Understanding the CFAA Conspiracy Charge Against Julian Assange

After reading an eye-opening article yesterday by @Emptywheel, I’m finally beginning to understand the CFAA conspiracy charge against Julian Assange and I think it’s important that you do, too. It’s important so that we realize just how serious the indictment is, exactly what it entails, and that it’s not just about the government’s argument, “Assange helped Manning hack some stuff.”

This simplistic take on the case and encouraging activists to fight Assange’s extradition on basic talking points that ignore some of the actual charges isn’t entirely helpful. So I want to focus on “Count 2: Conspiracy to Commit Computer Intrusion,” in the superseding indictment against Assange.

Emptywheel has been writing about the conspiracy charge for awhile now and getting a lot of flak from Assange supporters in return who clearly don’t understand it. Part of the problem is Wikileaks and Courage Foundation aren’t talking about it so the flock naturally assumes that she must be wrong in her assessments and operating on behalf of the U.S. government. But after reading her article, “The Growing Wikileaks Conspiracy [Indictment],” I don’t think she is. 

First, in EW’s (Emptywheel) article, she noted that (my emphasis), “While commentators are right to argue that Espionage Act related charges risk criminalizing journalism, the CFAA conspiracy charge…does nothing unusual in charging the conspiracy.” 

So what exactly does the government have to do to prove a conspiracy? To answer this, EW pointed to a Twitter thread posted by Elizabeth de la Vega:

Pretty crazy, right? And yes, the one defining factor is that the object (but not necessarily all the acts involved in the conspiracy) must be illegal so don’t worry if you and your neighbors conspired to keep drunk Bob out of the annual block party this year. You’re good. Others of you, however, may be questioning your life choices in the last two years. Just saying.

Again, Assange has been charged with “conspiracy to commit computer intrusion” and EW used a snippet from the government’s case against hacktivist Jeremy Hammond as an example:

Of course, I personally find this absurd since it was Sabu–while working for the feds–who gave Hammond targets to hit so basically Hammond was hacking on behalf of the FBI and sending that data (from foreign countries) to an FBI server which was unknown to Hammond at the time. But, whether or not you and I disagree with the U.S. government and the laws they applied in both Hammond and Assange’s cases, this gives you a pretty accurate picture of what we’re looking at in terms of “conspiracy”:

“Thus, so long as the government can prove that Assange entered into an agreement with co-conspirators to commit illegal hacks, then the government will have plenty of evidence to prove that the conspiracy happened, not least because co-conspirators Chelsea Manning, Jeremy Hammond, and Sabu pled guilty to them.”

Siggi Thordarson also plays a role in the indictment as a co-conspirator but like I noted yesterday in terms of WikiLeaks and supporters downplaying his role within the organization, it does not matter if Siggi is a sociopathic, pathological liar. What matters is if Assange’s own words prove Siggi had a much more significant role in the organization than WikiLeaks is letting on, and it appears that they do. 

More significant is the conspiracy charge: If Assange entered into a conspiracy with Siggi, he can still be charged for things Siggi did even if Assange didn’t know about them and there’s plenty of stuff in the indictment that Siggi did NOT recently recant. Love it or hate it, welcome to America’s federal conspiracy laws.

“Including, But Not Limited to…”

What I found to be significant in the indictment listed under Count 2 was this statement which I think a lot of people missed:

“Assange and his conspirators committed lawful and unlawful overt acts, including but not limited to, those described in the General Allegations Section of the Indictment.”

That section is not just about Chelsea Manning and what she leaked to WikiLeaks like the Iraq and Afghanistan War Logs or the Gitmo files, meaning, as I understand this, the indictment covers a lot more than that—at least the government is going to try and use more than that. In a June 24, 2020 press release about the superseding indictment against Assange, the DOJ stated (my emphasis):

“The new indictment does not add additional counts to the prior 18-count superseding indictment returned against Assange in May 2019. It does, however, broaden the scope of the conspiracy surrounding alleged computer intrusions with which Assange was previously charged.”

This seems to include recruiting, unauthorized access into an Icelandic government website by Assange, helping Snowden in Russia in order to encourage more leaking (illegal access/leaking of information), and providing a list of targets to Sabu’s hacking collective, LulzSec, all of which are listed in the “General Allegations Section of the Superseding Indictment.”

And yes, some of this I find super absurd especially the government’s laser focus on WikiLeaks’ Most Wanted List (this involves the Manning conspiracy) and Emptywheel wrote an interesting article about it called, “The Logic of Assange’s EDVS Indictment is Inconsistent With Mueller’s Apparent Logic on Assange’s Declination.”

The bottom line is that in the superseding indictment, the government is trying to push Assange’s activities further away from journalism and closer towards hacking. And remember, according to the conspiracy charges, Assange didn’t have to take part in hacking or even know about it. He just had to be a part of a conspiracy with those that did. This is what no one seems to be talking about.

