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.
If you were a lawyer representing The Heartland Institute and you were trying to figure out a way to sue this guy, you’d go through the list of available causes of action and see if you could come up with a creative theory with which to do that, and you may or may not be able to fit your square peg into the round hole with one or another of these legal claims. The only other thing I’d say is that if you find such a peg, and your claim survives preliminary motions in court and gets to trial, as a practical matter, the fact that there was misrepresentation is more likely than not to make the jury angry.
On the other hand, a jury might also decide to let a news organization that used deceptive tactics to obtain private documents under false pretenses off the hook if it deemed that their disclosure served the public interest, said the University of Minnesota’s Kirtley. “Jury nullification does happen,” she said.
In a slightly different context, for instance, in 2008, a British jury surprised many people when it accepted a “lawful-excuse” defense from Greenpeace activists who caused property damage by defacing a coal-plant in the interest of averting even greater damage from climate change.
Ultimately, then, media outlets must weigh the potential legal liabilities of using deceptive tactics to obtain information against the value of that information. But they should never intentionally break the law, said New York University’s Brooke Kroeger, author of the forthcoming book Undercover Reporting: The Truth About Deception, who has argued that journalists should not dismiss the value of covert strategies. “That’s pretty simple,” she said.