This imbalance (prosecuting more lower level employees for security leaks. Leaks by lower level employees are are typically made without approval and often reveal serious wrongdoing in the government.) poses a significant problem for our nation: transparency is essential to a healthy democracy. In order to hold public officials accountable, an informed electorate is necessary, and an electorate that is continuously fed “favorable” information by the administration is an uninformed one. Historically, government whistleblowers of “classified information have played an important role in informing the public throughout our country’s history.” Today’s prosecutions, however, have effectively deterred these important players in our nation’s history. Most national security whistleblowers are afraid to enter the gray zone where prosecution may result. This reluctance not only perpetuates government abuse in this area, but also keeps the constituency ignorant of important public official action.
In order to ensure that this valuable source of information remains a viable option, federal law should employ a multi-factor test to determine whether or not a defendant-leaker should be acquitted of the charges. Part II of this paper offers background on the current state of affairs by looking at the applicable law and how courts have interpreted that law. Part II also offers a more detailed look into the events that transpired in the summer of 2013 involving Snowden and the NSA. Part III introduces the reader to the proposed multi-factor test that provides a concrete analytical framework to evaluate each leak. Part A suggests that the leaker’s intent play a more significant role in the analysis. Part B details how a court would analyze the threat to national security the leak would cause. Part C of the analysis suggests that an evaluation of the recipient of the leaked information should play a determining influence on the conviction. Part D weighs the public debate sparked from the leak. After detailing each of the proposed factors, each will be applied to Snowden’s case as an example of how a court would employ the multi-factor test. Finally, Part IV offers a brief conclusion.
Note, Top Secret—The Defense of National Security Whistleblowers: Introducing a Multi-Factor Balancing Test, 63 Clev. St. L. Rev. 237 (2014)