Whistle-blowing Vs. Hacking

Published On: Aug 27 2013 01:30:11 AM EDT

By Attorney Melba Pearson

Special to THELAW.TV<http://thelaw.tv>

 Manning. Snowden. Assange. WikiLeaks.

 All are now household names as a result of the leaking of sensitive government information. They all claim, in some way, that they were whistle-blowing. These men, along with others, illegally obtained sensitive government videos, correspondence, and other documents. These materials were then published on the internet, with the supposed goal of informing the public about what the government is doing. Some look at this as a new frontier in journalism. Others view them as traitors who should face the wrath of the criminal justice system.

 Bradley Manning was sentenced this week by a military judge to 35 years in prison, as a result of leaking military documents while working as an intelligence analyst in Iraq. Evidence from the trial showed that some of those leaked materials ended up in the hands of Al Qaida. Manning, after being convicted, apologized, stating that “he should have worked more aggressively within the system.” He claims that his goal was to expose U.S. war crimes and “deceitful diplomacy.”

 Edward Snowden was charged with espionage and theft of government property. While he was working with the National Security Agency (NSA) and the Central Intelligence Agency (CIA), Snowden is believed to have stolen information about U.S. and European surveillance of phone and internet communications. He went on the run, hiding until he was eventually given asylum by the Russian government.

 Julian Assange is listed as one of the founders of WikiLeaks. WikiLeaks is the organization responsible for the website where Manning’s and Snowden’s stolen materials were published. He has not yet been charged by the American government, and is hiding in the Ecuadorian embassy in London as a result of sexual misconduct charges in Sweden.

 Each of these men represents a movement — a movement against government secrecy and in favor of giving more information to the public. All claim that their intentions are good and that they are high tech whistleblowers.

 But what counts? The intention or the outcome?

 Federal law is pretty clear on this topic. A whistleblower is an employee providing information on wrongdoing by an employer and, in doing so, is protected from retaliation.

 Only exception? If you are in the intelligence field. As soon as you are hired, you need to sign a non-disclosure agreement and any violation can result in termination or further action — such as criminal action — against you.

 In contrast, a hacker faces a myriad of problems under Federal law. If you break in or exceed your access to a government computer, and take information that the U.S. deems sensitive, you are in hot water. It does not matter if you keep it or send it to someone else. And even if you were not the one to take it, but conspired with someone who did, you face prosecution.

 Manning and Snowden are in a bad position. It is highly likely that in the terms of their employment they agreed not to disclose anything they saw; yet they exceeded their access by taking, keeping, and disclosing secrets. In doing so, they knew the risk. What they did is theft. It’s no different than if you stole money or equipment from your job.

 The question that is left is since Julian Assange had no such agreement with the U.S. government, is he a hacker or a whistleblower? Again, looking at the law, we see why the government has been hesitant to charge him. Treason is not an option since Assange is an Australian citizen. Can the government prove that Assange himself, or someone at his request, hacked into the systems and got the documents in question? Also, even if he did not participate in the hacking, did he get some benefit from what was stolen? Did he sell the information? Does what he did count as espionage? These questions remain unanswered; we can assume the investigation is ongoing.

 Manning and others in his position are saying “the people need to know what the government is doing.” But at the same time, the very people they want to inform are put at risk. There is an old saying, “the road to hell is paved with good intentions.” Maybe it was ego, maybe it was a desire to inform, but the outcome is still the same. Intel makes informed citizens, but also makes informed terrorists.

 The author, Melba Pearson, is a prosecutor in South Florida.

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