Is Reporting on State Secrets Like Stealing Justin Bieber’s Diary?

bieber fullness.jpg

Reuters

Leak investigation, meet Bieber fever.

A national security official in the Obama Administration has emailed the good folks at Lawfare to defend the idea that Fox News correspondent James Rosen broke federal law while reporting.

Consider the analogy he or she uses:

The Department of Justice did not claim that the Fox News reporter in the Stephen Jin-Woo KimÂ case committed a crime merely by publishing classified information. According to the Government’s filing… the reporter in question actively asked people with access to classified information to break the law by providing him classified information he could publish. He used false names and “dead drop” email accounts to do so. In other words, he wasn’t someone to whom a whistleblower came to disclose information; he was actively asking people to violate the law, and enabling them to do so. Remember, there’s no doubt that–assuming Mr. Kim is the guilty party–he violated the law if he disclosed properly classified information to a reporter.

Let’s look at an analogy. If a reporter finds Justin Bieber’s private diary on the street and publishes it, that’s journalism (of a sort). But if she pays someone to break into Bieber’s house to steal the diary, hasn’t she has aided and abetted, or conspired in, a crime, even if her intent is to get material to publish? That’s exactly what the Government says happened here–a reporter soliciting, and aiding and abetting criminal activity.

I’d like to fix the analogy so that it better reflects the ethical issues at play.

First off, the reporter doesn’t pay someone to break into Bieber’s house. Instead, he pays someone who is already permitted access to the diary, but sworn to secrecy — an assistant who scans its pages into digital format for storage — to leak. That alone would still be wrong, of course.

But we aren’t through.

In the more accurate analogy, Bieber’s job involves wielding extraordinary power on behalf of all Americans; everything he writes in his diary is work-for-hire and bankrolled by the American people, who own it; he has sporadically abused his authority in the past; and recent abuses were only discovered when his assistant passed US Weekly a series of diary pages detailing the pop star’s illegal spying on Americans, his systematic torture of foreigners, and his security detail’s lethal attack on paparazzi! Also, Bieber’s job contract with Americans specifically notes that reporters are to help keep him accountable, and that no one can abridge their freedom to do so.

If all that were factored into the analogy, then it wouldn’t be misleading to compare the behavior of Rosen to a reporter who paid someone to steal away pages from Justin Bieber’s diary.

None of which is to say that Rosen’s judgment comes off particularly well in this case…