By CHARLIE SAVAGE
Published: December 7, 2010
WASHINGTON — The Justice Department, in considering whether and how it might indict Julian Assange, is looking beyond the Espionage Act of 1917 to other possible offenses, including conspiracy or trafficking in stolen property, according to officials familiar with the investigation.
Attorney General Eric H. Holder Jr. acknowledged this week that there were problems with the Espionage Act, a World War I-era law that says the unauthorized possession and dissemination of information related to national defense is illegal. But he also hinted that prosecutors were looking at other statutes with regard to Mr. Assange, the founder of WikiLeaks.
“I don’t want to get into specifics here, but people would have a misimpression if the only statute you think that we are looking at is the Espionage Act,” Mr. Holder said Monday at a news conference. “That is certainly something that might play a role, but there are other statutes, other tools that we have at our disposal.”
Last week, The New York Times and four other news organizations began carrying articles based on an archive of a quarter-million confidential State Department cables obtained by WikiLeaks and made available to them. After WikiLeaks released a batch of government documents concerning Iraq and Afghanistan in July, Mr. Holder and the director of the Federal Bureau of Investigation, Robert S. Mueller III, both said the leaks were being investigated, and Mr. Assange said United States officials had previously warned his organization that there had been “thoughts of whether I could be charged as a co-conspirator to espionage, which is serious.”
Meanwhile, according to another government official familiar with the investigation, Justice Department officials have also examined whether Mr. Assange and WikiLeaks could be charged with trafficking in stolen government property.
But scholars say there might be legal difficulties with that approach, too, because the leaked documents are reproductions of files the government still possesses, not physical objects missing from its file cabinets. That means they are covered by intellectual property law, not ordinary property law.
“This is less about stealing than it is about copying,” said John G. Palfrey, a Harvard Law School professor who specializes in Internet issues and intellectual property.
Intellectual property law criminalizes the unauthorized reproduction of certain kinds of commercial information, like trade secrets or copyrighted music, films and software files. But those categories do not appear to cover government documents, which by law cannot be copyrighted and for which there is no ordinary commercial market.
Mr. Assange has received leaks of private-sector information as well. He has indicated, for example, that his next step might be to publish a copy of the contents of a hard drive belonging to an executive at a bank — apparently, Bank of America.
If he does so, some of the problems associated with trying to find a way to prosecute him for distributing leaked government documents could disappear. The works of a person in the private sector are automatically copyrighted, and bank documents could be deemed trade secrets.
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