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Maybe this is the most concise way to put it: No ethical reporter helps sources hack like Assange did. But the way “helping to hack” is being charged is as a conspiracy to violate 18 USC §1030 (a)(1). And good reporters conspire with their sources to do that constantly.
There’s no basis *in the statute* for treating “conspiring to help with the unauthorized access part” differently from “conspiring to help with the sending-to-a-reporter part.”
Important point: the “overt act” the gov’t has to show to prove conspiracy doesn’t have to itself be a crime. Talking about robbing a bank is just talk until you take a step toward the action; then it’s conspiracy. But the step can be something legal, like buying ski masks.
The “act in furtherance” they picked for the indictment is the most clearly improper thing Assange did: Trying (unsuccessfully) to crack a password so Manning could use another login to look for more files. But the “act in furtherance” doesn’t have to be criminal in itself.
The crime isn’t “trying to crack the password hash.” The crime is the conspiracy. Trying to crack the hash is just the thing they picked to show Assange took an action to advance the conspiracy.
They do specifically refer to a “password cracking agreement”—and if they focus hyper-narrowly on the intended (though apparently never actual) use of that login to obtain files as the relevant “conspiracy”, that mitigates the concern somewhat.
But the indictment sort of reads like they want it both ways. On the one hand, don’t worry journalists, the specific conspiracy here is an agreement to help obtain stolen login credentials.
On the other hand, lots of things are characterized as “part of the conspiracy” that don’t really make sense on that narrow understanding. For instance, Assange removed usernames from published documents to conceal Manning as the source.
That’s a weird claim if the “conspiracy” is narrowly defined by the “password cracking agreement,” because it doesn’t appear that she ultimately obtained documents with that password.
So sometimes it seems like they’re talking about a very specific (failed) conspiracy to crack a password for the purpose of obtaining files, and other times it seems like they’re talking much more broadly about their collaboration to obtain and publish documents.
Basically they’re skittish about directly charging the broader “conspiracy” which would raise thorny First Amendment issues, but keep trying to conflate it with the narrow one, which seems pretty skimpy if you focus on it too specifically.
