Why the secret criminal investigation of WikiLeaks is troubling for journalists

The media is overlooking the details of an investigation that could have implications for all news organizations

Prosecutors in the Eastern District of Virginia began investigating WikiLeaks in 2010 after the site posted some of the quarter-million State Department cables leaked by Chelsea Manning.

Last month, an official from the Department of Justice publicly confirmed the investigation is still ongoing. It was the first time anyone, including WikiLeaks own defense team, has gotten such confirmation since April 2014.

Its an important sign that what may be the biggest criminal investigation into a publisher in US history continues to grow. Yet the news was buried 18 paragraphs deep in a Washington Post article that instead focused on Googles multi-year fight to be allowed to inform WikiLeaks staffers that the government had requested their data.

Free-press advocates and a few independent journalists fear that kind of coverage is a sign the media is overlooking the details of an investigation that could have implications for all news organizations.

The WikiLeaks investigation has really been unprecedented in its scope and its scale, and also its secrecy, Carey Shenkman, a constitutional lawyer and an associate to WikiLeaks counsel Michael Ratner, said in a phone interview. Creating ambiguity around the investigation has a chilling effect. It leaves open questions and I think it makes any publisher wonder if they will suffer a similar fate, investigated for releasing classified information in a way the government finds unacceptable.

Trevor Timm, co-founder of the Freedom of the Press Foundation, argued in 2013 that virtually every move made by the Justice Department against WikiLeaks has now also been deployed on mainstream US journalists. For example, the Department of Justice tried to secretly subpoena information from the Twitter accounts of WikiLeaks staffers more than two years before the Associated Press found the same thing had been done to its phone records.

Mannings arrest in the summer of 2010 coincided with the peak of the Obama administrations use of the Espionage Act as a weapon against leakers. Reports at the time indicated the DOJ was looking to prove that Assange had been a co-conspirator in the leak, perhaps with the idea of also charging him under the Espionage Act. Several years later, Timm noted, the world learned that Fox News reporter James Rosen had also been labeled a co-conspirator in a search warrant in the Espionage Act case against Stephen Kim.

I think the strategy is that in a certain way the DOJ can sort of build legal precedent for future activity by even traditional media organizations trying to compete in a digital environment, Alexa OBrien, an investigative journalist covering both Manning and WikiLeaks, said in a phone interview. OBrien is involved in a lawsuit aiming to unseal a dozen more court orders and search warrants related to the WikiLeaks investigation.

She also wants to see the governments underlying applications for six court orders, which she hopes will shed light on its criminal theory in going after WikiLeaks, she said. One key question is whether prosecutors see the internet-native publisher as analogous to more traditional news publications or as a different kind of entity all together. Either answer has implications for the future of digital news.

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Why the secret criminal investigation of WikiLeaks is troubling for journalists