What To Do If You Get Leaked Government Documents:

I express no opinion about the bottom line of the Downing Street retyping matter, but I did want to speak to one small item raised by USS Neverdock:

It appears the originals may still exist after all. Raw Story has this tid bit:

"I first photocopied them to ensure they were on our paper and returned the originals, which were on government paper and therefore government property, to the source," he added. [...]

"It was these photocopies that I worked on, destroying them shortly before we went to press on Sept 17, 2004," he added. "Before we destroyed them the legal desk secretary typed the text up on an old fashioned typewriter."

Smith appears to be tripping up here. He says he returned the originals because they were on government paper and therefore government property. So, photocopying a page out of a book makes the words no longer the property of the author?

Actually, if you get a government-owned government-written document in the U.S., and you want to print something from it, copying it and returning the original makes sense.

First, it is not a violation of the government's property rights for you to copy the material; under U.S. law, government-written documents aren't protected by copyright. Moreover, under U.S. law, it is generally not illegal for a newspaper to publish leaked classified documents (with, I believe, some exceptions), though it would be illegal for someone who got them in confidence to publish them. (One may also want to return the documents to help protect one's source, if the absence of the documents might implicate him in a way that the leak itself will not.) I realize that returning the originals may make it harder to authenticate the documents, and perhaps under some circumstances holding on to the originals may therefore be justified; but as a general matter, one isn't legally (or ethically) entitled to keep other people's or entities' physical property, even if one is free to publish copies of it.

Second, it is illegal to hold on to the physical document, because that tangible piece of paper is indeed the government's property. Moreover, it would probably also be unethical to do hold on to those documents, for the same reason.

My vague sense is that under U.K. law, the government does have copyright in government-written documents, but I suspect that (as in the U.S.) copyright is a narrower property right than the physical right to the documents; reprinting newsworthy copyrighted documents may under some circumstances be what U.S. law calls "fair use." Also, it may be the case that U.K. law does prohibit the republishing of classified documents -- but a newspaper might not feel that ethically obligated to comply with this law, but might feel ethically obligated to comply with the law that bars keeping tangible items that belong to someone else.

So I can't speak with complete certainty here as to what U.K. journalists are legally obligated to do; but in the U.S., it would make perfect sense -- both for ethical and legal reasons -- to return the originals even if one is publishing the copies.

Robin Roberts (mail) (www):
Notice however, that they had put up scans of the retyped documents in PDF form as "verification" of the memos. In doing so, the evidence was essentially faked.
6.19.2005 9:50pm
John Armstrong (mail):
So, photocopying a page out of a book makes the words no longer the property of the author?

Actually, quite a lot of the commenters on Kerr's recent 4th Amendment post seem to think that this is the case, at least when it comes to the police searching a suspect's information (in that specific case a hard disk drive). More specifically, the advanced view is that if the police take (with permission) an information-bearing medium and make a copy of the information before the permission to search is rescinded, they may still search the copy because copy's theirs.

So, if they're right and I can only lay claim to information on a medium that I own, shouldn't the same principle apply to say the government can only lay claim to information on media they own?
6.20.2005 1:20am
David Hardy (mail) (www):
I can understand returning the originals. Understanding the shredding of the alleged photocopies is a bit more difficult.
6.20.2005 1:27am
JLawson (mail) (www):
One of the things I have a problem with when it comes to copies of government documents, is this apparent need for the folks leaking them to retype the things, and then destroy the originals. Or, in this case, the copies. And I have to ask myself, "Why destroy a COPY after making a COPY, when you could just keep the original in the first place? And why use a typewriter instead of a scanner?"

I haven't read the memos, I don't particularly plan on it because at this stage they're of minor historical interest. The Brit government worried about going to war? You know - they should have been, since war is something that you use when diplomacy either fails or gets into an enthusiastic onanistic circle jerk that may seem exceedingly sastifying but produces nothing but an unpleasant mess that someone ELSE needs to clean up. And I believe regarding Saddam the last was definitly the case.

War should not be entered into lightly. Neither should it be represented as a "Well, we didn't have anything else to do this weekend so we declared war on Upuranistan" lark. We followed all the checklists until it was clear that diplomacy didn't work, wouldn't work, and wasn't going to EVER work because the folks nominally supporting diplomatic efforts were being paid under the table to undermine them.

