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.

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Filed Under: cia, doj, ed snowden, liam o'grady, nsa, permanent record, prepublication review
Companies: macmillan


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  • identicon
    Pixelation, 23 Dec 2019 @ 8:34pm

    Ok

    So, why not cancel any US publication and sell it through a foreign publisher?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Dec 2019 @ 3:52am

      Re: Ok

      Why would Macmillan do that, they as all this means is that they write a different name on the royalty check.

      reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 26 Dec 2019 @ 6:50am

      Re: Ok

      So, why not cancel any US publication

      Because its primary audience is Americans, because it's about things that are happening in America?

      reply to this | link to this | view in chronology ]

      • icon
        Ehud Gavron (profile), 26 Dec 2019 @ 10:50am

        Re: Re: Ok

        Linux was developed outside the United States -- on purpose.
        Encryption was developed outside the United States -- on purpose.

        For claiming other countries to be "problems with freedom" (e.g. China, Russia, Turkey, Iran, etc.) the United States has done great damage to freedom... all in the name of ... um... national security?

        Real ID. It's a thing now. If you don't have a compliant ID you can't enter a federal courthouse or fly an airline.
        NOTE: The 9/11 hijackers all had valid passports that would allow them this access.

        Next up let's debate whether marijuana is legal. The feds say narp.
        https://www.rollingstone.com/culture/culture-features/cannabis-legalization-states-map-831885/

        E

        reply to this | link to this | view in chronology ]

        • icon
          Thad (profile), 26 Dec 2019 @ 11:46am

          Re: Re: Re: Ok

          Linux was developed outside the United States -- on purpose.

          Linux was developed outside the United States because Linus Torvalds was born in Finland. It's had developers all around the world -- including in the United States, where Torvalds has lived since 1997 -- for most of its existence.

          Encryption was developed outside the United States -- on purpose.

          And Snowden wrote his book outside the United States, on purpose. What's that got to do with Pixelation's suggestion that the book not be published in the US?

          Real ID. It's a thing now. If you don't have a compliant ID you can't enter a federal courthouse or fly an airline.

          The fuck's that got to do with anything we're talking about?

          Next up let's debate whether marijuana is legal.

          Jesus Christ, you're just hopping from one irrelevant non sequitur to the next.

          Please unbunch your panties and go back to discussing the topic. Hint: it's in the article above.

          reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 23 Dec 2019 @ 9:00pm

    Contract law does not trump the first amendment

    I am not a lawyer. This is my opinion, and if it's wrong, correct or educate me. Thanks.

    You can't give away your rights in a contract if they're provided by a higher document. The Constitution of the United States gives citizens of the United Staes (and residents) certain rights we CANNOT give away. For example we cannot agree to slavery. We cannot agree to not have right to vote. We cannot sell nor bestow our rights to either. Similarly we cannot give up our right to allow the government to censor what we say.

    That having been said, the Snowden case is nothing new... He elected not to follow process and as a result the Judge ruled accordingly. In a perfect world he would have

    • filed with NSA a pre-publication review request
    • filed with the court a request for the NSA to hurry it up
    • NSA would have ignored or filed [something]
    • process in court
    • THEN publish

    Neither he nor his publisher did so. Likely they thought (knew!) that these steps wouldn't lead to a permission to publish. So they published. He doesn't get to keep the direct profits off the book.

    Was justice done here? Was important government secrecy protected?

    No.

    Ehud

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2019 @ 9:42pm

      Re: Contract law does not trump the first amendment

      We cannot agree to not have right to vote.

      True, though in many states you can have that right removed regardless of whether or not you agree. Technically, you could deliberately have it removed, though it wouldn't really be a contractual thing and there'd be other consequences.

      We cannot sell nor bestow our rights to either.

      Possibly, though it's never actually been tested with voting as far as I know.

      Similarly we cannot give up our right to allow the government to censor what we say.

