WASHINGTON, July 20, 2014 — Everyone has secrets and everyone knows secrets. Revealing one may or may not be either wise or the correct thing to do. Such an action may be required or it may be prohibited. Revealing a secret could make you wealthy or it might land you in jail.
Both the decision to share our own or to disclose someone else’s secret is actually a natural human experience, even a need. We are communal.
Three may keep a secret, if two of them are dead. – Benjamin Franklin
Keeping a secret can save a country or a marriage. You have the right to lie (First Amendment, U.S. Constitution) or to remain silent (Fifth Amendment).
In courtrooms, you swear to tell the truth. Lying can land you in jail. The government can demand the truth. As well, the government must disclose what might be its own secrets, thanks to the passage in 1967 of the Freedom of Information Act (FOIA). The Act requires disclosure of previously unreleased information and documents held by the government upon request, unless releasing this information would be a threat to national security.
Also in courtrooms, evidence rules of “privilege” serve to keep secrets for the benefit of the communicator. Spousal and clergy privileges protect the sanctity of marriage and religion. Health-care providers keep secrets to promote full disclosure on the part of their patients. Similarly, attorney-client privilege assures clients their attorneys will not reveal their mutual secrets.
Despite court orders, some reporters have refused to reveal sources and have spent time in jail. New York Times journalist Judith Miller went to jail because she would not disclose the identity of the Bush administration official that leaked the name of active CIA agent Valerie Plame to her.
The law does require some professionals to tell what they know. Domestic violence and sexual assault counselors are among actions or events covered by this provision.
In truth, all of us experience a literal lifetime of secrets and corresponding promises.
Remember those childhood “pinky-swears?” Graduating to the work world, many of us are required to sign “non-disclosure” documents pertaining to company trade secrets confidential agreements if we want a given job or continued employment.
Whether or not to keep a secret is not an uncommon problem. The choices made can be very important and can trigger life-altering consequences. Consider some of the modern world’s biggest secrets and the potential consequences of their disclosure:
- The formula for Coca Cola might be the world’s biggest corporate secret. Disclosure could cost that company−or corporate thieves−mega-trillions of dollars. (Okay, perhaps a bit less.)
- The location of Jimmy Hoffa’s remains − disclosure at the present time would probably not a big deal for whomever involved. Most likely, by now the perps are probably dead.
- The subject of singer Carly Simon’s song You’re So Vain – disclosure might be a bit embarrassing to Carly and the subject of her song.
- Are there aliens? If yes, this is a BIG secret, and disclosure would be beyond mind-boggling for many if not most. But could we visit their current or onetime home? Would Richard Branson fund that visit?
As we age, like many things, when it comes to disclosures, the choices we make become more important for us and for others:
- As children we keep our friends’ secrets − unless we do not, at which point in some cases we are no longer friends.
- School students are taught not to cheat, but some classmates do, and they ask us to remain quiet. This is often quite a dilemma for a child.
- Our friend asks for silence about his or her extra-marital affair. Another asks us to keep quiet about the fact that they are gay.
- On the job, we may witness real wrongs transpiring. We are told by our employers to keep quiet. Disclosing workplace wrongs (whistle blowing) has made some people very rich. It has also gotten others promptly terminated.
- Is failing to disclose problems in the home you are selling fraud? Some contracts provide for taking the property “as is.”
- Failing to disclose HIV to an intended sexual partner is illegal.
A recurring “issue” for actor Jim Parsons−Sheldon on the sitcom The Big Bang Theory−is the disclosure of secrets. He informs his cohorts not to tell him the information without first securing his promise to keep it secret. He laments the moral difficulty involved in keeping the secret if the information is simply spilled first.
Protecting a secret can involve any of three levels of scrutiny:
- Moral and ethical — you should protect
- Contractual — you are bound to protect
- Legal — you must protect
Sometimes there are moral issues involved in keeping quiet. We struggle and seek to justify our decision: we could disclose a given secret and create untold harm, embarrassment and additional problems. Yet disclosing might be exactly what is needed and could produce significant and valuable change.
in Decisive, How to Make Better Choices in Life and Work, Chip and Dan Heath, best selling authors of several notable books, tell us that to make decisions we should (among other things) consider the opposite carefully, avoid short-term emotional responses, honor our core priorities and prepare to be wrong.
Businesses seek to protect their secrets through signed employment contracts or through employee handbooks or manuals. Disclosure can result in being fired, or being sued. Consequences to the business can run the gamut of minor to devastating.
Some business secrets need to be revealed − criminal or dangerous practices and fraud rank among them. Disclosing other types of corporate secrets becomes one of those difficult decisions. You might get fired and sued, but you might get rich selling the story.
Finally, the law sometimes requires us to reveal secrets. When we become aware of a crime, the law requires us to disclose the culprit and the crime to the authorities. Failing to do so could result in our being charged with being an accessory after the fact.
Edward Snowden resolved for himself all three levels of scrutiny in favor of revealing documents he had access to when he was a subcontractor at the National Security Agency.
Snowden was charged with felonies for stealing government documents and giving them to journalists. The documents contained evidence of the NSA’s phone and Internet surveillance programs. According to the criminal complaint, Snowden was charged with theft, unauthorized communication of national defense information, and willful communication of classified communications intelligence information to an unauthorized person .
Sometimes the law is not clear (enabling this author and other attorneys to continue being gainfully employed). Following Snowden’s disclosures, U.S. District Judge Richard Leon ruled the NSA’s “almost Orwellian” bulk collection of phone records “almost certainly violated the Fourth Amendment.” A different federal judge found the NSA program lawful.
NSA documents are now available in a searchable database. In April, 2014, an announcement from the NSA read:
The fact is that most of the documents contained in this database should have never been secret in the first place. Now, with newfound access to these records, we can educate ourselves about the true nature and scope of government surveillance in its many forms. This database will serve as a critical tool with which we will hold our government accountable.
Snowden violated some contractual agreements relative to his security clearance, but it remains to be seen if he broke the law. Prosecutors may have a difficult time proving that Snowden intended to harm the U.S. (a requirement) or that his disclosures harmed the defense of the country (also a requirement to be proven to get a conviction). Many believe revealing people’s personal computer information that was being indiscriminately gathered and stored by the NSA was a good thing, and certainly not damaging to the defense of the U.S.
Bank secrecy laws? Probably best to disclose your overseas assets. In the 21st century, it seems, the issue of keeping secrets−or not−never seems to end.
Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980. He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website.
His new book “Who Will Pay My Auto Accident Bills?, The Most Comprehensive Nationwide Auto Accident Resolution Book, Ever” can be reviewed on http://www.completeaccidentbook.com and can be ordered there, or obtained directly on Amazon: Click here to order
Mr. Samakow’s “Don’t Text and Drive” campaign, El Textarudo, has become nationally recognized. Please visit the website http://www.textarudo.com and “like” the concept on the Facebook page http://www.facebook.com/textarudo.