[Infowarrior] - Love the Leak, Hate the Leaker?

[Richard Forno]

Love the Leak, Hate the Leaker?
http://www.wired.com/news/columns/1,71845-0.html

By Jennifer Granick|
02:00 AM Sep, 27, 2006

Everywhere you look, leaks are in the news.

San Francisco Chronicle reporters Lance Williams and Mark Fainaru-Wada
obtained confidential grand jury transcripts from the BALCO professional
sports steroid grand jury. Now, the two journalists face jail time for
refusing to disclose the name of the leaker.

California gubernatorial candidate Phil Angelides' campaign admitted giving
audio recordings of Gov. Arnold Schwarzenegger making insensitive comments
about a state legislator's race to the Los Angeles Times. The governor's
office claims that someone illegally hacked private computer systems to get
the recording, while the Angelides camp says that the audio was on an
unsecured public web server. News reports say the California Highway Patrol
is investigating.

Vice President Dick Cheney's former chief of staff Lewis Libby will stand
trial for allegedly lying to agents investigating who leaked CIA agent
Valerie Plame's name to reporters. During the investigation, Time magazine
reporter Matthew Cooper and former New York Times reporter Judith Miller
initially refused to answer questions about the source for their stories on
Plame and were held in contempt of court.

Hewlett-Packard executives, confronted with news accounts containing details
about internal meetings, hired an investigator to obtain board members' and
journalists' phone records and other private information in order to probe
the identity of the leaker. Now, federal and California prosecutors are
pursuing criminal investigations of the company's tactics.

France is investigating the leak of confidential documents from the DGSE
(General Directorate for External Security) that contained unconfirmed
reports that Osama bin Laden is dead.

Leaking is nothing new. However, leaking is increasingly in the news. The
information age means more data in more formats from more sources is more
readily transmittable than ever before. Publishing is an activity available
to anyone with a computer and an internet connection. Information is more
valuable, a commodity itself.

With a more amorphous and omniscient media we'll confront the question of
what to do about leaking more often. How should the law protect sensitive
information, and what should we do when someone leaks it?

Solutions for dealing with the problem are somewhat schizophrenic. On one
hand, Congress is considering tougher rules criminalizing leaks of
classified information. On the other, Congress may soon pass a shield law to
protect reporters who refuse to reveal their sources.

This bifurcated approach stems from the fact that two somewhat contradictory
principles are inarguably true. First, some secret information should remain
so. Second, some secrets harm the public, and should be disclosed. In
theory, it's easy to tell the difference. Troop movements must remain secret
so as not to give the enemy an advantage in battle. The public should know
that the tobacco industry deliberately worked to increase the addictiveness
of cigarettes.

But in practice, it's difficult to distinguish whether information is
legitimately or illegitimately kept secret. Most often, some interests are
in favor of retaining secrecy, and some interests favor public disclosure.
How can we tell, and who should determine, which prevails?

Historically, our practice has been to allow the press to publish as it sees
fit, but to punish the leaker. In a seminal example, the Pentagon Papers
case, former Department of State official Daniel Ellsberg leaked documents
to The New York Times that showed that the Johnson administration had lied
to the public about its plans to expand the Vietnam War.

The Nixon White House sued to prevent the newspaper from publishing the
documents. The U.S. Supreme Court ruled that the Times could publish the
information without fear of legal reprisals, despite administration claims
that the publication would cause irreparable injury to the defense interests
of the United States. Ellsberg, the leaker, faced a lengthy prison sentence,
though charges were eventually dropped after Nixon operatives broke into his
psychiatrist's office looking for information with which to discredit him.

The publication of the Pentagon Papers hastened the end of the war, and of
the Nixon administration. The nation survived, perhaps much improved, though
temporarily jaded about the reach of executive power.

Today, this chaotic but operant system is under renewed pressure. We are
again at war, both in Iraq and against the amorphous forces of terrorism.
Now, any yahoo with a web page can expose sensitive information to the
world. Information itself is more valued, and legally protected by a panoply
of intellectual property and other laws that give secret-keepers an arsenal
of tools against whistle-blowers.

Wrongful disclosure of classified government information has long been a
crime. Now private companies also are using copyright law, trade-secret law,
and the computer trespass statutes to try to protect information that they
prefer to remain secret. For example, Diebold Election Systems used
copyright law to try to suppress an archive of internal e-mails showing
security and accuracy problems with the company's electronic voting
machines. At the Stanford Law School Center for Internet and Society and
Cyberlaw Clinic, we sued Diebold on behalf of two college students who had
posted the materials, and won a ruling that the fair-use doctrine protected
the publication.

In the case of Cisco v. Michael Lynn, the router company used trade-secret
law to obtain a settlement that prohibited Lynn, my client, from further
discussing security flaws he discovered in the company's router software.

The California governor's office has cited the computer-trespass laws to
challenge the propriety of information obtained by challenger Angelides.
Diebold had tried that tactic as well, claiming that its electronic voting
e-mails were obtained unlawfully by a hacker and therefore shouldn't be
further disseminated. No matter how important to the public information may
be, it's a crime to access a computer without authorization to obtain that
information.

While there are no new laws preventing the press from publishing secrets,
prosecutors seeking to punish leakers have taken off the gloves normally
used to handle reporters that rely on confidential sources. There has been a
sharp increase in contempt claims brought against journalists in the past
five years, including the high-profile Miller, Cooper, Fainaru-Wada and
Williams cases, as well as several others.

We're going to see more and more cases involving secrets, leakers, the press
and the law. Congress will consider whether to increase punishment for
improper disclosure, to protect reporters who use confidential sources, or
both. Proponents of harsher laws will point to the threat of terrorism, to
the proliferation of amateur bloggers unschooled in the ethics of
professional reporters and to the commercial value of information in the
modern age. All of these are legitimate and important concerns.

Yet, a free press serves a vital role in any democracy, and the press
depends on leakers to expose wrongdoing at every level.

We must remember that deciding what should and should not be secret is a
daunting task. Whatever rules we draft will be imperfect, protecting either
too much or too little information. We will make mistakes, and because we
know we will get it wrong, we should err in favor of the free press. We have
never, and probably never should, prosecute a member of the press for
revealing government secrets.

We must also recognize that the disclosure of private secrets, like Cisco
router flaws or Diebold election machine errors, may be vitally important
for the public to know despite intellectual property claims. From the
pamphleteers of the Revolution to the bloggers of today, we've taken an
expansive view of who has a right to publish, and that view has been good
for freedom and democracy. While messy and sometimes risky, this approach
has worked throughout the history of our republic.

In the end, a little schizophrenia may be the sanest approach to protecting
both secrets and transparency in a free society.

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Jennifer Granick is executive director of the Stanford Law School Center for
Internet and Society, and teaches the Cyberlaw Clinic.