      Maybe from a very strict constitutional perspective, but not according to pretty much all the actual judicial interpretations. We have a significant recent history of prosecuting whistleblowers here in the US... which means we must conclude that since 1) whistleblowing is speech by definition then 2) prosecuting people for speech is possible and 3) in light of NYT v US (the Pentagon Papers case), it must therefore be possible for individuals to give up speech rights to the government.

      When, where, who, why and for how long those rights may be abrogated is a separate question, which has a lot of different jurisprudence behind it (NYT v US, Garcetti v. Ceballos are some examples). The Edgar v. Coats case that was mentioned in the article is ongoing and looking specifically at different aspects of this particular contract.

      reply to this | link to this | view in chronology ]

    • icon
      tom (profile), 24 Dec 2019 @ 2:19pm

      Re: Contract law does not trump the first amendment

      A voluntary contract can and often does limit a person's freedoms. If you join the military, you give up several freedoms as a price of service. (Such as no more bashing of the CIC or other Command Authority). Many employers ban political activity in the workplace. You may have limited clothing choices. Your online activities may be monitored for things detrimental to your employer.

      Mr Snowden didn't have to start working for the NSA. He voluntarily did so and signed the contract in question. He violated the contract. Now he suffers the results of that, according to the contract he willingly signed.

      reply to this | link to this | view in chronology ]

      • icon
        Ehud Gavron (profile), 24 Dec 2019 @ 2:58pm

        Re: Re: Contract law does not trump the first amendment

        Mr Snowden didn't have to start working for the NSA.

        No, he didn't have to, and he didn't.

        He voluntarily did so

        No, he didn't.

        and signed the contract

        No, he didn't.

        Mr. Snowden didn't work for the NSA and he didn't sign a contract with the NSA. Further you know nothing about what he signed or didn't sign but you're willing to take the government's word for it despite them being the same people who have out and out lied since long before your years on this planet.

        Booz Hamilton is the NSA contractor he worked for. They have different forms... and in this case, it doesn't make a huge difference (nobody cares about the book rights) but if Snowden had wanted to fight it... yes it would matter. Hint: he doesn't want to present himself to a US kangaroo court to be tried for treason, a crime that doesn't allow depicting reason nor motive.

        E

        reply to this | link to this | view in chronology ]

        • icon
          Wyrm (profile), 26 Dec 2019 @ 2:25pm

          Re: Re: Re: Contract law does not trump the first amendment

          He indeed wasn't a NSA employee, but he was still a NSA contractor who had to sign this pretty broad NDA. He did this voluntarily, and he breached the contract. This much is not in dispute.

          You're right that the problem is that the US doesn't want to let him argue his reasons and motives, so any trial would exclude a proper defense as should be guaranteed under the "due process" clause of the Constitution. The fact that he wanted to expose illegal behavior (or at the very least suspicious activity) is not a valid defense under espionage act (with a broad definition of "espionage" too) and other similar "National Security" laws. I don't know how this would turn out should this defense be allowed, but as things are now, he doesn't stand a chance.

          This lawsuit is not as critical as the actual espionage charges that are pressed on him, but it was as one-sided for the same reason: the facts are not arguable, and the motives are completely discarded. Not even presented and rejected, but outright disregarded from the start. Still doesn't change that the contract with the NSA was voluntarily signed, then broken from his side.

          reply to this | link to this | view in chronology ]

  • identicon
    Jimmy Hoffa's Lumpy Ghost, 23 Dec 2019 @ 9:20pm

    Is this precedential?

    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.

    I guess Trump was smarter than we thought requiring everybody he hires to sign an NDA. Apparently, just because your employer is requiring you to perform illegal acts it's no bar to enforcing the NDA.

    reply to this | link to this | view in chronology ]

    • identicon
      Daydream, 23 Dec 2019 @ 11:44pm

      Re: Is this precedential?

