U.S. Leaking Law: You Go To Jail – I Win A Pulitzer

While researching Challenging Anti-Whistleblowing Provision (Germany) [Republication of „stolen“ Data] in a US context, I encountered: The Legality of Publishing Hacked E-mails by Diana Dellamere.

Published in 2009 and as with all legal issues, consult a lawyer but it summarizes the rule on “illegal” content as:

Bartnicki v. Vopper is the most protective of journalists and sets out the primary “test,” holding that a broadcaster could not be held civilly liable for publishing documents or tapes illegally procured by a third party. The court set out three criteria for legitimate first amendment protection: (1) the media outlet played no role in the illegal interception; (2) media received the information lawfully; (3) the issue was a matter of public concern.

If my title sounds harsh towards the press, remember that the Washington Post won a Pulitzer Prize based on Snowden’s leaks and yet called for him to not be pardoned.

I suspect that first requirement:

(1) the media outlet played no role in the illegal interception;

is part of the reason why the bar for leakers remains high, that is media outlets don’t accept leaked login credentials for the recovery of material of public interest.

Media outlets need to realize the “no role in the illegal interception” condition of Bartnicki v. Vopper is a bargain with the devil. From which both media outlets and the public suffer.

Media outlets suffer because despite the brave rhetoric of “speaking truth to power,” media outlets say in fact:

speaking such truth as breaks through the wall of fear and punishment maintained by power

In honoring the condition of “no role in the illegal interception” media outlets have chosen a side. It isn’t the side of transparency, public interest or government accountability.

If that weren’t bad enough, the public suffers by being deprived of facts that skilled data miners could recover, that lie beyond the skill of leakers who could leak access credentials.

Everyone gets to make choices and certainly media outlets, we could all name a few, can choose to be government toadies.

As far as “legality” is concerned, I call your attention to: Tweeter And The Monkey Man by Traveling Wilburys:

Jan had told him many times, “It was you to me who taught
In Jersey anything’s legal, as long as you don’t get caught”

The law is codified caprice that favors the powerful.

Whether to break it or not asks how much is the truth worth to you really?

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