The Bradley Manning Verdict and the Dangerous “Hacker Madness” Prosecution Strategy

Bradley Manning was convicted (PDF) on 19 counts today, including charges under the Espionage Act and the Computer Fraud and Abuse Act for leaking approximately 700,000 government documents to WikiLeaks. While it was a relief was that he was not convicted of the worst charge “aiding the enemy,” the verdict remains deeply troubling and could potentially result in a sentence of life in prison. The sentencing phase starts tomorrow, and a fuller legal opinion from the judge should also come soon.

We will likely have a deeper analysis of the verdict later, but two things stand out as particularly relevant to—and especially frightening for—folks who love the Internet and use digital tools.

First, the decision today continues a trend of government prosecutions that use familiarity with digital tools and knowledge of computers as a scare tactic and a basis for obtaining grossly disproportionate and unfair punishments, strategies enabled by broad, vague laws like the CFAA and the Espionage Act. Let's call this the “hacker madness” strategy.  Using it, the prosecution portrays actions taken by someone using a computer as more dangerous or scary than they actually are by highlighting the digital tools used to a nontechnical or even technophobic judge.

In the Manning case, the prosecution used Manning’s use of a standard, over 15-year-old Unix program called Wget to collect information, as if it were a dark and nefarious technique. Of course, anyone who has ever called up this utility on a Unix machine, which at this point is likely millions of ordinary Americans, knows that this program is no more scary or spectacular (and far less powerful) than a simple Google search. Yet the court apparently didn’t know this and seemed swayed by it.

We’ve seen this trick before. In a case EFF handled in 2009, Boston College police used the fact that our client worked on a Linux operating system with “a black screen with white font” as part of a basis for a search warrant. Luckily the Massachusetts Supreme Court tossed out the warrant after EFF got involved, but who knows what would have happened had we not been there. And happily, Oracle got a big surprise when it tried a similar trick in Oracle v. Google and discovered that the Judge was a programmer and sharply called them on it. 

But law enforcement keeps using this technique, likely based on a calculation that most judges aren’t as technical as ordinary Americans, may be even afraid of technology, and can be swayed by the ominous use of technical jargon and techniques—playing to media stereotypes of evil computer geniuses. Indeed the CFAA itself apparently was a response to President Ronald Reagan’s fears after watching the completely fictional movie War Games.

Second, while the court did not convict on the "aiding the enemy" charge, the government's argument—that publishing something to the general public on the Internet can count as “aiding the enemy”—has strong digital overtones. The "aiding the enemy" charge is a breathtakingly broad military charge never before used against a leaker to the press. It is shocking that the government would even make this argument and that the judge didn't dismiss it outright. The prosecution argued that even if Manning never intended to aid the enemy, and even though the government did not need to prove the information published by WikiLeaks ever harmed the U.S., the mere fact it ended up on the Internet means he is guilty of a capital crime.

This argument wasn’t actually confined to WikiLeaks—the government admitted during the trial that its claims would apply equally to the New York Times or other traditional media. But the reason this argument wasn’t laughed out of court, we suspect, is the digital environment. After all, Adolph Hitler certainly had access to American newspapers, as did Joseph Stalin, Fidel Castro, Mao Zedong, Hồ Chí Minh or any other past enemy of America. The court tried to dress it up a bit, noting that Manning “trained in intelligence and received training on the fact that that enemy uses the int