What leaks have been treated as crimes in the past?
Leaks of classified information.
Federal law criminalizes the unauthorized disclosure of national security secrets. Specifically, under the Espionage Act, it is a crime to disclose to anyone who is not authorized to receive such information regarding national defenses that could be used to harm the United States or aid a foreign adversary. And a handful of specific types of information — such as nuclear secrets, the identities of secret agents, and techniques for monitoring intelligence communications — are separately protected by criminal law.
But a draft opinion on the abortion rights law is not a national security secret.
What about treating the leak as theft of government property?
Treating the leak of a copy of an unclassified document as theft of government property would be groundbreaking and is prohibited by a written policy from the Department of Justice. A prosecutor’s handbook states that “a government employee who, for the primary purpose of disclosing the material, discloses a government document that he or she has lawfully or non-infringing access to will not be criminally charged for the theft.” .”
There are other problems. Among them, the statute of “theft” is an inconvenient method of taking a copy of a document whose rightful owner can still use it in full, as opposed to stealing a tangible object. In the private sector, intellectual property rights prohibit such illegal copying – but government files are not copyrighted.
Are there any other new ideas around?
Yes, several. All those would be new in a spill and present various problems.
For example, some commentators have pointed to a law that makes it a crime to corruptly obstruct an official proceeding. But that route depends, among other challenges, on understanding what the effect — and intended effect — of the disclosure was, which is still the subject of wild speculation.
Others have pointed to the crime of exceeding one’s lawful access to a computer. But nothing in the public record suggests that a hacking has taken place. And just last year, the Supreme Court limited the scope of that law to exclude people who have lawful access to a system, but download something from it for an unauthorized purpose.
Commentators have also pointed to a law that criminalizes the unlawful removal of a criminal record. But it’s not clear that the law covers a situation where someone has made a copy but left the original intact; in a 2014 case in the District of Columbia, a judge said the statute criminalized only “erasing information from public affairs.”
“You feel like some people are so offended by the leak that they not only want it to be wrong, but they want it to be illegal,” said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American States. scientists. “There are many things wrong that are not illegal.”