Misuse of Confidential Information - A Public Service Announcement

[PacMan]

Regarding his accepting and publishing confidential information, on June 15, 2018, at 10:10am on a prior thread, FearlessFixxer (Brian McKnight) opined and then conceded "We have done nothing illegal and we take precautions to break the law."

Yes.  He really did say that he takes "precautions to break the law."  I offer the following to support his concession:

Under Utah law, agents and employees owe their employers fiduciary duties.  See Prince, Yeates & Geldzahler v. Young, 2004 UT 26, P 21, 94 P.3d 179.  Among these are the duties of loyalty and confidentiality.  Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107 , P 53.  “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.”  Farm Bureau Life Ins. Co. v. American Nat. Ins. Co., 505 F.Supp.2d 1178, 1189 (D. Utah 2007).  That's called aiding and abetting.

Now, Mr. McKnight admitted to John Dehlin (at about the 39:39 minute mark), "I have sources that are current employees, former employees, ect., all across the board."  He knows where he's getting his information.  Thus, I cannot understand how Mormon Leaks thinks it is not aiding and abetting the breach of Church employees' fiduciary duties to their employer, e.g. duty of loyalty and confidentiality, by giving "substantial assistance or encouragement to [the employee]."

My advice to potential leakers is--don't do it.  If the Church ever filed suit, forcing Mr. McKnight to spill his sources is really easy.  He has no First Amendment protections because it all involves an employer-employee relationship having nothing to do with constitutional protections.  And don't believe Mr. McKnight's nonsense to the contrary.  For instance, Mr. McKnight states that "breaking a nondisclosure [agreement] is not an illegal act."  How foolish.  A nondisclosure agreement is a contract, and breaching a contract is illegal.  It's against the law.  That's why people sue each other over contracts.

If you are a leaker, you're a sucker and a fool.  I'd strongly recommend that you go to the Church, admit your mistake, and make amends.  Because as of right now, you're breaking the law.  And it is only a matter of time until you're going to get caught and exposed.

Quick Edit: These cases took about 2 minutes of research.  There are more...probably even more on point.

Edited June 18, 2018 by PacMan

[HappyJackWagon]

13 minutes ago, PacMan said:

Regarding his accepting and publishing confidential information, on June 15, 2018, at 10:10am on a prior thread, FearlessFixxer (Brian McKnight) opined and then conceded "We have done nothing illegal and we take precautions to break the law."

Yes.  He really did say that he takes 1-"precautions to break the law."  I offer the following to support his concession:

Under Utah law, agents and employees owe their employers fiduciary duties.  See Prince, Yeates & Geldzahler v. Young, 2004 UT 26, P 21, 94 P.3d 179.  Among these are the duties of loyalty and confidentiality.  Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107 , P 53.  “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.”  Farm Bureau Life Ins. Co. v. American Nat. Ins. Co., 505 F.Supp.2d 1178, 1189 (D. Utah 2007).  That's called aiding and abetting.

Now, Mr. McKnight admitted to John Dehlin (at about the 39:39 minute mark), "I have sources that are current employees, former employees, ect., all across the board."  He knows where he's getting his information.  Thus, I cannot understand how Mormon Leaks thinks it is not aiding and abetting the breach of Church employees' 2-fiduciary duties to their employer, e.g. duty of loyalty and confidentiality, by giving "substantial assistance or encouragement to [the employee]."

My advice to potential leakers is--don't do it.  If the Church ever filed suit, 3-forcing Mr. McKnight to spill his sources is really easy.  He has no First Amendment protections because it all involves an employer-employee relationship having nothing to do with constitutional protections.  And don't believe Mr. McKnight's nonsense to the contrary.  For instance, Mr. McKnight states that "breaking a nondisclosure [agreement] is not an illegal act."  How foolish.  4-A nondisclosure agreement is a contract, and breaching a contract is illegal.  It's against the law.  That's why people sue each other over contracts.

