Misuse of Confidential Information - A Public Service Announcement

[ALarson]

Just now, Scott Lloyd said:

It may be only a matter of time. 

Oh, I'm sure they're watching him.....I agree.

[Scott Lloyd]

5 minutes ago, HappyJackWagon said:

I think he lives in Vegas

The Church could bring a civil action in Utah. Would a reporter privilege statute (assuming Nevada has one) shield him in Utah? I’m not sure. 

Edited June 18, 2018 by Scott Lloyd

[Scott Lloyd]

43 minutes ago, RevTestament said:

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.

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.

I think the question is whether McKnight could be compelled in court to reveal his sources as a matter of evidence were the Church to go after someone in a civil case. If he refused, he could be jailed until he complied. It has happened before. 

[Thinking]

13 minutes ago, Scott Lloyd said:

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 matter of law nonetheless. 

This is what I was trying to say, but you said it better.

[smac97]

41 minutes ago, Gray said:

Good question. Personally I don't think MormonLeaks is anything like real journalism, any more than WikiLeaks is.

What counts as "journalism" for the purposes of First Amendment protections is all over the map.  See, e.g., here.

41 minutes ago, Gray said:

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.

It's a complex issue, and depends heavily upon the jurisdiction.  See the above link.

Thanks,

-Smac

[stemelbow]

Contracts are often two ways.  Perhaps an employee has seen his/her contract broken by the Church in some way.  Perhaps the particular leaks that any employee might have provide McKnight isn't breaking any contract he/she has with the Church at all.  We don't know which leaks are from whom.  So it'd be hard to say either way. 

McKnight has also suggested he's gotten so many things and they have to be judicious about what to leak, often for the safety and well-being of the original leaker.  

I'd say it's a good caution to put out there.  But, in the end, it likely means very little since leakers are probably already considering these things.  

[Scott Lloyd]

53 minutes ago, HappyJackWagon said:

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.

So you have not only admitted to but rationalized a double standard. I find that to be a curious, albeit common, phenomenon among critics of the Church of Jesus Christ. 

Edited June 18, 2018 by Scott Lloyd

[HappyJackWagon]

6 minutes ago, Scott Lloyd said:

So you have not only admitted to but rationalized a double standard. I find that to be a curious, albeit common, phenomenon among critics of the Church of Jesus Christ. 

What do you find curious? That I expect those claiming righteousness to be righteous?

[smac97]

52 minutes ago, HappyJackWagon said:

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.

First, I don't think your call here is a double standard.  We all get heated sometimes, but we also all strive to self-regulate our behavior here.

Second, I don't mind anyone "calling for greater civility from" Latter-day Saints.  We need to hold ourselves to a high standard of behavior.

52 minutes ago, HappyJackWagon said:

But I honestly expect greater civility from someone professing to be a faithful believer than I am from McKnight.

Nobody is questioning Mr. McKnight's civility.  We are questioning his integrity.  Inducing other people into acts of dishonesty and illegality demonstrates, in my view, a lack of integrity.  This is particularly so for an ax-grinding opponent of the LDS Church like Mr. McKnight.  I question his declarations about "transparency," particularly since virtually everything he posts is intended to incite hostility or resentment against the LDS Church, or to embarrass the the Church or make it look bad in some way.

Contrast Mr. McKnight with, say, D. Michael Quinn.  He's clearly had many critical things to say about the Church, but in the end I think he's willing to give the Church credit where credit is due.  McKnight is all about making the Church look bad.

52 minutes ago, HappyJackWagon said:

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'm not sure what it is in the OP that got you riled up.  Pac Man is substantively correct, both factually and ethically.

I would have preferred that he not invite you to go away, but apart from that his position is eminently reasonable.

52 minutes ago, HappyJackWagon said:

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.

I don's see anger or hate in the OP.  Not even close, actually.

I guess we'll have to agree to disagree.

Thanks,

-Smac

[PacMan]

1 hour 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?

None.  It is a private civil matter.  He would not be able to claim First Amendment protection for this anymore than punching someone in the face.

[Scott Lloyd]

58 minutes ago, Exiled said:

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.

The remedy is to detect the leakers and summarily terminate them. I don’t think anyone could justly fault the Church for doing that. 

[PacMan]

1 hour 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?

Good.  I want to bring attention to Mr. McKnight.  Of the variety that says, 'this guy is dangerous and you're putting yourself at risk.'

