Australian National University

THE AUSTRALIAN NATIONAL UNIVERSITY

ANU COLLEGE OF LAW Social Science Research Network Legal Scholarship Network ANU College of Law Research Paper No. 11-04 Don Anton & Gregor Urbas Why Julian Assange May Have a Case to Answer in Australia, Despite What the AFP Says (or, Why Julia Gillard Might Be Right) http://ssrn.com/AuthorID=371838 http://ssrn.com/abstract=1733666

Electronic copy available at: http://ssrn.com/abstract=1733666

Why Assange May Have a Case to Answer in Australia, Despite What the AFP Says (or, Why Julia Gillard Might be Right) Donald K. Anton & Gregor Urbas The Australian National University College of Law

Introduction

On 17 December 2010, the Australian Federal Police (AFP) announced that it had not identified any breach of Australian law by Wikileaks or Julian Assange. ABC News (Australia) reported that the AFP issued the following statement:

“The AFP has completed its evaluation of the material available and has not established the existence of any criminal offences where Australia would have jurisdiction,” the force said in a statement released today.

“Where additional cables are published and criminal offences are suspected, these matters should be referred to the AFP for evaluation”.

Importantly, the AFP did not conclude that no offences have been committed by Assange or Wikileaks – just that on the available material there do not appear to be offences under Australian law that have been committed by Assange or Wikileaks.

While we are not in a position to second-guess the AFP on the strength of the evidence available, we highlight that there are matters of public record and a legal background that suggests that Assange and Wikileaks may have come close to committing an offence/s under the Australian Criminal Code Act 1995 (Cth) relating to telecommunication services. In particular, in looking at section 474.14 of the Criminal Code Act 1995 (Cth) in particular, it seems on the face of things that there is indeed a plausible case for Assange and/or Wikileaks to answer in Australia.

Anton & Urbas on Assange & Australia Electronic copy available at: http://ssrn.com/abstract=1733666

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Background

Consider some basic “facts” as reported by the media (which, naturally, need to be approached with circumspection). It has been alleged that Assange and Wikileaks obtained classified information of the U.S. Government through U.S. Army Private Bradley Manning. According to the New York Times:

“Manning, an Army intelligence analyst, is suspected of disclosing more than 260,000 diplomatic cables, more than 90,000 intelligence reports on the war in Afghanistan and one video of a military helicopter attack — much of it classified. . . .

“In an online chat in May, Private Manning described having downloaded the documents from a military computer system; he described them as including “State Department cables from embassies and consulates all over the world.” In an online discussion with Adrian Lamo, a computer hacker, Private Manning said he had delivered the cables and other documents to WikiLeaks. Mr. Lamo reported Private Manning’s disclosures to federal authorities, and the analyst was arrested and charged with illegally leaking classified information. Private Manning faces a possible court-martial and, if convicted, a lengthy prison term”.

The New York Times also reports that in:

“an online chat log . . . Private Manning is said to claim that he had been directly communicating with Mr. Assange using an encrypted Internet conferencing service as the soldier was downloading government files. Private Manning is also said to have claimed that Mr. Assange gave him access to a dedicated server for uploading some of them to WikiLeaks”.

Wired magazine has published excerpts from logs of online chats between Mr. Lamo and Private Manning.

Anton & Urbas on Assange & Australia Electronic copy available at: http://ssrn.com/abstract=1733666

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Naturally, Assange denies all prior knowledge of Manning. However, Assange’s general modus operandi may be seen in his complaint reported by ABC News (Australia) about the electronic monitor he has to wear as a condition of bail: “it means no secret meetings with government sources”. Moreover, Wikileaks has recently changed its submission page, perhaps in realisation of the potential application of the Criminal Code Act 1995 (Cth). Again, from the New York Times:

“WikiLeaks is taking steps to distance itself from the suggestion that it actively encourages people to send in classified material. It has changed how it describes itself on its submissions page. “WikiLeaks accepts a range of material, but we do not solicit it,” its Web site now says.

“It also deleted the word “classified” from a description of the kinds of material it accepts. And it dropped an assertion that ‘Submitting confidential material to WikiLeaks is safe, easy and protected by law,’ now saying instead: ‘Submitting documents to our journalists is protected by law in better democracies.’”

Prior to this change in its submission page, Jeffrey Smith, a partner at the Arnold & Porter law firm and former general counsel of the Central Intelligence Agency from 1995 to 1996, observed on the PBS Newshour that Wikileaks and Assange:

“solicits people on his Web site . . . to submit classified documents or secrets. So, in some respects, he’s inducing others to violate the law”.

Wikileaks was described by Assange, himself, in a New Yorker interview in June 2010. It was reported that:

“[Assange said,] “We are not the press.” He considers WikiLeaks an advocacy group for sources; within the framework of the Web site, he said, “the source is no longer dependent on finding a journalist who may or may not do something good with his document.”

Anton & Urbas on Assange & Australia

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“Assange . . . emphasized to me that his mission is to expose injustice, not to provide an even-handed record of events. . . .

“Assange does not recognize the limits that traditional publishers do. Recently, he posted military documents that included the Social Security numbers of soldiers, and in the Bunker I asked him if WikiLeaks’ mission would have been compromised if he had redacted these small bits. He said that some leaks risked harming innocent people—“collateral damage, if you will”—but that he could not weigh the importance of every detail in every document”.

