Rule 5. Reveal Secrets Selectively

Secrets create all sorts of legal issues for journalists and citizen media.

Secrecy and government are a democracy-defying combination. Since the earliest days of the United States, there has been a broad recognition that government must be held accountable through freedom of speech and the press. Citizen journalists perform an invaluable public function when they insist on government transparency and reveal the workings and failings of government, whether at the local, state or federal levels.

Journalists and the public have significant rights of access to ensure government officials and agencies can be scrutinized and held accountable. But disclosing certain types of secrets can get journalists, citizen media and others in legal trouble. Then there are secrets kept by journalists and citizen media, such as confidential sources, which may be protected by shield laws and a special privilege.

Sunshine and Freedom of Information Laws

“Let the sun shine in,” is one of the hallmark themes of an open society. Laying government secrets bare is a powerful way to keep federal, state and local government transparent and accountable.

For public meetings, hearings and documents, the public’s rights to access are recognized by the courts and codified in state and federal law. For example, there is the Government in the Sunshine Act and the Federal Advisory Committee Act, which provide for government business to be transacted in public meetings, and the Freedom of Information Act and state freedom of information laws that make government documents, with some categories of exceptions, available to the public upon request. See The Citizen Journalist’s Guide to Open Government for detailed information on access to local, state and federal government records, meetings and courts.

The more the public insists upon access to government documents and proceedings, if necessary, by exercising important public rights under freedom of information and sunshine laws, the more accountable and transparent federal, state and local government will be.

Risky Disclosures

Sunshine and freedom of information laws apply to government. When it comes to individuals and private organizations, legal actions can arise from sharing their secret information. Lawsuits can result from disclosure of private facts, company trade secrets, or information you’ve promised not to reveal.

When you publish a secret online, it’s sort of like letting the genie out of the bottle. The Internet provides for unpredictable, uncontrollable, unstoppable global distribution of information into perpetuity. There’s no telling how fast and far it will travel, how long it will circulate, or when and where it might resurface. Good luck trying to undo an impulsive disclosure.

Here are some types of secrets that could cause legal trouble should you reveal them online:

Trade Secrets

A trade secret, according to the Uniform Trade Secret Act, can be “information, including a formula, pattern, compilation, program device, method, technique, or process.”

Public companies are obliged under disclosure laws to report reams of information, financial and otherwise, all of which is available for use by citizen journalists and anyone else. Included in the vast treasure trove of information publicly available: details of successful and unsuccessful products and business ventures, assets and liabilities, sales and profits and losses, executive compensation, enforcement actions, substantial lawsuits, and other risks.

But companies, public or otherwise, can keep certain categories of information that qualify as trade secrets from public view.  Disclosure of trade secrets invites legal trouble.

According to The Berkman Center for Internet & Society, trade secrets “can include… customer lists, supplier lists, computer software, financial data, personnel information, or even compilations of generally known facts.” Trade secrets aren’t generally known or accessible to competitors or others who could profit from them. Trade secret owners must make reasonable efforts to keep their secrets under wraps.

Employees and others who have contractual and fiduciary relationships with companies have obligations to keep trade secrets confidential. Citizen journalists who are independent of the companies they cover nonetheless can face trade secret-related legal risk in at least two situations. You can be sued for using improper means to obtain a trade secret, such as pretending to be a customer or paying disgruntled employees for secret information. You also can be sued for disclosing a trade secret if you knew or had reason to know someone acted improperly to obtain or communicate the information.

Note that there’s legal risk, Berkman adds, in publishing information “marked ‘highly confidential’ or ‘Need-to-Know,’ which usually signify secret information,” even though “such labels can be misapplied.”

For protection, a citizen journalist probably should retain a record of how a piece of information came into her possession before publishing it online,” Berkman advises.

Private Facts

Public disclosure of private facts or records or personal information that lack newsworthiness can serve as the basis for a privacy-related claim. Personal information is also protected by federal and state laws restricting revelation of specific categories of records and data.

Under the laws of some states, unreasonable public disclosure of private facts can be a basis for a privacy action. But, significantly for journalists and citizen media, if the information is newsworthy or a matter of legitimate public concern, then publication of private facts can be legally safe. Disclosing a person’s past conviction for prostitution, campaign contributions, or quiet advocacy of a neighborhood-altering law, likely would qualify as matters of legitimate public concern. Unreasonably disclosing embarrassing facts, such as a private person’s sexual history or failing college test grades, likely would not.

