On the 25th of November the Washington Post ran a story based on an interview with the former U.S. Justice Department spokesman Matthew Miller. He was quoted as saying “The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists and if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.” Backing up Miller, anonymous Justice Department officials stated that there was a “New York Times problem.” The Washington Post:
December 15, 2013
If the Justice Department indicted Assange, it would also have to prosecute the New York Times and other news organizations and writers who published classified material, including The Washington Post and Britain’s Guardian newspaper.
This story was reported in Forbes as “the U.S. will not try to prosecute Julian Assange” and in Reuters as “despite Assange claims, U.S. has no current case against him”. However, the Washington Post's Sari Horowitz puts it like this: “the Justice Department has all but concluded it will not bring charges against WikiLeaks founder Julian Assange”, and that “the officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled.” Kevin Gosztola of Firedoglake has reported that the Washington Post story was altered, originally the anonymous official was quoted as saying “He might be [charged] in six months”, this became the more ambiguous and less threatening “The investigation is ongoing”. Either way, this is not a reassurance to WikiLeaks' editor, staff and volunteers. WikiLeaks responded with an editorial statement:
The formal position of the US Department of Justice is that the investigation continues. Rather than caveat riddled claims from anonymous officials with undefined motivations, the government ought to do the right thing: close the investigation and formally and unequivocally tell WikiLeaks that no charges will be brought. Despite our lawyers’ repeated requests, they refuse to do so. Presently, the situation for WikiLeaks and its publisher Julian Assange remains unchanged.
The Washington Post's story may have had broader ramifications than filling copy-space and misinforming the public as to the difference between a formal statement and some vague quotes.
Just over a week later, the founder and chairman of eBay, Pierre Omidyar, posted an article in the Huffington Post that sought to downplay both his own and PayPal's (a subsidiary of eBay) role in the prosecution of the so-called PayPal 14. In December 2010, an Anonymous protest, 'Operation Payback', targeted PayPal’s freezing of donations and suspension of service to WikiLeaks. PayPal’s actions were a result of the intense political pressure stemming from WikiLeaks' publication of U.S. State Department cables. Over 1,000 people protested the banking blockade (which also included Bank of America, VISA, MasterCard and Western Union) with their own denial-of-service (DdoS) blockade. The PayPal 14 were the 14 out of 1,000 IP addresses given to prosecutors by PayPal unlucky enough to get selected to act as an example to other would-be protesters.
While Omidyar described his article as “My call for leniency”, the journalist Alexa O'Brien questioned his motives: “I find it illogical that you are publishing a call [for leniency] after the plea deal is already negotiated. It appears almost like a PR campaign.” O'Brien also pointed out in a the Daily Beast article that PayPal's services were not affected by the protest, yet damages were being sought:
Anuj Nayar, a spokesperson for PayPal, said ten days after the PayPal 14 indictment was unsealed that, “The attack on Paypal site last December slowed down the company’s system, but to such a small extent that it would have been imperceptible to customers.” he said. “At no point,” Nayar added, “was the Web site shut down.“ Yet, according to court records, eBay and PayPal lawyers indicated damages of as great as $5.5 million.
Indeed, there would have been no prosecution were it not for the fact that eBay / PayPal (and therefore Omidyar) acted as the sole complainant. Having initiated the prosecution, eBay was then involved in manipulating the progression of the case – ensuring that evidence was hidden from the defendants. And it was only when Omidyar knew that the outcome of the plea deal was not going to be a serious PR issue, he wrote his “call for leniency” article.
As well as portraying the trial of the 'PayPal 14' in the most favourable light possible, Pierre Omidyar also sought to address the issue of PayPal's part in the extra-legal banking blockade of WikiLeaks. Omidyar's new project, the nascent NewCo media organisation, could do without remaining chained to PayPal's complicity with the U.S. government's attack upon press freedoms. To further this aim, Omidyar stated:
When I learned of PayPal's decision, I immediately expressed my concerns to company management. A few days later, I contributed to an editorial by the Honolulu Civil Beat Editorial Board drawing attention to the important press freedom concerns raised by the actions of PayPal and other companies as a result of government pressure.
