Government Lawyers Hoping To Keep Leaker's Lawyers From Talking About Leaked Documents

from the proposed-bag-of-zip-it dept

The prosecution is underway for NSA contractor Reality Winner, alleged to have leaked a classified document about Russian election hacking to journalists at The Intercept. (The government hasn't officially confirmed The Intercept was the recipient of Winner's alleged leak, but the timing detailed in the indictment indicates this is most likely the case.)

Prosecutors are hoping to limit what Winner's lawyers can and can't say when defending this case. Following the government mindset that somehow believes publicly-published classified documents are still somehow "secret," prosecutors are asking the judge to engage in a little prior restraint.

In a motion filed Tuesday, federal prosecutors said they had reached an impasse with Winner’s defense team and asked the court to resolve the question in the government’s favor. [PDF link]

In June, the government sent to Winner’s counsel a proposed protective order that would bar the unauthorized use, disclosure or dissemination of any classified information provided to members of Winner’s defense team who obtain security clearances. Classified information would include any information designated “confidential,’ “secret,” “top secret” or “sensitive compartmented information.”

But it would also include “any document or information … now or formerly in the possession of a private party, which has been derived from a United States Government classified document, information, or material.” The proposed order would also include information secured from a foreign government or from any member of the U.S. intelligence community that “could reasonably be believed to contain classified information.”

There are several problems with the government's proposed protective order, not the least of which is it expects the defense team to know in advance whether or not a document is properly classified before they discuss it publicly. This would be mitigated somewhat if it was limited solely to documents provided to the defense by prosecutors.

But it covers far more than that. It covers documents like the one Winner allegedly handed to the press, which was a classified document. And it would forbid discussion of that document before, during, and after the trial. As noted above, it covers anything "derived" from a classified document as well, which is information the defense lawyers may not have.

The broadly-written requests covers almost anything the defense should "reasonably believe" is classified, top secret, etc. A straightforward reading of the proposed order suggests the lawyers defending Winner could not publicly discuss any other documents leaked to the press, even if everyone else is free to do so without repercussion.

Information that is classified that also appears in the public domain is not thereby automatically declassified unless it appears in the public domain as the result of an official statement by a U.S. Government Executive Branch official who is authorized to declassify the information. Individuals who by virtue of this Order or any other court order are granted access to the classified information may not confirm or deny classified information that appears in the public domain.

If granted, the order would force Winner's defense lawyers to agree to every stipulation of this order before being allowed to access sensitive documents it may need to use in court. Winner's lawyers have pushed back, but haven't received any concessions from prosecutors.

Prosecutors suggested that defense lawyers were seeking to ensure that they would not be held criminally liable “for repeating information that they had learned through public sources without ever knowing that the information was classified.”

But prosecutors said they repeatedly have rejected the proposal which they claim “would essentially redefine or render ambiguous what constitutes classified information.”

The prosecutors are being disingenuous. The government has far more power to "redefine or render ambiguous what constitutes classified information" than the defense does. If its order is granted, the government will have the power to make publicly-available documents "secret" -- at least as far as Winner's lawyers are concerned. In perpetuity.

Set up the way it is, the defense can be off the hook criminally for any disclosures if the lawyers can somehow prove they didn't "reasonably know" the information was classified. Proving a negative is tough, and the best way to avoid being put in this situation is to just stop talking about anything publicly -- which is probably the way the government would prefer it.

Filed Under: classified, doj, espionage act, leaked documents, reality winner

Digital First Media Lawyer Orders Blogger To Take Down And 'Return' Memo Listing Names Of Staff Members To Be Fired

from the NOTHING-works-that-way,-especially-not-the-internet dept

When information, that is meant to be confidential, leaks, there's seldom any way to gracefully "recover" the wandering document(s). You can certainly ask those who've posted it to take it down, but it's highly unlikely you'll be able to do anything more than hope they'll acquiesce. You can, however, use this same, slim window of opportunity to make things worse, like Digital First Media's lawyer, David Barlow, did.

Jim Romenesko had someone leak him a copy of an internal email detailing upcoming staff cuts. The memo, which broke down employees into "cut," "keep" and "maybe" categories, was circulated to 15 other employees by Digital First's CTO, Bob Mason. One of those passed it on to Romenesko and he posted it at his website.

Although the cold impartiality of technology makes this seem unusually cruel, there's really nothing inherently worse about this method than any other way execs determine staff cuts. Usually, though, they don't have their internal decisions circulated widely via a journalistic enterprise. Romenesko spoke to another executive at Digital First who refused to confirm anything about the memo other than the fact that the leak caused a serious breach of the involved employees' privacy. This executive (Chief Executive John Patton) did not, however, comment on the issue of Mason circulating a cut list via email.

That could have been the end of that. A temporary embarrassment and a strong warning to people like Bob Mason to handle sensitive documents more carefully. Instead of dealing with the fallout of employees being prematurely notified of their employment status, DFM decided to let a lawyer handle it.

Romenesko received the following letter later in the day.


If you can't read it, it says:

Dear Mr. Romenesko,

This letter demands that you immediately remove from your website and return the information concerning possible proprietary and confidential employee matters misappropriated from Digital First Media. Nothing in this letter should be understood to confirm the accuracy of your publication.

DFM's lawyer can certainly ask for Romenesko to remove the posted information (but shouldn't really expect compliance) but he can't honestly expect him to "return" the posted document. The internet doesn't work that way. For that matter, this isn't even just a matter of confused Luddic thinking. Had Romenesko been in the old publication business (newspapers, magazines) and published the memo, it would have been just as ridiculous for the company to ask for the "return" of the document. It's already been published. Even if Romenesko had honored Barlow's request, cached versions and the Internet Archive would have preserved it, just as surely as every issued newspaper/magazine would have back in the pre-Internet days. In fact, the demand for the return of originals has become increasingly meaningless with every iteration of duplication technology. Using it now is just inordinately stupid, but delivering that phrase 30 or 40 years ago would have only been slightly less imbecilic.

It also must be noted that there are nicer ways to ask for compliance. The phrase, "it's easier to catch flies with honey than with vinegar" exists for a reason. (Of course, you can't ignore this cynical rejoinder, delivered by the incomparable and much missed Phil Hartman in his role as newscaster Bill McNeal in Newsradio: "Only a hillbilly sits around and tries to figure out the best way to catch flies.") But again, there's only a small chance this request will be complied with. But adding a threatening tone almost universally guarantees that the request will be ignored, especially when it's clear the asking party has absolutely no legal recourse and is simply trying to bury something embarrassing.

All Barlow succeeded in doing is drawing more attention to Romenesko's original post and, in the process, highlighting upper management's absurd response to a situation it partially created. Sure, some employee likely violated a company policy on internal documents, but when lists of staff cuts are being passed around, the fear of losing one's job is greatly diminished and the urge to stick it to untouched upper levels of the organization chart -- especially if you're already on your way out the door -- is too irresistible to ignore.

It's time to accept the reality. You can't control the narrative, not anymore, or at least, not at the level you used to be able to. Running around closing barn doors using your lawyer just makes you look even more callous and self-interested than the original memo did.

Filed Under: david barlow, jim romenesko, leaked documents, reporting, takedowns
Companies: digital first media