The televising of a car accident victim’s ordeal without her permission, including her conversation with an emergency medical first responder at the accident scene and in a medical evacuation helicopter, gave California’s courts an opportunity to consider what’s over the line. California’s highest court, quoting The Restatement of Torts, said: “[P]ublicity of private facts can result in a valid claim if the defendant gave ‘publicity to a matter concerning the private life of another’ and ‘the matter publicized is of a kind’ that ‘would be highly offensive to a reasonable person… and… is not of legitimate concern to the public.’” The story of the accident and aftermath was found to be of legitimate concern to the public and therefore the private facts claims failed.

The disclosure could be in almost any medium, from a photo, to audio, to video, to written words.

There also are federal and state laws that make the disclosure of specified categories of information illegal. Sometimes, under these laws, the obligation to keep information confidential is limited to certain types of agencies and businesses that have access to personal records, such as hospitals and video stores. Some privacy-related statutes, in addition to confidentiality requirements, mandate posting privacy notices on Web sites.

National Security Secrets

In rare and largely untested situations, publication of national security secrets can raise the specter of criminal liability.

From a journalist’s perspective, disclosing a breach in the nation’s security can be a public service, a way to identify and call attention to a safety risk. For example, the screening of airport workers and behind-the-scenes airport activities sometimes has been less than rigorous. Journalistic inquiries and projects calling attention to this problem may eventually help to narrow security gaps.

United States journalists and news organizations generally have the right under American law to publish truthful, newsworthy information, even when it has been unlawfully leaked to them. The federal government has tried to control disclosure of sensitive information by making it clear that federal officials and those serving under government contracts can be prosecuted for leaking classified information.

However, a recent federal case raises the question of whether non-government employees, and, by implication, journalists, bloggers, citizen media, and others, can be criminally prosecuted for publishing government secrets relating to national security.

In a decision that has ominous implications for press freedom, a United States District Court addressed the use by the Bush Administration of the Espionage Act of 1917 to prosecute two former employees of the American Israel Public Affairs Committee (AIPAC). The men were charged with conspiring to transmit information relating to the national defense to those not entitled to the information. The Court said that when it comes to information relating to national defense, it’s not just leaks by those who have legal obligations to keep information secret that can lead to prosecution. Someone who discloses information knowing it’s potentially harmful to the United States can be prosecuted under the Espionage Act, the court said.

The decision supports the use of the Espionage Act to prosecute civilians without any employment or contractual relationship with government for the unauthorized receipt and deliberate transmission of information relating to the national defense. First Amendment advocates have widely criticized this extension of the Espionage Act to non-government personnel as damaging to press freedom.

What does this mean for bloggers and citizen contributors? If you come into possession of national security secrets or classified national defense information and communicate it or publish it, you could be criminally punished. You should consult with a First Amendment lawyer prior to any communication or publication of such secrets.

Keeping Your Own Secrets

Citizen journalists may have secrets of their own, in terms of anonymous sources or information covered by verbal or written promises of confidentiality.

Revealing an anonymous source in violation of a confidentiality agreement can create its own legal risk.

Sometimes, disclosure is ordered under a subpoena. It’s very important to contact a lawyer with expertise in media law if that ever happens. Also, the more information you keep, in terms of interview notes, records, tapes and other documents, the greater the subpoena risk.

The majority of states have shield laws that protect the journalist’s right to keep sources confidential. Shield laws can also protect non-secret information so that journalists don’t bear the burden of having to disclose their carefully collected information. Media Law Resource Center Attorney Maherin Gangat describes reporter’s privilege and shield laws below.

Whether these shield laws apply to citizen journalists, bloggers, and others outside of a newsroom context is largely unsettled and can vary from state to state. In some states,shield laws may protect citizen journalists against subpoenas and other court ordered disclosure, as California’s top court decided in the recent O’Grady case. In the video box below, Sam Bayard, assistant director of the Citizen Media Law Project at Harvard’s Berkman Center, discuss this important case.

A federal shield law also has been in the works for years and could be enacted in 2010.

Here’s a helpful resource on responding to subpoenas from the Citizen Media Law Project.

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