Odd site to defend Peter Gleick’s exposing of Heartlandgate, citing the law that will let him skate


Much angst among Heartlandgate perpetrators over the increasingly obvious fact that Peter Gleick not only shouldn’t be prosecuted, but can’t be prosecuted under federal law, for duping Heartland employees into revealing their true intentions, to lie about global warming so people won’t “believe” it and support solutions.

Peter Gleick - World Economic Forum Annual Mee...

Peter Gleick, lifetime of informing the public accurately at a researcher's greatly diminished salary; Heartland Institute is spending thousands of dollars to convince people he changed suddenly. Who to believe? Here's Gleick at the World Economic Forum Annual Meeting Davos 2009 (Photo credit: World Economic Forum)

But this odd site cut through the clutter and posted the words of the relevant law, establishing Peter Gleick’s lack of criminality:

18 U.S.C. 1343:
Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, transmits or causes to be transmitted by means of wire, radio, or television communication in interstate or foreign commerce, any writings, signs, signals, pictures, or sounds for the purpose of executing such scheme or artifice, shall be fined under this title or imprisoned not more than 20 years, or both….

Did you catch that, Dear Reader?  Gleick would be guilty of federal wire fraud had he asked the perpetrators of Heartlandgate to send him money or property.

But all Gleick asked for was a copy of their agenda for a meeting, and the supporting data.  No money, no property.  Nothing of value.  Nor did he intend to use, nor could he use, any of that information to get money or property.

You noted, of course, the site is one promulgated by the Heartland Institute itself.

(Did they really mean it that way?  Probably not.)

(By the way — you may want to read the actual law from an authoritative source like the Cornell University Law Library’s Legal Information Institute (LII), and not a version filtered by people who deny global warming, nor its severity, nor its causes, or who don’t work to hoodwink gullible politicians.)

Peter Gleick:  Deep Throat of the climate denial scandals.

How can you tell whether you should be concerned, Dear Reader?

For example, if you’re a teacher, should you be concerned that in Heartlandgate, the Heartland Institute reveals itself to be working to “dissuade” science teachers from teaching science?  Or, if you’re just a concerned citizen, should you be concerned that you’ve heard precious little about the analysis of the documents released, from major news outlets?

If you are in any degree confused about who to believe in this issue, or worse, if you are convinced that there is a pattern of skirting of the laws by scientists (contrary to the evidence), you should be concerned that you’re not getting the full story.

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38 Responses to Odd site to defend Peter Gleick’s exposing of Heartlandgate, citing the law that will let him skate

  1. JimR says:

    Ed – “In other words, you can’t think of any way to value the dirty secrets of Heartland Institute, either.”

    No, as I’ve demonstrated the case hinges on property rights and not the value of anything.

    “One of the reasons Heartland won’t pursue this is that htey’d have to justify their hoaxes in court. They want to claim a right to make up stuff and claim it as science? They want to claim a right to hoax people about what the science is? When the tobacco people finally got into court, there was no refuge for the hoax arguments. Since many Heartland supporters, and probably principals, are veterans of that fight, I suspect they’ll leave it alone.”

    That’s an interesting theory, which is completely irrelevant to Peter Gleick being guilty of mail and wire fraud.

    “My bias? I’m biased in favor of groups that do good, and people who perform public service. I think your favoritism toward the seedy and dark actions of Heartland are well displayed here. In legal terms, you have no right to keep hoaxes secret. You have no right to cover your tracks when you are up to no good.”

    That’s sounds all good and noble Ed, but again has nothing to do with the law. You haven’t even been able to grasp that I’m not showing any favoritism towards Heartland, I’ve spent time trying to discuss how a specific law applies to this situation, a law that should apply objectively and without bias. At this point I’m not sure if you have any knowledge in the law because you are unable to have an objective discussion in how the law applies.

    The issue here is that ethics and integrity are not things that depend on your personal or political bias. Peter Gleick’s actions were both unethical and illegal. That he took those actions against an organization that is sleazy is irrelevant to his actions being unethical and illegal.

