Leaks, geeks, & reporters

Leaks, geeks, & reporters

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. Even so, would be geeks are well advised to consider reprisals from said officials, whether via Nixon type IRS audits or otherwise, 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.

CrestCare — Constitutional?

CrestCare — Constitutional?

The Obama administration recently passed CrestCare. Never heard of it? It is a new federal law which requires every citizen to brush their teeth with Crest brand toothpaste. Certainly, the law must be unconstitutional, although it would be nice not to smell bad breath on the elevator ride up to the office, or on the construction site, in the morning. And yet maybe, just maybe, the law would be upheld by the Supreme Court if it was ever challenged.

Of course, there is no CrestCare. It is a wonder whether the federal government would be empowered to pass such a law if the United States Supreme Court upholds the constitutionality of ObamaCare’s requirement that all citizens have health insurance. On Monday, the high Court began hearing oral arguments to determine whether that part of ObamaCare, in addition to others, are constitutional. In the case, titled Department of Health & Human Services, et. al. v. States of Florida, et. al., No. 11-398, the attorney generals of various states have brought suit to bar enforcement of ObamaCare, the details of which have been covered ad nausea elsewhere, and which I will leave for your musings.

The marrow of the government’s argument as to why ObamaCare should be upheld is the Commerce Clause, which gives Congress the exclusive authority to “regulate commerce . . . among the several States.” That is my emphasis. Over the years, the Supreme Court has read “among” to include anything that could affect interstate commerce, even if the conduct in question is wholly intrastate in character. In Wickard v. Filburn, for example, the Court held in 1942 that the federal government could regulate a farmer’s growth of wheat in his own backyard even though it was for his own consumption. The reason: the farmer’s growth would affect the interstate flow of wheat. Then, in Gonzalez v. Reich, the high Court in 2005 held that the feds could regulate wholly intrastate consumption of marijuana under California’s Proposition 215.

While the Court’s decisions in both Wickard and Gonzalez stretch the limits of “among the several states” to their intellectual limits, neither decision dealt with a federal law compelling someone to do something. Instead, both decisions involved a federal law prohibiting someone from doing something. Whereas part of ObamaCare compels every living citizen to buy health insurance. This seems to stretch the Commerce Clause so far that it has no limits left. Even if you like the idea of nationalized healthcare, this is not a constitutionally permissible way to go about it.

If the Court upholds the part of ObamaCare mandating health insurance for all citizens on Commerce Clause grounds, there is nothing barring the feds — or Crest — from mandating CrestCare.