By Rick Blum
Throughout our nation’s history, leaks have provided valuable insights into government actions to the American public. Mismanagement of veterans care, wasted dollars in the billions on an unnecessary satellite program and secret biological warfare experiments on unwitting Americans have come to light from unauthorized disclosures.
In recent months, news accounts of factions in the White House, movement on Russia investigations, deletions of data from agency websites and events surrounding the firing of an FBI director—to name a few—have relied upon unauthorized disclosures to tell the early story of the Trump administration.
The administration frequently responds by criticizing leaks, even asking the Justice Department to focus on curtailing leaks. If you take the administration’s criticism at face value, you may easily conclude the leaks have harmed our national security, leakers are politically motivated to damage a rival or a political agenda, and leaking information is disloyal or criminal. The rhetoric is, of course, overblown.
Unauthorized disclosures serve an important role in our democracy. The government has a legitimate concern for protecting national security and keeping secrets that are necessary to keep us safe. In cases where there may be possible harm to national security, journalists handle such information responsibly. Reporters who routinely cover foreign affairs and national security issues responsibly report based on classified or unclassified information the disclosure of which may cause harm, take government concerns regarding disclosing certain information seriously and carefully consider what they in news stories.
What we popularly know of as “leaks,” is really a collection of very different types of disclosures by people who have not received prior approval to disclose. Leaks are a vital way for the public to have an accurate view of what the government is doing, what is happening around the globe, how our leaders are responding to the challenges facing the country, and yes, wrongdoing that powerful people wish would not be known.
Not All Leaks Are the Same
To cut through the confusion around leaks, it’s important to be clear that leaks are not all the same. They differ in the context, the motivation of the person leaking, and the risks to the people leaking and the potential impact.
Process leaks. Such stories are focused on the process of government to inform the public of what the government is doing, and at times what public servants and government officials do when they think nobody is looking. Much of the leaks during the early days of the newly forming administration dealt with who was shaping the administration, policy and ultimately the president’s views. Such leaks sometimes are ways for an aide to document their concerns or their rivals’ missteps. Such stories provide a context to better understand the actions of any president. Regardless of the motivation of the source, journalists need to authenticate information contained through other reporting (such as finding other sources to corroborate). In addition, reporters who may work with sources inside government should recognize that a source may not understand the risks associated with their efforts to disclose. It’s important to note they understand the needs of journalists and will not scoop a reporter working with a government employee who seeks their advice.
Whistleblowing. Some authorized disclosures are made to journalists or others with the hope of exposing waste, fraud, gross mismanagement or other wrongdoing. Persons who provide information may be vulnerable to retaliation. Providing protections can be challenging, both from a legal standpoint and from a technological standpoint. A source may not understand the risk they face. Organizations such as the Government Accountability Project help government employees understand their rights to speak up and the risks involved when considering whether to make disclosures.
National security and foreign affairs reporting. Important stories regarding national security issues or events and trends overseas creating challenges for the U.S. are sometimes based on unauthorized disclosures of classified information. Journalists covering these topics regularly are mindful both of the government’s obligation to protect national security and important steps to avoid possible harms.
Much of the legal concern for media lawyers around leaks focuses on the poorly worded and vague Espionage Statutes, first enacted 100 years ago in 1917. Perhaps the most significant provision for journalists in the Espionage Statutes is Section 793(e) of Title 18, which makes it illegal to “willfully” communicate, deliver transmit or retain “information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.”
Scholars and legal experts debate the extent to which this does—and should—cover journalists. Amidst complaints that the statute is constitutionally overbroad, courts have further clarified the phrase “relating to the national defense” by adding two additional criteria for a successful prosecution: First the information must be “closely held” by the government. Second, the information must “potentially harm” the United States if disclosed.
Adding to the complexity, when two lobbyists were accused of passing sensitive information to Israel, the courts determined that the government would have to show that in passing “intangible” (i.e., spoken) information, the accused had “reason to believe it could be used to the injury of the United States or to the advantage of any foreign nation.” (United States v. Rosen, 445 F. Supp. 2d 602, 625 (E.D. VA. 2006)
The Press and Leaks
Over the years there have been efforts in Congress to make it easier to successfully prosecute journalists or otherwise deter unauthorized disclosures of classified information.
In 2000, language was included in the Intelligence Authorization Act for Fiscal Year 2001 that would have criminalized disclosures of any classified information. The proposal was modeled from the British Official Secrets Act, which gives the British government the right to prevent publication of stories in the interest of protection national security. The proposal would have profoundly changed the relationship between government and press on coverage of national security and foreign affairs. Yet few knew about it and it had already passed the House and Senate. After a last-minute lobbying effort to explain the dramatic impact the proposal would have, President Bill Clinton vetoed the intelligence spending bill. (The spending measure was later passed without the offending provision.)