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  2. Ed Darrell says:

    I said: “No value can be ascribed to Heartland’s wish to keep its dire, dark secrets. Heartland has no right to hoax people, no right to hoax its donors nor the public. I don’t think this falls under whistleblower statutes, but there’s no harm to Heartland that they didn’t earn.”

    I think your feelings against Heartland and your political bias are preventing you from admitting the truth. And Heartland is just another think tank, working to sway opinions, an organization that isn’t well respected. But in legal terms there is no doubt this case meets the criteria of mail and wire fraud.

    In other words, you can’t think of any way to value the dirty secrets of Heartland Institute, either.

    One of the reasons Heartland won’t pursue this is that htey’d have to justify their hoaxes in court. They want to claim a right to make up stuff and claim it as science? They want to claim a right to hoax people about what the science is? When the tobacco people finally got into court, there was no refuge for the hoax arguments. Since many Heartland supporters, and probably principals, are veterans of that fight, I suspect they’ll leave it alone.

    My bias? I’m biased in favor of groups that do good, and people who perform public service. I think your favoritism toward the seedy and dark actions of Heartland are well displayed here. In legal terms, you have no right to keep hoaxes secret. You have no right to cover your tracks when you are up to no good.

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  3. JimR says:

    Ed – “Right. And as I have noted, repeatedly, again and again, you’ve not articulated any value to that information. Where is the harm? Clearly there was no gainful use by Gleick — he sacrificed to simply get at the truth.”

    Why are you so stuck on value? Do you not understand the legal cases we are discussing? What part of “Confidential information may be considered property for the purposes of §§ 1341 and 1343″ do you not understand? As shown in the Martin case the perpetrator of the wire or mail fraud doesn’t have to profit, it is enough to cause harm to the holder of the information. While your political beliefs may cause you to cheer the harm to Heartland, there was harm none the less due to the release of their internal documents.

    “No value can be ascribed to Heartland’s wish to keep its dire, dark secrets. Heartland has no right to hoax people, no right to hoax its donors nor the public. I don’t think this falls under whistleblower statutes, but there’s no harm to Heartland that they didn’t earn.”

    I think your feelings against Heartland and your political bias are preventing you from admitting the truth. And Heartland is just another think tank, working to sway opinions, an organization that isn’t well respected. But in legal terms there is no doubt this case meets the criteria of mail and wire fraud.

    “It’s not like they had any particular methods to keep the information secret. It’s as if they left their secret playbook in the park, and someone found it. The finder has no duty to keep it secret, and exposing the secret is not a crime.”

    Are you delusional?? Peter Gleick called Heartland and impersonating a specific board member asked that all documents relating to the board meeting be sent to an E-mail address he had created for this purpose. Peter Gleick obtained the documents through dishonesty and deceit, a situation about as far from leaving their information in a park as one can imagine.

    Ed, this is getting a bit absurd. If you are not the kind of man that can admit he is wrong, well so be it. At this point I feel if a case was filed, a guilty verdict reached and upheld by the Supreme Court you would still come up with ridiculous reasons why Peter Gleick did not actually break the law.

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  4. Ed Darrell says:

    “either some articulable harm must befall the holder of the information as a result of the defendant’s activities, or some gainful use must be intended by the person accessing the information, whether or not this use is profitable in the economic sense.”

    Right. And as I have noted, repeatedly, again and again, you’ve not articulated any value to that information. Where is the harm? Clearly there was no gainful use by Gleick — he sacrificed to simply get at the truth.

    No value can be ascribed to Heartland’s wish to keep its dire, dark secrets. Heartland has no right to hoax people, no right to hoax its donors nor the public. I don’t think this falls under whistleblower statutes, but there’s no harm to Heartland that they didn’t earn. It’s not like they had any particular methods to keep the information secret. It’s as if they left their secret playbook in the park, and someone found it. The finder has no duty to keep it secret, and exposing the secret is not a crime.

