business empire.
Aside from the legal implications, the complaint raises concerns over how the DNC views reporters. The DNC would not make available one of its attorneys to discuss the case or answer a series of detailed questions that CPJ provided via email. "Unlike Presidents Trump and Putin, the Democratic Party respects the First Amendment and cherishes the critical role that the free press plays in our democracy," Hinojosa, the DNC spokesperson, said in a brief statement.
Some legal experts however, said the DNC is in danger of bending those principles. "I think that this civil suit goes well beyond what the First Amendment permits," said Barry Pollack, the former president of the National Association of Criminal Defense Lawyers, who represents Assange in criminal matters. "We have seen in DOJs under both parties, a willingness to at least bump right up against the line of pursuing journalists criminally. And that's dangerous."
Some journalists have defended the DNC suit as a way to bring greater transparency to the 2016 hacking scandal. Writing in the New Yorker, Jeffrey Toobin argued that if successful, the lawsuit could be a way to secure sworn interviews with "key players."
WikiLeaks, for its part, appears eager to use the discovery phase to compel the release of DNC documents. The organization tweeted, "Discovery is going to be amazing fun," in response to the lawsuit.
Many of the legal experts said they assume the counts that mention Assange and WikiLeaks will be dismissed when the judge assesses if the conspiracy claims in the DNC lawsuit are "plausible." If the judge moves forward, University of Texas law professor Steve Vladeck said, it will be because he finds a way to substantially differentiate what WikiLeaks does from routine reporting practices.
However, Charles Glasser, a professor at NYU's journalism school who spent over a dozen years as global media counsel for Bloomberg, said that if the charges against Assange and WikiLeaks survived, it could pave the way for companies or others to label everyone--from those who illegally obtain documents to the press--as co-conspirators.
Lynn Oberlander, a lawyer for Gizmodo, added that foreign governments, political party, or corporations could use the DNC's legal theory against American journalists abroad. If a U.S. funded outlet such as Voice of America or an American-owned private entity published illegally obtained documents from a foreign political party, influencing the outcome of a foreign election, the outlet and its reporters could be sued for conspiracy, Oberlander said. "If you start doing this here in the U.S., you have to wonder: does someone start doing this against American interests abroad?"
[EDITOR'S NOTE: This post has been updated in the second paragraph to correct the spelling of Bartnicki and the 22nd paragraph to correct the name of the organization of which Barry Pollack is the former president.]
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