Omidyar then quoted from the editorial mentioned above:
But by taking the steps they have to shut down WikiLeaks, governments create a chilling effect on other publishers, making it less likely that information that sheds light on government policy and actions that citizens should know about becomes public.
These are fine words. And part of the groundwork for what was to follow. If one outcome of this article was predictable, it was without question the fact that WikiLeaks would comment about the hypocrisy of such a statement, given PayPal's continuing participation in the blockade. And if this was the case, clearly Omidyar would have something with which to respond, else why labour and lament the blockade so vigorously in the certain knowledge that this could only backfire. Omidyar's article was a set-up. It was made to kill several birds, all of which could now be dispatched painlessly. And then there was that Washington Post article.
The legal rationale that PayPal relied upon for their position in the U.S. government's blockade (which PayPal joined on December 4, 2010) was detailed on December 8 by the company's former vice president Osama Bedier during a speech at the Le Web conference in Paris:
[The] State Department told us these were illegal activities. It was straightforward. We [...] comply with regulations around the world, making sure that we protect our brand.
The cited DoS letter was sent to WikiLeaks editor-in-chief, Julian Assange, and his attorney Jennifer Robinson. It was a reply to Assange's famous November 26 letter to the U.S. ambassador to the UK, Louis Susman:
WikiLeaks would be grateful for the U.S. Government to privately nominate any specific instances (record numbers or names) where it considers the publication of information would put individual persons at significant risk of harm that has not already been addressed. WikiLeaks will respect the confidentiality of advice provided by the U.S. Government and is prepared to consider any such submissions made without delay.
In the DoS's letter the then legal adviser Harold Koh stated:
As you know, if any of the materials you intend to publish were provided by any government officials, or any intermediary without proper authorization, they were provided in violation of U.S. law and without regard for the grave consequences of this action. As long as WikiLeaks holds such material, the violation of the law is ongoing.
We will not engage in a negotiation regarding the further release or dissemination of illegally obtained U.S. Government classified materials.
That WikiLeaks had “illegally obtained U.S. Government classified materials” and was in an ongoing “violation of the law” has not been proven to this day. It was always just a useful legal opinion made to underpin a political opinion. To file criminal charges, the U.S. government would face many obstacles - including their own state. What are the chances of being successful in the courts with an evidentially weak or perhaps non-existent case based on the Espionage Act (which would need to be revised to make it possible to prosecute foreign recipients of classified information), facing the First Amendment (and the interests of the entirety of the American press)? It would be a trial of historical significance and it would have a huge cost in terms of political capital, domestically and internationally; would any administration deem it worth the cost, long after their 2010 WikiLeaks hysteria had passed? In the context of America's 'war on whistleblowers and journalism', WikiLeaks is correct in being extremely cautious of a “much-hedged statement by someone who cannot be identified, claiming that the government may not indict Julian Assange for publishing.”
The government's hoped-for conspiracy case (based on WikiLeaks' interactions with their source, the U.S. army whistleblower Chelsea Manning) may have all but collapsed, but that does not mean other avenues of attack, in what is often described as the U.S.'s “vendetta against WikiLeaks”, will not be pursued. 793 (d) of the Espionage Act allows for someone "lawfully having possession of [material] relating to the national defense" to be "fined under this title or imprisoned not more than ten years, or both" if "the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits [...] or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it." Although to some extent the First Amendment protects journalists from 793 (d) and although Chelsea Manning was acquitted of 'aiding the enemy', Strategic Forecasting, Inc (Stratfor)'s vice president Fred Burton (former DoS special agent and Deputy Chief of its Counterterrorism Division) suggested in leaked emails (published by WikiLeaks), a method to frame and prosecute WikiLeaks via 793 (d). Burton: "[It would] be easy to indict. I would [...] declassify the death of a source, someone [...] I could link to Wiki." Not a source's death caused by WikiLeaks' publishing, just a source's death that could be linked to published materials, the former requirement presumably being met through fabrication. It is inconceivable that the United States will simpily allow WikiLeaks to walk away.
