DOJ Guidelines: Inappropriate To Prosecute Leaking Gov't Information As 'Theft Of Gov't Property'

from the umm... dept

Well, this is interesting. Last week, of course, it was revealed that the DOJ has charged Ed Snowden for various crimes, including "theft of government property." In fact, Rep. Mike Rogers, the head of the House Intelligence Committee, seems to think this is the key charge, and argues (ridiculously) that the documents "belong to the people of the US" and that Snowden somehow "stole" them by giving the documents to those very same "people of the US."

However, as Declan McCullagh points out, the DOJ's own manual very clearly says that it is "inappropriate" to charge people who take government documents and information with theft of government property, in part because that might lead to unfair prosecution of whistleblowers:

Section 641 of Title 18 prohibits theft or receipt of stolen government information as well as theft of the documents, computer discs, etc., that contain the information. United States v. Fowler, 932 F.2d 306, 309-10 (4th Cir. 1991); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.), cert. denied, 444 U.S. 871 (1979); United States v. DiGilio 538 F.2d 972, 977-78 (3rd Cir. 1976), cert. denied sub nom. Lupo v. United States, 429 U.S. 1038 (1977). But see United States v. Tobias, 836 F.2d 449, 451 (9th Cir.), cert. denied, 485 U.S. 991 (1988). Nevertheless, for the reasons set forth below, the Criminal Division believes that it is inappropriate to bring a prosecution under 18 U.S.C. § 641 when: (1) the subject of the theft is intangible property, i.e., government information owned by, or under the care, custody, or control of the United States; (2) the defendant obtained or used the property primarily for the purpose of disseminating it to the public; and (3) the property was not obtained as a result of wiretapping, (18 U.S.C. § 2511) interception of correspondence (18 U.S.C. §§ 1702, 1708), criminal entry, or criminal or civil trespass.

There are two reasons for the policy. First, it protects "whistle-blowers." Thus, under this policy, a government employee who, for the primary purpose of public exposure of the material, reveals a government document to which he or she gained access lawfully or by non-trespassory means would not be subject to criminal prosecution for the theft. Second, the policy is designed to protect members of the press from the threat of being prosecuted for theft or receipt of stolen property when, motivated primarily by the interest in public dissemination thereof, they publish information owned by or under the custody of the government after they obtained such information by other than trespassory means.

And yet, the "theft of government property" seems to be central to the government's charges against Snowden, suggesting that, yet again, the administration is really grasping at straws in trying to charge Snowden with anything it can dig up for daring to blow the whistle on the surveillance program.