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  5. JimR says:

    ed – “You keep sputtering that Carpenter applies, but it doesn’t. Heartland is not in the business of regularly publishing its donor lists — as you complained at the start — nor was Dr. Gleick in any form of privity to give him a fiduciary duty to hold Heartland’s information secret.”

    You are confusing the issue here. It doesn’t matter that Heartland wasn’t planning to publish it’s donor list and other internal documents. It was their right to have exclusive use of their confidential information. The Court’s decision in Carpenter didn’t rely on it being financial data or it being published. They Court ruled that the defendants defrauded the Journal of their exclusive use of their own confidential information. And while it is obvious that Peter Gleick didn’t have a duty to hold Heartland’s information secret, in fact he had no right to possess the data and could not have possessed the data without impersonating a Heartland board member.

    “In Carpenter the information itself was valuable only in terms of how it enables one to move the stock market and make money trading.”

    True, but that has nothing to do with the Court’s decisions. The court ruled that it wasn’t the nature of the information that the Journal was defrauded of but that they were defrauded of exclusive use of their information.

    “Read the case, and you can see the struggle to get that profit to the reporter from what was essentially an inside trade, under the fraud statute. That was difficult because WSJ lost no money itself.”

    No, you are confusing the convictions. The defendants were separately convicted of securities violations for the trading on the information. The fraud conviction that was upheld by the Supreme Court was for defrauding the Journal of exclusive use of their confidential information. It’s right there in black and white.

    “In this case, you have to prove that the information has any value at all. You keep saying intangible data can have value — I agree — but in this case, there is no value demonstrated. Nor does Carpenter suggest any value to the information in this case, which was not to be published, and could not be used to trade and make a profit. Heartland has no right to secrecy of the data. No value, no ability for fraud.”

    The above paragraph is completely incorrect and contradicts the Court’s ruling in Carpenter. The Carpenter case may never have been prosecuted if the data did not have financial value to someone, however the Court’s ruling on the fraud conviction spelled out specifically that the Journal had been defrauded of their exclusive use of their confidential information.

    Take a look at US v Martin where the court of appeals, 1st circuit upheld a wire fraud conviction.

    A. Property Theory
    48

    Confidential information may be considered property for the purposes of §§ 1341 and 1343. See United States v. Czubinski, 106 F.3d 1069, 1074 (1st Cir. 1997). Where such information is obtained – thus depriving the rightful owner of its property rights – through dishonest or deceitful means, the wire and mail fraud statutes may be violated. See id. However, mere access to the confidential information is insufficient; rather, “either some articulable harm must befall the holder of the information as a result of the defendant’s activities, or some gainful use must be intended by the person accessing the information, whether or not this use is profitable in the economic sense.” Id. In other words, for Martin’s convictions to stand under this prong of the wire and mail fraud statutes, sufficient evidence must exist for a reasonable jury to find that Martin knowingly and willingly participated in a scheme to defraud IDEXX of confidential information or other property via false pretenses, and in so doing either harmed IDEXX or intended to use the information for his own gain.

    You can see the the mail and wire fraud statutes are not limited to financial gains by the perpetrator but also includes falsely obtaining information thereby doing harm to the victim.

    Your entire argument is based on your narrow view of “property” and the incorrect assumption that Gleick would have to profit financially from the scheme for it to be fraud. This is not true.

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  6. Ed Darrell says:

    Sure, you’ve explained it and your explanations have been wrong. I’ve even provided quotations from the Supreme Court ruling which in no way could be construed to mean ONLY financial data and ONLY because it could be used to used for financial gain.

    You mistake quoting from a decision for actually dealing with the issue. I’ve distinguished Carpenter from the facts in this case. You keep sputtering that Carpenter applies, but it doesn’t. Heartland is not in the business of regularly publishing its donor lists — as you complained at the start — nor was Dr. Gleick in any form of privity to give him a fiduciary duty to hold Heartland’s information secret.

    In Carpenter the information itself was valuable only in terms of how it enables one to move the stock market and make money trading. Read the case, and you can see the struggle to get that profit to the reporter from what was essentially an inside trade, under the fraud statute. That was difficult because WSJ lost no money itself.

