Leaking and Legitimacy

Abstract

Julian Assange, Chelsea Manning, and Edward Snowden have captured the world’s attention in recent years by leaking massive quantities of secret government information. In each case, critics have made much of the fact that the leaks were in violation of government secrecy laws, while supporters have drawn parallels with whistleblower leaks, including the most famous and now widely acclaimed leak in United States history, Daniel Ellsberg’s leak of the Pentagon Papers.

This Article makes two important contributions to this debate. First, it defines this type of leak — which it labels a “deluge leak” — as a new category. Unlike whistleblower leaks, which expose targeted government policies about which a knowledgeable leaker is concerned (in Ellsberg’s case, military involvement in Vietnam), deluge leaks are a broad response to excessive government secrecy insofar as they reveal a vast array of records about which the leaker knows relatively little.

Second, departing from traditional criminal law and First Amendment analyses of these leaks, this Article examines deluge leaks through the lens of the social science literature on legitimacy. That literature establishes that a perceived lack of procedural justice is a key reason that people break the law. Currently, deficient procedural justice characterizes the suite of laws that governs the public’s right to access government information, including the Freedom of Information Act, the classification system, and whistleblower protections. This lack of legitimacy is an important motivation for recent deluge leaks, as the leakers’ own actions and words demonstrate. The Article concludes by arguing, counter-intuitively, that improving transparency laws would better protect national security secrets.