TRAFFICKING IN STOLEN PROPERTY While this law has traditionally been applied to the theft of tangible goods, the language of the statute leaves room for interpretation: "Whoever transports, transmits, or transfers in interstate or foreign commerce any goods, wares, merchandise, securities, or money, of the value of $5000 or more, knowing the same to have been stolen, converted, or taken by fraud," faces up to 10 years. When a former Goldman Sachs trader recently was accused of stealing an algorithm designed for high-frequency trading, he argued that this statute should apply "only to tangible items." But the federal courts insisted that the terms "good, wares, or merchandise" be interpreted "broadly" and found that the statute does not distinguish between tangible and intangible property. This potentially opens the door for prosecutors to argue that WikiLeaks trafficked in intangible, valuable "goods" that it knew were "stolen."
WIRE FRAUD This is a classic fall-back for prosecutors because it says more about the means of the crime than its actual substance. A vast array of conduct has been found to be within this statute's ambit, including, more recently, crimes committed via computer. According to the statute's text, transmitting, "by means of wire," material meant to further "any scheme or artifice to defraud," constitutes wire fraud. This leaves room for prosecutors to argue that Assange's actions defrauded the American government.
If in fact the government chooses to indict Assange, it has more than the complicated and controversial Espionage Act at its disposal. A vast and malleable cache of laws is available to the US to pursue its perceived political opponents — a fact that should give all citizens pause. If nothing else, it gives a dark twist to WikiLeaks supporters' rallying cry: "We are all Julian Assange." If US law can be stretched to get Assange, there's not much stopping us all from being potential targets.
Harvey Silverglate, author ofThree Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009), is a civil-liberties lawyer and writer. He can be reached athas@harveysilverglate.com. Kyle Smeallie, Silverglate's research assistant and former associate editor of the Boston College Heights, can be reached atksmeallie@gmail.com.