We're getting great at producing tempests in teapots, while ignoring the tornados outside. This bodes ill for the future - like the boy who cried wolf one too many times.

6.20.2005 9:13am
"I can understand returning the originals. Understanding the shredding of the alleged photocopies is a bit more difficult."

There is one good reason. To quote from a lawyer from Olswang, "… a journalist about to publish an article which reveals official secrets would be prudent to consider destroying all material which would lead to the identity of a source".

The journalist, Michael Smith, has said that the "…copying and re-typing were necessary because markings on the originals might have identified his source." Now, to me this seems a reasonable explanation, particularly when the source could face jail time under the Official Secrets Act 1989 (UK).

I thought the main problem over Rathergate was that the memos were inaccurate and there was no evidence to back them up. Here, the journalist claims they (and possibly an editor or someone else at the newspaper) has sighted the original memos and then photocopied them (where is was available for more people to sight). No one has come and said the actual information in the memos were fake. The only fault I can find is that it appears the newspaper/journalist did not give a clear explanation from the beginning about re-typing the memos.
6.20.2005 10:07am
Dee Pathrote:

JLawson - "Why destroy a COPY after making a COPY, when you could just keep the original in the first place? And why use a typewriter instead of a scanner?"

Um, because the original includes non-essential content that incriminates the source - like her distinctive doodles, handwritten notes or name?

However, the typewriter v. computer (but not scanner) element does suggest an over- or under-thought approach.
6.20.2005 10:09am
John Schulien (mail):
A couple of things --

First, I'm surprised at the lack of recognition that Blair is handling the situation in the same way that Bush handled the TANG documents. Instead of getting out front and denying the authenticity of the documents, he is letting out more line -- sort of half-maybe-confirming the documents.

Second, even if the documents is authentic, the odds that Blair personally read them, or even had knowledge of the documents is miniscule. Any government generates thousands and thousands of this sort of document on a regular basis. For the most part, they are written and filed. Very few of them wind up being read by high-level officials. If Blair wanted to know the contents of these long documents, he would have had someone write up an executive summary or brief him. He wouldn't spend an entire day or more (which is what it would take) reading and digesting the information.

It is most likely that Blair really has no idea what is in the documents. I think he's following the Bush strategy, which is, sit back, say "Well, if you say the documents are authentic, I'll take your honorable word for it", then watch the heat build as *others* begin to dig in and discredit the document.

The longer this goes on, the more Blair's critics will attach themselves to these memos, just like Bush's critics attached themselves to the TANG documents. Eventually, both the documents and the critics are discredited, maximizing the political damage to Blair's critics.

At any event, the story right now isn't whether Blair's denial is true or false (he never denied anything.) The story is whether the documents are forgeries.

These guys are dumb like foxes!
6.20.2005 10:14am
Goober (mail):
Disappointing that you're ducking the issue; the infinite intellectual flexibility possessed by some of those willing to deny the authenticity of these documents is truly stunning---and truly dishonest. It would be an honorable thing to do to distance oneself from the lunatic fringe, rather than merely to "express no opinion."
6.20.2005 10:45am
"Um, because the original includes non-essential content that incriminates the source - like her distinctive doodles, handwritten notes or name?"

I actually don't think you were intending to ask a question (probably you wanted to put a "." where the "?" is), but I'll answer it for others anyway :)

Having handled classified documents before at a diplomatic mission, this is my experience on what happens (obviously this will vary from country-to-country). The document is printed out by one person who has special access to the communications equipment then a list of people who are to read the document is then written/stamped on the document. Additional notes can also then be written on the document by any of these people who are to read the document - they will usually add their initials to any notes and sign off that they have read the document.

The same classified document could be transmitted to a number of different government organisations. The notes on the memo would not only clearly indicate which organisation the memo came from, but could also indicate the specific person within the organisation read the memo. This person would not necessarily have access to print off a new copy of the document without any markings on it so the best they can do is to take the specific document.

Thus, there are very good reasons for getting rid of the photocopy as it would make it easier to identify the source. Given the source could face criminal prosecuation, I can't blame the journalist.
6.20.2005 11:03am
Robin Roberts (mail) (www):
Jarrod, perhaps the memos are correct transcriptions of the originals. But presenting the scans as if they were the memos themselves shows an intent to deceive readers. Interesting that the timing of this was within weeks of the Rathergate memos being created.
6.20.2005 11:46am
Thief (mail) (www):
It seems to me that there are two competing concerns over leaked documents:

1) Protecting the identity of the source who provides them

2) Demonstrating the "provenance" of the documents themselves.

