DNC sues WikiLeaks for wiretapping and ‘economic espionage’
The Democratic National Committee named WikiLeaks as a co-defendant in a multi-million dollar conspiracy lawsuit that it filed against the Russian government and the Trump campaign on April 20, 2018. The complaint accuses WikiLeaks of committing “economic espionage” by publishing internal DNC documents and emails that were allegedly stolen from DNC servers by Russian hackers.
No matter what one thinks of WikiLeaks, the DNC’s theory against the publishing organization could have grave implications for press freedom in the United States.
The lawsuit, filed in the U.S. District Court for the Southern District of New York, accuses the Russian government, the Donald Trump campaign, Trump family members, and WikiLeaks of conspiring to hack into DNC servers, steal documents damaging to the Clinton campaign, and then publish the stolen documents. The DNC is not only seeking damages, but also admissions of guilt.
“The conspiracy constituted an act of previously unimaginable treachery: the campaign of the presidential nominee of a major party in league with a hostile foreign power to bolster its own chance to win the Presidency,” the lawsuit states.
In the lawsuit, the DNC specifically accuses WikiLeaks of “economic espionage” and “theft of trade secrets” related to its publication of internal DNC documents. The lawsuit also accuses WikiLeaks of violating federal wiretapping laws by publishing documents that it knew had been obtained through hacking:
170. WikiLeaks and Assange released and transmitted DNC trade secrets, including confidential, proprietary documents related to campaigns, fundraising and campaign strategy, on July 22 and November 6, 2016. Each release constituted a separate count of economic espionage.
171. Beginning on or before July 22, 2016, and continuing daily thereafter through November 2016, WikiLeaks and Assange, received, bought, or possessed Plaintiff’s trade secrets, knowing them to have been stolen or appropriated, obtained, or converted without authorization, and intending or knowing that doing so would benefit the Russian government, Russian instrumentalities, or Russian agents.
173. WikiLeaks and Assange also committed the acts described above with the invent to convert Plaintiff’s trade secrets, which are related to a product or service used in or intended for use in interstate or foreign commerce, the economic benefit of others besides Plaintiff. Each unauthorized release constituted a separate act of theft of trade secrets.
183. In violation of 18 U.S.C. § 2511(1)(c), GRU Operative #1, WikiLeaks, and Assange willfully and intentionally disclosed the contents of Plaintiff’s wire, oral, or electronic communications, knowing or having reason to know that the information was obtained through the interception of wire, oral, or electronic communications in violation of 18 U.S.C. § 2511.
184. In violation of 18 U.S.C. § 2511(1)(d), GRU Operative #1, WikiLeaks, Assange, the Trump Associates, and the Trump Campaign willfully and intentionally used the contents of Plaintiff’s wire, oral, electronic communications, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communications in violation of 18 U.S.C. § 2511.
DNC lawsuit against Russia, Trump Campaign, and WikiLeaks
These legal theories, if adopted by the courts, would have broad and dangerous implications for all types of reporters who cover election campaigns.
After WikiLeaks published documents about the DNC, countless media outlets — including mainstream news publications such as The New York Times and The Washington Post — reported on the internal DNC communications and even republished some of the documents. Under the DNC’s theory of the case, the Times and Post could theoretically also be liable for wiretapping, for “knowing or having reason to know that the information was obtained through the interception of wire, oral, or electronic communications” with the DNC.
(In the 2001 case Bartnicki v. Vopper, the Supreme Court ruled that news organizations have a First Amendment right to publish information in the public interest even if they knew the source of the information violated the law to obtain it.)
Separate from the case of WikiLeaks, newspapers often report on and publish internal documents and emails from all sorts of electoral campaigns. For example, the Washington Post published internal campaign document from the Trump administration in April 2016. Some of these stories may come from hacked materials, but most come from sources inside a campaign who hand documents over to news organizations without official authorization.
Under the theory of the DNC’s lawsuit, news organizations that publish internal campaign documents could potentially be sued — or even prosecuted by the government — for economic espionage or theft of trade secrets, raising serious press freedom concerns.
It’s not just campaign reporters who are at risk. If the court found WikiLeaks liable for “theft of trade secrets” just for publishing internal information about the DNC, then corporations of all stripes could arguably use the same arguments to silence journalists like John Carreyrou, the Wall Street Journal reporter who exposed serious misconduct and fraud at the blood-testing company Theranos.
In a comment on Twitter responding to the lawsuit, WikiLeaks said that its publication of the DNC documents was protected by the First Amendment:
Comment on DNC "lawsuit": DNC already has a moribund publicity lawsuit which the press has became bored of--hence the need to refile it as a "new" suit before mid-terms. As an accurate publisher of newsworthy information @WikiLeaks is constitutionally protected from such suits.— WikiLeaks (@wikileaks) April 20, 2018