“Legal scholarship provides little clarity on the interpretation of 641; only a few scholars have even acknowledged the application of 641 to information,” reads Columbia Law Review thing on using statute to prosecute leakers, written by Jessica Lutkenhaus, an attorney focused on crime protection at the law firm Wilmer Hale. “The circuits disagree on whether § 641 applies to information, and if so what is its scope: What information constitutes ‘something of value’?”
Sharing information is fundamentally different from stealing “something of value,” pointed out Timm of the Freedom of the Press Foundation. “You can’t steal a government Jeep or take something tangible or physical from government offices,” says Timm. “But copying something can be interpreted as different from stealing something. You copy it, and the original is still there, and you just go away with papers that didn’t exist before.”
That uncertainty has led different federal courts to come to conflicting conclusions. For example, a Fourth Circuit court, in 1991, found that a Department of Defense employee leaving the DOD to work at a defense contractor and carrying his information was in violation of § 641 But a court in the Ninth Circuit went against it. concluded, finding in a 1959 case that “invisible” goods were not covered by § 641. That ruling was subsequently applied in 1988 in the same vein to the case of a leaker information leak, a naval officer is accused of stealing computer cards related to the secret. encrypted information. The court confirmed that the information itself was not mentioned in § 641 — though his appeal was dropped anyway because he had stolen the physical punch card that stored it.
Other circuit courts have concluded somewhere, with some finding, for example, that §641 do applies to information leaks but note that this does not apply to those covered by First Amendment protections of free speech and press freedom — those The discovery is directly related to the Politico Supreme Court leaker.
Some of the most notable leakers in history were also charged under 18 USC § 641, including Daniel Ellsberg, Chelsea Manning and Edward Snowden. But their use of that law was overshadowed by their prosecution under the Espionage Act, as all three were charged with leaking secrets and none set a clear precedent. Ellsberg’s charges were dropped due to government misconduct by the Nixon administration, and Snowden has yet to appear in court. Manning was found guilty under 18 USC § 641 that she faced, but in a military court, not a civil court.
All of which makes the Politico leaker’s legal status – if they are identified – uncertain. Any confident argument that they committed the crime, however, is on equally macabre terrain, Timm argues. And that’s especially true in cases where the leaker appears to have leaked documents directly to the press, with the express purpose of making the information public.
“Even if prosecutors think 18 USC § 641 applies, I am very concerned about the First Amendment with its widespread application to anyone leaking government documents,” said Timm. for the press. “The leak to the press is like an American apple pie. And, in many cases throughout history, has promoted democracy rather than hindered it.”
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