4 ms·

(big IANAL) Criminal penalties for revealing information would be a major affront to the First amendment since they're the most direct way for the government to

(big IANAL) Criminal penalties for revealing information would be a major affront to the First amendment since they're the most direct way for the government to restrict speech. The Federal classification system only works because the individuals given security clearance enter into a special contractual agreement with the Federal government - only someone who has made that agreement can face criminal penalties for revealing classified information. A random pedestrian who's never even been allowed near classified information but stumbled onto it can't be prosecuted (at least, not once it gets to a sane appeals court). That's to say: it'd be up to each state to create its own criminal laws regarding what they consider confidential information (if any) and make sure those laws are constitutional by explicitly writing them into the police officers' contracts. Much of the time, changing internal policy is all that states can realistically do because some federal statute or constitutional clause has supremacy - even something that's normally a fireable offense at a private business might run afoul of constitutional protections when done by a state government or agency.

threatofrain 5y ago
Out of curiosity, how would such a contract work? Normally the violation of a contract just means a tort and not criminal penalty. Surely you cannot simply say something like, "I agree that exercising my constitutional rights is now a federal offense."
- akiselev 5y ago
  The official contract is Standard Form 312 [1] which strictly only carries civil penalties - it's little more than an NDA except it carries the weight of the executive (in the sense that the executive branch can use its authority to enforce it). The actual criminal charges come from a variety of laws like the Espionage Act of 1917, Intelligence Identities Protection Act, etc that each protect a variety of information using a national security exception to get around constitutional issues. My understanding is that the glue that holds them together is this line in SF 312: > In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, 952 and 1924, title 18, United States Code; the provisions of section 783(b}, title 50, United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation (again, IANAL and this is definitely not legal advice) [1] https://www.gsa.gov/cdnstatic/SF312-13.pdf?forceDownload=1 https://www.gsa.gov/cdnstatic/SF312-13.pdf?forceDownload=1
- Godel_unicode 5y ago
  It sounds like you might be unaware of the existence of NDAs?
pyuser583 5y ago
What you’re saying isn’t true. There’s a legal doctrine of “born classified” that obligates everyone to secrecy. Companies have gotten into trouble for doing research that might be used to build an atomic bomb, even though the research had other applications.
- Godel_unicode 5y ago
  That's not what that doctrine means; information being classified and individuals having a duty to protect it are two distinctly different things. Imposing a duty to protect classified information on Americans who have not signed a national security NDA would be a breach of their first amendment rights. The rules are obviously totally different for people who hold or have held a clearance, but the legal basis for those rules is the NDA signed by those people. This is fundamentally different than e.g. the British approach, where the official secrets act applies to everyone whether or not they have signed it. It's also the case that while the doctrine of born secret has not been tested in court, it is generally regarded as unconstitutional and likely to be struck down by the courts of they are given the opportunity.
  - pyuser583 5y ago
    Everything I’ve ever read about the “born secret” doctrine says that it obliges non-cleared people to keep secrets. Most of what I’ve read emphasized how controversial this is. As you said, there are severe first amendment implications. Yet the law ignores these implications. It is probably unconstitutional, but the SCOTUS has never ruled on it. I hate to be the guy saying “cite your sources,” but I have quite a few sources that say “born secret” applies to everyone. Can you show me some evidence it doesn’t? This source is about a related, but distinct, topic. It contains numerous example of the US government attempting to obligate non-cleared people to keep official secrets: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9475&context=penn_law_review https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl... This source is a Wikipedia page, but it describes the government attempting to use “born secret” to censor a newspaper: https://en.m.wikipedia.org/wiki/United_States_v._Progressive,_Inc https://en.m.wikipedia.org/wiki/United_States_v._Progressive.... PS: From the first source: In 1978, journalist James Bamford sent a Freedom of Information Act (FOIA) request to the Justice Department. He wanted documents related to the Department’s investigation of illegal wiretapping performed by the NSA. Among the surveillance programs the Justice Department investigated was Operation MINARET, which spied on Martin Luther King, Jr., Jane Fonda, and other opponents of the Vietnam War. The chief of the Justice Department’s special litigation unit, the unit that led the investigation into the NSA, took ten months to review the request. In the end, the Justice Department declassified and released 250 pages of documents to Bamford. When the NSA found out about the disclosure, however, it argued that the documents should never have been released and demanded that the Justice Department label them as classified. The Justice Department refused. Two years later, with a new administration in the White House and new leaders atop the two agencies, the NSA tried again. This time, the Attorney General agreed. Bamford recalled a meeting with NSA and Justice Department officials. “They threatened to use the espionage statute against me,” Bamford recounted, “if I continued to refuse to return the documents.” A letter from the Justice Department soon followed: “You are currently in possession of classified information that requires protection against unauthorized disclosure,” it said, adding that Bamford should be aware of his “continuing obligation not to publish or communicate the information.”Keeping quiet was not enough for the Justice Department, however. “It is . . . your duty and obligation as a United States citizen to return this information to the Department of Justice,” the letter insisted.
belorn 5y ago
First amendment has a strong influence, through when it comes to obstructing justice I would lean towards the action being illegal. I wonder if obstruction of justice can impact someone who has not made any agreement beforehand. A random pedestrian who tries to stop the police, in a public space where they otherwise would have a right to be, could still end up in jail if I understand the laws right. If they can do that with their physical body I suspect the same punishment can occur if they do that with their own first amendment voice given special circumstances and results of that speech. It is however difficult for a random pedestrian to commit obstruction of justice out of accident, but a lot of actions done by a police officer would obstruct justice by the nature of their own work. Similar if a person were employed at a court, if they misbehaved erroneously, I would guess that it would carry a bit more legal risk just given the environment. Nothing of this has anything to do with internal policy. Obstruction of justice is mostly about the intention and results.
- akiselev 5y ago
  Those are separate things and they're treated differently. The illegal act is obstruction of justice, not the speech itself, which is why criminal OoJ penalties don't run afoul of the first amendment. If you have insider information on an ongoing investigation and you tell it to your buddy at the bar who doesn't care one bit about it and immediately forgets, that's not obstruction of justice because the speech itself isn't the criminal act. If you tell that same information to the suspects though, then that's obstruction of justice. With classified (natsec) information, on the other hand, telling it to anyone who you're not absolutely certain has clearance to see it is a violation and could land you in jail for years if you get a bloodthirsty DA. (again, IANAL)
  - belorn 5y ago
    In this specific case we have a police interfering with a case about an undercover officer by informing the suspect about the under cover agents identity. However, the whole affair was actually a sting operation to test if the officer would interfere. It is a bit of a special situation since the interfering was over a fake case, through the legal frame work of sting operations has always been a bit grey. It seems to me however that it flights clearly above that of first amendment rights. It seems simply that the prosecutor chose to go after CFAA because the case is about a sting case rather than a real one. Had the police officer interfered in a real case, where a criminal had been given information that obstructed police officers in their job, the case had been about that. If that is true then the case has very little to do about internal policy decisions, exceeded permissions, unauthorized vs authorized users, employee contracts and so on. It is actually about sting operations and a prosecutor who attempts to bypass that discussion by using a law designed for a different purpose.