    In this case, you have to prove that the information has any value at all. You keep saying intangible data can have value — I agree — but in this case, there is no value demonstrated. Nor does Carpenter suggest any value to the information in this case, which was not to be published, and could not be used to trade and make a profit. Heartland has no right to secrecy of the data. No value, no ability for fraud.

    But then there are the elements of wire fraud. You’d have to meet all four. You have shown no intent on the part of Gleick to purloin data for profit, and if the data have no value, you never could. But if you could, you’d still have the intent problem.

    I’m repeating now. I’ve made the case, and your repeatedly ignoring it doesn’t refute it.

    What you seem to be missing is that the Carpenter defendants were convicted of several charges and the Court ruled that the fraud charges hinged on defrauding the Journal of their exclusive rights to their confidential data. Their ruling doesn’t hinge on it being financial data or the defendants profiting from the fraud.

    Yes, it does.

    The court ruled “it being sufficient that the Journal has been deprived of its important right to exclusive use of the information prior to disclosing it to the public.” Did you even read Carpenter? If so how could you interpret this to mean the Journal only has exclusive right to their confidential information ONLY if was financial data???

    The question was whether it could be called fraud if the WSJ lost nothing. Read the case.

    There was no question about the value of the data.

    But Heartland is not arguing it has a right to release its data at a set publication time. They planned never to release it. Carpenter, which deals with WHEN the data are published and used, does not apply to this case at all.

    Your entire argument is based on your narrow definition of property and the Supreme Court in Carpenter made clear that confidential information is property and depriving the owner of the information exclusive use is fraud.

    No, my argument is based on the elements of fraud, and wire fraud, which are absent in this case. To make it a fraud case, you MUST HAVE all four elements. My argument is based on the intent — there was no intention to defraud. (You seem to think fraud means “trick out of,” but it doesn’t; fraud applies to stuff that has value of itself. You can’t “defraud” a witness into making a confession of a crime, for example — but that seems to be the definition you’re working on.) Gleick was seeing the truth, without intention of making a personal profit from the information. That’s not fraud. He lacks the necessary intent to make this a criminal fraud case.

    Is there any evidence that Heartland has dropped claims that a crime has been committed? Or are you just jumping to this conclusion because charges have not been filed?

    They’ve stopped demanding action. Criminal action must be filed by criminal authorities, not by Heartland.

    I personally think this case is more likely to end up in civil court than criminal court, but absence of charges does not mean a crime has not been committed.

    Okay, so tell us what the civil case is. There was no contract. There is no agreement. A tort? What tort do you claim?

    “Yes, the information has value — but that’s only one part of one of the four elements of wire fraud; you gotta have all four elements, and the first element, Gleick’s intent to defraud another out of money, is wholly missing.”

    You think a fraud count depends on Gleick having anything to do with money??

    Or it’s equivalent, yes. Fraud almost always involves something that has value easily determined, almost always in a money transaction. Now, looking at Canada’s statute, I think you’d have a better case there — but you’d have to prove the value of what Heartland lost, and it would have to be in excess of $5,000.

    Heartland lost its ability to lie to people, perhaps. What’s the value of that? $0.00

    In any case, Gleick lacked any criminal intent. So regardless the value of the information to Heartland, there is no intent.

    After all these posts talking about how fraud relates to money and property and the definition of property as shown by the Supreme Court you still want to frame it in terms of money?

    Yes, that’s how fraud is framed in law.

    In this case it was Peter Gleick’s intent to defraud Heartland out of “its important right to exclusive use of the information”. And that is what occurred.

    You’re purloining the language from the Carpenter case, which involved a reporter trading on stock information he got in the course of his employment by the Wall Street Journal, which information was not his, and which trades were arguably illegal as insider trading, and which information was to be sold by the WSJ.

    None of that obtains in Heartland’s case.

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  7. JimR says:

    James “Jim..something has to have tangible value for it to be insider trading and fraud.”

