Can you get fired for accessing Wikileaks from your home computer?
August 13, 2010 6:05 PM   Subscribe

Can an employer fire you, or threaten to fire you or any other employee, for accessing the Wikileaks site from a personal (non-employer) computer? You are not directly employed by the government or a member of the military, but your employer does contract you and other employees with security clearances to the government.

In other words, is it really legal to fire (or otherwise discipline) someone with a security clearance for simply reading a public website from their private home computer?

In theory, the justification would be that the information on Wikileaks is still classified, even though it's in the public domain, because a section of Executive Order 13526 says that classified info isn't automatically declassified following an unauthorized disclosure. This means that even classified information leaked all over the Internet and other media is technically still considered "classified" until it is officially declassified by a government official. So the idea is that if a person with a security clearance who has agreed to certain restrictions regarding classified information accesses Wikileaks, even from home, s/he commits a security violation by viewing classified information from a computer that isn't authorized to access classified information, or viewing classified info above their clearance level, etc.

Such a policy does not appear to make any allowance for the fact that some information on Wikileaks is presumably not classified under U.S. standards. I presume a large amount of info available at Wikileaks is leaked info from other countries to which a U.S. employee with a clearance has no obligation.

A google search shows that government units like the marines have forbidden their personnel, including not just marines but also civilians and contractors, from accessing Wikileaks from even a personal computer. Can employers outside of the military also issue such a restriction with a threat of firing (or some lesser action) for noncompliance? And, even beyond the legality of it, is it right for an employer to do so instead of just letting the government prosecute any security violations it finds offensive?

I know someone who is thinking of quitting their job over this prohibition, so your thoughts are appreciated.

And just to give the full parade of horribles here, if an employer can do this, couldn't they also forbid employees from viewing NYT or Washington Post or Fox News stories covering Wikileaks issues since these would also presumably release information that is public but still classified? I can't imagine any employer actually doing this, but doesn't it follow from the logic used to forbid someone from accessing Wikileaks itself?

Finally, what if the restriction applied not just to employees with security clearances, but all employees? I really don't understand how that restriction could be justified, since an employee without a clearance never agreed to restrict their access to classified information in the first place.
posted by anonymous to Law & Government (17 answers total) 1 user marked this as a favorite
Your employer can fire you for most any reason at all, if you're in an at-will state.
posted by killdevil at 6:18 PM on August 13, 2010 [11 favorites]

when you work with the government you have to play by the rules they want you to or they'll just find another company to do what you do. with that in mind, it's in the employers best interest to keep the government happy and satisfied. i would imagine this sort of thing is covered in HR documents/new employee paperwork/contract.

if it seems draconian to your friend, maybe government contract work (and working for companies that have contracts) isn't for them.
posted by nadawi at 6:26 PM on August 13, 2010 [1 favorite]

In most states the employer can fire you for any reason or no reason unless you have a union contract or agreement that states otherwise. Your employer would have a hard time getting access to your home computer unless you give it to them. They would have probable cause to convince a judge a warrant is necessary. The ban on wikileaks is concern over providing them information. Wikileaks did a terrible thing in my opinion and may face prosecution yet.
posted by nogero at 6:48 PM on August 13, 2010 [1 favorite]

Yes. And it would most likely be a "for cause" firing. The employees in question were (would be) accessing a resource that has data that is classified beyond their clearance. That is all kinds of violations- violating the individual employee's clearance, and the company's standing as a government contractor. It most likely violates the company's contracts with the government, and most likely violates the employment rules/contract with the company.

When you have a security clearance, it comes with an obligation to actively NOT do things that violate your level of clearance.

There is no journalistic magic bullet. The constitution only guarantees freedom of speech, and the freedom of press just means that the government can't prevent people from engaging in journalism. If in doing so, those people engage in other illegal acts, they can still be prosecuted. A reporter speeding to the scene of an accident can be given a ticket, or a reporter breaking and entering can still be arrested for trespassing. And so publishing classified information does open them up to prosecution for that, should the government choose to do so.

I mean, this is kind of like espionage.
posted by gjc at 6:58 PM on August 13, 2010 [2 favorites]

1) Your employer can fire you for any reason or no reason in most states.

2) If you have a security clearance, accessing classified material on Wikileaks is accessing classified material for which you do not have need to know, and potentially do not have sufficient clearance either. This represents a security breach, and worse yet a willing, intentional one. Even in a non-at-will state, knowing and willingly violating the terms of your clearance - which is illegal to boot - seems like a pretty good reason for your employer to fire you, given that they depend on that clearance for you to be able to do your job.
posted by Tomorrowful at 7:25 PM on August 13, 2010

Secondary issue - accessing classified material on a system that is not endorsed to handle that level of classification is also an actionable crime.
posted by Emperor SnooKloze at 8:12 PM on August 13, 2010

I don't have much to add, except to chime in that government contractors have notoriously bad job security. They can fire you for pretty much anything. It's what distinguishes you from an actual government employee*. If you're in an "at-will" state (ie. Virginia), it's even worse.