If you are a leaker, you're a sucker and a fool.  I'd strongly recommend that you go to the Church, admit your mistake, and make amends.  Because as of right now, you're breaking the law.  5-And it is only a matter of time until you're going to get caught and exposed.

1- Obviously a typo. I'm quite certain he intended to say "not". Thanks for offering the benefit of the doubt on something so obvious

2- I don't think "fiduciary" is the word you're looking for here. Usually fiduciary refers to a financial responsibility between a trustee and a beneficiary but I'll give you the benefit of the doubt and assume it was a simple mistake. No biggie.

 

Quote

fi·du·ci·ar·y

ADJECTIVE

law

1. involving trust, especially with regard to the relationship between a trustee and a beneficiary.

   "the company has a fiduciary duty to shareholders"

3- I don't know if this would be easy or not but I've gotta think that if it were easy, it would have been done by now.

4- Are you an attorney? I'm not. But again I think you are overreaching with your phrasing. I don't think breach of a contract is "illegal". Are you suggesting that a person who breaches an employment contract with the church would risk jail? I'd love to hear from an attorney who could explain how a person breaching an employment contract with the church is illegal. Is that person breaking the law?

5- Scare tactics much?

I find this entire post to be absurd, yet I'm willing to be shown why I am wrong. We have many knowledgeable attorneys on this board and I'd love to hear from them. I'm not suggesting that a person who signs a contract doesn't have a responsibility to the contract, but it seems like calling it illegal is a step too far.

[smac97]

23 minutes ago, PacMan said:

Regarding his accepting and publishing confidential information, on June 15, 2018, at 10:10am on a prior thread, FearlessFixxer (Brian McKnight) opined and then conceded "We have done nothing illegal and we take precautions to break the law."

Yes.  He really did say that he takes "precautions to break the law." 

More likely an inadvertent omission of "not" between "to" and "break."

23 minutes ago, PacMan said:

I offer the following to support his concession:

Under Utah law, agents and employees owe their employers fiduciary duties.  See Prince, Yeates & Geldzahler v. Young, 2004 UT 26, P 21, 94 P.3d 179.  Among these are the duties of loyalty and confidentiality.  Kilpatrick v. Wiley, Rein & Fielding, 2001 UT 107 , P 53.  “For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself.”  Farm Bureau Life Ins. Co. v. American Nat. Ins. Co., 505 F.Supp.2d 1178, 1189 (D. Utah 2007).  That's called aiding and abetting.

Now, Mr. McKnight admitted to John Dehlin (at about the 39:39 minute mark), "I have sources that are current employees, former employees, ect., all across the board."  He knows where he's getting his information. 

Strange that Mr. McKnight wants to have it both ways.  He wants to assure his audience A) that he vets is sources, but also B) that his website is specifically set up to facilitate anonymous sources.  See here (emphases added):

Quote

MormonLeaks™ uses SecureDrop, an open-source submission system that allows us to securely accept documents from and communicate with anonymous sources. This system is also used by many news organizations including the Washington Post, the Guardian, the New York Times, and many more.

SecureDrop requires the use of the Tor network, a hidden network within the Internet that better protects your privacy and identity. Intimidated? Don’t be! Here’s how to use Tor to submit to MormonLeaks™ in 5 simple steps:

1. Go here and download Tor for your respective operating system.
2. Run the downloaded installer and walk through the installation process.
3. Run the application called “Tor Browser” on your machine.
4. Click the button that says “Connect”.
5. Browse to efeip5ekoqi4upkz.onion in the Tor Browser and submit those documents!

If you need more help specific to your operating system, the EFF has provided more detailed directions for Windows here and for macOS here.

Documents submitted to MormonLeaks™ are encrypted in transit and at rest on our servers. No identifying information about the source, their computer, IP address, or browser is logged.

Mr. McKnight knows that he is facilitating and encouraging "current employees" of the Church to breach their fiduciary duties to their employer.

