Your Work Product Isn’t Yours

My older brother is a genius. No hyperbole, a legit genius. During the time he was working for Hewlett-Packard, eventually ending up as the head of one of Hewlett-Packard’s two research labs, he made a number of discoveries and advances which were patented.

However, none of the patents were in his name. Instead, because they were part of what is called his “work product”, they belonged to his employer. His patents were done in the normal course of Hewlett-Packard’s business, created on company time by a company employee using company computers and resources, so guess what?

They belonged to Hewlett-Packard, not to my brother.

This is pretty much standard in the world of business and government. The work you do on your employer’s time in the course of doing your employers business and typically using your employer’s offices, cars, computers and the like is called your “work product”, and in most situations, it is the property of your employer.

And that can extend even to work that you might do in your own home on your own computer on your own time. For example, my brother could have written up the patent applications on his own computer at home after work hours, but that would have made no difference. The patents were created in the normal course of his job and his work, and because of that, they are work product owned by the company regardless of where and how he wrote them down.

I bring this up because I watched Jim Comey spin his tales yesterday, and it was fascinating. Among other things, he said that he himself leaked the content of one of his memos to the media. So the question comes up … who owns the Comey memos?

Here was his story. He said he started the memos after his first meeting with the President. He said that he wrote the first memo immediately after the meeting, on a government computer in a government car.

So … the memo was done on FBI time on an FBI computer in an FBI car in the course of his normal FBI business duties … yes, folks, the Comey memos are clearly a part of Comey’s work product. And as such, they do NOT belong to Jim—they are US Government property.

As a result, was it legal for him to take the memos with him when he left the FBI, to convert the memos into political tools for his own use and gain, and to leak them as and when he sees fit?

Absolutely not. Here is the relevant statute.

18 U.S. Code § 641 – Public money, property or records

Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or

Whoever receives, conceals, or retains the same with intent to convert it to his use or gain, knowing it to have been embezzled, stolen, purloined or converted—

Shall be fined under this title or imprisoned not more than ten years, or both; but if the value of such property in the aggregate, combining amounts from all the counts for which the defendant is convicted in a single case, does not exceed the sum of $1,000, he shall be fined under this title or imprisoned not more than one year, or both.

Ten years in the slammer, even if the documents aren’t classified … that indicates how seriously this can be taken.

However, it gets worse. In addition to the US Code 8 USC 641 making his taking and leaking of the memos illegal, the FBI Director also signs confidentiality documents just like any other FBI agent. Inter alia, they say that what happens in the FBI, MUST stay in the FBI. The FBI Employment Agreement starts as follows:

1. Unauthorized disclosure, misuse, or negligent handling of information contained in the files, electronic or paper, of the FBI or which I may acquire as an employee of the FBI could impair national security, place human life in jeopardy, result in the denial of due process, prevent the FBI from effectively discharging its responsibilities, or violate federal law. I understand that by being granted access to such information, I am accepting a position of special trust and am obligated to protect such information from unauthorized disclosure.

2. All information acquired by me in connection with my official duties with the FBI and all official material to which I have access remain the property of the United States of America. I will surrender upon demand by the FBI, or upon my separation from the FBI, all materials containing FBI information in my possession.

3. I will not reveal, by any means, any information or material from or related to FBI files or any other information acquired by virtue of my official employment to any unauthorized recipient without prior official written authorization by the FBI.

4. Prior to making any disclosure, I will seek a determination of whether the information may be disclosed.

A couple of points. Comey is prohibited from revealing any information acquired by virtue of his official employment with the FBI … which obviously includes the memos. Also, you can see in there that nothing changes when you leave the agency. Everything remains the property of the US Government.

Here are the things that an FBI employee cannot release.

PROHIBITED DISCLOSURES

Employees shall not disclose the following types of information to unauthorized recipients, except in the performance of official duties or as authorized under the Prepublication Review process.

