June 2013

                                     

The recent controversy surrounding the NSA’s surveillance programs came to head over the last few weeks when a government contractor named Edward Snowden leaked classified information to a number of media sources. Snowden was an employee of Booz Allen Hamilton, a government contractor extensively involved electronic surveillance and other related issues. Snowden made approximately $120,000 a year before taking on his “whistle blower" status. Whether you consider him a whistle blower or a traitor is up for debate. (Time magazine did an expose on Snowden and other high profile leakers and the culture of disclosure that we seem to be in the middle of last week.) 

So what can employers do to prevent leaks or disclosure/use of trade secrets?  The reality it is very tough if not next to impossible to stop a determined employee from doing these things.

In Texas, the issue of respondent superior comes up when an employee usually through some type of negligent act harms a third party. The typical case is the employee driving the company truck that is involved in a wreck resulting in a personal injury. The injured party will usually sue the employer (because that’s where the money is) but may also assert a claim against the individual employee. Often times this is used in order to defeat diversity and prevent removal of a lawsuit to federal court.

The employer may have a defense of a detour or some other type of claim where they allege that the employee was outside the course and scope of his or her employment and the employer is not liable. The injured party may also assert a claim for negligent entrustment where basically the claim is the employer trusted the employee with the vehicle without doing the requisite due diligence (background checks etc.)  to make sure that they were qualified or did not have a bad driving record.

Regardless of the claims or defenses, there is very little an employer can do to stop the rogue employee that has an agenda. I assume that Snowden signed a number of non-disclosure agreements and went through all sorts of background screenings in order to obtain appropriate security clearances to work for the NSA. Nevertheless, even with all of those policies and procedures he still decided to disclose secret information. Ultimately there is not much the employer can do other than putting the proper policies and procedures in place and creating the appropriate culture of  enforcement. There is no doubt a sophisticated employer like Booz Hamilton had these in place.

Ultimately, the employer has to put some faith in its employees to do the right thing. There will always be examples like Snowden. Fortunately for most employers they are an exception not the rule. To date, Booz Hamilton has apologized profusely to the NSA and reiterated its shock and surprise over the leaks. Snowden is in Hong Kong in an effort to place himself outside of the laws of the United States. We shall see what the US Government does terms of chasing him.

Below is recent documentary on Wikileaks that does a fantastic job of shedding light on this culture of disclosure we now appear to be in:

 

https://youtube.com/watch?v=SdezJrNaL70