Andrew Lacis of GISS has an extraordinary comment at Judy Curry’s that prompted today’s post. Lacis classified Gleick’s conduct as merely a “political prank”. Unfortunately for Gleick, the issue is not what Lacis thinks, but whether his admitted acts (leaving the fake memo aside for now) meet all the elements of 18 USC 1343 (wire fraud), a serious federal offence. Given Gleick’s admissions, the only legal point that even requires analysis is whether his actions deprived Heartland of “property” under binding interpretations of 18 USC 1343. There is a case decided by the U.S. Supreme Court that is exactly on point to this question: it held that confidentiality and exclusive use of business information were a form of property rights, the deprivation of which using false pretences was an offence under 18 USC 1343. This decision is binding on lower courts. All the elements of 18 USC 1343 appear to met under admitted facts.
Before considering actual U.S. codes and cases, let me start with Lacis’ comment at Judy Curry’s as it is representative of one line of talking points that are being tried out by the “community”. Lacis started as follows:
From all the foregoing, as I see it, Peter Gleick was simply being inept in his deception (i.e., he got caught doing it). And, there was some poor secretary at the Heartland Institute who was being gullible and naïve (I hope she still has her job).
I think that reasonable people can agree that Gleick was “inept in his deception” (see my post on America’s Dumbest Criminals), though I do not agree with Lacis that the problem was only that he “got caught”.
Lacis then argued that Gleick’s conduct fell within the scope of “dirty-pool politics” and was subject to cultural relativism, with the only real drawback being an “appearance of hypocrisy”:
All of this falls in the category of dirty-pool politics that has a long established tradition dating back to the early days of recorded time. After all, deception, ethics, and morality are all relative, depending on one’s culture, circumstances, and purpose at hand.
It is only when one is preaching for some emphatic course of action, and then gets caught doing something that is to the contrary. This creates that undesirable circumstance and appearance of hypocrisy. Take for example all those not-so-infrequent cases where politicians and televangelists have stridently preached ‘family values’, and then got caught doing the wrong thing at the wrong address. Blatant hypocrisy is the inevitable result.
While there is undoubtedly some cultural relativism in attitudes towards deception, Gleick’s conduct took place in the United States in 2012 and is subject to U.S. federal legislation. Gleick’s conduct might have been condoned in other societies at other times, but this would not be relevant to a judge’s determination of whether or not he committed an offence under 18 USC 1343. Nevertheless, as Lacis observed, the fact that Gleick has preached the importance of scientific integrity for many years and was the Chair of the AGU Committee on Scientific Integrity adds a salaciousness to his hypocrisy.
Lacis then proceeded into a bizarre taxonomy of deceit:
The art of deception is a very common strategy, as in sports and war. Deception is to be found in the tool-bag of every investigative reporter and police detective. We’ve got your fingerprints (somewhere on file), so you might as well tell us why you did it. In poker, it is called bluffing, which is not considered being dishonest. But then, people also do have a sense of fair play – so there is some gray area beyond which heavy handed deception becomes viewed as unsportsmanlike conduct. This is to be differentiated from all those activities that are explicitly illegal, such as breaking into Watergate, hacking into Sara Palin’s e-mails, or the hacking and posting CRU e-mails. But duping Sara Palin into thinking that she is getting a call from the president of France, or duping Governor Walker of Wisconsin into thinking that he is having a private chat with his funding benefactor David Koch – those would seem to fall in the category of political pranks, producing a laugh, and perhaps some degree of embarrassment.
Lacis’ taxonomy made no reference to criminal legislation or case precedents. Over the years, U.S. legislators and judges, like legislators and judges elsewhere, have taken considerable care in the classification of various forms of deception, distinguishing many forms of conduct beyond mere “unsportsmanlike conduct”. As Lacis observed, bluffing in poker is legal. However, wire fraud (18 USC 1343) isn’t.
Was Gleick’s conduct merely a “political prank” (as Lacis argues) or was it more serious? Did Gleick’s actions meet the elements of 18 USC 1343 or any other offences?
18 U.S.C. 1343
18 USC 1343 is not an exotic part of the criminal code, but an offence that is frequently charged and with extensive case law. (Google “wire fraud” for dozens of cases and incidents). The code itself reads as follows:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both….
Gleick has already confessed that he impersonated a Heartland director; that, using that identity, he obtained confidential financial information from Heartland, including their donors’ list and records of their contributions; and that he disseminated that confidential information with the intention of making it public and that the information did become public. There is ample evidence that Gleick’s intent in making the information public was to damage Heartland by placing them in breach of their undertaking of confidentiality to their donors and to cause donors to withdraw from funding Heartland (as appears to have already happened with one donor.)
These points are established quite separately from the further question of whether Gleick forged the Confidential Strategy memo (as many people, including Mosher and me, believe) and potential offences arising from that action.
Inexperienced commentators might well argue at this point: Gleick didn’t actually remove Heartland’s list of donors or financial records; therefore, he didn’t deprive them of any property; ergo, no offence. Unfortunately for Gleick, it isn’t as simple as that.
Carpenter v U.S.