When Pierre Omidyar failed to buy the Washington Post (which was bought by Amazon's Jeff Bezos) for $250m, he redirected the money into the creation of NewCo, a venture that is built around an identity depicted by Omidyar as “a media platform that elevates and supports these journalists and allows them to pursue the truth in their fields.” The journalists in question are Glenn Greenwald, Laura Poitras and Jeremy Scahill, amongst others. In bringing such figures together, the ambition and direction of Omidyar's media platform was made clear. This “golden age for journalism” whose embodiment is meant to be NewCo cannot be associated with PayPal's role in the U.S. “vendetta against WikiLeaks”.
The Washington Post's November 25 “New York Times problem” article had handily removed any serious political flack from PayPal voluntarily leaving the blockade (after all, MasterCard has already broken ranks with the blockade “and reversed its position”) and NewCo had gained a costless escape route from the blockade's negative PR damage. But how to announce this? And better yet, how to excuse and protect PayPal from the whole affair (mostly)?
The line in Omidyar's Huffington Post article that guaranteed a reaction from WikiLeaks was this: “Today, PayPal can be found as one of several payment options available to support WikiLeaks' work.” And, as expected, WikiLeaks replied via Twitter writing “As far as we are aware the PayPal blockade of WikiLeaks has never been lifted. No direct transactions to WL. You list 3rd parties. The use of these 3rd parties is an inefficient mechanism (about 10% cost) to circumvent the blockade. [The] orig[inal WikiLeaks] account still closed.”
The bait having been taken, Omidyar launched his 'blockade, what blockade?' reply: “This may be a dumb question but have you tried to open a direct account since 2011?” and “Opening a PayPal account used to be a pain but I hear it's much better now. https://www.paypal.com/webapps/mpp/product-selection”
Omidyar then informed the internet that “[WikiLeaks was] blocked by PayPal in Dec 2010 for several months. Then they weren't. Why the confusion?” and that WikiLeaks had “obviously noticed” they were no longer blocked, because “they use third parties to enable folks to make tax-deductible contributions, since they're not a 501c3.” This is sophistry.
On December 4, 2010 PayPal “cancelled” Wau Holland Foundation (WHF)'s account. WHF had been collecting donations for WikiLeaks since 2009 and had provided financial support of $1.2 million. This was by far WikiLeaks' primary means of support. At the time PayPal joined the blockade (which cut WikiLeaks income by 95%) WHF/ WikiLeaks donations were at an all-time high, running at approximately $16,000 per day. The effect of PayPal and the other blockaders on the WHF's 'Project 04' (which supports WikiLeaks) was dramatic:
Year Donations Expenses
2010 € 1'331'698.19 € 401'824.62
2011 € 139'401.88 € 660'522.84
If Omidyar's “several months” is three months, then the total amount of donations lost to WikiLeaks, based on donation levels at the time the blockade came into effect, is $1,459,680. The Washington Post's article had done rather more than helpfully remove obstacles, it had opened PayPal up to compensation claims on three years (totalling $17,516,160) of blockade, not Omidyar's opportune three months.
As mentioned previously, Omidyar attempted to circumvent this issue by talking about WHF's charitable status “tax-deductible contributions, since they're not a 501c3”. This status was revoked in late 2010 after an intervention by the Hessian Ministry of the Interior (a politically motivated act and part of the U.S. blockade), but was regained in 2011 after Hamburg tax authorities were forced to concede that WHF was indeed acting under the "principle of selflessness". But none of this has anything to do with PayPal's seizure of the WHF account. PayPal had previously (January 22, 2010) suspended WikiLeaks' WHF account, frozen its assets and then reactivated it. In the December, 2010 instance, WHF was reduced to taking legal action against PayPal, in order to force them to release siezed donations amounting to $410,960. The moment PayPal was free of the donations, it permanently cancelled the WHF account.
