The publication of thousands of e-mails hacked from the University of East Anglia’s Climate Research Unit led to furious arguments about the science and politics of climate change. When the e-mails first leaked, however, reporters and bloggers on both sides of the debate expressed reservations about the legality and ethicality of publishing information acquired illegally.
Large excerpts and quotes of the e-mail exchanges have since been published in a variety of media, including newspapers, television, and blogs. The Wall Street Journal posted a full downloadable file on its Web site. Most outlets, however, opted to refer readers to places like www.eastangliaemails.com for the complete listing – a decision that drew many rebukes. The New York Times in particular has drawn harsh criticism for its handling of the e-mails. Public Editor Clark Hoyt wrote a convincing defense of the paper, arguing that it handled the situation “appropriately.”
Still, confusion over the legal and ethical implications of publishing hacked e-mails lingers. Some of the newspapers that have refused to publish the documents have general policies dictating that journalists not break any laws in the newsgathering process. Where these policies exist, however, they are a matter of journalistic ethics rather than an attempt to adhere to a well defined legal doctrine.
Given the confusion, CJR decided to consult relevant case law and spoke with two publishing law experts about the hacked e-mails. The following is a primer providing some direction for journalists. It should not be taken as legal advice. There is no absolute rule here and the unique details of each individual case are paramount.
The Pentagon Papers case (New York Times Co. v. United States) tends to get thrown out there as the catch-all for press freedom, and it came up in myriad comments sections during “ClimateGate.” However, the Pentagon Papers represent a situation in which the Federal Government was trying to proactively prevent the press from publishing classified documents (what is known as prior restraint) that were leaked by an individual with legitimate access to the information, but no permission to distribute it. The Supreme Court favored a broad interpretation of First Amendment press freedoms, but left open the option for the government to prevent publication if it could prove a relatively high level of irreparable harm to national security.
Because the Pentagon Papers case was decided on a specific issue of prior restraint by the federal government preventing the initial publication of documents, it is not really analogous to questions about the legality of re-publishing the hacked e-mails from the University of East Anglia: they were not government documents implicating state secrets with national security implications, and there is no issue of attempted prior restraint.
The more appropriate legal precedent can be teased out of a series of Supreme Court and federal circuit court cases that form a spectrum of legal liability for journalistic use of illegally obtained materials. Where an individual situation falls on that spectrum is largely determined by the extent of involvement in the illegal activity of the person or media outlet claiming First Amendment protection.
Bartnicki v. Vopper is the most protective of journalists and sets out the primary “test,” holding that a broadcaster could not be held civilly liable for publishing documents or tapes illegally procured by a third party. The court set out three criteria for legitimate first amendment protection: (1) the media outlet played no role in the illegal interception; (2) media received the information lawfully; (3) the issue was a matter of public concern.
Here is a quick run-down of the result reached in applying the first two criteria in three relevant cases:
1) Bartnicki v. Vopper: A tape recording was made completely independently of the media outlet and given to another person who was involved in the underlying issue, but had no knowledge of circumstances under which the tape was made. The recipient then gave the recordings to a media outlet and they were made public. No media liability was found in this case.
2) Boehner v. McDermott: The media outlet distributed material it may have known was illegally obtained but it did not advise or participate in its acquisition. There was a crime committed by the person who actually obtained the materials illegally. However, no media liability was found in this case.