CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Wednesday, July 9, 2014

Lutkenhaus on Prosecuting Leakers

Jessica Lutkenhaus has posted Prosecuting Leakers the Easy Way: 18 U.S.C. § 641 (Columbia Law Review, Vol. 114, No. 5, 2014) on SSRN. Here is the abstract:

18 U.S.C. § 641 prohibits the theft or misuse of federal government "things of value." The federal government has used this statute to prosecute leakers of information: The government considers disclosure to be a type of theft or conversion, and government-produced or government-held information to be government property. The circuits disagree about whether § 641 applies to information, and, if it does, what its scope is: What information constitutes a "thing of value"? The Fourth Circuit construes § 641 to include all government-produced information and some privately created information, while the Ninth Circuit holds that no information can be a "thing of value." Other circuits limit the reach of § 641 to certain types of information due to First Amendment concerns arising from the potentially broad restriction on information dissemination that comes from criminalization of disclosure. This Note identifies and analyzes these approaches, and argues that a broad reading of § 641 is problematic. It concludes that Congress should clarify § 641’s scope, and, if Congress does not act, that all courts should take First Amendment considerations into account when determining whether the government can criminalize the disclosure of information.

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