What laws might be broken if someone created a non-redacted version of the Muller Report?

That is, suppose they wrote a version of the redacted portions and claimed they have no idea if it's the actual wording, it was received by an anonymous source.

Suppose furthermore the individual is not a US citizen.

My reason for asking is that I'm simply wondering why that doesn't happen?

Could one claim it's a parody? Could one claim they saw the redacted texts through psychic power?

(No this is not a troll question. I want to understand how law and freedom of speech interact.)

  • Check this out law.stackexchange.com/questions/39297/… – Putvi Apr 29 '19 at 18:59
  • I think this is a very interesting question. The same could be asked of parodies of National Security Secrets. If the government takes action, then it is more or less confirming that the parody is accurate - which is a more devastating leak than the parody itself. – emory Apr 29 '19 at 20:54
  • So what you're saying is that you want to take the Mueller report, play Mad Libs with the redacted parts, and release it as a sort of humor bit for parody/satire? – hszmv Apr 29 '19 at 21:07
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    Are you talking about a blatantly fake version, or about a plausibly real version published under a claim that it is, or might be, a fake? Or about an actually accurate version published undewr such a claim? The question is not clear on that. – David Siegel Apr 29 '19 at 22:26
  • Yes David. False. – Randy Zeitman Apr 29 '19 at 23:35

I understand the question to be about making up text to go in the blacked out areas - not purporting to be factual. That would not have anything to do with national secrets and would not be any problem.

Also - the title of the question asks about the legality of publishing. Publishing is not a problem in the U.S. See the Pentagon Papers case, etc. It is the creating, authoring, stealing actions that are a question.

  • Can the author make no statement about it being factual or not since they can't possibly know themselves until the non-redacted portions are available? – Randy Zeitman Apr 29 '19 at 23:40
  • the author can say that they made up the text and have no idea if it relates at all to the actual, invisible text. Or are you saying it really is a stolen version of the redacted text but is attempting to get plausible deniability by claiming it is just a coincidence that the text that was made up turns out to match the redacted material? It would be a very short-lived plausibility. – George White Apr 29 '19 at 23:50

Such a release would not be handled as a matter of copyright infringement or IP, but a s a matter of a violation of secrecy laws. In particular, if it is claimed that some of the content would imperil national security if made public, it could be classified, and unauthorized release would be a crime. This was the claim made in the famous Pentagon Papers case.

Indeed, as a comment points out, the report is a "work of the United States Government" because it was created by government employees (Muller and his staff) within the scope of their employment. As such it is totally ineligible for copyright under US law.

Also, if some of the redactions are present to protect the privacy of individuals, there would be an issue with the violation of laws protecting individual privacy.

If some of the redacted content is Grand Jury testimony (as appears rom news reports to be the case) The Federal Rules of Civil procedure 6 provide for secrecy until a court authorizes release, specifically rule 6(e)(2)(B). Disclosures may be authorized by the court, may be made under various provisions of rule 6, or may be authorized by 18 U.S.C. §3322.

There might be other laws involved as well, depending on the reasons why various content has been redacted.

Even in a copyright case, where "parody" is relevant to the issue of fair use (under US law), it is not enough to just call something a parody. It must actually be a parody. That is to say it must be a modified version of the original used to mock or comment on the original, or in some cases to comment on other issues. A parody in this sense is always a transformative use.

If the content present in place of the redacted sections were accurate, or even appeared reasonable to one not knowing the true content, it would be unlikely to be accepted as a "parody". If on the other hand the released content showed that the president's campaign team met with Donald Duck, and this was disclosed to their opponents by Batman, that would be a fairly obvious parody, perhaps commenting on taking trivial matters over seriously.

If an unauthorized person were to release what purported to be an unredacted version of the report, legal action might or might not be taken, but if it were it would not be likely to be on the basis of copyright infringement.

This answer concerns what would or might happen if someone were to publish the actual report, or an invented report that appeared to be the actual report, not an invented version that was obviously untrue. When initially asked, that is what the question seemed to be about, and it is a situation which may be of interest to some. The OP has clarified that the question was about a clearly invented or fantasy version of the report. Only the sections of this answer about copyright not applying are relevant to that situation.

  • Don't those secrecy laws target those who have permission to receive the information, those who are "bound" by the laws? My understanding is that those who have the clearances to access the information have agreed to legal restrictions, regarding to whom they may release the information: only to fellow "cleared" individuals. Someone who is not cleared is not prevented from releasing information that comes into their possession absent their own illegal actions. If the un-redacted Mueller report showed up on my doorstep tomorrow what would prevent me from releasing it? – Dave D Apr 29 '19 at 21:38
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    @Dave D 18 USC § 793(b) provides that anyone who "copies, takes, makes, or obtains,..., any ... document, writing, or note of anything connected with the national defense" commits a crime. 18 USC § 793(c) provides that anyone who "receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document ... connected with the national defense, knowing or having reason to believe,... that it has been or will be obtained...[unlawfully] " commits a crime (to be continued) – David Siegel Apr 29 '19 at 22:16
  • @Dave D 18 USC § 793(d) provides that anyone who " willfully communicates, ...[such thing] to any person not entitled to receive it, " commits a crime. 18 USC § 793(e) provides that anyone who "having unauthorized possession of, ... any document ... relating to the national defense ... willfully communicates, ... the same to any person not entitled to receive it" commits a crime. None of these sections applies only to people who have agreed to be bound, as 18 USC § 793(f) does. The full text is available online. This was the law cited in the PP case. Other laws may apply as well. – David Siegel Apr 29 '19 at 22:23
  • All the sections of 18 USC § 793 include restriction by intent, so that none of these acts is forbidden by that law unless done "with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation". What constitutes injury or advantage is not specified there. – David Siegel Apr 29 '19 at 22:38
  • "A parody in this sense is always a transformative use." Got it. – Randy Zeitman Apr 29 '19 at 23:41

The report is public domain. https://www.eff.org/takedowns/mueller-report-cant-be-copyrighted-flagged-copyright-bots-anyway

Therefore, you could make a fake version of it without worry about the original report being copyrighted.

I guess they could try to sue you for libel or slander, but that probably wouldn't go over well if you are in a different country. The U.S. and the other country would have to agree that you should be punished for whatever punishment you receive to be in effect.

  • Is the unpublished full report public domain? (How can it be.) Can the US Government be libeled or slandered? (How) – Randy Zeitman Apr 29 '19 at 23:39
  • I mean it has redactions, but whatever the government releases is public domain. – Putvi Apr 29 '19 at 23:40
  • @RandyZeitman if you take "public domain" to mean "unprotected by copyright law" then yes, the full report is public domain. That it has not been made available to the public is a separate question (under that definition of "public domain," at least). But something being in the public domain is not a prerequisite to making a fake version of it. If someone published a book that purported to be, for example, a popular novel, but the book did not contain any actual content from the real novel (or any other work), then there would be no copyright infringement. – phoog Apr 30 '19 at 14:31
  • Good deal. Can you please accept my answer then? – Putvi Apr 30 '19 at 19:38

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