23 minutes ago, PacMan said:

Thus, I cannot understand how Mormon Leaks thinks it is not aiding and abetting the breach of Church employees' fiduciary duties to their employer, e.g. duty of loyalty and confidentiality, by giving "substantial assistance or encouragement to [the employee]."

I think the answer is fairly clear: Mr. McKnight knows he is "aiding and abetting the breach of Church employees' fiduciary duties to their employer."

He just doesn't care.  Or even worse than that, that is precisely what he wants.

Quote

My advice to potential leakers is--don't do it.  If the Church ever filed suit, forcing Mr. McKnight to spill his sources is really easy.  He has no First Amendment protections because it all involves an employer-employee relationship having nothing to do with constitutional protections.  And don't believe Mr. McKnight's nonsense to the contrary.  For instance, Mr. McKnight states that "breaking a nondisclosure [agreement] is not an illegal act."  How foolish.  A nondisclosure agreement is a contract, and breaching a contract is illegal.  It's against the law.  That's why people sue each other over contracts.

If you are a leaker, you're a sucker and a fool.  I'd strongly recommend that you go to the Church, admit your mistake, and make amends.  Because as of right now, you're breaking the law.  And it is only a matter of time until you're going to get caught and exposed.

I am interested to see if the Church will ever proceed against him.

Thanks,

-Smac

[Gray]

I suspect the OP is right. If it ever came down to it, I think MormonLeaks could be in legal jeopardy.

[smac97]

9 minutes ago, HappyJackWagon said:

1- Obviously a typo. I'm quite certain he intended to say "not". Thanks for offering the benefit of the doubt on something so obvious

I don't think Mr. McKnight deserves the benefit of the doubt.

9 minutes ago, HappyJackWagon said:

2- I don't think "fiduciary" is the word you're looking for here. Usually fiduciary refers to a financial responsibility between a trustee and a beneficiary but I'll give you the benefit of the doubt and assume it was a simple mistake. No biggie.

You may have a point here.  The case cited in the OP pertains to a fiduciary duty owed by an attorney.  "{W}e impose upon members of our bar a fiduciary duty that encompasses the obligation to not compete with their employer, which we define as any law firm or legal services provider who may employ them in a legal capacity, without the employer's prior knowledge and agreement."

Lawyers have a fiduciary duty, that much is clear.  But do other types of employees have such a duty?  I'll need to look into it.

9 minutes ago, HappyJackWagon said:

3- I don't know if this would be easy or not but I've gotta think that if it were easy, it would have been done by now.

4- Are you an attorney? I'm not. But again I think you are overreaching with your phrasing. I don't think breach of a contract is "illegal". Are you suggesting that a person who breaches an employment contract with the church would risk jail?

"Illegal" means "against the law."  It doesn't necessarily mean "a violation of criminal statute."  It can encompass civil wrongs, such as a breach of contract.

9 minutes ago, HappyJackWagon said:

I'd love to hear from an attorney who could explain how a person breaching an employment contract with the church is illegal. Is that person breaking the law?

Yes.

9 minutes ago, HappyJackWagon said:

5- Scare tactics much?

I find this entire post to be absurd, yet I'm willing to be shown why I am wrong. We have many knowledgeable attorneys on this board and I'd love to hear from them. I'm not suggesting that a person who signs a contract doesn't have a responsibility to the contract, but it seems like calling it illegal is a step too far.

In most contexts, a breach of an employment agreement is unlawful.  Not criminal, but unlawful.

Thanks,

-Smac

[PacMan]

HappyJackWagon,

1. He said it, not me.  And if it's a typo, every leaker that he's making promises to should realize he speaks in typos with egregiously different meanings.

2. Fiduciary duty is EXACTLY the term that I intended to use--because it's what the court cases use.  If you believe fiduciary is limited to one context, you are very sorely mistaken.