And you're wrong about the church's attorneys on two accounts.  First, the Church is not litigious.  They are going to pick their battles very, very carefully.  Second, aiding and abetting the breach of fiduciary duty is buried in case law.  It is not well developed and completely unknown by most attorneys in the state of Utah.  I'd be shocked if the church's attorney knew that the claim existed.  I hope they do now.

[Scott Lloyd]

1 hour 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.

Conceptually, I agree with you about his authenticity as a journalist. But there is no legal certification for journalists. Anyone can hang out his shingle and claim to be one, even if only freelance. 

Edited June 18, 2018 by Scott Lloyd

[PacMan]

If the claim rests on a breach of employee fiduciary duty, then aiding and abetting would also be under Utah law.

[stemelbow]

2 minutes ago, smac97 said:

First, I don't think your call here is a double standard.  We all get heated sometimes, but we also all strive to self-regulate our behavior here.

Second, I don't mind anyone "calling for greater civility from" Latter-day Saints.  We need to hold ourselves to a high standard of behavior.

Nobody is questioning Mr. McKnight's civility.  We are questioning his integrity.  Inducing other people into acts of dishonesty and illegality demonstrates, in my view, a lack of integrity.  This is particularly so for an ax-grinding opponent of the LDS Church like Mr. McKnight.  I question his declarations about "transparency," particularly since virtually everything he posts is intended to incite hostility or resentment against the LDS Church, or to embarrass the the Church or make it look bad in some way.

Contrast Mr. McKnight with, say, D. Michael Quinn.  He's clearly had many critical things to say about the Church, but in the end I think he's willing to give the Church credit where credit is due.  McKnight is all about making the Church look bad.

I'm not sure what it is in the OP that got you riled up.  Pac Man is substantively correct, both factually and ethically.

I would have preferred that he not invite you to go away, but apart from that his position is eminently reasonable.

I don's see anger or hate in the OP.  Not even close, actually.

I guess we'll have to agree to disagree.

Thanks,

-Smac

I'm not sure questioning McKnight's motives, to put it kindly as to what you've done above, helps the cause of the Church either, though.  All it really does is say, you don't like Mr. McKnight and seemingly consider him some sort of enemy.  We have yet to even know how many items, if any, of the items posted as leaks through Mormonleaks was a break of any sort of contract by anyone.  I suppose at some point we can assume someone must have broken some sort of agreement, but that'd have to be determined through the legal process.  

As of now, it appears, we have  a bunch of people who think McKnight is evil (saying he is all about making the Church look bad is akin to that), concluding based on their already determined dislike that he aid and abets illegal activity.  

[smac97]

5 minutes ago, PacMan said:

None.  It is a private civil matter.  He would not be able to claim First Amendment protection for this anymore than punching someone in the face.

I guess what I have in mind is this:

1) The Church sues McKnight re: inducing church employees to breach their employment agreements with the Church.

2) The Church sends Mr. McKnight discovery requests to compel him to turn over the identities of his "sources" who are employees in the Church.

3) The Church's discovery requests would have the coercive power of government behind them (the subpoena power).

4) Mr. McKnight resists the Church's discovery requests on First Amendment grounds, claiming that the government (the court) cannot compel him to divulge his sources because he is a journalist and entitled to First Amendment protections.

I have no experience in this area of constitutiona law, so I may be way off.

Thanks,

-Smac

[ALarson]

1 minute ago, PacMan said:

Good.  I want to bring attention to Mr. McKnight. 

Ok, that's certainly your right.

Have you listened to the interview with him?  I'd recommend doing that if you haven't as I found it to be interesting and informative.  I'll try to look for the link (it was posted here, irrc).  

[Calm]

I think it would be better to phrase it as calling for a "high standard" of civility (and integrity, etc.) from the LDS community if one is a member.  We shouldn't be choosing our behaviour on the basis of how others' behave (after all, that could mean only better than the worst and therefore still awful behaviour), but on whether the behaviour is what Christ would have us do...and generally being very civil would be his standard.

Plus some critics have high standards that we would do well to just equal.  It makes it sound like we think it unlikely for critics to behave very well generally.

Edited June 18, 2018 by Calm

[Scott Lloyd]

7 minutes ago, PacMan said:

None.  It is a private civil matter.  He would not be able to claim First Amendment protection for this anymore than punching someone in the face.

I think reporter shield statutes might have been enacted in some jurisdictions. Whether they would pass constitutional muster is, I suppose, open to debate. 