The issue that Omidyar attempts to obfuscate is that a secret lifting of the blockade is still a blockade. Both Freedom of the Press Foundation (FPP) and NewCo's Glen Greenwald (a FPP board-member) believed that “it was still in effect”. Greenwald also stated “We started FPP to circumvent a blockade that was, clearly, at one point in place.” When Omidyar pointed to other “third parties” that were not blocked by PayPal, he is again seeking to misdirect the issue.
Third parties like the FPP and the WikiLeaks Shop, were set up twelve and three months after the blockade began. In the case of the FPP, Omidyar would not dare interfere in their work. In the WikiLeaks Shop's case, it was not a significant account. It did not generate much revenue and WikiLeaks hoped that it would “slip under the radar” but considered that it would “be frozen on discovery”. If WikiLeaks had thought that the blockade was lifted, they would have said so in order to inform donors, as they did when “MasterCard has broken ranks in the US-linked banking blockade”.
PayPal's official statement on the matter was released on their blog. This posting has recently been removed (possibly because of the danger of legal action), however it had already been archived (when talking to WikiLeaks, Omidyar attempted to use the deteleted blog post to his advantage):
PayPal has permanently restricted the account used by WikiLeaks due to a violation of the PayPal Acceptable Use Policy, which states that our payment service cannot be used for any activities that encourage, promote, facilitate or instruct others to engage in illegal activity. We've notified the account holder of this action.
The only other official documentation of PayPal's position comes from the eBay Inc. 2010 SEC Annual Report:
In December 2010, PayPal was subject to a series of distributed “denial of service” attacks following PayPal's decision to permanently restrict the account used by WikiLeaks due to a violation of PayPal's Acceptable Use Policy.
There was no reason for anyone to regard this position as having been changed. When Pierre Omidyar told WikiLeaks to “Pick up the phone and call PayPal and ask for a statement. I can't speak for the company. You could have called any time.” he behaved like a callous jailer telling his prisoner 'if only you had thought to ask for the cell door to be unlocked'. Omidyar should understand that reacting to an injustice in such a manner is not dignified, it is demeaning. Further, PayPal is Omidyar's company. He supposedly forced them to secretly unblock WikiLeaks - but he cannot compel them to release a formal statement? WikiLeaks writing on Twitter:
A formal statement saying that the blockade is lifted. We are wary of again having funds frozen and again paying lawyers to extract. Notification can be private, but formal. At the moment we have unofficial comments on twitter; we can't risk our donors on that.
Omidyar won't stoop to issue a formal statement but wants others to stoop to ask. He will not answer simple questions about compensating WikiLeaks for the damage that PayPal has caused. He has offered no documentary proof that the blockade's end date is not merely a convenient backdating. At the end of his exchange with WikiLeaks, Omidyar wrote “If you're looking for a promise that funds will never be frozen, no company could ever promise that to any customer” evading the context of PayPal's political account freezing - like a hack. Omidyar has behaved in these matters mendaciously and has harmed by association both NewCo and the journalists he has courted to carry it.
Alexa O'Brien writing to Pierre Omidyar on Twitter “Good for you, and good luck with your venture. NewCo same as the OldCo.”
However, when questioned whether "told us" meant that the State Department (DoS) had contacted and pressured PayPal (something that would be outside the DoS's mandate) into joining the blockade, Bedier claimed that in fact the DoS had not told PayPal anything, instead the company had merely seen a letter sent to WikiLeaks by the DoS:
On November 27th, the State Department, the US government basically, wrote a letter saying that the WikiLeaks' activities were deemed illegal in the United States and as a result our policy group had to make the decision of suspending the account. It's honestly, just pretty straightforward from our perspective and there's not much more to it than that. We.. comply with regulations around the world, making sure that we protect our brand.