Leaks No Longer Exist

In the wake of the Supreme Court Roe v. Wade reversal leak, there has been renewed discussion on the role of leaks in past and future controversies.

As a weary veteran of hundreds of controversies, let me offer a new theory: There is no longer any such thing as a leak. Leaks imply an exception to the legitimate flow of something, a flaw in the pipeline. However, in our current cultural and technological environment, leaks – or what would have once been considered leaks – are now the norm. They are the flow itself, not fugitives from the system.

What changed?

The universe of “leakable” material and information has expanded. Even a routine email exchange can be made to look important when it’s stripped of its context. I once had emails offering strategic advice leaked to a hostile news outlet and classified in a headline as “secret emails.” As if harmless emails between two parties were of great importance by virtue of having been confidential — and begged to be made public as if they were the Pentagon Papers. The objective was not news or the protection of the republic; it was degradation, in this case, targeted against my client.

Leaks used to require some effort and risk, not to mention tradecraft, namely photocopying documents and meeting with a media outlet in a furtive location without being caught. Today, all it takes is a thumb drive, a text from a burner phone or an email from a burner account. 

Another factor is that there’s less institutional loyalty now: Gone are the days when you joined a company after high school or college and stayed for life. Somebody doesn’t get a promotion, and the next thing you know, The Washington Post gets a gigabyte of private data.

There are now great incentives for leaking, including fame and money. I worked on a case where one person received over $100 million for becoming a whistleblower. Not an everyday occurrence, but you get the point.

Sometimes the incentives for leaking are mundane. Instead of a $100 million whistleblower settlement, some people think what they’re working on looks cool and they want to brag about it to their friends and family. Someone not privy to sensitive or vulnerable information within an exchange may be innocently sharing it at first, only to see it ultimately get into the hands of a competitor or media outlet. 

When confronted about leaked material, media engagement rarely has a positive impact. Clients believe if they are transparent and tell the whole story in context, the press will back off the story. The opposite is usually true: they will extract more information from your detailing of the events and add paragraphs to the piece they have essentially completed. 

Suppose you assume that what was once leaks are now a part of the everyday flow of information. In that case, you’ll be better able to hedge against trouble by planning for the inevitable brush fire, limiting the number of people involved with sensitive matters, and being more cautious about what is put in writing. I have found that companies are shockingly naïve, wrongly believing that people are “on their team” by virtue of their employment or organizational affiliation. 

Non-disclosure agreements (NDAs) are worth a little, but not as much as they once were because the rewards of seeing a target stoned in the town square exceed those of keeping mum. Besides, no one ever considers a price being paid for leaks because the leakers either go unpunished or go onto perceived reward. Companies seldom take action for fear of appearing mean-spirited.

In-person (or protected video) internal communication with employees and consultants is often more effective at limiting leaks. Constantly reinforcing email, media relations and document retention policies will raise the stakes for leaking information. And while attorney-client privilege isn’t a perfect shield, if the subject matter relates to litigation, having correspondence run through external counsel can add a measure of protection.