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The Ethics of Leaks
By Kirk Hanson and Jerry Ceppos
Over the past several weeks, many of the big news stories have come from leaks. Someone gave ABC News shocking e-mails between Rep. Mark Foley (R-Fla.) and congressional pages. Information on the Hewlett-Packard pretexting scandal and the National Intelligence Estimate also started with leaks.
All three stories generated huge quantities of news coverage and babble on talk radio. Lost in the heat was an examination of the ethics of leaks and leakers. Was the leaker of Foley's e-mail exchange guilty of serious ethical breaches, especially because the messages dealt with sexuality? Did the leak of part of the NIE enlighten all of us or only the terrorists? Did George Keyworth, a longtime member of HP's board violate confidences and his fiduciary duty by talking to reporters about company business?
The answers can give guidance to others about whether and when to leak information. Is it ever ethical to leak? Is there sometimes an obligation to leak?
Let's face it. Leaks are everywhere. Prosecutors and defense attorneys leak information; negotiators leak to increase their power; even the White House leaks to influence what others do or to test out an idea. We sometimes call these trial balloons.
One of us (Jerry, the journalist) reminds the other (Kirk, the ethicist) that leaks do serve an important public function. The media would certainly have much less to write about if there were no leaks! Much of the news each day is based on information previously considered confidential. Reporters urge news sources to leak information to help the public make up its own mind about important issues under the rallying cry of "the public's right to know." One of us was interviewed by a reporter recently regarding the ethics of the HP board leaker. The interview ended with the reporter asking, "Do you know anyone on the HP board who would talk to us off the record about what happened in tonight's board meeting?"
There have been good leaks which arguably served the public interest - Deep Throat of Watergate fame, Daniel Ellsberg and the Pentagon Papers, recent leaks about unauthorized government wiretapping. The problem is that it is just as easy to come up with leaks that did significant damage and were motivated by a desire to advance a narrow political or self-interest.
What can we say to the person trying to decide whether to call a reporter and reveal secret information? Our hope is that some practical advice may help individuals make better ethical decisions on whether to leak, and may even help HP and George Bush figure out how strongly to react to future leaks, and how to deal with the leaker when he or she is discovered. Is it ever ethical to leak information? Are there times when there is an obligation to leak information?
Good leaks: A good leak is the disclosure of information that expands public understanding of an issue of public interest - without harming anyone. A leak also can be good if it illuminates understanding of an important issue even if it harms someone, as long as the public interest at stake is significant-lives and health are at risk; a crime, such as fraud is being committed; public monies are being misspent.
Bad leaks: A bad leak is one that does harm and does not aid public understanding of an important public issue. A bad leak is also one that does too much harm as it tries to inform the public regarding an important issue. A leak may be bad if it violates an important commitment or trust one has as a board member, an employee, or even as a friend.
The first thing a potential leaker should ask is the status of the information itself. Is the information "classified," "proprietary," or otherwise "protected?" Is there a system in place which clearly considers this information restricted? If the information is clearly intended to be protected, then the leaker must meet a higher test if he or she wants to leak it.
The second consideration is whether the potential leaker has a specific obligation, legal or ethical, to protect the information, or has the information only because another person violated his or her obligation to keep it secret. If so, then it is a much more serious matter to reveal it.
The third consideration is whether the information is about public or private matters. Information about another's sexual orientation, about his or her private finances, or about personal phone calls has more of a claim to privacy than information about a person's actions as a corporate executive or a government official. The difficult cases, of course, are those where the private life of individuals arguably influences their public actions.
Assessing the harm a leak will do: Self-interest and self-righteousness can cloud the potential leaker's view of the harm a leak may do. It is critical to get another's perspective on what harm will result. It is also inadequate to pass over it too quickly with an attitude that the ends always justify the means.
Do these ethical principles help us assess the leaks by George Keyworth, or by the individual who gave the National Intelligence Estimate to the New York Times?
For Keyworth, one has to ask the status of his obligation to HP and to his fellow board members to protect the confidentiality of their board deliberations. We also have to determine whether what he leaked was publicly known already, and whether harm was done by the leak. Even if no damage was done by the information leaked, it is possible there was damage to the culture of trust on the HP board.
For the individuals who leaked the National Intelligence Estimate regarding the risk of terrorism, there are similar questions. The information was clearly a classified government secret, and those who had possession of it also had a legal obligation not to leak the information. At issue is the benefit that might result from the leak. It is likely the leakers felt that the information they revealed might lead to a change in Iraq policy, which in turn could save lives and lower the long-term risk of terrorism. They may be very wrong in their assessment. At minimum, the leakers should be concerned that they get the information right, that their judgment about the public benefit of the leak is well formed, and that they are willing to pay the price if discovered.
Do these two cases justify a witch hunt for the leakers? In the HP case, leaks may make control-oriented executives angry, but the specific information leaked does not seem, to us, to justify the overreaction which followed. Once you play in the big leagues, once your company is prominent in the public eye, it will be the victim of leaks. For President Bush, the leaking of classified information has a much greater importance. If there cannot be confidentiality about matters of national intelligence, the government's capacity to operate can be seriously compromised. However, President Bush should expect that the more disagreement there is about his policies, the more likely leaks will be.
In general, leaks will always be part of a free society, and even more so in the era of so many competing news sources, including blogs and dueling websites. We also need to have some caution about claims that unethical leaks have occurred. British Lord Northcliffe had it right when he said that "news is what someone, somewhere does not want printed. The rest is advertising."
Kirk O. Hanson is executive director of the Markkula Center
for Applied Ethics at Santa Clara University and University
Professor of Organizations and Society. Jerry Ceppos is former
vice president/news of Knight Ridder and former executive editor
of the Mercury News. He is a consultant with Leading Edge Associates
of San Jose. A shorter version of this article appeared Oct.
6, 2006, in the Los Angeles Times.