3. No.  It would be in context of an order to compel disclosure during a civil case.  That hasn't happened...yet.

4. Again, you are wrong.  Contracts are constitutionally recognized, supported, and codified.  To break a contract is to violate the law.  It is not criminal, but it is illegal.  That's precisely why the courts can adjudicate them.  And this makes sense.  In a contract you are making a legally binding promise.  If you break your promise, you are breaking that legally binding promise.  It's quintessentially, illegal.

5. Scare tactics or not, it's the truth.

If you find this entire post absurd, then I sincerely invite you to go away.

 

[SouthernMo]

4 minutes ago, smac97 said:

I am interested to see if the Church will ever proceed against him.

Agreed - it will be interesting. I hope the LDS church’s lawyers are wise in advising the pros and cons of pursuing the breaches and publications.

[PacMan]

Smac,

Thanks for your comments.  I will make one of my own.  You say:

"The case cited in the OP pertains to a fiduciary duty owed by an attorney."

That's true, but if you look at the citation the law is not limited to that owed by an attorney but speaks to the broader employer-employee context.  There is significant case law on this subject.

[smac97]

4 minutes ago, PacMan said:

Smac,

Thanks for your comments.  I will make one of my own.  You say:

"The case cited in the OP pertains to a fiduciary duty owed by an attorney."

That's true, but if you look at the citation the law is not limited to that owed by an attorney but speaks to the broader employer-employee context.  There is significant case law on this subject.

You're probably right. I guess the next question would be what sort of the First Amendment protections would mr. McKnight be able to claim as a journalist?

[HappyJackWagon]

11 minutes ago, PacMan said:

HappyJackWagon,

1. He said it, not me.  And if it's a typo, every leaker that he's making promises to should realize he speaks in typos with egregiously different meanings.

2. Fiduciary duty is EXACTLY the term that I intended to use--because it's what the court cases use.  If you believe fiduciary is limited to one context, you are very sorely mistaken.

3. No.  It would be in context of an order to compel disclosure during a civil case.  That hasn't happened...yet.

4. Again, you are wrong.  Contracts are constitutionally recognized, supported, and codified.  To break a contract is to violate the law.  It is not criminal, but it is illegal.  That's precisely why the courts can adjudicate them.  And this makes sense.  In a contract you are making a legally binding promise.  If you break your promise, you are breaking that legally binding promise.  It's quintessentially, illegal.

5. Scare tactics or not, it's the truth.

If you find this entire post absurd, then I sincerely invite you to go away.

 

I can accept when I'm wrong. Like I said, I'm not an attorney but I suppose I simply find it hard to trust someone who has such an obvious ax to grind. You seem quite bitter and eager to burn the guy at the stake. That level of disapproval seems to border on hate. Anger and the dark side are not your friends. You may want to take a few deep breaths. Everything will be ok.

Thank you for your invitation to leave your discussion but I think I'll stick around for a while.  Why so sensitive?

[smac97]

6 minutes ago, HappyJackWagon said:

I can accept when I'm wrong. Like I said, I'm not an attorney but I suppose I simply find it hard to trust someone who has such an obvious ax to grind.

Are you referencing Pac-Man here? Or mr. McKnight?

Quote

You seem quite bitter and eager to burn the guy at the stake.

I find nothing honorable in encouraging other people to violate their employers' trust in them, or in encouraging them to violate contracts they have signed.

Quote

That level of disapproval seems to border on hate. Anger and the dark side are not your friends. You may want to take a few deep breaths. Everything will be ok.

Speaking of overwrought rhetoric ...

Hate? Anger?  Nah.

Quote

Thank you for your invitation to leave your discussion but I think I'll stick around for a while.  Why so sensitive?

I think that part was a bit over-the-top. I hope you stay.

Edited June 18, 2018 by smac97

[Thinking]

I think there's a difference between breaking an employment or civil contract and breaking the law. If I break an employment contract my employee can terminate my employment. If I sign a nondisclosure agreement, then choose to disclose, I will forfeit whatever benefit I received as part of the NDA. Please correct me if I'm wrong.

