Wikileaks founder Julian Assange speaks at a press conference via videolink, October 4, 2016. (Reuters photo: Axel Schmidt)

Publishing stolen private e-mails is wrong, but if those e-mails are authentic, we must take them seriously.

Journalists are poring over the hacked trove of John Podesta’s e-mails published by WikiLeaks. Some of the e-mails, which I’ll be discussing in subsequent posts, are damaging to Hillary Clinton, so it is no surprise that Donald Trump and his surrogates are drawing attention to them. I think this is appropriate, for reasons I’ll get to in a second. But we should still give some preliminary consideration to the source, and to the degree, if any, that questions about the manner in which the documents were procured diminish their reliability.


Understandably, the Clinton camp has stressed the questionable nature of WikiLeaks’s operations. That is what lawyers tend to do when documents show up that cast their clients (and themselves) in an unflattering light. There is some persuasive force to these complaints. They are too convenient, though. When it came to top-secret information stolen and leaked by Edward Snowden, the reaction on the left and among many libertarians was that the documents appeared authentic and thus it was proper — essential, in fact — to base reporting and arguments on them. Concerns that what Snowden had done was illegal and treasonous, and that the leaks immensely damaged national security, were said to be trivial compared to the imperative of exposing supposedly monstrous government surveillance activities. Many to this day regard Snowden as a hero.


As I am often constrained to observe, our progressive politics today are not about right and wrong but about us and them — logic is out, “narrative” is in. So we shouldn’t go looking for the Left to take consistent positions. If theft and leaks help The Cause, what matters is the substance of the documents; if they hurt, then it’s time to start worrying about authenticity, moral hazard, etc.

But let’s try to sort out right and wrong, even if the answers are unsatisfying.


The basic rule applied in American courts is that even an atrocious source can produce authentic, reliable evidence. The more atrocious the source, though, the higher the burden to establish authenticity and reliability (there are salient differences between the latter two things, which we’ll get to presently). This is easier to grasp with documents than testimony: It can be very hard (often impossible) to establish the trustworthiness of testimony from a dubious source, while the authenticity of a document can often be verified pretty easily. If, upon examination, the document appears to be what it is represented to be, and especially if its authenticity is not refuted by those with a reason to refute it, it is generally admitted into evidence for the jury’s consideration. But how much the jury should rely on the document’s contents (the “weight” to be given them) depends on how much reason there is to suspect the document is fraudulent or misleadingly incomplete.

In the present case, WikiLeaks has a history of releasing information that — whatever you may think about how it was acquired — proves authentic and often reliable. We know that because, to my knowledge, no one has proved any of their documents fraudulent despite having great incentive and opportunity to do so. People and agencies whose documents have been leaked have, in arguing over them, conceded (usually tacitly) that they are what WikiLeaks purports them to be. For example, when Snowden leaked information showing that U.S. intelligence agencies were monitoring German chancellor Angela Merkel’s cellphone, President Obama reportedly apologized — he didn’t tell Merkel not to believe everything she reads in the papers.

By contrast, the so-called Rathergate controversy, involving documents manufactured to discredit President George W. Bush, reminded us that people with access to rudimentary testing methods and to source information can discredit bogus documents pretty quickly.

WikiLeaks has a history of releasing information that — whatever you may think about how it was acquired — proves authentic and often reliable.

In the case of Podesta’s e-mails, he and his correspondents obviously know whether the exchanges really happened, and whether the documents WikiLeaks has published are true copies of the exchanges. Moreover, if the documents were fakes, it would be a real coup for Podesta, Clinton, et al. to be able to show that this is the case. But they have resisted making a fraud claim, asserting they are too busy to examine the documents for accuracy. Their response seems limited to sweeping attacks on the source and minimization of the substance.


Therefore, I believe we can safely assume that the e-mails are the real thing. We can also safely assume that the Clinton campaign, of which Podesta is the manager, is banking on the cooperation of its media friends to downplay revelations in the e-mails and emphasize questions about the source — a very safe bet in light of what the e-mails confirm about the coziness of Clinton-media relations.


