... when pretty much any situation makes you wonder about the possibilities for civil litigation and criminal prosecution. When I had elective surgery, I thought about the former -- only in jest, I promise! The latter came up as well when I got this e-mail from blogger J.T.:
Lately, I've been thinking of writing a few posts demonstrating how much of a joke anti-terrorist security is. Do you guys think it's appropriate for me to give detailed instructions about how to get a gun onto a plane, how to build a car bomb, and so on?
Two different lines of precedent came to mind. The first was civil: what if someone used these instructions on how to build a car bomb, successfully killed someone, was criminally prosecuted (at which point her getting the instructions from J.T. would become known) and thus led to J.T.'s being sued for his part in the crime?
Such a case was extensively described in Rodney Smolla's Deliberate Intent: A Lawyer Tells the True Story of Murder by the Book. The book in question is Hit Man: A Technical Manual for Independent Contractors, which begins with the warning "Neither the author nor the publisher assumes responsibility for the use or misuse of information contained in the book. For informational purposes only!"
Nonetheless, the families of people killed by an independent contractor schooled in Hit Man's methods successfully overcame the First Amendment objection, and eventually settled out of court. As part of the settlement, Paladin Press stopped publishing Hit Man and destroyed its copies. This had the unintended consequence of putting Hit Man into the public domain, and it is now available on several websites.
Smolla's book is titled "Deliberate Intent" because it is on the basis of Paladin's having deliberately intended to assist and encourage people in committing murder that the plaintiffs won. At the end, Smolla (who at one point refers to the Fourth Circuit's Michael Luttig as "the Judge from Hell") admits that his side's victory may lead to cases that he deems frivolous, but distinguishes Hit Man from Natural Born Killers on the grounds that Oliver Stone did not intend for anyone to mimic the characters in his movie.
J.T. likely would win on the same argument, particularly if his posts were couched in language that made it clear that he was writing to point out the holes in our security, not to encourage people to exploit those holes. Instead of Hit Man's exhortations on how a successful killer will feel like more of a man, J.T. could talk about the freedom-hating evil-doers.
One person pointed out that perhaps a better alternative would be to write those posts and then send them to Tom Ridge, instead of publishing them on the internet. However, this would miss the purpose of drawing widespread attention to our security problems. The Department of Homeland Security presumably already knows about these holes, and hasn't figured out a way to plug them up yet. Public pressure might force the government to try harder, or at least garner ideas from the general population about how to solve the problems.
Talking about DHS brings me to the potential for criminal prosecution. I think that it is fairly small -- the past prosecutions for revealing security holes have involved people who actually breached security, and even then they haven't always been arrested. For example, ABC has twice shipped depleted uranium from overseas to test security at American ports, and both times DHS became annoyed and investigated the news organization, but didn't put anyone in prison. J.T. would not be publishing classified information, so he wouldn't even need the Pentagon Papers precedent.