By Ryan E. Long on March 27, 2017 at 5:07 pm
The recent spat of Washington D.C. leaks is "unusually active," according to FBI Director Mr. James Comey. Even if the leaks are as normal as they are in an allergic nose dealing with New Orleans spring pollen, what are the legal and ethical issues in leaking such confidential information, unknowingly reverse engineering it, or in publishing the leaks?
Generally speaking, liability for the leaker inside the government is clear. Numerous federal laws apply to confidential information circulated within the labyrinth of the federal government, and they generally hold such leakers criminally liable for the willful, and sometimes even negligent, disclosure (or even handling) of such information, including the identity of a Central Intelligence Agency ("CIA") "covert agent" or President Trump's tax returns.
However, what about geeks who reverse engineer publicly available information and then end up discovering government secrets and/or strategies through such analysis?
Imagine a modern day Matthew Broderick from WarGames (1983) who correctly intuits a covert government strategy to liquidate foreign ambassadors or heads of state via proxies and then warns how such molehill practices have on prior occasions caused mountains of problems. In the 13 century, Iraqis killed Genghis Khan's chief envoy and had the beards of the others burned so they could travel back to him humiliated. Thereafter, Mr. Khan massacred almost all of the 200,000 to 1,000,000 inhabitants of Baghdad in one week, at the time the "House of Wisdom" in Islam's Golden Age. Or take the assassination of Archduke Franz Ferdinand of Austria and his wife in 1914. Many believe that this killing led to the start of World War I, in which nine million combatants and seven million civilians died.
In such instances of geeky reverse engineering of covert government strategies, criminal liability will generally be lacking because such a geek would have no contractual or statutory responsibility to keep quiet, and his speech about an issue of grave public concern - potentially preventing a global conflict -- would be protected by the First Amendment. While copyright protection would no doubt apply to any such materials in the private sector, there wouldn't even be a prima facie case of copyright infringement in the case of such reverse engineering because of the lack of copying. Fair use, then, wouldn't even come into the picture. Trade secret law, however, may very well provide for intermediate liability on the publisher, depending on the circumstances, and on the state law in question. But even if the publication is legally in the clear under both copyright and/or trade secret law, would-be geeks are well advised to consider reprisals from said officials, whether via Nixon type IRS audits or economic black listing, and how to protect themselves against them. (Genghis Khan 2.0 protection is one way.)
That's the leaker and the geek. What about the reporter?
The law in this area is murkier. While there are federal statutes which some have argued would impose criminal liability on a reporter for publishing confidential information, such as a Department of Defense ("DOD") plan to defeat ISIS, prosecutions have been rare. The First Amendment generally protects the publication of such intelligence. However, in a case where the reporter and leaker work in concert (think offer-acceptance) to violate federal law, a conspiracy case can be brought against the reporter. What is more, prosecutions have been brought against reporters to reveal their confidential sources, as happened with Ms. Judith Miller of The New York Times when she refused to identify the source of information leading to the unmasking of a CIA covert agent, as many say happened in the case of Mrs. Valeire Plame under President George H. Bush's tenure.
But even if there is no legal liability for the media professional, there is also the question of unintended consequences. Take, for example, a DOD strategy to replace ISIS with "new sheriff in town" Eddie Murphy. Assume a person within President Trump's DOD, or CIA, who dislikes the President, and/or his political agenda, leaks such the details about the "Murphy Plan" to an unwitting New York Times reporter. The reporter is likely protected in publishing the plan, but should it be published? Asymmetrical information is the key to effective conflict, whether you are in the courtroom, on the battlefield, or in a chess match. Disclosing such a plan, especially if it is already being carried out but even if it hasn't, would risk the lives of military personnel and/or threaten the security of major cities like New York, Boston, Chicago, and Los Angeles.
Any professional working in media would be well served not only to consider the legalities of reporting leaked information, but also such unintended but foreseeable potential blow back.
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