The Indictment’s General Allegations

Recruitment 

According to the U.S. government, Assange founded WikiLeaks with the intent to seek, obtain, and disseminate “classified, censored, or otherwise restricted material of political, diplomatic, or ethical significance.” WikiLeaks’ success depended on sources who would “illegally circumvent legal safeguards” on information (including classification and network/computer restrictions), and leak the material/data to WikiLeaks.

To encourage individuals to hack and/or illegally obtain and leak material, WikiLeaks posted a “Most Wanted Leaks of 2009” on their website. Additionally, at multiple cyber conferences, the government claims that Assange and other members of WikiLeaks encouraged members of the audience to procure and leak documents from their “Most Wanted List.” 

Chelsea Manning

According to the U.S. government, in November 2009, Chelsea Manning started searching for items that were listed on WikiLeaks’ “Most Wanted List.” That same month, she saved a file to her computer that read, “You can currently contact our investigative editor directly in Iceland…ask for ‘Julian Assange.’”

Between January 2010-May 2010, Manning downloaded “four nearly complete databases from department and agencies of the United States” that were consistent with WikiLeaks’ Most Wanted List.

After sending Assange detainee assessment briefs, Manning told him, “thats all i really have got left,” and Assange replied, “curious eyes never run dry.” I’m assuming that this is part of the “conspiracy”—Assange encouraging Manning to obtain and leak more material and Manning took him up on it.

The indictment also claims that Assange helped Manning try to crack a password hash which would have obscured Manning’s identity. According to Assange’s lawyers:

“The defense points out that testimony in Manning’s own court martial was inconclusive as to whether Assange had ever cracked the password, or whether he would have been able to with the information Manning provided, or what purpose the password would be used for if it were successfully cracked.”

And folks, therein lies what Emptywheel has been saying all along: In a conspiracy charge, it does not matter if they were successful or not. Even the magistrate of Assange’s extradition hearing noted this. It doesn’t even matter if Assange took part in any attempts to help Manning crack a password hash. The only thing that matters is if Assange was already engaged in a conspiracy with Manning when it happened.

No, I’m not supporting the government’s prosecution of Assange, I’m trying to explain a specific charge to Assange supporters who like to stick their head in the sand. How in the world do you plan on fighting something you don’t even know about or understand?

So after Assange’s “curious eyes” comment, Manning continued to send him material despite initially claiming he didn’t have anymore including the Iraq rules of engagement files, the U.S. State Department cables, and the Gitmo files.

The indictment goes on to say that Assange knew that he was receiving classified material from Manning blah blah blah which, personally, I don’t care about in a journalistic sense. Lots of media outlets and journalists have received and disseminated not just WikiLeaks documents but other classified material and you don’t see the government terrorizing them. I mean, if this is such a problem then maybe somebody should ask why Glenn Greenwald, Laura Poitras, and The Intercept were never indicted for receiving and publishing stolen documents given to them by Snowden.

Siggi, Manning, and Iceland

In lines 34-46 of the indictment, we finally meet Siggi Thordarson, the sociopathic liar that Assange brought on board of WikiLeaks while Thordarson was still underage. There’s been some hoopla over him recently because he recanted some of the things he told the feds about Assange and now every Assange supporter (even Snowden) are naive, ignorant, or stupid enough to believe this destroyed the entire case against Assange. Sigh. Now that you’re beginning to understand the conspiracy charges do you see how it doesn’t? Like, not even in the slightest?

For instance, according to stundin.is, the magistrate in Assange’s extradition case used deceptive language about Siggi in her ruling,”…[Assange] used the unauthorized access given to him by [Siggi], to access a government website of [Iceland] used to track police vehicles.” The author of the article argues that Siggi admitted to the media outlet that he was granted access to the website and did not obtain it through “any nefarious means.” Siggi also stated that Assange never asked for access.

But as EmptyWheel pointed out, Assange told Manning that he accessed the website, a website that Siggi might have had permission to access but Assange did not. It does not matter how unreliable or devious Siggi is, Assange’s own words betray him. Maybe the defense can argue that Siggi just happened to access the website while Assange was sitting next to him (is that a legitimate defense?) but as for the magistrate’s ruling, the government’s indictment, and Assange’s own chat logs with Manning, he admitted to accessing the website without authorization. 

Do I think Assange should spend more time in prison for this? Of course not, that’s absurd. Unfortunately, the government doesn’t appear to be talking about this as an isolated event. They’re talking about it in terms of a conspiracy.

And just remember that Siggi’s propensity for lying does not matter in the least in this particular case and I’m becoming increasingly concerned that the prosecution has way more direct evidence from Assange via chat logs (likely handed over by Siggi) than we know about.