      Hmm... A contract is illegal and invalid if it in some way involves performance of an illegal act, but I'm not sure of under what circumstances it's illegal to not disclose knowledge of a crime.
      If Snowden's case of whistleblowing falls under one of those circumstances, then I think his NDA would be void. Not that the US government is well known for respecting the law.

      reply to this | link to this | view in chronology ]

    • icon
      Ehud Gavron (profile), 24 Dec 2019 @ 1:12am

      Innocent until proven guilty IN A COURT OF LAW

      smarter than we thought

      Trump called his daughter a great piece of a..
      https://www.independent.co.uk/news/world/americas/us-elections/donald-trump-ivanka-trump-creepie st-most-unsettling-comments-a-roundup-a7353876.html

      Trump wants to sleep with his daughter...
      https://www.youtube.com/watch?v=DP7yf8-Lk80

      Trump thinks it's ok to grope women's private parts...
      https://en.wikipedia.org/wiki/Donald_Trump_Access_Hollywood_tape

      Don't worry. The President has been impeached and he will NOT BE FOUND INNOCENT IN A COURT OF LAW because that's not how it works. That asterisk next to his name in future history isn't a "star" like the one he bought on Hollywood Boulevard. It's a stark reminder of the most corrupt self-dealing incestuous bestial mysoginistic impostor piece of poo we've ever had pretending he knows anything about anything.

      I should stop here. Because to list his failures is to list everything he's ever done.

      • business bankruptcies
      • North Korea denuclearization
      • Putin coming to heel
      • Paris accords
      • Peace in the middle east
      • Pulling out of Syria and leaving the Kurds and our allies to be SLAUGHTERED

      But hey, you're right. "We" did not think him that smart. Thanks for the reminder.

      We didn't think Hitler was that smart either. Godwin.

      E

      reply to this | link to this | view in chronology ]

  • icon
    Ehud Gavron (profile), 23 Dec 2019 @ 9:34pm

    NDAs and unlawful behavior

    The ACLU covers this well.
    https://www.aclu.org/blog/womens-rights/womens-rights-workplace/nondisclosure-agreement-silenc ing-you-sharing-your-me-too

    It applies other than with women's rights. NDAs do not silence you when criminal violations are being perpetrated.

    You can remove the "But... but... there was a signed NDA here" button.

    E

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 23 Dec 2019 @ 10:56pm

    "Oh fuck," gasped John Smith, "I'm going to cum!"

    reply to this | link to this | view in chronology ]

  • icon
    Toom1275 (profile), 24 Dec 2019 @ 12:18am

    Rule #17:
    A contract is a contract is a contract...
    but only between Ferengi.

    reply to this | link to this | view in chronology ]

  • identicon
    peter, 24 Dec 2019 @ 1:46am

    Whow wants to fund the US Government anyway?

    Well, bang go any guilt I had about downloading the book. Just gonna donate directly instead.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 24 Dec 2019 @ 4:48am

    Does this court decision apply to non US publishers who publish and distribute outside the US?

    If not then all this decision is guaranteed to do is make Snowden rich.

    reply to this | link to this | view in chronology ]

  • icon
    crade (profile), 24 Dec 2019 @ 6:08am

    "a contract is a contract"
    There you go, so all the gov has to do is make an agreement with every company out there, give a major break on taxes (of course you will excessively ramp them up first.. goes without sayin) if they agree to add some lifetime non gov't disparagement clause to their employment contracts and you've completed your circumvention of the first amendment for every citizen with the means to use it

    Naturally throw in a contract at the airports too (in exchange for the privilege of flying of course) for good measure.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 24 Dec 2019 @ 7:12am

      Re:

      Naturally throw in a contract at the airports too (in exchange for the privilege of flying of course) for good measure.

      You forgot the bit where the governments glibly claim that "driving is a privilege" as an excuse to sell your DMV data to everyone from statisticians to bill collectors.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 27 Dec 2019 @ 2:16pm

    I wonder why...

    “Liam o Grady”

    That names popping up so much as to demand a change of venue if you ask me.

    reply to this | link to this | view in chronology ]


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