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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.
INTRODUCTION
Leaks are a "routine daily occurrence" for the government.1 Leakers were responsible for the public revelation of warrantless wiretapping by the National Security Administration (NSA),2 NSA collection of Americans' phone records,3 and information regarding the 2011 attack on the U.S. diplomatic mission in Benghazi.4 From Daniel Ellsberg to Bradley Manning and Edward Snowden, leakers have frustrated the government and fascinated the public for decades. The government appears increasingly concerned about this type of unauthorized information disclosure: Congress has held multiple hearings in the last two years alone to discuss how to handle leaking,5 and the executive has criminally prosecuted multiple leakers. In fact, the Obama Administration has prosecuted more leakers than all previous administrations combined.6
While no law explicitly criminalizes all disclosure of confidential information,7 certain circuits have read that prohibition into 18 U.S.C. § 641.8 Section 641 criminalizes the theft and misuse of government "thing[s] of value."9 Depending on what constitutes a "thing of value," § 641 potentially applies to the disclosure of any confidential government information, regardless of the disclosure's expected impact on national security, the intent of the leaker, or...