Information protected from disclosure by the Privacy Act of 1974, as amended;

Information that is classified or the disclosure of which could harm national security;

Information that reveals sensitive law enforcement, intelligence, counterintelligence, or counterterrorism techniques,sources, or methods of the FBI or any other governmental entity;

Information that would reveal grand jury material protected from disclosure by Rule 6(e) of the Federal Rules of Criminal Procedure;

Information that would tend to reveal the identity of a confidential source or the identity of a government agency or authority or private institution which furnished information on a confidential basis;

Information that relates to any sensitive operational details or the substantive merits of any ongoing or open investigation or case;

Proprietary information and trade secrets;

Information pertaining to wiretaps or intercepts, electronic communications (including storage mechanisms), or foreign intelligence protected or regulated by Title III (Title 18, United States Code, Sections 2510 -2520) or F.I.S.A. (Title 50, United States Code, Sections 1801-1862);

Information pertaining to currency transaction reports regulated or protected by Title 31, United States Code, Section 5313-5319;

Tax return information regulated or protected by Title 26, United States Code, Section 6103;

Information pertaining to contractor bids or proposals or source-selection information before the award of the procurement contract to which the information relates;

Any other information the disclosure of which is prohibited by law, Executive Order, or regulation; or

Any other information that the FBI would have discretion to withhold from disclosure pursuant to civil discovery obligations, the Freedom of Information Act and Privacy Act, or any other statute, law, or regulation.

Assuredly, records of a confidential meeting between the FBI Director and the President fall under the category of “PROHIBITED DISCLOSURES”, for the last listed reason if for no other.

Now, I keep hearing that Comey did nothing wrong because it was not classified information. This is not true at all. Both 8 USC 641 and the FBI Employment Agreement clearly say that it doesn’t matter if the information is classified or not. An FBI employee can’t take their work product with them, nor can they reveal it. It’s not theirs to take, nor is it theirs to reveal. It belongs to the government, classified or not.

And I keep hearing “It’s not leaking, he’s a private citizen.” But his FBI Employment Agreement, which he signed, says that no, he cannot take whatever he wants with him when he leaves the employ of the US. What happens in the FBI is legally required to stay in the FBI, even after he leaves the agency. Otherwise, any ex-agent could reveal anything they wished, and that wouldn’t work at all.

Now, what Comey did are CRIMES. Read the quoted sections of the law and the FBI Agreement, they’re quite clear. It was a CRIME for Comey to take the memos with him, whether or not they are classified. It was a separate CRIME to reveal them to the public, whether or not they are classified. And if you want what is called “consciousness of guilt” as an element of the crime … consider that Comey didn’t stand up and expose the memos himself. Instead, he took the secret path of passing them to a friend (who also broke the law) with instructions to pass them to the media. Brings up my rule of thumb that if a man is hiding something … it’s because he has something to hide.

Look, if we say Comey was innocent of leaking because he wrote the memos, it would mean that anybody could write up their own notes of any confidential Government meeting and LEGALLY leak them to the media under the bogus claim that the notes were their own personal property. Surely nobody thinks that is the case.

Let me close by quoting a bit more from the FBI Employment Agreement (emphasis mine) signed by Comey:

7. Violations of this employment agreement may constitute cause for revocation of my security clearance, subject me to criminal sanction, disciplinary action by the FBI, including dismissal, and subject me to personal liability in a civil action at law …

It’s not just a good idea … it’s the law, with both criminal and civil sanctions.

I do find it hugely ironic that James Comey, who unilaterally said that it was no problem for Secretary Clinton to mishandle classified documents, sees no problem with his purloining FBI-owned notes of confidential Presidential meetings and leaking them to the public. Talk about hubris and arrogance! But I suppose that for the man who illegally appointed himself the Prosecutor, Judge, and Jury on the Clinton server case, this is just another day in the life.

Will Comey pay the price for his crimes? Likely not. There’s one law for the rich and one for the poor, and the Democrats have enfolded him to their bosom. So he’ll probably skate.

Ah, well. Meanwhile, in the real world, we got a very late storm yesterday with an inch and a half (40 mm) of rain. So despite man’s multifold insanities and inanities, the rain continues to fall on the just and the unjust alike, the grass continues its forgiving growth, and the universe is most probably unfolding just as it should …

My best to everyone,

w.