    Not according to the Supreme Court in Carpenter who ruled “its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes.” That seems pretty clear doesn’t it?

    “Just because it made Heartland look bad doesn’t count.”

    That is a factor in the crime. Peter Gleick’s intent was to expose Heartland by turning over the confidential documents he obtained through fraudulent means (including 1 fake document) and send it out to the media and environmental friends with media outlets to be made public and put pressure on Heartland. Gleick didn’t stand to benefit financially, he intended to benefit by damaging Heartland as a continuation of his battles with fellow Forbes columnist and Heartland fellow James Taylor.

    “Besides..Heartland seems quite capable of making itself look bad.”

    They sure do. The billboard last month got attention but everyone thought it was a stupid idea. And as Gleick revealed Heartland is a relatively small organization with a small budget and not even funded by big oil.

    “If you don’t understand the law, Jim, then shut up. ”

    In this one example I’m doing pretty well. Right now I’m just waiting to see if Ed can overcome his bias and look at this objectively since he’s wrong. I’m not a Republican or a Democrat and as shown here the bias that comes with such strong political beliefs can overcome one’s ability to be dispassionate and objective in matters that have a political component.

    “THe law that would apply to Mr. Gleick is whistleblower protection, imo.”

    Actually whistle blower protection would apply to a real insider who released documents of wrongdoing. In this case Peter Gleick impersonated a Heartland board member to falsely obtain the documents then E-mail them using the name Heartland Insider. Also the released documents are not evidence of a crime so if it was an insider there would be no whistle blower protection.

    “So the real question is why are you trying to defend Heartland’s apparent criminal actions?”

    I came here wondering why Ed wrote a post saying Gleick could not have committed mail or wire fraud when the case (Carpenter) that showed it could was discussed at length on what Ed called an “Odd site to defend Peter Gleick”. If I’m wrong hopefully Ed will be able to show me, however I suspect he’ll continue to stick to his arguments about value, be unable to provide any case law supporting him and continue to ignore the Supreme Court ruling which lays it out in plain language.

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  8. James Kessler says:

    So since I assume JimR is going to vote republican and that would diminish the intangible value of the United States being seen as a sane and responsible nation does that mean I can sue him for fraud?

    Jim..something has to have tangible value for it to be insider trading and fraud. Just because it made Heartland look bad doesn’t count. Besides..Heartland seems quite capable of making itself look bad.

    If you don’t understand the law, Jim, then shut up. THe law that would apply to Mr. Gleick is whistleblower protection, imo. So the real question is why are you trying to defend Heartland’s apparent criminal actions?

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  9. JimR says:

    “I’ve already explained to you how to distinguish the cases. Carpenter squirreled in ONLY because it was financial data, and ONLY because it could be used (and was used) to trade on stocks — insider trading.”

    Sure, you’ve explained it and your explanations have been wrong. I’ve even provided quotations from the Supreme Court ruling which in no way could be construed to mean ONLY financial data and ONLY because it could be used to used for financial gain.

    What you seem to be missing is that the Carpenter defendants were convicted of several charges and the Court ruled that the fraud charges hinged on defrauding the Journal of their exclusive rights to their confidential data. Their ruling doesn’t hinge on it being financial data or the defendants profiting from the fraud. The court ruled “it being sufficient that the Journal has been deprived of its important right to exclusive use of the information prior to disclosing it to the public.” Did you even read Carpenter? If so how could you interpret this to mean the Journal only has exclusive right to their confidential information ONLY if was financial data???

    Your entire argument is based on your narrow definition of property and the Supreme Court in Carpenter made clear that confidential information is property and depriving the owner of the information exclusive use is fraud.

    “Can you explain why even Heartland has dropped claims that a crime was committed?”

    Is there any evidence that Heartland has dropped claims that a crime has been committed? Or are you just jumping to this conclusion because charges have not been filed? I personally think this case is more likely to end up in civil court than criminal court, but absence of charges does not mean a crime has not been committed.