In this case, problem 2) is quite easily solved. Government documents have standard formats (typeface, type size, margins, etc.) In many (but not all cases) they are printed on official government letterhead (especially one-page documents). Sometimes watermarked paper is used. In addition, various codes are sometimes used to identify originating individuals/agencies. But this still leaves problem 1). Yet while all of these factors may implicate the leaker of the document (Communist-bloc governments were notorious for including obscure serial numbers on secret documents so that leaks could be "plugged"), it seems that the more this information is included, the more it serves to authenticate the documents in the public's mind.

So, if I were a modern day Bob Woodward and a pile of stop-the-presses-grade leaked documents fell into my lap, and I had to return them or risk burning my source, how would I go about preserving as much of the detail of the document I could for public consumption while protecting my source?

First, I would try to get as much information from my source as possible about any document protection strategies they use (hidden serial numbers, etc.) I would also ask him about any handwritten notes appearing on the pages, to see if they were unique or could otherwise connect him to the documents.

Then, I would take the documents and scan them. I would make two scans; one directly into secured PDF format (for authentication purposes, and to "lock" the document so that it could not be altered), and once into a high-resolution) image format (TIFF, JPEG, or bitmap) for later work. I would show the originals both of these copies to my editor, and explain the process I was about to do and why I was doing it. (If I was really paranoid, I would take many, many other measures to make sure this original was safe and untraceable: putting it on a seperate disk, wiping the files from memory after each use, etc. etc.)

With the image copy in hand, I would then use a program like Photoshop or GIMP to erase any identifying marks (serial numbers, handwritten notes) that could be used to trace the document back to the person who leaked it. If there was the slightest possibility that the information could be a connection, it's gone. Handwritten notes, depending on whether they were essential to the story and their potential for ID'ing the source, could 1) be left as-is, 2) erased, or 3) typed into a seperate text box, erased, and then the text box pasted over the erasure. Finally, the altered document image would be saved into PDF and released for public posting with the notation that certain alterations were made to the document's format (not substance) to protect the identity of the source, along with a full disclosure of the process used and the information that the news organization retains a copy of the original documents in case any questions arise about their provenance (so that outside experts hired by the paper could authenticate them.)

Hopefully, the secured PDF and a statement that the typed content of the document was reproduced verbatim would be enough, and the originals would help if any questions arose. A little bit spy-ish, but let's not forget there's a reason why Mark Felt managed to remain anonymous for so many years: he had been trained in counterintelligence and knew how to use his tradecraft to stay that way.

Anyone else have thoughts on the technical side of this? Or does this sound too shady for journalistic tastes?
6.20.2005 12:47pm
Robin: I was under the impression that if they were 'originals' they would then have to be real 'originals', so you would see the handwritten notes etc. I take your point about deceiving readers, but it all depends on what was actually said or how they were presented for the writer and newspaper.

The original article was published on 1 May 2005 with the single memo on which this article was based (in HTML format). I can't find a copy of the single memo or other memos as a PDF file on The Times website to see how they were presented at the time of the article. I can only assume that the memos were later provided when asked. This would mean that there was no mispresentation at the time of the article. Since I can't find how the PDF files were later provided to news organisations/others, I will reserve judgement on whether there was a mispresentation later. Does anyone know?

An earlier article written by Michael Smith when he was at the Daily Telegraph also doesn't provide a link to any copy of the memos.

I must say I am little suprised at the link to Rathergate, they are completely different issues to me (see above).

Thief: The scanning process you lay out above would obviously be the best way to do it, but then the documents still would have been altered. So instead of being labelled 'fake', people could label the memos as being 'forged' documents. Not everyone is that technically savvy as well, what happens if the scanned image is still somewhere on your computer in some TEMP folder or even if you have deleted the file, it still might be possible to obtain the file with forensic software. Simply typing up the documents again seems the most sensible option, although I would have gone for a computer not a typewriter.

If the original or photocopy is kept - which you seem to be suggesting - what are you going to do if Special Branch request the document or obtain a search warrant? This is the UK, not the US we are talking about here.
6.20.2005 2:18pm
dick thompson (mail):

Moreover, under U.S. law, it is generally not illegal for a newspaper to publish leaked classified documents (with, I believe, some exceptions), though it would be illegal for someone who got them in confidence to publish them.

