No Surprise: Judge Says US Government Can Take The Proceeds From Snowden's Book
from the contracts,-man dept
Back in the fall, we noted that, even if we thought it was silly, under existing law, it seemed highly likely that the DOJ would win its lawsuit against the publisher for Ed Snowden’s memoir, Permanent Record. As I noted at the time, the government and the intelligence community in particular take the issue of “pre-publication review” incredibly seriously. Basically, if you take a job in the intel community, you sign a lifelong contract that says if you ever publish a book about anything regarding the intelligence community, you have to submit it for pre-publication review. Officially, this is to avoid classified information showing up in a book. Unofficially, it also gives the US government a sneak peek at all these books, and sometimes (it appears) allows them to hide stuff they’d rather not be public.
As I noted when the lawsuit was filed, there is another ongoing lawsuit challenging pre-publication review requirements on 1st Amendment grounds — but given the state of the law today, it seemed pretty clear that Snowden would lose this case. And, that’s exactly what’s happened. Judge Liam O’Grady (who seems to end up with all sorts of high profile cases) easily ruled in favor of the government last week. In short, the court says: an unambiguous contract is an unambiguous contract.
The plain meaning of the contracts set forth above require prepublication review of a signatory’s public disclosure which refer to, mention, or are based upon, classified information or intelligence activities or materials. The contractual language here is clear, and this Court is therefore legally barred from accepting extrinsic evidence of course of performance, course of dealing, and common trade practices.
That was in response to Snowden’s legal team from the ACLU trying to seek discovery to get more evidence to support his case before it went up for dismissal. No go. In the end, a contract is a contract:
The terms of these Secrecy Agreements are clear, and provide that he is in breach of his contracts and the fiduciary duties identified therein if his public disclosures include the type of information and materials the contracts required to be submitted for prepublication review. Specifically, the CIA Secrecy Agreement requires prepublication review of “any writing… which contains any mention of intelligence data or activities, or contains any other information or material that might be based on” certain information, which was “received or obtained in the course of [CIA] employment… that is marked as classified or [known to be classified or known to be in the process of classification determination].”… Similarly, the NSA Secrecy Agreement require prepublication review of “all information or materials… prepared for public disclosure which contain or purport to contain, refer to, or are based upon protected information,” which is “[i]nformation obtained as a result of [a] relationship with NSA which is classified or in the process of a classification determination,” including but “not limited to, intelligence and intelligence-related information.”… Because there is no genuine dispute of material fact that Snowden publicly disclosed the type of information and materials described above in Permanent Record and his speeches, the Government is entitled to summery judgment on both Counts.
As Snowden pointed out when this happened, all this has really done is to draw more public attention to his book, of course. But, I can see from the DOJ’s viewpoint that it may have felt that if it didn’t go after Snowden and Macmillan for this, then others might question why they had to go through pre-publication review as well.