The Possible Prosecution of Assange in Australia

All of this brings us to section 474.14 of the Criminal Code Act 1995 (Cth). Section 474.14 provides in pertinent part:

474.14 Using a telecommunications network with intention to commit a serious offence

(1) A person is guilty of an offence if:

(a) the person:

(i) connects equipment to a telecommunications network; and

(ii) intends by this to commit, or to facilitate the commission of, an offence (whether by that person or another person); and

(b) the offence is:

(i) a serious offence against a law of the Commonwealth, a State or a Territory; or

(ii) a serious offence against a foreign law.


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(2) A person is guilty of an offence if:

(a) the person uses equipment connected to a telecommunications network in the commission of, or to facilitate the commission of, an offence (whether by that person or another person); and

(b) the offence is:

(i) a serious offence against a law of the Commonwealth, a State or a Territory; or

(ii) a serious offence against a foreign law.

A few initial points. First, subsection 1 requires proof of intent to commit an offence. Subsection 2 does not require proof of intent other than the intent to use equipment connected to a telecommunications network (see sections 5.2(1) and 5.6(1) of the Criminal Code Act 1995 (Cth)). However, it is arguable that the phrase “to facilitate the commission of, an offence” includes by implication an intent that the facilitated offence be committed – this would be in line with the Code’s analysis of inchoate crimes (e.g. see s11.4(2) and s11.5(2)). Second, facilitation of the commission of an offence alone is enough to constitute an offence under either subsection 1 or 2. Third, it is enough that the offence be a serious offence against foreign law so long requirements of double criminality are met – ie, it would also have been a crime in Australia if the offence had been committed in Australia (see section 473.1 of the Criminal Code Act 1995 (Cth)). Fourth, under s474.14(4), absolute liability attaches to the physical element that the offence is a serious offence against Commonwealth, State, Territory or foreign law – meaning that the prosecution has no obligation to prove that the person had any knowledge, belief or intention with respect to this element, and that even a mistaken belief that the conduct constituting the facilitated offence was not illegal would provide no defence.


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We also highlight that we have not explored conspiracy issues asserted by Assange to be related to the investigations in the US and we are not aware of any public material that would show that Assange / Wikileaks have encouraged breaches of Australian secrecy / confidentiality duties e.g. of Commonwealth or Australian military officers. Rather, our concern is with the broad computer-related offences provisions under the Commonwealth Criminal Code, some of which are not well-known even within legal communities and have had little or no judicial consideration as they have not been charged, or rarely, since their enactment. One of these is s474.14. The critical consideration in liability under this provision would be the interpretation of 'facilitate' and the available evidence of communications with leakers. (The changes to Wilileaks presentation of its role, and dropping references to 'classified material' indicate they are now aware of the danger).

Turning to details, it seems likely that section 474.14(2) is most relevant provision. Based on the press reports above, it seems that it might be reasonably alleged in Australia:

First, that Assange/Wikileaks has used “equipment connected to a to a telecommunications network”. A telecommunications network is defined in section 474.1 in relation to the definition in section 7 of the Telecommunication Act 1997 (Cth) and clearly includes the internet. In the New Yorker Article, Assange asserts that Wikileaks “maintains its content on more than twenty servers around the world and on hundreds of domain names”.

This is

clearly equipment connected to a telecommunications network. Moreover, the intent to use this equipment, as connected, in order to distribute content is manifestly apparent.

Second, that (at least until very recently) Assange/Wikileaks has actively sought, through the explicit solicitation on its submissions webpage, the submission of classified government documents regardless of whether they have been obtained legally or illegally. In the instant case it was reported by NBC News that Harold Koh, the U.S. State Department’s Legal Advisor, wrote to Assange to advise him that the classified documents received from Manning were obtained illegally (under U.S. law) before Wikileaks made the diplomatic cables public.


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Third, that the facilitation of the commission of an offence by another person can reasonably be seen in the active solicitation by the Wikileaks submission page of classified governmental information and documents.

Fourth, that the offence by another person (Manning in particular) in this case is a serious offence against foreign law. Under section 473.1 of the Criminal Code Act of 1995(Cth) conduct that gives rise to a serious offence against foreign law must also be such as to give rise to a serious offence against a law of Australia, had the conduct occurred in Australia rather than elsewhere. A serious offence against a law of Australia is one that is punishable for a period of up to 5 years in prison. The offences related in the next paragraph are all punishable for periods over 5 years in prison.

Fifth, that the serious offence against foreign law meets the double criminality requirement of section 473.1 of the Criminal Code Act 1995 (Cth). Manning has been charged under the Uniform Code of Military Justice with, inter alia, unauthorized copying of classified information relating to national defence to his personal computer, unauthorized possession of this information, and the unlawful transfer of this information to a person not entitle to receive it, with reason to believe it could be used to injure the U.S. Similar offences are found in section 58 the Defence Force Discipline Act 1982 (Cth) and section 79 of the Crimes Act 1914 (Cth).

Accordingly, it seems if evidence were sufficient that a reasonable case might be put under section 474.14 of the Criminal Code Act 1995 (Cth).

As a matter of jurisdiction, it appears that the extended geographical jurisdiction of section 15.1 of the Criminal Code Act 1995 (Cth) applies: see s475.2:

“Section 15.1 (extended geographical jurisdiction–category A) applies to each offence against this Part”.

If the conduct constituting the alleged offence has occurred wholly outside of Australia, then jurisdiction will not be established unless one of the other bases in s15.1 can be established. With respect to Wikileaks, this may be difficult to establish (more needs to be known about


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its corporate structure if any) but with respect to Assange, it is sufficient that he was an Australian citizen at the time of the offence: see s15.1(1)(c)(i).


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