Thread by @normative

But here’s the relevant section of the CFAA, 18 USC §1030(a)(1), which describes a series of actions that starts with “access without authorization” and ends with “willfully communicate, transmit, or deliver.” 4/X

The “acts in furtherance” involve efforts to assist with the “unauthorized access” part… by allowing Manning to log in as another user to confuse her trail. The “manners and means” are about facilitating efforts to securely & anonymously transmit. 5/X

And the “purpose of the conspiracy” encompasses both: “To facilitate Manning’s acquisition and transmission of classified information.” What’s unclear is whether they think conduct facilitating only the “transmission” part would qualify as “acts in furtherance.” 6/X

In terms of what ACTUALLY furthered the “purpose” of facilitating Manning’s “acquisition and transmission,” the offer to help with the password hash ended up being insignificant in practice. It made no difference to what was ultimately acquired and transmitted. 7/X

So looking at the context of the indictment’s overall description of the purposes and means of the conspiracy, could a future case where there’s no such offer (to help with the hash) use efforts to facilitate secure transmission as the “acts in furtherance”? 8/X

Because there’s something of a disconnect between the description of the overall conspiracy and the specific conduct they’re hinging the count on. If the question is “what did Assange do to facilitate the acquisition and transmission of classified information”… 9/X

…the stuff included under “acts in furtherance” is the least important contribution. So assuming this prosecution succeeds, there’s the obvious question about the hypothetical future case where everything else is the same, but there’s no offer to help with the hash. 10/X

Does this lay groundwork to say: Well, in that case, helping the source to set up Tor to transmit the data securely is the “act in furtherance”? Because nothing *in the statute* would require the acts in furtherance to relate strictly to the “unauthorized access” piece. 11/X

Or imagine the source is transmitting the data directly from the computer they’re accessing without authorization. Now you might not even have a clear demarcation between the “acquisition” and the “transmission.” 12/X

Looking at this case alone, it’s easy to say “offering to help with the hash is a bright line, you can criminalize that, regular journalists don’t have to worry because they know it’s not OK to help with actual hacking.” 13/X

Looking at the overall characterization of the “conspiracy” and the statutory elements of the offense, it doesn’t seem like such a huge leap from here to swap in some conduct much closer to normal practice as the formal “overt act”. 14/X

The idea that there’s not a broader threat depends a lot on courts sustaining a very strong bright-line distinction between THIS “act in furtherance” and other “acts in furtherance” that relate more to the “transmission” element of the offense. 15/X

If they do, maybe that’s fine. But it seems like a distinction that would be very easy to blur over time. Especially if someone’s providing more sophisticated technical help than most journalists would or could at the time the case arises. 16/X

In sum: I’m OK *in isolation* with charging Assange with an offer to help hack, but concerned about how this plays out in the future given that the offer seems peripheral to the broader “conspiracy” he’s implicated in by the indictment. 17/17