#share#That is not the end of the matter. John Schindler, a real expert in intelligence analysis and counterintelligence, credibly suspects that WikiLeaks is a front for Russian intelligence. Our earlier reference to l’affaire Snowden is very relevant here: As Schindler recounts, it was WikiLeaks founder Julian Assange, a key Snowden supporter, who persuaded the self-styled civil-liberties crusader to take refuge in Putin’s repressive thugocracy.

This gets us to the distinction between authenticity and reliability. Whether we think Assange is an agent of Putin, or an independent actor somehow allied with Putin, the fact remains that WikiLeaks has an anti-American agenda. An actor with an agenda can release authentic information, but it is unlikely to be complete information — the agenda will control which documents are leaked and which are withheld, allowing reality to be spun rather than unveiled. In this instance, even if the e-mails disseminated are real, there may be e-mails and other information that WikiLeaks is not disclosing that could put what has been disclosed in a fuller context — one that might be more favorable to Mrs. Clinton and her allies.

If there is information WikiLeaks has withheld that would make things look better for the Clinton camp, the Clinton camp has it.

Yet, this is unlikely. For example, when it comes to Mrs. Clinton’s speeches to wealthy donors, she either made the statements quoted or she didn’t. If entire speeches have been published, it is hard to make the case that something has been withheld that would put her statements in a more flattering light, especially after she adamantly refused to release transcripts despite badgering from the Bernie Sanders campaign (though, of course, not much badgering from the media). And if Clinton operatives were having lovey-dovey communications with their pals in the press, or Clinton State Department officials were seamlessly colluding with Clinton Foundation officials and other Clinton kitchen-cabinet members, those are exchanges that should not have happened as they did; if the e-mails are authentic, it is improbable that other, undisclosed e-mails would make us think better of them.

Nevertheless, if there is information WikiLeaks has withheld that would make things look better for the Clinton camp, the Clinton camp has it. They have the ability to complete the picture.


But I’m not holding my breath.

All of that being said, even assuming that the documents released are authentic and reliable, their disclosure by WikiLeaks was wrong. By relying on them as a source, we are encouraging more rogue behavior, consciously or not. That doesn’t necessarily mean we should not rely on them. It is a longstanding doctrine of law, for example, that the Fourth Amendment gives you no protection if a private person (rather than a government agent) invades your privacy or steals your private papers. The contents of such a theft are admissible evidence in court, even though they would be suppressed if police had unconstitutionally seized them, because we generally prize access to relevant, accurate information over concerns about the way the information was uncovered.

That doesn’t make it right. Nor does it mean that we should turn a blind eye to the fact that hostile forces are interfering in our elections or our national security.

I don’t know what more can be done about this besides prosecuting hackers and spies when the opportunity presents itself, without regard to partisan advantage. But as for partisan considerations, I don’t believe in unilateral disarmament: If WikiLeaks got hold of and published additional recordings of Donald Trump besotting himself, is there any doubt that the Clinton camp and the media would be gleefully exploiting them? If information is authentic, it has to be fair game, because one has no expectation that scruples will give the adversary pause.

#related#Thus, a final thought: Our protection is encryption. Earlier this year, Apple was decried for fighting the FBI’s campaign to force it to break the code blocking access to a terrorist’s iPhone. As I countered at the time, Apple’s real and quite legitimate concern was the government’s broader effort to control encryption technology, such that its evolution never outpaced the government’s ability to pierce it. While the government was conditioning us to think of encryption solely as camouflage for criminals and terrorists, the exchanges of malevolent actors represent a negligible fraction of all world communications. In the information age, encryption is vital to the protection of our e-mails, financial records, intelligence databases, strategic military planning – everything. It is not possible to give government a back door through encryption without giving the same back door to the likes of WikiLeaks operatives and Putin’s intelligence services.

As a practical matter, we cannot and should not prevent people from relying on available, authentic information to make their points in a political debate. But we ought to be making it harder for rogues to steal and publish private information — even if that means it is lost to election campaigns and high-stakes public debates.