As of Tuesday, WikiLeaks founder Julian Assange is in British custody on charges of having committed sex crimes in Sweden. Despite his arrest, WikiLeaks volunteers continue to release classified U.S. documents, and the U.S. Justice Department is still investigating whether publishing the secrets constitutes a crime. On that point, U.S. law presents significant hurdles—but they are not insurmountable.
Putting aside the extradition issues, the pertinent statute is the Espionage Act of 1917. That law makes it a crime to disclose information “relating to the national defense” to “any person not entitled to receive it.” Mr. Assange has clearly done this. But the law further requires that the perpetrator acted with “reason to believe” that the secret information “could be used to the injury of the United States.” Courts have interpreted this to mean that the disclosure must have been made with a “bad faith” purpose. Some contend that proving WikiLeaks’ bad faith might be tricky. Continue reading