    “Yes, the information has value — but that’s only one part of one of the four elements of wire fraud; you gotta have all four elements, and the first element, Gleick’s intent to defraud another out of money, is wholly missing.”

    You think a fraud count depends on Gleick having anything to do with money?? After all these posts talking about how fraud relates to money and property and the definition of property as shown by the Supreme Court you still want to frame it in terms of money?

    In this case it was Peter Gleick’s intent to defraud Heartland out of “its important right to exclusive use of the information”. And that is what occurred.

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  10. Ed Darrell says:

    So go ahead, provide the legal precedent that overrules Carpenter in providing property rights to confidential information.

    I’ve already explained to you how to distinguish the cases. Carpenter squirreled in ONLY because it was financial data, and ONLY because it could be used (and was used) to trade on stocks — insider trading.

    So, can you show us how Dr. Gleick was supposed to profit from his actions? Without such a showing, there is no intent to fraud (you’ve never addressed the intent issue well — you keep harping that the information is valuable; to make it a crime, there must be criminal intent, or scienter, and there is none in Gleick’s case).

    Show us the cases where people were convicted of fraud without intent to defraud. Got any?

    Can you explain why even Heartland has dropped claims that a crime was committed? Can you explain why Gleick is still walking around, if he committed such a heinous crime as you claim?

    Yes, the information has value — but that’s only one part of one of the four elements of wire fraud; you gotta have all four elements, and the first element, Gleick’s intent to defraud another out of money, is wholly missing.

    This won’t even go to a grand jury on the information we’ve got. The elements of the crime do not exist.

    The four elements, again, each of which must be present and provable to have a case:

    (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money;

    This element is wholly missing.

    (2) that the defendant did so with the intent to defraud;

    This element is wholly missing.

    (3) that it was reasonably foreseeable that interstate wire communications would be used; and
    (4) that interstate wire communications were in fact used.

    These are irrelevant without the first two elements.

    No crime. That the information had intangible value is irrelevant, even if you could prove that it did — and under Carpenter, that is doubtful. It’s not stock information that could move a market.

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  11. JimR says:

    Here’s more food for thought:

    From Carpenter v US

    “Petitioners’ activities constituted a scheme to defraud the Journal within the meaning of the statutes. It is irrelevant that petitioners might not have interfered with the Journal’s use of its confidential information, publicized the information, deprived the Journal of the first public use of the information, or caused the Journal [484 U.S. 19, 20] monetary loss, it being sufficient that the Journal has been deprived of its important right to exclusive use of the information prior to disclosing it to the public.”

    So please, please, provide case law showing how Gleick depriving Heartland the the right of exclusive use of it’s confidential information differs from the defendants in the Carpenter case depriving the Journal of it’s exclusive information. And before you jump too quick note that the ruling didn’t depend of the financial gains, “it being sufficient that the Journal has been deprived of its important right to exclusive use of the information”.

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  12. JimR says:

    Ed, why don’t you just go ahead and show that confidential information is only defined as property if it is tied to some material value? Go ahead and provide the cite.

    You keep trying to make that distinction when the courts have not. The law says that confidential business information is “property” and there is nothing that says that information must have some material value in order to be considered property. In Carpenter the court ruled that even though the Journal did not suffer a monetary loss when it’s confidential information was taken, it did suffer a loss of property because “its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes”. This “property” right didn’t depend on the financial gains they were also convicted of. This was an additional charge and all the courts up to the Supreme Court agreed that confidential information was property under mail and wire fraud statutes.

    The Carpenter case was about financial gains based on this information, but the Journal was defrauded of it’s property rights in the taking of confidential information and the defendants were convicted of mail and wire fraud for taking the column on a separate charge from their securities violations.

    So go ahead, provide the legal precedent that overrules Carpenter in providing property rights to confidential information.

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  13. Ed Darrell says:

    You’re right that I’m stuck on value. You see, I have this legal background in chasing down fraud. No value, no fraud.

    No value, intent is all but impossible to prove. No intent to defraud, no fraud.

    Your case fails on all points.

