Information as Contraband: The First Amendment and Liability for Trafficking in Speech
Smolla, Rodney A., Northwestern University Law Review
May the government treat information as contraband, rendering illegal its mere possession or receipt? May the government impose liability for "trafficking" in information contraband, prohibiting disclosure of information others have unlawfully obtained?
These issues arise in a surprising array of different circumstances, yet American law has never quite fully come to grips with them. Consider a few of the many permutations: To protect privacy, the government makes it illegal to intercept electronic communications, such as conversations on a cellular telephone. The government may certainly punish the eavesdropper; but if the eavesdropper records the conversation and turns the tape over to a broadcast journalist, may the government also punish the journalist for broadcasting the purloined conversation? To safeguard national security, the government classifies information, declaring it secret. The government may punish its own employees for leaking classified material to outsiders; but may it also punish those outsiders-The Washington Post, perhaps, or CNN-for further disseminating the classified material? To protect intellectual property, the government forbids the unauthorized copying of copy-- righted works, exempting from the prohibition a defined category of "fair uses"; but may the government also punish those who traffic in information designed to facilitate the illegal copying of protected material? To protect the citizenry from violent crime, the government may punish murder, including those who traffic in it for meretricious gain, such as professional assassins. But may the government also punish those who assist in the training of those professional assassins, trafficking in information calculated to educate would-be killers in the instruments and techniques of murder for hire?
Fertile imaginations will undoubtedly conjure any number of additional scenarios, but the examples above illustrate common repeating patterns. Laws created (or future laws imagined) for the purpose of treating information as contraband generally fall into four categories: (1) laws designed to protect individual privacy, (2) laws designed to protect official secrets, (3) laws designed to protect intellectual property, and (4) laws designed to deter facilitation of criminal or tortious conduct. The categories are not mutually exclusive-a given law may partake of more than one of these purposes-and the list is not necessarily exhaustive-there are sure to be other examples, present and future-but this collection does seem to capture the principal contemporary prototypes, and is clearly sufficient to provide grist for analysis.
Treating information as contraband poses serious and vexing First Amendment questions. Surprisingly, we have done little as a society to resolve them. The questions have been frequently noted and avoided by courts, but only rarely engaged head-on. For its part, the Supreme Court has been making neat and passing mention of these First Amendment questions for nearly three decades. Not until the summer of 2001, however, in Bartnicki v. Vopper,1 did the Court pass judgment on any of them. Bartnicki, a case much-watched and much-awaited, must now be much-- deciphered. In Bartnicki, the Court held that federal and state statutes prohibiting the disclosure of information obtained through illegal interception of cellular phone messages were unconstitutional as applied to certain media and nonmedia defendants who received and disclosed to others tape recordings of the intercepted messages from anonymous sources. Yet the confusing alignment of the Justices makes the precise holding of the case far from clear, and what at first blush seemed a setback for the protection of privacy may on further review prove a backhanded victory.
This Article ranges widely, exploring the treatment of information as contraband in arenas as diverse as privacy, official secrets, intellectual property, defamation, and liability for facilitating criminal or tortious conduct. …