My question is how do you differentiate between leaked documents and documents received in confidence in order for you to determine whether it is legal to publish or illegal. It strikes me that whether you got them leaked or confidentially, the result is the same and if they are that highly classified then it should be illegal to publish them in any case. Of course I thought that the NY Times publishing the Pentagon Papers should never have been legal either, but that is just a personal opinion from someone who had a lot to do with classified documents a long time ago.

It does strike me that if you have removed all traces of the original document and destroyed it, then you have lost your chain of evidence and are then validly subject to being called out on whether the documents are fake or true. In the case of the Rathergate documents, it was patently shown that based on what was reported they were fake. Can the writer in this case prove the opposite if he has destroyed it all?
6.20.2005 3:43pm

The distinction is the identity of the person publishing the information. A newspaper has no duty of confidentiality to the government and can publish with impunity. The "leaker," on the other hand, has a duty of confidentiality and would violate the law either by leaking to the newspaper or by publishing the leak himself/herself.

Its surprising that the focus of the comments has been on the provenance of these documents, rather than the legality of publishing under U.K. law. The memo's provenance is only tangential to the legal issues discussed in the post.
6.20.2005 4:24pm
Warmongering Lunatic:
Anyway, on the actual legal issues involved . . . .

The memos are absolutely covered by Crown Copyright, and when the contents were reproduced for the public in full as part of a commercial enterprise, it was almost certainly a violation of the Crown Copyright. It is theoretically possible that the Times has a Crown copyright license that's broad enough to cover the documents, but quite unlikely. Even if the Crown were to pursue the matter, however, the penalties would most likey be mere fines/damages.

As they were confidential, under the Official Secrets Act, it was not just illegal for the source to disclose them, but for the reporter to repeat them. However, prosecution under criminal law is reserved for material that the government claims is seriously harmful to national security, and so no prosecution is likely.

So, making the copies was probably both technically illegal but useful in avoiding punishment.
6.20.2005 4:26pm
Thief (mail) (www):
Jarrod: As far as the UK is concerned, I think you're SOL. The Official Secrets Act, from what I've read, offers far less protection that what we'd get under the 1st Amendment here (esp. in light of caselaw like New York Times Co. v. US). Probably your only option to dodge Special Branch is photocopy/scan the documents in the UK, return the originals, get the documents out of the country to have the work done overseas, and then pray like hell that country's courts would refuse to comply with a search request. At least, that's what I'd do...

As far as countering allegations that documents are forgeries, that is why I'd keep a copy of the full original. That way, if questions arose, that copy could be given to professional document inspector working under contract and a non-disclosure agreement. Not the most ideal situation, but still better than nothing.

Which brings me to my final point. This sort of high-stakes journalism is the same as intelligence/espionage. One single slip-up can mean the end of a career or a prison term, if not a life. Solid tradecraft, technical savvy, a willingness to expend time and effort on security, the ability to balance the disclosure of information and the protection of sources, and a healthy sense of paranoia are all absolutely essential. But most importantly, a journalist also needs unimpeachable credibility and integrity, otherwise his sources will be in danger, and his readers won't believe him.
6.20.2005 4:42pm
Thief: I see three problems with scanning and editing as you suggested.

1. Not very many people are technically savvy enough to be sure that the identifying information has been removed from PDF's and TIF's rather than just being obscured but recoverable. This has actually happened to some American government agency; in response to a FOIA request for the non-classified portions of a classified document they released a PDF with certain things blacked out, but the black-out was just a writeover in the PDF that could be removed to reveal the classified text. Most journalists would be no more knowledgeable.

2. What happens if the big bad government investigators seize your computer? If you kept the original scan, it's over. If you didn't, it's probably over anyhow. Computer software tends to create multiple temporary copies of a document as you work on it, and operating systems such as Windows don't actually erase these as they are freed up, it just marks them as unused space that might be overwritten later. Given the huge hard drives that are now common, don't count on it actually being overwritten even within the useful life of the computer. I'm not sure that Bill Gates and his 100 top programmers could actually make sure a document had been cleaned from a hard drive short of wiping everything on the drive and starting over.

