When, if ever, are deceptive tactics legally or ethically permissible in journalism?

An old debate over that question has raged anew for the last week, following a prominent scientist’s admission that he duped a libertarian think tank into giving him a cache of private documents.

In mid-February, a handful of blogs began posting files—including a fundraising plan, a budget, an agenda for a board of directors meeting, and minutes from a board meeting—that belonged to The Heartland Institute, a Chicago-based nonprofit that “promotes free market solutions to social and economic problems” and has long opposed environmental regulations to address threats such as manmade climate change. The files had come, according to reports, via an anonymous e-mail from someone calling himself or herself “Heartland Insider.”

Heartland quickly announced that one of the most damning documents, titled, “January 2012 Confidential Memo: 2012 Heartland Climate Strategy,” was fake. In the process, however, it implicitly acknowledged the authenticity of the others, which revealed, among other things, a plan to create a “global warming curriculum for K-12 schools” that would teach students—incorrectly—that “there is a major controversy over whether or not humans are changing the weather.”

Heartland also sent letters to a variety of websites, blogs, and news outlets demanding that they remove the documents and threatening legal action if they did not. Recipients of the letter posted updates noting Heartland’s claim about the falsity of the climate-strategy document, but refused to remove the files.

The story took a shocking turn on February 20 when Peter Gleick, a scientist, writer, and activist, confessed in a Huffington Post article that he was behind the leak. Gleick claimed that an anonymous correspondent had sent him the climate-strategy document (which Heartland later claimed was a fake) in the mail in early January. In an effort to authenticate it, he said he “solicited and received additional materials directly from the Heartland Institute under someone else’s name.” He then forwarded his trove to a group of journalists and bloggers.

In its letters to various websites and media outlets, Heartland said that Gleick had used the name of a board member in order to trick a staffer into sharing the files. Heartland posted a series of screenshots of its correspondence with Gleick, showing that he signed off as a board member, although the specific name he used (as well as the name of the Heartland staffer he contacted) was redacted.

Following Gleick’s confession, journalists, bloggers, and pundits of all stripes let loose a torrent of commentary about the ethics and likely consequences of his actions. Some scolded him. Some applauded. Some said he had hurt the effort to address climate change and eroded trust in climate science. Some said none of it mattered.

For his part, Gleick called his duplicity “a serious lapse of my own professional judgment and ethics,” and apologized to all those affected. He resigned from the American Geophysical Union’s scientific ethics committee, canceled plans to join the board of the National Center for Science Education, and has taken a leave of absence as president of the Pacific Institute, an environmental research center based in Oakland, California, which he helped found in 1987.

Gleick is an expert on water and climate science, so one should really judge his actions in the context of scientific integrity guidelines. Unsurprisingly and not unreasonably, though, many commentators discussed them in a journalistic context as well. Scott Mandia, a scientist and co-founder of the Climate Science Rapid Response Team (which helps reporters find experts in the field), told The Guardian that Gleick “used the same tricks that any investigative reporter uses to uncover the truth.” Conversely, Time’s Bryan Walsh argued, “No reputable investigative reporter — certainly not one who worked at TIME — would be employed for long after obtaining insider information by lying the way Gleick did.”

In a sense, they’re both right.

“What you wouldn’t gather” from the coverage at major newspapers, media watchdog Jim Naureckas pointed out, “is that there is a long and honorable tradition, from Nellie Bly feigning madness to expose mistreatment of the mentally ill to the Chicago Sun-Times’ Mirage Tavern corruption lab, of investigative journalists using false identities to gather information—when the public interest is clear, and there’s no other way to get the story.” Naureckas noted a couple of other famous examples. In 1992, ABC News reporters used false identities to get jobs at a Food Lion grocery store and secretly film improper food-handling practices. In 2007, Harper’s Ken Silverstein’s impersonated a fictitious representative of Turkmenistan to trick a couple of Washington, D.C. lobbying and communications firms into pitching PR plans that he described as an effort to bolster the image of a dictatorial government.

Deceptive tactics and undercover reporting have steadily lost favor over the decades, however. Despite the fact that Sun Times’ Mirage Tavern sting exposed rampant corruption among city inspectors who took bribes to ignore a variety of flagrant safety violations, and led to widespread reforms, it failed to win a Pulitzer because of accusations that it violated journalistic ethics. Food Lion successfully sued ABC for breach of loyalty and trespassing. And some critics called Silverstein’s tactics unprofessional. (For two excellent histories of the rise and fall of deceptive tactics, which have been more common on television than in print, see the American Journalism Review’s 1997 article, “The Lying Game,” and its 2007 article, “Lying to Get the Truth.”)

Beyond this historical context, what’s been missing from the debate about Gleick’s actions is a closer examination of the legal questions a journalist must take into account when weighing deceptive tactics.