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  14. Ed Darrell says:

    That one is obvious, as Winans already had access to the Journal but Gleick did not have access to Heartland documents without impersonating a Heartland Board member. Gleick had no duty to Heartland and in fact should and would never have been in possession of Heartland internal documents without his impersonating a Heartland board member and obtaining them through wire fraud.

    You’re right, Gleick had no duty, and especially no fiduciary duty to Heartland. Therefore, no fraud.

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  15. Ed Darrell says:

    You seem completely focus on monetary values which misses the point of Carpenter. There does not need to be a “product” as the courts decision didn’t treat an unprinted Journal article as a “product” but as “confidential business information”.

    In Carpenter one of the issues was whether something intangible could have value. The court, with the Supreme Court agreeing, ruled that was possible — bending the rules a bit because the WSJ itself was not being defrauded of money, only defrauded of the legitimate use of the timing of the release of the information, and because the reporter could use that time advantage to make money.

    Here you have intangible property. But there is no additional value to it as a product to be sold. There is no way Gleick could have made money off the stuff — certainly the donors would not have given him money had he asked. Gleick had no intent to make money, and it can easily be argued he had no intent to secure the donor list. In any case, that information cannot be used for profit.

    So you can’t establish criminal intent. Heartland is not deprived of the use of the information. Heartland is not deprived of the timing of the release of the information. Gleick can make no profitable use of the information.

    I’m willing to entertain some argument that there really was value in that list — but you’ve not made it. You’ve claimed that the donor list is equivalent to advance tips on the stock market — but it’s not. And even were it, the Court agreed the law was bent to include that kind of intangible.

    Carpenter does not apply, because keeping a donor list secret is not information that will move a stock market. The mail and wire fraud statutes do not apply because there was no property of value, not even intangible property of value, and hence, no intent to defraud.

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  16. JimR says:

    Ed “Jim, did you miss my earlier response? ”

    No, I wondered the same thing about you since I keep having to recap my explanation of how Carpenter applies here. I guess I have to again…sigh.

    “In the case before us, there is no product at issue. The donor list, as you admit, was not intended to be published, and especially not published for profit. Consequently, there is no proprietary property to the donor list as there was with the material from the stocks column in the WSJ in Carpenter.”

    You seem completely focus on monetary values which misses the point of Carpenter. There does not need to be a “product” as the courts decision didn’t treat an unprinted Journal article as a “product” but as “confidential business information”. The defendants in that case were convicted of Securities violations, conspiracy and fraud. The fraud conviction was for fraud of the Journal article. It was argued by the defense there no fraud against the Journal since the Journal had not lost any money or property as defined by the fraud statute. This argument was rejected by a local court, an appeals court and finally the US Supreme Court in a ruling that to this day defines “property” for mail and wire fraud to include intangibles such as confidential information.

    You’ve gone on to show differences between Carpenter and Gleick which are completely irrelevant!

    “In Carpenter, WSJ sued its own employee, a person who had a contract and, therefore, a duty to WSJ that Gleick never had to Heartland.”

    That one is obvious, as Winans already had access to the Journal but Gleick did not have access to Heartland documents without impersonating a Heartland Board member. Gleick had no duty to Heartland and in fact should and would never have been in possession of Heartland internal documents without his impersonating a Heartland board member and obtaining them through wire fraud.

    “In Carpenter, the reporter could use the information prior to publication to buy and sell stocks at an advantage not available to others in the market — a clear violation of securities laws, which colored the entire case — and in Heartland’s case, there was no information that could be traded for anything of any value, especially by Dr. Gleick.”

    You are still stuck on value, as if value is limited to monetary gains. In Carpenter they were convicted of both securities violations as well as fraud for taking the Journal’s confidential business information. In this case Gleick had a prior adversarial relationship with Heartland and sought to damage them. In that respect he assumed the identity of a real person, a Heartland board member, and obtained confidential information which he intended to and did release to damage Heartland.

    “Since there was nothing that could provide him with any value, the Carpenter case simply does not apply.”

