Leaks of government information could be justified in exceptional circumstances, but they should be a last resort.

Leaks have been around since governments and secrets were first invented. Recently they have occurred with more regularity and with more outrage from government officials, south and north of the 49th parallel. In January, the RCMP alleged in a search warrant that Vice-Admiral Mark Norman of the Royal Canadian Navy had leaked information to a shipbuilding executive about a $700-million federal contract.

Ministers and senior public servants claim leaks do serious harm to the quality of debate and decision-making in cabinet, as well as undermining ministers’ confidence in the public service, its norms of professional responsibility and its loyalty to the government of the day.

But outside commentators, especially in the media, insist that leaking can result in issues being opened up to scrutiny that would otherwise be concealed. When there is illegality, dishonesty, gross incompetence or irreversible harm involved in government actions, and communications about those actions are deceptive, leaking can be in the public interest, they say.

My argument here is that when it comes to understanding the heterogeneous and complex phenomenon of leaking, seeing leakers as either sinners or saints is an artificial dichotomy.

The classic definition of a leak is the intentional and illegal disclosure of classified information without authorization. There are laws and sanctions that are meant to prevent leaking. There are also informal social norms within government that are meant to supplement the formal disciplinary procedures for dealing with leakers.

It is crucial to distinguish leaking from whistle blowing, which involves the good faith disclosure through authorized procedures of information about serious wrongdoing within government, and which qualifies the whistle blower for protection against retaliation.

There are many different motivations for leaks, and the sources and types of leaks also vary. While governments ritualistically condemn leakers, sometimes they themselves leak strategically for political purposes. Other potential motivations for leaking are to reveal abuse, to influence a policy debate, to test a response from a powerful interest group, to curry favour with a journalist, to seek revenge and to achieve notoriety.

Low-level bureaucrats and senior policy officials might engage in leaking, but most leaks come from higher positions within government, leading to the expression that “the ship of state is the only vessel that leaks from the top.”

The scope of the materials leaked varies widely. Edward Snowden’s leak of highly classified National Security Agency (NSA) documents through WikiLeaks is one of a growing number of what Margaret B. Kwoka has labelled “deluge” leaks. This refers to the indiscriminate dumping of a large treasure trove of sensitive documents into cyberspace. These leaks potentially pose a new danger, because their size and their sensitive nature means it is more difficult for leakers and publishers to minimize harm to institutions and individuals while maximizing benefit to the public. The problem was highlighted when Edward Snowden criticized WikiLeaks for the unfiltered way that it disclosed the NSA documents.

When leaks occur, governments rhetorically insist that they will find the offender and apply the full force of the law. However, as David Pozen wrote in a brilliant article, there are good reasons to question governments’ commitment to cracking down on leaking. Put simply, governments like the communications flexibility offered by occasional and selective leaks, and when they feign outrage they satisfy the norm of protecting state secrets. They also know that is difficult — if not impossible — to identify leakers, and that seeking prosecution can lead to additional sensitive information being disclosed.

Governments have exhibited similar ambivalence in dealing decisively with the media when it publishes leaked documents. This is because they fear being accused of limiting free expression, as well as the possibility of high profile and prolonged legal fights over journalists’ right to protect their sources.

There are highly exceptional circumstances when leaking could be justified, such as an imminent threat to security and health, but even in those situations, the unauthorized release of information should be used as a last resort, after internal channels of communication have failed. In other words, if we want to reduce, but we don’t want to eliminate, illegal and dangerous leaking, we need to draft stronger whistle blower protection laws and to create a culture of safe disclosure within governments and public bureaucracies.

Photo: Chief Petty Officer 1st Class Tom Riefesel , left, Chief Justice Beverley McLachlin, center, and Vice-Admiral Mark Norman, right, salute during the Battle of the Atlantic memorial services on Parliament Hill in Ottawa on Sunday, May 1, 2016. THE CANADIAN PRESS/ Patrick Doyle


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