Gleick leaked information to the press, which puts him in league with figures like Daniel Ellsberg, the source of the Pentagon Papers, and Bradley Manning, the source of the Wikileaks cables, rather than with the muckraking journalists of yore. As such, the websites that received them in an anonymous e-mail and decided to publish them are fairly well protected by the 2001 Supreme Court case, Bartnicki v. Vopper, which established that media outlets are basically free to use information “of public concern” provided by third parties, even if it was illicitly acquired, as long as they did not encourage or play a role in the illicit acquisition.

The fact that Heartland said one of the leaked documents was a fake adds some element of legal risk, but not an insurmountable one, according to Lee Levine, who represented the media defendants in Barnicki v. Vopper:

There’s no law that says it’s illegal to post a fake document or to disseminate a fake document. Now, it is conceivable that if the documents made The Heartland Institute look bad and contained accusations that were defamatory about it, the rules that cover defamation law would apply and Bartnicki would have nothing to do with it. And the rules that govern defamation law are that if the plaintiff is a public figure—and more often than not a corporate entity or large institutional entity like that would be a public figure—they would have to prove that the poster either knew that information in the document was false or acted in reckless disregard of whether it was false or not.

It’s a principle otherwise known as “actual malice.” Failure to call Heartland to verify the strategy memo would be unlikely to constitute reckless disregard, Levine and several other legal experts agreed. “Unless there was something about the document that would cause them to question whether it was accurate, they would have no obligation to go and independently try to check it out—legally,” he said. “Journalistically is an entirely different matter.”

A couple of journalists did, in fact, note that the alleged “climate strategy memo” looked different from the other files, but they did so only after Heartland said it was a fake. So it seems that sites like DeSmogBlog, The Huffington Post, and Think Progress are on fairly safe ground. Indeed, in a letter to Heartland, the general counsel for the Center for American Progress, which runs ThinkProgress, asserted that contents of the fake document closely matched those of the other documents and cited Bartnicki in defense of publishing them.

What about Gleick’s own potential liability or—as a thought experiment—the liability a reporter might face were he or she to pull the same stunt in an effort to acquire and publish the documents directly? Without all the facts, it’s impossible to make definitive statements. The legal experts consulted for this article emphasized that they did not want to speculate about whether or not Gleick had broken any law, and that they could only make general comments about the tactics he used.

Some have called Gleick a whistleblower, which doesn’t fit the defintion. “The odds are pretty good that it does not fall under the category of whistleblower protection,” said Jane Kirtley, director of the Silha Center for the Study of Media Ethics and Law at the University of Minnesota. “As a general rule, certainly with federal laws, whistleblower protection protects people that are employed in a company and make disclosures about irregularities within the company from retaliation like demotion of firing.”

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.

Again, Levine:

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.

There’s a wide range of opinion about which covert strategies are acceptable and which are not. The Society of Professional Journalists’s (SPJ) code of ethics leaves some room for “surreptitious methods of gathering information … when traditional open methods will not yield information vital to the public,” adding that, “use of such methods should be explained as a part of the story.” The New York Timesguidelines say that reporters need not “disclose their identity to people they cover,” but state unequivocally, “Those working for us as journalists may not pose as anyone they are not.”

Kroeger’s view jibes with that of SPJ. After determining whether a clandestine strategy is legal, she said, the next questions are whether the information is important enough to justify the deceit, and whether a reporter has exhausted all other means of getting it. In both cases, however, the bar should be pretty high.

In 2005, for instance, the Spokane Spokesman-Review revealed a history of sexual misconduct by then-mayor Jim West in part by hiring a forensic computer expert to anonymously engage West in online chats posing as a young man. “Under ordinary circumstances, the newspaper would not use a fictional scenario in pursuit of a news story,” the paper’s editor explained in a note to readers published alongside its exposé. “But the seriousness of the allegations and the need for specific computer forensic skills overrode our general reluctance.”

A number of journalists and pundits have argued that the Heartland documents obtained by Gleick did not reveal anything important enough to validate his deception. In terms of the individuals and organizations, from General Motors to Microsoft, that have provided financial support to Heartland, that might be true. But revelations about the misleading global warming curriculum for K-12 schools, about allegations of partisan political activities that might amount a violation of federal tax law governing nonprofit groups, and about potentially improper payments the institute made to an employee of the Interior Department come closer to the mark.

Whether or not Gleick, or a journalist in his position, could have obtained the documents without using deception is certainly a matter for debate. It’s unlikely the group would have shared its fundraising plan or budget with the press, but, for instance, it’s conceivable that a reporter could have convinced an actual whistleblower within the organization to give him the documents. It’s also conceivable that Heartland would have discussed the school curriculum, which it presumably planned to tout at some point anyway.

It’s hard to imagine, then, that after answering the three big questions about deception—Is it legal? Questionable. Is it worth it? Questionable. Is there another way? Probably.—that a news outlet would have acted as Gleick did.

 

Curtis Brainard is the editor of The Observatory, CJR's online critique of science and environment reporting. Follow him on Twitter @cbrainard.