Based on that experience, representatives of the news media began meeting with representatives of the government to better understand each side’s perspectives and concerns. The off-the-record, informal conversations called “the dialogue” by organizers evolved into more formal sessions hosted by the Aspen Institute, which issued a report in 2003 outlining commonsense steps that those who cover national security frequently take to responsibly report.
Working under the possibility that journalists may be subject to prosecution under the Espionage Statutes, the news media has operated for decades covering national security and foreign affairs taking care to avoid harming national security, listening carefully to government concerns about potential harms, sometimes removing details in a published story, or delaying publication.
Over the last decade, Congress has considered and rejected proposals to make it easier to prosecute journalists under the Espionage Statutes. In 2012, the Senate intelligence Committee proposed several changes to separate reporters and the intelligence community to stem leaks. One provision would have barred government employees working within the intelligence community from working for a media company after leaving government service. Another would have required anyone in the intelligence community to report any contacts with a representative of the news media. Ultimately, Congress has chosen to avoid disrupting that relationship between government and press that is defined by the First Amendment and legal interpretations of the Espionage Statutes.
Finding the Right Balance
Beyond the economic challenges that has remade parts of the news media industry over the last decade, the enduring balance between government and the media over unauthorized disclosures has become strained by our societal shift toward digitally traceable lives and the efforts by this administration to undermine public trust that the news media ultimately focuses on disseminating accurate, relevant stories.
Through our daily lives we are leaving more digital breadcrumbs behind about our actions that are being recorded, stored and accessed later. The advent of smartphones and the vastly increased capacity to network computers together in the cloud and retain information has dramatically impacted conversations about unauthorized disclosures. The vast collections of information that Edward Snowden was able to collect as well as the U.S. surveillance efforts that he exposed only became possible in recent years.
A decade ago, government investigations to identify leakers were futile efforts. Sources could not be identified because the universe of people who had the opportunity to leak was too big to isolate a single leaker. Investigations were resource intensive.
In contrast, this year, Reality Leigh Winner, a Georgia contractor, faces charges under the Espionage Act for allegedly sending classified information to online media outlet The Intercept. The document revealed Russian efforts to hack into election systems were more widespread than was previously made public. The Justice Department identified Winner after a brief investigation.
The Winner case also highlights the difficulty and importance of protecting sources and the limits of technology tools. The Intercept has stated that for the Russian election hacking story, it received the document anonymously and the news outlet had not independently identified the source. It presented government officials with the document it received for reaction. According to the affidavit filed in support of Winner’s prosecution, the digital image showed creases in the image, which suggested that the source folded the document. That led investigators to quickly identify that six people had printed the document, and of those only Winner had contacted the news outlet.
SecureDrop grew in popularity as an elegant solution that allows sources to deliver documents without the news outlet knowing the identity of the source, rendering moot any effort to subpoena news outlets to reveal a source’s identity. But clearly that protection was not sufficient.
The impact of this change is clear. For sources, it discourages important disclosures by increasing the risk to sources. To some extent the government may be less likely to engage in conversations with reporters to explain their concerns before journalists give the final green light to a story. It also reduces their incentive to explain to the public and to media outlets concerns generally through public venues about potential harms from certain disclosures.
It further dramatically undermines the government’s incentive to engage in dialogue with representatives of the news media. In one of the final dialogue meetings in 2011, one government representative noted the government no longer needed to subpoena a journalist’s records; they already knew with whom reporters were talking. That was in 2011. The National Security Agency’s vast surveillance capabilities had been the subject of some reporting, but this was before Edward Snowden’s disclosures brought them to broad public attention.
Going into the Trump administration, the advent of smartphones and large-scale digital storage has strained that delicate balance between the government’s ability to keep secrets in the name of security and the constitutional obligation of the news media to keep the public informed.
The Trump administration’s one-way war against the press could damage the news media’s credibility, the public’s ability to separate fact from fiction and the physical safety of individual journalists (which would be frightening enough in normal times). Perhaps the most lasting impact of the president’s “hit back” strategy against the press is the unfortunate inspiration this approach may give to public officials around the country. Consider that the problems at the Veterans Administration were first revealed publicly when a source inside the agency (and far from Washington) spoke up. In state and local governments, city halls and statehouses, sometimes the lasting impact of journalism starts when someone, somewhere knows something that should be made public.
Rick Blum is director of News Media for Open Government (formerly Sunshine in Government Initiative), a coalition of news media associations defending and promoting news gathering and press freedom.
