One of the key concepts in every justice system is that someone who commits a crime should not benefit from any profits that result from it. The concept holds true whether we are talking about a criminal offence (for example selling stolen goods) or a civil wrong (like benefiting from a breach of contract).
In a similar fashion, there is an expectation that the wrongdoer should not write a book talking about how he went about committing the acts in question. Yet this is what Edward Snowden has done with his recently published autobiography. He’s not the first to do something like this – but that’s not going to stop the US from trying to prosecute him.
Snowden is the world’s most famous whistleblower. While working as a contractor for the US National Security Agency, Snowden stole and proceeded to release thousands of secret documents in 2013. His actions opened a pandora’s box of consequences for American intelligence agencies, the US government and its allies (and foes) around the world.
Now Snowden’s memoir, Permanent Record, has been published by Macmillan. The US government is, as expected, incensed at the idea that a man they consider to be a spy and a traitor penned something that could well be on the international bestseller lists.
Instead of going down the route of trying to ban the book, which would have been difficult domestically (as the information is already in the public domain) and pointless internationally, the US authorities have tried something else. They are suing the publisher Macmillan, seeking to seize any profits.
Drawing on the concept of no benefit from wrongdoing, they are arguing that Snowden is in breach of his contractual obligations to the US government (from the time he was employed with them) for not providing the manuscript to the authorities for approval before publication.
Not only is this clever, it has happened before in almost exactly the same way with a British spy. George Blake was an officer for the British secret intelligence services who worked as a double agent for the Soviet Union after the Korean War and fed information to the Soviets that led to a number of deaths. Despite being convicted and imprisoned by the British in 1961, he managed to escape to Russia in 1966, where he still lives. His autobiography No Other Choice was published in 1990.
The British government considered Blake’s book to be a breach of contract for including within it information which he had sworn that he would not divulge. The courts agreed with the government and Blake failed in his attempt to recover £90,000 in royalties from his British publisher. The court ruled that he could not be allowed to profit “by doing the very thing he had promised not to do” and indeed should be deprived of his profits, even though the contents of the books were no longer confidential and the crown had suffered no loss that would require compensation.
Will Edward Snowden suffer the same fate? The issues here are a mix of the legal and the political. The legal aspect is perhaps the easier one. No matter what your views are of Blake and Snowden, they have breached their obligations to their employers.
While one may not believe that the British secret services were better than the KGB or that the NSA is a force for good in the world, it is difficult to legally deny the content of a signed non-disclosure agreement. Both authors are perpetrators of wrongdoing – they breached their contracts – and should not benefit from any resulting proceeds. Their employers have a legitimate interest to prevent their unjust enrichment.
The political question is more challenging. Is this US lawsuit an assault on free speech? If a government lacks the ability to ban a publication, should it be allowed to hinder the publication of embarrassing information by taking the profits from the hands of authors or their publishers? Who is unjustly enriched in this case, Snowden or the US government?
Those who see Edward Snowden as a freedom fighter who performed a global public service at great personal cost will be dismayed by this lawsuit and its chances of success. Those of us who teach contract law, however, cannot escape the appeal of a court judgement based on respect for a deal. Having breached his deal, Snowden will now face the consequences.