[ALarson]

44 minutes ago, PacMan said:

1. He said it, not me.  And if it's a typo, every leaker that he's making promises to should realize he speaks in typos with egregiously different meanings.

Ummm....ok. 

You're actually just drawing more attention to McKnight by your over the top reactions here, IMO.

Also, with the excellent, thorough attorneys employed by the church, I have to believe if McKnight had broken the law, they would have already taken legal action against him (or have possibly tried and failed....I don't know).  Or maybe they are smart enough to not take legal action because that would just draw more attention to McKnight?

Edited June 18, 2018 by ALarson

[ALarson]

1 hour ago, PacMan said:

Regarding his accepting and publishing confidential information, on June 15, 2018, at 10:10am on a prior thread, FearlessFixxer (Brian McKnight) opined and then conceded "We have done nothing illegal and we take precautions to break the law."

Oh....I thought you were talking about Ryan McKnight!  (Or is that just a typo....an error....or what?)

[RevTestament]

12 minutes ago, PacMan said:

Smac,

Thanks for your comments.  I will make one of my own.  You say:

"The case cited in the OP pertains to a fiduciary duty owed by an attorney."

That's true, but if you look at the citation the law is not limited to that owed by an attorney but speaks to the broader employer-employee context.  There is significant case law on this subject.

Employees generally owe no duties to an employer beyond those understood between them when hired. They don't owe any duty to later do whatever the employer wants. If they come to a disagreement, they are free to terminate the relationship, although the employer may sustain additional expenses that way. However, corporate officers can have certain fiduciary duties by virtue of their office. A chief financial officer for instance would have a duty not to publicly spill all the employers financial information. Presidents, etc have certain fiduciary duties by virtue of acting as an agent of the corporation. 

However, once such information is made public, I don't know there is any such duty imposed upon information outlets. Newspaper reporters don't have a duty to ensure the corporate president is not breaking their fiduciary duties. Mr. McKnight can be likened to a newspaper.

25 minutes ago, smac97 said:

Lawyers have a fiduciary duty, that much is clear.  But do other types of employees have such a duty?  I'll need to look into it.

Yes, see above. There are contractual duties in employment relationships, and corporate officers do have certain fiduciary duties. That is corporate law.

However, although a church employee may be breaking the law, I don't yet see a law Mr. McKnight is breaking. To even have a case, they would certainly have to prove Mr McKnight knows these anonymous informants are breaking the law. I don't think that would be easy. However, the Church might be able to get some kind of cease and desist order, if it proves to a judge someone is breaking the law by leaking confidential Church information. Proving damage may prove a sticky issue though.

[RevTestament]

14 minutes ago, Thinking said:

I think there's a difference between breaking an employment or civil contract and breaking the law. If I break an employment contract my employee can terminate my employment. If I sign a nondisclosure agreement, then choose to disclose, I will forfeit whatever benefit I received as part of the NDA. Please correct me if I'm wrong.

Contracts are legal and binding agreements. Breaking them is breaking the law, and subjects one to not only contractual, but possibly other legal and financial penalties.

[HappyJackWagon]

13 minutes ago, smac97 said:

Are you referencing Pac-Man here? Or mr. McKnight?

Yes    Specifically Pac Man here.

I find nothing honorable in encouraging other people to violate their employers' trust in them, or in encouraging them to violate contracts they have signed.

I can appreciate that POV

Speaking of overwrought rhetoric ...

Obviously we are reading Pac Man differently, and that's fine. But I only see bitterness and anger. Hate? Seems that way to me. Would it be softer to say it appears he despises McKnight?

Hate? Anger?  Nah.

Agree to disagree

I think that part was a bit over-the-top. I hope you stay.

Thanks

Some may call it a double standard that a critic is calling for greater civility from the faithful. And maybe it is to a degree. But I honestly expect greater civility from someone professing to be a faithful believer than I am from McKnight. I don't know McKnight and don't necessarily like some of his tactics, but Pac Man's tone riles me up to defend a guy I have no reason to defend. I've leveled this critique at apologists in the past, but the tone of what is said often does more damage than any rightness of the argument. IMO it would show wisdom to recognize that. Pac Man has some legitimate gripes but his anger is showing and that is a massive turn off.

