I’m getting asked a lot of questions about the Assange indictment because it involves the Computer Fraud and Abuse Act. And extradition. Two things we’ve got some experience with through representing Lauri Love and others. Here’s some hot takes:
First, according to my U.K. colleague and top extradition lawyer Karen Todner, the U.S. government now has 65 days to supersede this indictment with other charges. If they don’t, they’re stuck with this indictment. That’s because the extradition agreement between the U.S. and U.K. requires that the U.S. provide precise notice of the charges the U.S. is seeking extradition for. This is because the U.K. needs to evaluate whether extradition is in accordance with U.K. law. So, basically, you can’t extradite someone for bank fraud, and then charge them with capital murder when they get to the states. So it’s going to be interesting to see if more charges are filed, or if they just stick with this.
Second, there’s a question of how Chelsea Manning’s imprisonment for not testifying in front of a Grand Jury fits into this. I don’t know the details of exactly why Manning was imprisoned, but I’m told that it was for refusing to testify about Assange. If this is true, it might mean that a Grand Jury is considering espionage charges against Assange, which are still within the statue of limitations – 10 years instead of the normal default of 5 years for federal crimes. Whatever is being considered, they have 65 days to put up or shut up.
Third, the current indictment is pretty thin. It’s a single, standard conspiracy charge to violate the computer fraud and abuse act for agreeing to hack a government computer. There’s some potential technical issues with it that I’m not going to discuss at the moment. Venue and the government’s theory of unauthorized access at the forefront. But if it didn’t involve such big names, and a hyped data breach (the government had really bad infosec, fyi), it’d be a run of the mill CFAA conspiracy charge that would plead out.
Fourth, it looks like it’s a winnable case, or one you might want to go to trial on anyhow because given the politics of the case a good plea offer might not be forthcoming. We’ve had a few cases where we got a better sentence by going to trial and telling the story rather than taking the plea. But it’s still early.
In conclusion, it’s still early, and this is going to be tied up for awhile in the U.K., assuming Assange doesn’t waive extradition. But the clock is ticking for the U.S. to finalize its charges, so stay tuned.