*That, and a profound lack of benefits, vacation time, or a pension.
posted by schmod at 8:59 PM on August 13, 2010

It's most likely a practical matter: people carry their laptops around traveling. What if for some far-fetched scenario it got scanned by customs, TSA, what-have-you. And something popped up marked as classified? Or if someone said hm, this is really interesting, I'm just going to email it to myself at work to finish reading later.

Just because classified material has been compromised does not make it ok to drop all controls for it. There isn't much that can be done about the general population reading the Internet, but they sure as hell can tell their own employees and contractors how classified material will be handled on and off the clock.
posted by ctmf at 10:24 PM on August 13, 2010 [1 favorite]

Yeah, what everyone else said about at-will employment. They can fire you for having an annoying voice, or for wearing the wrong color shoes, or for liking death metal, or, hell, even for being a republican if they want. Pretty much all they can't fire you for are sex, race, disability, religion, etc.

Working directly for the government would actually be much better here, in terms of ways to get out of being fired (civil service rules, first amendment claims, etc.).
posted by paultopia at 12:52 AM on August 14, 2010

Yes, and they would definitely have cause, and an individual could likely lose their clearance. (I got an email about this just the other day, and I'm not in the Marines. I think it may have gone to the entire government, or at least the entire DoD, including contractors thereof.) If the individual had no clearance to begin with, then the answer is the same except they would not lose their non-existent clearance.

Presumably your friend has a clearance and has been through indoctrination, so this is kind of a peculiar response. It might be better for him to find another job if he's that outraged about having to keep rules he's already agreed to in writing, after training and a briefing.
posted by wending my way at 3:27 AM on August 14, 2010 [1 favorite]

They can fire you...even for being a republican if they want. Pretty much all they can't fire you for are sex, race, disability, religion, etc.

...creed? As far as I can tell Washington, D.C. for example is an at-will state but they also have the District of Columbia Human Rights Act of 1977 which prohibits discrimination based on political affiliation, so at least in that specific case you couldn't be fired for being Republican.
posted by XMLicious at 5:13 AM on August 14, 2010

I presume a large amount of info available at Wikileaks is leaked info from other countries to which a U.S. employee with a clearance has no obligation.

You're ignoring bilateral and multilateral security agreements between USG and foreign governments, which "your friend" is obligated to follow since "they" have a security clearance.
posted by NotMyselfRightNow at 5:42 AM on August 14, 2010

...creed? As far as I can tell Washington, D.C. for example is an at-will state but they also have the District of Columbia Human Rights Act of 1977 which prohibits discrimination based on political affiliation, so at least in that specific case you couldn't be fired for being Republican.

The loophole employers use is to not state the actual reason for which you are being dismissed. They may not want you around because you're Republican or godless liberal, but they will simply state that your services are no longer required. In many (most?) cases, they don't really have to give you any reason for dismissal. In these case, it is up to the ex-employee to prove actual discrimination. And that's a very steep hill to climb.
posted by Thorzdad at 7:52 AM on August 14, 2010

Some of the information in wikilieaks has appeared in newspapers.
Are you not allowed to read the news either?
posted by Flood at 8:00 AM on August 14, 2010

If he really wants to read that material, he can probably request his information system security manager or equivalent in his company (if they do classified work, they have one) mirror the information on a system of the appropriate classification level and then properly control the material based on its markings. Locked safes for hard copies, etc.

Good luck with that, though. He'll (or more accurately, the ISSM will, trying to get approval from his boss) still run into need-to-know issues even if his clearance level is high enough. Not to mention the unnecessary PITA factor.

He's going to have to do the same as everyone else in his situation (me included): decide if that was a CYA announcement or a serious "PLEASE don't do this, we WILL find out" scenario. And if it's a get yelled at by someone offense or a true leave your badge here, the Marines will show you out offense. Me, I guess around here it's a CYA/slap on the wrist/PITA while you wait for your account to be reactivated whenever they damn well feel like it for doing it on work computers. At home, I judge it to be a "here's the requirement, so now you know - nobody is ever going to check" thing. Your friend's mileage at his company may vary considerably.
posted by ctmf at 10:33 AM on August 14, 2010

1) definitely legal to fire him--if he is accessing classified material. At-will still holds regardless.
2)The site-wide block, might be able to be challenged in court though as restricting information since the site also has analysis and other non-classified documents.
3) seems ridiculous, but since SC doesn't really have the due process factor, always better to be safe than sorry.
4) might want to look at what happened with the Pentagon Papers as a precedent.
posted by chinabound at 2:24 AM on August 15, 2010

SECNAV M-5510.30 [pdf] Appendix G "Adjudication Guidelines"
The Concern: Noncompliance with security regulations raises
doubt about an individual's trustworthiness, willingness, and
ability to safeguard classified information.

Conditions that could raise a security concern and may be
disqualifying include:
a. Unauthorized disclosure of classified information or
b. Violations that are deliberate or multiple or due to

Conditions that could mitigate security concerns include actions
a. Were inadvertent;
b. Were isolated or infrequent;
c. Were due to improper or inadequate training; or
d. Demonstrate a positive attitude towards the discharge of
security responsibilities.
Your friend would be flirting with disqualifying condition b. and not have a claim of mitigation a. or c. now that they have told him what the policy is WRT documents hosted by wikileaks.
posted by ctmf at 10:28 AM on August 15, 2010

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