As for a reporter who might have wanted to obtain and publish the information directly, the first thing to understand is that journalists have no greater and no lesser protection under the law than anyone else, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. The 1991 Supreme Court case Cohen v. Cowles Media Co. established that if a journalist breaks a law, the First Amendment won’t protect him or her. So, the debate about whether or not Gleick—or anyone else in a similar situation—is a journalist is moot.
That said, there is no law that prohibits individuals from misrepresenting themselves except in very specific situations (many states have, for instance, made it a crime to impersonate a police officer). Neither, to the best of Levine’s knowledge, is there a law that says it is a crime or a civil wrong for somebody to impersonate another for the purpose of getting information to disseminate to third parties, whether it’s the public or the press, except in very specific situations. (Customer information kept by financial institutions and telephone companies have special protections, for instance, and a variety of states are considering “ag-gag” laws that prohibit undercover photo and videography at livestock farms.)
Usually, the issue is whether or not misrepresentation leads to the violation of some other law, such as defamation. There are a variety of ways for that to happen, legal experts agreed. One of the obvious possible claims would be fraud. There are federal and state criminal statutes against mail and wire fraud, but prosecutors would be unlikely to pursue small matters involving something like Heartland’s purloined documents. The bigger concern is a civil suit.
On that front, the definition of fraud varies from state to state, but the burden for a plaintiff often comes down to proving some type of damages. In the Food Lion case, a district court denied the grocery chain’s fraud claims because it couldn’t prove that it had suffered any type of financial loss due to ABC’s deceit. The court found the ABC reporters guilty of a breach of loyalty to their employer, and of trespassing. With regard to trespassing, however, it’s important to note that the court ruled that Food Lion’s consent to their presence as employees was nullified not because the reporters misrepresented themselves (everyone who fudged a job application would break the law, in that case), but rather because of the breach of duty.
There also are state laws against “conversion,” which is basically a civil wrong analogous to theft (a criminal offense) that involves the wrongful acquisition of another’s private property. But the act usually has to permanently deprive the rightful owner of use of the property; so, where documents are concerned, one would likely have to acquire the originals, rather than copies, to be guilty of conversion. It’s also possible that using deception to obtain private documents would violate copyright laws, if the information were creative work that qualified for protection.
There are a variety of privacy laws that prohibit people from disclosing private information to others, but the plaintiff would generally have to be a private figure, rather than a public figure, and argue that the information is of no public interest. They also prohibit the appropriation of private figures’ names, but the misrepresentation usually has to be carried out for personal gain. According the Federal Trade Commission, “pretexting” can rise to the level of identity theft, but this usually involves using someone’s Social Security number, telephone number, or other means of identification to achieve material gain.
For now, it’s impossible to say whether or not Gleick violated any law, though Heartland certainly alleges that he did. “Gleick’s crime was a serious one. The documents he admits stealing contained personal information about Heartland staff members, donors, and allies, the release of which has violated their privacy and endangered their personal safety,” its president said in a statement. He also claimed that publication of the fake climate strategy memo “caused major and permanent damage to the reputations of The Heartland Institute and many of the scientists, policy experts, and organizations we work with.”
What seems clear is that if a journalist did what Gleick did, he or she would at the very least face the possibility of legal liability—although the deception would probably have little to do with it. Whether or not any charges would stick is impossible to say.