Leaks and the Media

What's a Leak?

A leak occurs when a government insider like an employee, former employee, or contractor shares secret information about the government with a journalist. For the most part, the insider is not authorized to share this information and wishes to stay anonymous.

Is Leaking Illegal?

Sometimes. It depends on what information is leaked (and sometimes, why the information was leaked).

Some leakers are considered whistleblowers if they disclose information about a government agency violating the law, wasting money or abusing its authority. Whistleblowing is not illegal, and the Whistleblower Protection Act is supposed to protect whistleblowers from being fired, demoted or otherwise retaliated against by the agencies they work for.

Several criminal laws apply to leakers. Examples include:

• It’s a crime to disclose information related to national defense with the intent of injuring the United States or aiding a foreign nation.
• It’s a crime to disclose classified information about communication intelligence (the procedures and methods used to intercept and obtain information from communications), knowingly and willfully.
• It’s a crime to steal, sell or convey “any record, voucher, money, or thing of value” to the United States. While this would certainly apply to physical records and documents, there is some disagreement on whether it applies to the information written on the physical documents.

Can the Government Stop a Journalist from Publishing Leaked Information?

Very rarely. In order to stop a journalist from publishing leaked information, the government has to prove that publication will result in direct, immediate and irreparable harm to the United States.

Can a Journalist go to Jail After Publishing the Information?

A journalist can’t be punished for publishing info that was obtained illegally, as long as the journalist didn’t do anything illegal. The government has never prosecuted a journalist for publishing leaked information. If it tried, it’s likely they’d have to demonstrate “direct, immediate and irreparable harm” caused by the publication.

A journalist can be jailed for refusing to reveal the source of a leak. While many states have “shield laws” that prevent the government from forcing journalists to reveal their sources, there is no equivalent federal law.

Why do Journalists Get So Much Protection for Publishing Classified Information?

Because the founders of the United States believed that a free press was essential to democracy and granted the press a great amount of protection via the First Amendment.

The purpose of the press is to serve as a watchdog on government and to share and distribute information on government conduct so that the public will be able to hold the government accountable. Courts have recognized that sometimes this requires publishing information the government doesn’t want shared.