threatofrain 5y ago

Out of curiosity, how would such a contract work? Normally the violation of a contract just means a tort and not criminal penalty. Surely you cannot simply say something like, "I agree that exercising my constitutional rights is now a federal offense."

akiselev 5y ago
The official contract is Standard Form 312 [1] which strictly only carries civil penalties - it's little more than an NDA except it carries the weight of the executive (in the sense that the executive branch can use its authority to enforce it). The actual criminal charges come from a variety of laws like the Espionage Act of 1917, Intelligence Identities Protection Act, etc that each protect a variety of information using a national security exception to get around constitutional issues. My understanding is that the glue that holds them together is this line in SF 312: > In addition, I have been advised that any unauthorized disclosure of classified information by me may constitute a violation, or violations, of United States criminal laws, including the provisions of sections 641, 793, 794, 798, 952 and 1924, title 18, United States Code; the provisions of section 783(b}, title 50, United States Code; and the provisions of the Intelligence Identities Protection Act of 1982. I recognize that nothing in this Agreement constitutes a waiver by the United States of the right to prosecute me for any statutory violation (again, IANAL and this is definitely not legal advice) [1] https://www.gsa.gov/cdnstatic/SF312-13.pdf?forceDownload=1 https://www.gsa.gov/cdnstatic/SF312-13.pdf?forceDownload=1
Godel_unicode 5y ago
It sounds like you might be unaware of the existence of NDAs?

pyuser583 5y ago

What you’re saying isn’t true. There’s a legal doctrine of “born classified” that obligates everyone to secrecy. Companies have gotten into trouble for doing research that might be used to build an atomic bomb, even though the research had other applications.

