By Jonny Lupsha, Freelance News Writer

WikiLeaks’ Julian Assange has been arrested in London, according to BBC News. The Australian co-founder of the information leaking site faces charges of federal conspiracy in the United States. The website has a complicated history with free speech and the release of classified information.

Julian Assange was arrested at the Ecuadorian Embassy in London on April 11, where he had taken refuge since 2012. He had used his website to publish 700,000 classified documents obtained from ex-Army intelligence analyst Chelsea Manning, as the two advocate for government transparency and their own roles as whisteblowers. The United States is currently seeking Assange’s extradition; Manning is in custody.

WikiLeaks and the Espionage Act of 1917

One reason that the United States wishes to extradite Assange is to prosecute him under the Espionage Act of 1917. “The Espionage Act makes it illegal to willfully transmit ‘information respecting the national defense […] to any person not entitled to receive it’ that ‘the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation,’” said Professor Jeffrey Rosen, Professor of Law at The George Washington University Law School.

But there may be a major speed bump, at least in Assange’s case. “The Espionage Act has historically only been successfully applied to leakers, not publishers of leaks, and there was no principled way to prosecute WikiLeaks for its indiscriminate document dumps without also ensnaring legitimate journalists, for instance, from The New York Times,” Professor Rosen said. Generally speaking, free speech is only exempted if the speech in question is likely to “provoke serious and imminent violence or unlawful action,” in Professor Rosen’s words—which even U.S. officials agree WikiLeaks hasn’t done.

On the other hand, during her court martial verdict in 2013, Manning was found guilty for actively leaking the sensitive documents to Assange that WikiLeaks published. According to the BBC article, Manning said she only wished for her leaks to spark discussion about foreign policy, but officials ruled that her leak—which included footage of American soldiers killing Iraqi civilians from a helicopter—put lives at risk. The United States hopes to cast Assange as a co-conspirator in accessing and obtaining the classified documents, not merely publishing them.

WikiLeaks’s Quest for Absolute Transparency

As WikiLeaks publishes some of the largest and most high-profile data dumps of private information of our times—including Sarah Palin’s personal emails and military procedures for Guantanamo Bay—it raises the question of how much transparency is good for the public versus which rights to privacy an individual and a government should expect.

A totally uncensored release of 130,000 documents in 2011 reversed the website’s long-time practice of controlled leaks. “Some of the documents showed the names of foreigners who had spoken confidentially to U.S. diplomats and whose identities were marked with the designation ‘strictly protect,’” Professor Rosen said. “By advocating for extreme transparency, WikiLeaks has embraced the position that secrecy is always illegitimate—a view that doesn’t acknowledge that certain forms of disclosure can result in terrible injustice.”

For example, WikiLeaks released Afghan war records, which included the names of dozens of Afghans who had cooperated with the United States. This outcome not only deters future cooperation with the U.S.—and undermines its reputation for secret-keeping—but it also places the cooperators’ lives at risk.

The outcome of the effort to extradite and prosecute Julian Assange will affect American whistleblowers and America’s domestic and foreign policy over sensitive information, especially as pertaining to free speech and national security. For now, the United States must wait to see whether the United Kingdom decides to extradite Assange or not.

Professor Jeffrey Rosen contributed to this article. Professor Rosen is Professor of Law at The George Washington University Law School, the legal affairs editor of The New Republic, and a nonresident Senior Fellow at the Brookings Institution. Professor Rosen is a graduate of Harvard College, summa cum laude; Oxford University, where he was a Marshall Scholar; and Yale Law School.