During the summer of 2010, Assange put Siggi in charge of WikiLeaks’ IRC channel and according to the government, he warned the teenager about “spies” and requested that he refer to him “sources with national security related information.” Folks, U.S. federal prosecutors aren’t complete idiots and my guess is that they have the chats/recordings to back all of this up which goes back to what I said yesterday—

It’s fairly stupid at this point for anyone to keep pushing the absurd narrative that Siggi was just an “errand boy” for Assange. This exchange alone shows that Assange trusted Siggi enough to be able to sniff out “spies” and handle speaking with “sources with national security related information.” Given that he was tasked with this, why wouldn’t Siggi allegedly “over inflate” his involvement with WikiLeaks? What kind of national intelligence source is going to speak with the coffee boy, I mean…

Anonymous, Gnosis, Anti-Sec, and LulzSec

There’s a lot of involvement on Siggi’s part in this section, too, and the actual story about Siggi, Assange, LulzSec, Anti-Sec, Sabu, and the Stratfor leaks seems so long and convoluted that I’m just going to post Emptywheel’s list here that highlights the conspiracy laid out by U.S. government against Assange.

(For further reading about these events, especially government claims I find dubious, check out four articles I wrote: “The Enemy Within,” “The Stratfor Files,” “The U.S. Intelligence Agency” and “The Syria Files.” I also encourage you to read the superseding indictment because it contains conversations between Assange and Sabu that a. I was not aware of so b. I did not include them in the articles. Keep in mind though that these are not full chat logs, they are bits and pieces that the government chose to use in the indictment). Emptywheel:

I want to add that if you actually read the indictment, there are a number of events where it’s unclear if Assange had anything to do with them or if he did anything with some of the information that was sent to him by hackers. For instance, in early February 2011, the government claims that members of the hacking collective, Gnosis, sent Siggi computer code that was hacked from a U.S. cybersecurity company, who then allegedly passed it along to Assange. The indictment does not indicate whether or not Assange actually received it or did anything with that code. 

Additionally, it’s unknown whether or not chats/recordings exist that show Assange was aware of, for example, the agreements Siggi was entering into with members of Anonymous but, again, as Emptywheel pointed out in terms of a conspiracy:

“[O]nce someone joins a conspiracy, that person becomes implicated in the act of all the others in the conspiracy, whether or not one knows about those other acts. Assange [allegedly] agreed to enter into a conspiracy before and after the hack of Strafor, so he’s on the hook for it.”

Remember this headline, “Ex-police chief, 5 others charged in Capitol riot conspiracy”? Right. So just because all six men were charged for conspiring with one another, each one was probably not aware of every single thing that the others were doing and/or saying and if only one of them committed an overt act to further the conspiracy, they can all be charged for it.

So…

I hope I was able to shed some more light on the CFAA conspiracy charge that Assange is facing but remember that I am not an attorney! And I get why everyone is taking the Espionage charges more seriously because the penalties are much more severe. However, with just the CFAA conspiracy charge (Count 2), Assange is looking at five years in prison, close to the 63 months prosecutors have alleged he’ll likely receive if he’s extradited (sure, Jan). That one count is enough to get him on U.S. soil and five years is certainly enough time to hold him while the government comes up with other charges pertaining to the 2016 leaks and Vault 7.

Perhaps the other counts in the indictment are a good distraction from the conspiracy charge because Emptywheel seems to be the only one talking about it despite the seriousness of what that charge means and entails. As she put it:

“Both the UK and US have already prosecuted people for the CFAA conspiracy as alleged in the superseding indictment. The ONLY thing prosecutors will have to show is that Assange entered into that conspiracy.”

Emptywheel gets trolled a lot by WikiLeaks supporters but she’s already stated that the Espionage charges against Assange are a dangerous precedent for journalism. And what she’s talking about in her article, “The Growing Wikileaks Conspiracy,” is about the CFAA conspiracy charge, something I don’t think many people understand.

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Disclaimer: Ten thousand more pages of disclaimers to follow.

If you were mentioned in this article because your associate(s) did or said something stupid/dishonest, that’s not a suggestion that you did or said something stupid/dishonest or that you took part in it. Of course, some may conclude on their own that you associate with stupid/dishonest individuals but that’s called having the right to an opinion. If I’ve questioned something that doesn’t make sense to me, that’s not me spinning the confusing material you’ve put out. That’s me trying to make sense out of something that doesn’t make sense. And if I’ve noted that you failed to back up your allegations that means I either missed where you posted it or you failed to back your shiz up.

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That’s some of the BS I’m talking about so try not to act like a psychiatric patient, intelligence agent, or paid cyber mercenary by doing these things. If you would like to share your story, viewpoint, or any evidence that pertains to this article, or feel strongly that something needs to be clarified or corrected (again, that actually pertains to the article), you can reach me at jimmysllama@protonmail.com with any questions or concerns.

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2 Comments

  1. interesting take on that. hard to dispute. in any event, MY main thrust in the letters i write to Kongress are that the Espionage Act is Unconstitutional on it’s face and needs to be repealed and as such, charges against Assange should be dropped. So this has no effect on me, but it does look like it makes Julians hopes to be released a little more bleak. And of course i am assuming they don’t kill him in prison. Something that may, mentally, have already happened.

  2. Author

    Even if the Espionage Act was appealed it wouldn’t affect the CFAA conspiracy charge which dictates that JA didn’t have to take part in illegal activity to be charged. It’s deeply concerning.

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