[RevTestament]

50 minutes ago, Scott Lloyd said:

I think the question is whether McKnight could be compelled in court to reveal his sources as a matter of evidence were the Church to go after someone in a civil case. If he refused, he could be jailed until he complied. It has happened before. 

One issue here is I believe the Church functions as a corporate sole. It lacks the usual corporate offices with their attendant fiduciary duties. Whatever duties employees have will probably have to be established contractually. Is there an employee breaking their contractual duties? We don't even know. We don't even really know if a lot of this information is intended to be confidential, unless it says so. So again I think the Church may be successful in some kind of cease and desist order or possibly an order to disclose sources, but either way it would probably have to prove some kind of damage being done. I don't see a judge issuing an order without that. Further, Mr McKnight seems to claim that he has set up things in a manner that he does not have any record of his sources to provide even if such an order were issued, so that particular approach I think is not going to stop him. Since he is set up as strictly a source of LDS Church information, a cease and desist order may be the best the Church could hope for against Mormonleaks. 

As you point out, probably the most effective approach is to identify the leaker(s) and terminate their employment. i view them as the more culpable or guilty party here although McKight probably has some idea of at least one source - after all, I don't think he started all this on some whim - he had someone with some info they wanted to get published on the internet.

Edited June 18, 2018 by RevTestament

[Scott Lloyd]

3 minutes ago, PacMan said:

If the claim rests on a breach of employee fiduciary duty, then aiding and abetting would also be under Utah law.

You may have a point there. I would love to see this tested in the court system. 

[smac97]

1 minute ago, stemelbow said:

I'm not sure questioning McKnight's motives, to put it kindly as to what you've done above, helps the cause of the Church either, though. 

I would have similar objections to anyone to induces other people to break the law, whether it is criminal statute, a civil statute, a contract, whatever.

1 minute ago, stemelbow said:

All it really does is say, you don't like Mr. McKnight and seemingly consider him some sort of enemy. 

All it says is that I don't like what Mr. McKnight is doing.

1 minute ago, stemelbow said:

We have yet to even know how many items, if any, of the items posted as leaks through Mormonleaks was a break of any sort of contract by anyone. 

I think it's pretty obvious that he is inducing employees of the Church to breach the Church's trust in them.  

I'll look into the legal complexities later, but the generalized concept is that I find it reprehensible for a person who dislikes a religious organization taking calculated steps to induce members of that Church to use their privileged access (through their employment by the Church) to wrongfull divulge the Church's propriety and confidential ecclesiastical and business documentation and information.

1 minute ago, stemelbow said:

I suppose at some point we can assume someone must have broken some sort of agreement, but that'd have to be determined through the legal process.  

Meanwhile we can make reasonable surmises.

1 minute ago, stemelbow said:

As of now, it appears, we have  a bunch of people who think McKnight is evil (saying he is all about making the Church look bad is akin to that), concluding based on their already determined dislike that he aid and abets illegal activity.  

I think his conduct as described above is reprehensible.  Otherwise, I don't care about him one way or another.

Thanks,

-Smac

[Exiled]

6 minutes ago, Scott Lloyd said:

The remedy is to detect the leakers and summarily terminate them. I don’t think anyone could justly fault the Church for doing that. 

They have the right to run their ship how they see fit, of course. However, my vision of a church is an organization that doesn't have too many secrets, if any.  It just seems contrary to the spirit of the sermon on the mount to strike back instead of turning the other cheek when dealing with leakers.  Besides, I don't think there have been any really shocking leaks that have been posted.  I wasn't surprised by the bubble chart video or the other videos.  Anyone who listens to church rhetoric or observes its actions couldn't have been surprised that the church was concerned by John Dehlin or Denver Snuffer.  The same goes for the recent "leak" of information regarding finances.  I wasn't surprised that the church has billions in its portfolio.  My guess is that it has a lot more wealth than that.

[Exiled]

51 minutes ago, Scott Lloyd said:

The Church could bring a civil action in Utah. Would a reporter privilege statute (assuming Nevada has one) shield him in Utah? I’m not sure. 

I think Utah would have jurisdiction and Utah law would probably govern the case.  The non-disclosure agreements the employees sign probably have a Utah forum selection clause and choice of Utah law clause and the location of any tort committed by Mr. Knight or his organization would probably be in Utah as well.

Edited June 18, 2018 by Exiled
clarification

[Scott Lloyd]

1 hour ago, Amulek said:

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. 

That’s a good point. Were I an employer I would look long and hard before hiring somebody with a record of publicizing company secrets.