In Carpenter v. United States 484 U.S. 19, 27 (1987), the U.S. Supreme Court directly and clearly stated that an organization’s right to confidential and exclusive use of business information is a “property” right within 18 USC 1343. Interested readers should read the decision in its entirety as it’s not long and contains many observations that bear directly on Gleick’s situation. I quote extensively from this decision below.
Defendant Winans was a reporter with the Wall St Journal who was charged with wire fraud (18 USC 1343) and several other offences. He had leaked the contents of financial columns to traders prior to publication. Winans argued that wire fraud was not engaged because the Wall St Journal did not itself lose any money or property. The Supreme Court found against him, summarizing their decision as follows:
2. Petitioners’ conspiracy to trade on the Journal’s confidential information is within the reach of the mail and wire fraud statutes. Pp. 25-28.
(a) The Journal had a “property” right in keeping confidential and making exclusive use, prior to publication, of the schedule and contents of Winans’ columns which right is protected by the statutes…
(b) Petitioners’ activities constituted a scheme to defraud the Journal within the meaning of the statutes. It is irrelevant that petitioners might not have interfered with the Journal’s use of its confidential information, publicized the information, deprived the Journal of the first public use of the information, or caused the Journal [484 U.S. 19, 20] monetary loss, it being sufficient that the Journal has been deprived of its important right to exclusive use of the information prior to disclosing it to the public. The argument that Winans’ conduct merely violated workplace rules and did not amount to proscribed fraudulent activity is untenable, since 1341 and 1343 reach any scheme to deprive another of property by means of fraud, including the fraudulent appropriation to one’s own use of property entrusted to one’s care by another… Pp. 27-28.
In the running text, the argument is discussed as follows:
Petitioners assert that their activities were not a scheme to defraud the Journal within the meaning of the mail and wire fraud statutes; and that in any event, they did not obtain any “money or property” from the Journal, which is a necessary element of the crime under our decision last Term in McNally v. United States, 483 U.S. 350 (1987).We are unpersuaded by either submission and address the latter first…
Here, the object of the scheme was to take the Journal’s confidential business information – the publication schedule and contents of the “Heard” column – and its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes.
Both courts below expressly referred to the Journal’s interest in the confidentiality of the contents and timing of the “Heard” column as a property right, 791 F.2d, at 1034-1035; 612 F. Supp., at 846, and we agree with that conclusion. [484 U.S. 19, 26] Confidential business information has long been recognized as property. See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 -1004 (1984); Dirks v. SEC, 463 U.S. 646, 653 , n. 10 (1983); Board of Trade of Chicago v. Christie Grain & Stock Co., 198 U.S. 236, 250 -251 (1905); cf. 5 U.S.C. 552(b)(4). “Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy.” 3W. Fletcher, Cyclopedia of Law of Private Corporations 857.1, p. 260 (rev. ed. 1986) (footnote omitted). The Journal had a property right in keeping confidential and making exclusive use, prior to publication, of the schedule and contents of the “Heard” column.
Petitioners’ arguments that they did not interfere with the Journal’s use of the information or did not publicize it and deprive the Journal of the first public use of it, see Reply Brief for Petitioners 6, miss the point. The confidential information was generated from the business, and the business had a right to decide how to use it prior to disclosing it to the public. Petitioners cannot successfully contend based on Associated Press that a scheme to defraud requires a monetary loss, such as giving the information to a competitor; it is sufficient that the Journal has been deprived of its right to exclusive use of the information, for exclusivity is an important aspect [484 U.S. 19, 27] of confidential business information and most private property for that matter.
We cannot accept petitioners’ further argument that Winans’ conduct in revealing prepublication information was no more than a violation of workplace rules and did not amount to fraudulent activity that is proscribed by the mail fraud statute. Sections 1341 and 1343 reach any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises. As we observed last Term in McNally, the words “to defraud” in the mail fraud statute have the “common understanding” of “`wronging one in his property rights by dishonest methods or schemes,’ and `usually signify the deprivation of something of value by trick, deceit, chicane or overreaching.’” 483 U.S., at 358 (quoting Hammerschmidt v. United States, 265 U.S. 182, 188 (1924)).
Gleick and Heartland
Heartland’s list of donors and financial records of their contributions were Heartland’s confidential information. Applying Carpenter, Heartland’s right to exclusive use of this confidential information was a form of property, of which Heartland was deprived through false pretences. Based on Gleick’s admissions, it seems evident to me that all the elements of an offence under 18 USC 1343 have met. It is not necessary that Gleick himself profited from his actions; it is enough that Gleick intended to harm Heartland.
Wire fraud (18 USC 1343) and the closely related mail fraud (18 USC 1341) are workhouse U.S. federal crime clauses (google “wire fraud” for dozens of cases). Prosecutions are not restricted to the financial elite: a woman from Chokio here; a policeman from Fort Lauderdale; an $80,000 fraud from Westport. Whether Gleick, a member of the U.S. intellectual elite and a former student and coauthor of John Holdren, Obama’s Science Adviser, is ever charged is a different issue than whether his acts meet the elements of 18 USC 1343.
Returning to Lacis, Lacis’s final comment at Judy Curry’s was that:
Peter [Gleick] would have been smarter to get somebody else do his “hammering” of Heartland for him.
Doubtless he would have been less likely to get caught if the offence had been carried out by a more competent criminal. But better advice for the climate community would be that it obey the law.