[Exiled]

I don't think the church will be suing Mr. McKnight any time soon.  They don't want to give him the publicity/legitimacy a very public trial would bring.  It would be too easy to cast the church in a bad light.  I think society at large, maybe not in Utah, but elsewhere, view with suspicion a church that wants to keep its policies and finances a secret.  It would be a mistake in my opinion.  The church should rather tighten up its internal secrecy procedures as they have most assuredly already done and try to starve Mr. McKnight of quality leaks.

[Gray]

39 minutes ago, smac97 said:

You're probably right. I guess the next question would be what sort of the First Amendment protections would mr. McKnight be able to claim as a journalist?

Good question. Personally I don't think MormonLeaks is anything like real journalism, any more than WikiLeaks is. Real journalism isn't about just leaking secrets, it's about reporting the news. Real journalists do have sources who leak things to them, but their reporting goes way beyond just that. 

I have no idea how the law would differentiate though.

[provoman]

2 minutes ago, Gray said:

Good question. Personally I don't think MormonLeaks is anything like real journalism, any more than WikiLeaks is. Real journalism isn't about just leaking secrets, it's about reporting the news. Real journalists do have sources who leak things to them, but their reporting goes way beyond just that. 

I have no idea how the law would differentiate though.

I imagine "journalist" is the claim, but then what makes a person a journalist.

[Amulek]

15 minutes ago, Thinking said:

I think there's a difference between breaking an employment or civil contract and breaking the law. If I break an employment contract my employee can terminate my employment. If I sign a nondisclosure agreement, then choose to disclose, I will forfeit whatever benefit I received as part of the NDA. Please correct me if I'm wrong.

NDA's are covered by contract law. If you violate an NDA you won't go to jail or anything, but you can be sued for damages. If the damages are spelled out in the NDA, then you're sunk. Otherwise, the person (entity) suing you will have to prove damages. Either way, it will probably be financially costly for you. Also, since the internet is kind of like an elephant (in the sense that it never forgets), it's also something that will follow you around for the rest of your career. 

[Scott Lloyd]

53 minutes ago, smac97 said:

You're probably right. I guess the next question would be what sort of the First Amendment protections would mr. McKnight be able to claim as a journalist?

The concept of “reporter privilege” statutes became common in the 1970s in the wake of the Watergate episode. Not sure if Utah ever enacted one. I doubt it. Don’t  recall whether McKnight lives in Utah. 

[Scott Lloyd]

45 minutes ago, Thinking said:

I think there's a difference between breaking an employment or civil contract and breaking the law. If I break an employment contract my employee can terminate my employment. If I sign a nondisclosure agreement, then choose to disclose, I will forfeit whatever benefit I received as part of the NDA. Please correct me if I'm wrong.

Contracts carry the force of law. Ergo, breaching one is unlawful. Otherwise the judicial system would not be involved in adjudicating breach of contract. As has been pointed out here it is a civil, not a criminal matter, but a mattter of law nonetheless. 

[HappyJackWagon]

5 minutes ago, Scott Lloyd said:

The concept of “reporter privilege” statutes became common in the 1970s in the wake of the Watergate episode. Not sure if Utah ever enacted one. I doubt it. Don’t  recall whether McKnight lives in Utah. 

I think he lives in Vegas

[Scott Lloyd]

37 minutes ago, ALarson said:

Ummm....ok. 

You're actually just drawing more attention to McKnight by your over the top reactions here, IMO.

Also, with the excellent, thorough attorneys employed by the church, I have to believe if McKnight had broken the law, they would have already taken legal action against him (or have possibly tried and failed....I don't know).  Or maybe they are smart enough to not take legal action because that would just draw more attention to McKnight?

It may be only a matter of time.