Wikileaks publisher Julian Assange was arrested by the Metropolitan Police in London on Thursday morning. Assange was handed over to English authorities on charges of skipping bail and at the behest of U.S. federal prosecutors who have charged him with a conspiracy to facilitate the hacking of a Department of Defense computer. But how is it that Assange has been charged with conspiracy — when the statute of limitations for it is five years and the alleged offense dates back to 2010? Enter the government’s magic word here: “terrorism.”
Details of the alleged crime committed by the transparency guru are described on page two of the seven-page indictment filed in the U.S. District Court for the Eastern District of Virginia (EDVA).
The allegation reads, in relevant part:
On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocal Network, a United States government network used for classified documents and communications…
The indictment also notes how this secret U.S. government network was classified “pursuant to an Executive order…for reasons of national defense and foreign relations.”
While the fifth page of the court filing contains a confusing litany of statutory authority for the charge against Assange, a press release from the Department of Justice (DOJ) clears things up a bit:
Assange is charged with conspiracy to commit computer intrusion and is presumed innocent unless and until proven guilty beyond a reasonable doubt. If convicted, he faces a maximum penalty of five years in prison.
At root, Wikileaks’ public face is being charged with conspiracy under 18 U.S.C. §371.
Computer law expert and criminal defense attorney Tor Ekeland quickly noted a potential infirmity in the charges.
The statute of limitations for conspiracy under §371 is typically five years. The last overt act Assange is said to have committed in furtherance of the conspiracy allegedly occurred on March 10, 2010 when, according to the indictment, “Assange requested more information from Manning related to the password.”
Even by the indictment’s own narrative it doesn’t appear the alleged conspiracy successful because Assange allegedly told Manning he had “no luck so far” in attempting to crack said password. But that doesn’t particularly matter because conspiracy is an inchoate crime and doesn’t need to have been achieved to be prosecuted.
The problem here would seem to be that five years after the alleged date of that last alleged Assange-Manning communication occurred on March 10, 2015. The indictment itself was filed, however, on March 6, 2018–nearly eight years after the alleged conspiracy ended.
Tossed in amidst the aforementioned bits of various statutory authority is a standalone parenthetical reference to three sections of 18 U.S.C. §1030. This statute is commonly known as the Computer Fraud and Abuse Act (CFAA), the infamously malleable set of laws that led to death of Internet activist Aaron Swartz.
The reference to the CFAA makes clear that Assange is being accused of conspiracy to commit two separate violations–§1030(a)(1) and §1030(a)(2)–and that the government believes he’s potentially on the hook for a five-year sentence by reference to the statute’s punishment prong as well.
Most federal laws, including the CFAA, are also constrained by five-year statutes of limitations–unless the government claims terrorism was afoot. And that’s exactly what they’ve done here.
Buried deep within the “Definitions” section one of the many federal anti-terrorism statutes is a reference to §1030(a)(1).
Codified at 18 U.S.C. §2332b(g)(5), the law reads, in relevant part:
[T]he term “Federal crime of terrorism” means an offense that
(A) is calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct;
and (B) is a violation of…1030(a)(1) (relating to protection of computers)
According to the DOJ, the USA PATRIOT Act took the language from §2332b and applied it to a federal statute of limitations extension statute located at 18 U.S.C. §3286. This gives President Donald Trump‘s DOJ a new timeline of eight years from the date of the last alleged overt act.
Which, in this case, means federal prosecutors filed their indictment with less than a week to spare.
This theory by the government, however, is likely to be a severe point of contention as Assange’s attorneys argue against the charges their client faces–both in front of U.K. and U.S. authorities.
As Ekeland noted on Twitter, “the terrorist angle is hyperbolic, and they’re not really hitting it in the indictment, it’s really just for the [statute of limitations].”
“To get the benefit of the eight years, they’re trying to call this a terrorist act,” Ekeland later told Wired. “That seems a little weird.”
[Image via Jack Taylor/Getty Images]