Godel_unicode 5y ago
That's not what that doctrine means; information being classified and individuals having a duty to protect it are two distinctly different things. Imposing a duty to protect classified information on Americans who have not signed a national security NDA would be a breach of their first amendment rights. The rules are obviously totally different for people who hold or have held a clearance, but the legal basis for those rules is the NDA signed by those people. This is fundamentally different than e.g. the British approach, where the official secrets act applies to everyone whether or not they have signed it. It's also the case that while the doctrine of born secret has not been tested in court, it is generally regarded as unconstitutional and likely to be struck down by the courts of they are given the opportunity.
- pyuser583 5y ago
  Everything I’ve ever read about the “born secret” doctrine says that it obliges non-cleared people to keep secrets. Most of what I’ve read emphasized how controversial this is. As you said, there are severe first amendment implications. Yet the law ignores these implications. It is probably unconstitutional, but the SCOTUS has never ruled on it. I hate to be the guy saying “cite your sources,” but I have quite a few sources that say “born secret” applies to everyone. Can you show me some evidence it doesn’t? This source is about a related, but distinct, topic. It contains numerous example of the US government attempting to obligate non-cleared people to keep official secrets: https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9475&context=penn_law_review https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl... This source is a Wikipedia page, but it describes the government attempting to use “born secret” to censor a newspaper: https://en.m.wikipedia.org/wiki/United_States_v._Progressive,_Inc https://en.m.wikipedia.org/wiki/United_States_v._Progressive.... PS: From the first source: In 1978, journalist James Bamford sent a Freedom of Information Act (FOIA) request to the Justice Department. He wanted documents related to the Department’s investigation of illegal wiretapping performed by the NSA. Among the surveillance programs the Justice Department investigated was Operation MINARET, which spied on Martin Luther King, Jr., Jane Fonda, and other opponents of the Vietnam War. The chief of the Justice Department’s special litigation unit, the unit that led the investigation into the NSA, took ten months to review the request. In the end, the Justice Department declassified and released 250 pages of documents to Bamford. When the NSA found out about the disclosure, however, it argued that the documents should never have been released and demanded that the Justice Department label them as classified. The Justice Department refused. Two years later, with a new administration in the White House and new leaders atop the two agencies, the NSA tried again. This time, the Attorney General agreed. Bamford recalled a meeting with NSA and Justice Department officials. “They threatened to use the espionage statute against me,” Bamford recounted, “if I continued to refuse to return the documents.” A letter from the Justice Department soon followed: “You are currently in possession of classified information that requires protection against unauthorized disclosure,” it said, adding that Bamford should be aware of his “continuing obligation not to publish or communicate the information.”Keeping quiet was not enough for the Justice Department, however. “It is . . . your duty and obligation as a United States citizen to return this information to the Department of Justice,” the letter insisted.

belorn 5y ago

First amendment has a strong influence, through when it comes to obstructing justice I would lean towards the action being illegal. I wonder if obstruction of justice can impact someone who has not made any agreement beforehand. A random pedestrian who tries to stop the police, in a public space where they otherwise would have a right to be, could still end up in jail if I understand the laws right. If they can do that with their physical body I suspect the same punishment can occur if they do that with their own first amendment voice given special circumstances and results of that speech. It is however difficult for a random pedestrian to commit obstruction of justice out of accident, but a lot of actions done by a police officer would obstruct justice by the nature of their own work. Similar if a person were employed at a court, if they misbehaved erroneously, I would guess that it would carry a bit more legal risk just given the environment. Nothing of this has anything to do with internal policy. Obstruction of justice is mostly about the intention and results.

akiselev 5y ago
Those are separate things and they're treated differently. The illegal act is obstruction of justice, not the speech itself, which is why criminal OoJ penalties don't run afoul of the first amendment. If you have insider information on an ongoing investigation and you tell it to your buddy at the bar who doesn't care one bit about it and immediately forgets, that's not obstruction of justice because the speech itself isn't the criminal act. If you tell that same information to the suspects though, then that's obstruction of justice. With classified (natsec) information, on the other hand, telling it to anyone who you're not absolutely certain has clearance to see it is a violation and could land you in jail for years if you get a bloodthirsty DA. (again, IANAL)
- belorn 5y ago
  In this specific case we have a police interfering with a case about an undercover officer by informing the suspect about the under cover agents identity. However, the whole affair was actually a sting operation to test if the officer would interfere. It is a bit of a special situation since the interfering was over a fake case, through the legal frame work of sting operations has always been a bit grey. It seems to me however that it flights clearly above that of first amendment rights. It seems simply that the prosecutor chose to go after CFAA because the case is about a sting case rather than a real one. Had the police officer interfered in a real case, where a criminal had been given information that obstructed police officers in their job, the case had been about that. If that is true then the case has very little to do about internal policy decisions, exceeded permissions, unauthorized vs authorized users, employee contracts and so on. It is actually about sting operations and a prosecutor who attempts to bypass that discussion by using a law designed for a different purpose.