U.S. prosecutors are said to be considering charges against WikiLeaks founder Julian Assange under the Espionage Act, based on the release of classified information from the CIA and the State Department. But press freedom advocates say this would be a risky and potentially dangerous move.
According to reports from CNN and the Washington Post, the Justice Department is preparing to charge Assange for his role in the 2010 dump of diplomatic cables that were published by WikiLeaks, as well as a more recent release of the CIA’s library of hacking tools.
The Obama administration also considered charging WikiLeaks and Assange, but Justice Department officials at the time decided that doing so would be problematic, since WikiLeaks arguably did the same thing that journalistic organizations like the Washington Post do. This was referred to internally as “the New York Times problem.”
Assange has made a point of comparing his organization to traditional media outlets, saying in a recent opinion piece in the Post that his motive “is identical to that claimed by the New York Times and the Post — to publish newsworthy content,” and that WikiLeaks publishes material “irrespective of whether sources came by that truth legally or have the right to release it.”
A number of senior officials in the Trump government, however, argue that WikiLeaks is not a press organization at all, but a “non-state hostile intelligence service often abetted by state actors like Russia,” as CIA director Joe Pompeo referred to it in a recent speech.
Pompeo seemed to suggest that the government may argue WikiLeaks aided and abetted the theft of classified information, saying Assange “directed Chelsea Manning to intercept specific secret information.” Officials are also said to be interested in comments made during Manning’s trial that suggested Julian Assange told her how to crack a password.
Get Data Sheet, Fortune’s technology newsletter.
According to the Post, prosecutors are considering a range of charges against the WikiLeaks founder, including conspiracy, theft of government property and violating the Espionage Act. But unless the government could prove Assange or someone connected with WikiLeaks was actually involved in theft, such charges could run headlong into the First Amendment.
“Every time we looked at this, it’s hard to figure out how you charge Julian Assange with publishing classified information without setting the precedent that you charge reporters for doing the same thing,” former Obama-era DoJ spokesman Matthew Miller told Wired. “If he asked Manning to give him documents, or provided Manning with tools by which to get him those documents, well, reporters use a lot of those same tools as well.”
As Harvard Law professor Jack Goldsmith pointed out in an essay earlier this year on the Lawfare site, it is extremely difficult—and perhaps even impossible—to draw a meaningful distinction between what the New York Times does and what WikiLeaks does.
“Never in the history of this country has a publisher been prosecuted for presenting truthful information to the public,” Ben Wizner of the American Civil Liberties Union said in a statement. “Any prosecution of WikiLeaks for publishing government secrets would set a dangerous precedent that the Trump administration would surely use to target other news organizations.”
Despite the risks, Attorney General Jeff Sessions said at a recent news conference that Assange’s arrest is a “priority.” The government has begun to “step up our efforts,” he added, “and whenever a case can be made, we will seek to put some people in jail.”
Any prosecution of Assange would be “incredibly dangerous for the First Amendment and pretty much every reporter in the United States,” Trevor Timm, executive director of the Freedom of the Press Foundation, told Wired. “You can hate WikiLeaks all you want, but if they’re prosecuted, that precedent can be turned around and used on all the reporters you do like.”
Arresting Assange would also be politically difficult because he is not a U.S. citizen and is currently being protected by the government of Ecuador. He has been living in the Ecuadorian embassy in London since 2012, after seeking asylum there in order to avoid being extradited to Australia to face a rape charge, which he claims is politically motivated.