3. But mainly, how do you know you found all the identifying marks? Serial numbers and handwritten notes are only the beginning of what I'd do if I was responsible for safeguarding top secret documents. At a very crude level, I could spill a little coffee, and keep pictures of the stains on each copy. Maybe the paper has variations in color. Maybe some characters have broken and blotted serifs, unique to each document. The only way to ensure that such tricks are removed from the published version is re-typing.

Of course, if you're dealing with a really paranoid agency, there's one more trick: type each numbered copy that's issued separately, introducing minor changes in wording. Now any exact quotation of a sufficiently large part of the document will point right at one copy and the few people who had access to it.

Professional spies will often paraphrase a document (retyping it in different words) as soon as they get it, then they'll destroy their copies of the original. Now if they or the courier gets caught with the paraphrased document (or if the other side has spies in your own HQ that report this leak), there's nothing to narrow the suspects down. I don't expect to see journalists taking their precautions this far; it's not only a lot of work, but when the journalists are already suspected of bending the story to fit their biases, they'll never be able to convince the public that a paraphrase was accurate. (No doubt the spook world also has this problem, but there a continuing supply of possibly not quite accurate intelligence is nearly always preferable to hearing that your source just got shot.)
6.20.2005 6:02pm
Seixon (mail) (www):
I think many are missing a very important fact that I have covered on my blog: the Downing Street Memo was not re-typed as Michael Smith was explaining. He was talking about the OTHER documents, the ones he had in his possession in September 2004. They have not released re-typed copies of the DSM, because there are none. This leads me to believe that he received the DSM after the US election. He would have published about the DSM in September if he had had it then, ne? He published everything about the other documents at that time.

So the question is: why is there no re-typed version of the DSM? Is it because he received it later than the other documents?

The previous documents which he wrote about in September, they are authentic, or at least they represent authentic documents, as the Butler Commission has quoted and referenced at least two of them.

Read about all of this at my blog!
6.20.2005 7:55pm
dick thompson (mail):
I just find it unbelievable that a journalist can publish and get away with it when it comes to classified documents. That being the case then your journalist would be the perfect spy because he could publish the secrets all he wanted and no one could touch him while a non-journalist would be lined up and shot for the same thing. That strikes me as being ludicrous. There must be more to it that this guy can get away with publishing classified information. Either it is not that classified or they really don't at this point care. In either case in any country that I would want to live in the journalist should not be above the law when it comes to classified secrets. That does not make any sense at all. In that case why even have any classified secrets at all because anyone who comes across them could just shop them to his favorite journo and all would be well.

Forty + years ago when i was young and foolish and JFK was president (the real one, not the fake loser of last year) during the time of the Cuban Missile Crisis, I had to deal with the highest level stuff in the Pentagon. I know that if a journalist had gotten his hands on what we had there would have been hell to pay and he would have gone to jail. What has changed that the journalists do not have to meet the same criteria as the rest of the population. For most people if you do not have the clearance you can get arrested for having the stuff in your possession at all let alone publishing it. What about the first amendment gives the press freedom to go around this law?
6.21.2005 1:16am
Larry (mail):
Mr. Thompson,

In my country (USA) journalists are afforded quite a bit of protection in terms of WHAT they publish. A journalist, of course, like other people cannot break any law that is valid (or, as we say in my country, "constitutional.") So, obtaining information illegally might be illegal. (E.g. posing at a military officer and sneaking into a base to steal papers.) Disseminating it, however, by itself, would not be.

So, for example, in New York Times Co. v. United States, 403 U.S. 713 (1971) it was definitively held that although the executive branch might be able to restrict its own employees from divulging information (especially if there is legislatively-imposed punishments), someone who is not bound by such restrictions is free to publish it. In fact, they need not be a member of the "press" to do so. In my country, for some reason, the "prior restraints" on expression are frowned upon.

Whether a newspaper wishes to avoid publishing something because someone (such as JFK) might prevail on them about the momentary need to keep something quiet is another issue. Indeed, most journalists would probably not publish something in which a good, specific, case can be made that it would directly harm Americans.

I am very impressed that you dealt with the highest-level "stuff" in the pentagon. But, quite frankly, most of us have, so I don't see why that matters. I presume this makes you feel special. Indeed, telling people this gives you instant credibility.

(There is some dispute as to whether journalists can avoid disclosing confidences.)
6.21.2005 11:50am