Dec 13, 2010
Last week, the federal government warned its employees that the trove of diplomatic cables and other intelligence documents posted on WikiLeaks are still considered classified until they are officially declassified by an appropriate government agency. Employees and contractors who do business with the federal government were told that accessing this information on their work computers, personal computers, or portable devices was forbidden. When asked whether this meant employees would be fired for viewing the documents, a spokesperson for the Office of Management and Budget (OMB) ominously told CNN that such "breaches of protocols governing access to classified material are subject to applicable sanctions under long-standing and existing law."
The OMB warning didn't tell agencies to block employee access to the WikiLeaks site or other sites that posted the documents. But the Library of Congress did so anyway: Neither its employees nor its patrons may access the WikiLeaks site, according to the New York Times.
Now, the warning has been extended to those who aren't federal employees or contractors, but one day hope to be: Students at the Columbia School of International and Public Affairs, for example, were sent an email message from the career counseling office, informing that that an alumnus working in the State Department recommended "that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government." (Check the whole message out here.) According to CNN, students at Georgetown and Boston University received similar messages.
These warnings have led to a lot of lively online discussion about free speech and the importance of allowing open debate of ideas, particularly in an academic setting. They've also led to some talk about how private employers might treat the same issue, particularly whether an employer might be legally justified in firing or refusing to hire someone who posted links to WikiLeaks or supported the group's policies on social networking sites.
My two cents is that even though such a rule might be legal, it's tough to see why a company would want to go this route, given the resulting bad publicity and poor morale that would almost certainly result. Contrary to popular belief, the First Amendment protects us from governmental action or restriction only: It doesn't prohibit private employers from putting limits on speech. Other laws might, however. As I posted recently, the NLRB has said that private employers can't restrict employees from communicating with each other about the terms and conditions of employment, even if that communication takes place on a public website. And some states prohibit employers from taking action against employees based on their political beliefs, or on any legal activities they choose to engage in during their private time. In these states, a "no posting about WikiLeaks" rule wouldn't pass legal muster.