    Peter Gleick had a long running and very public feud with Heartland and to that end sought to damage them. It can be shown that the release of their confidential documents including their donor list will cost Heartland financially which was Gleick’s motivation.

    “But also, since there was nothing of value, Gleick could not demonstrate the necessary intent to defraud someone of something of value.”

    Again, you are limiting the scope of something of value to monetary items when mail and wire fraud as shown by Carpenter does include confidential information. The defendants in Carpenter sought to have the fraud conviction overturned since they had taken no money or property from the Journal. All the courts including the Supreme Court ruled they had committed fraud against the Journal by taking their confidential business information. The securities convictions were for profiting on the information, the fraud conviction which the court upheld was for taking the confidential information.

    “You have argued that there was some value in keeping the donor list secret, but there is no demonstration of that. ”

    On the contrary, there are currently news articles on how Heartland donors, pressured by groups that obtained the donor list through Peter Gleick have ended their donations. To claim otherwise is absurd. Regardless of value, there are property rights. In the oral arguments in Carpenter a case was discussed where a car was taken and returned without any loss of value. And yet that is fraud because the person was deprived of their property.

    So let’s look at the elements of mail and wire fraud and see what applies.

    1) Intent – this was is clear cut, Peter Gleick intended to obtain documents that he had requested and been denied. He was aware he had no rights to these documents and therefore could only obtain them by impersonating a Heartland board member.

    2) A “scheme or artifice to defraud” or the obtaining of property by fraud – Peter Gleick impersonated a Heartland board member to obtain confidential information that was the property of Heartland which he knew he had no right to obtain.

    3) A mail or wire communication – Peter Gleick asked that the documents be sent via E-mail to an E-mail address that he had created for this scheme.

    All the elements of mail and wire fraud are present. The only nit you can pick is by claiming the Heartland documents are not “property”, yet the Supreme Court makes clear that confidential information is in fact property.

    Ed, you’ve been all over the map here. In your blog post you as much as admitted that Gleick would be guilty of mail and wire fraud if he had obtained property. When shown that the Supreme Court in Carpenter defined property to include intangibles such as confidential information you have still tried to tie this to a monetary value when such wasn’t appropriate. You’ve even tried to claim that the donors should have been public in Heartland’s IRS form 990 which was incorrect, then insinuating that Heartland keeping donors private was “just not politick, not kosher, probably immoral” showing your complete lack of knowledge in this area.

    At this point I guess it’s best to agree to disagree. But if you have actually had any classes in the law and want your money back I will be happy to be a witness. I think you have a good case.

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  17. Ed Darrell says:

    Jim, read Carpenter’s conclusion, you can clearly see how that case differs from Heartland’s rant (I added highlighting):

    The District Court found that Winans’ undertaking at the Journal was not to reveal prepublication information about his column, a promise that became a sham when in violation of his duty he passed along to his co-conspirators confidential information belonging to the Journal, pursuant to an ongoing scheme to share profits from trading in anticipation of the “Heard” column’s impact on the stock market. In Snepp v. United States, 444 U. S. 507, 515, n. 11 (1980) (per curiam), although a decision grounded in the provisions of a written trust agreement prohibiting the unapproved use of confidential Government information, we noted the similar prohibitions of the common law, that “even in the absence of a written contract, an employee has a fiduciary obligation to protect confidential information obtained during the course of his employment.” As the New York courts have recognized: “It is well established, as a general proposition, that a person who acquires special knowledge or information by virtue of a confidential or fiduciary relationship with another is not free 28*28 to exploit that knowledge or information for his own personal benefit but must account to his principal for any profits derived therefrom.” Diamond v. Oreamuno, 24 N. Y. 2d 494, 497, 248 N. E. 2d 910, 912 (1969); see also Restatement (Second) of Agency §§ 388, Comment c, 396(c) (1958).

    We have little trouble in holding that the conspiracy here to trade on the Journal’s confidential information is not outside the reach of the mail and wire fraud statutes, provided the other elements of the offenses are satisfied. The Journal’s business information that it intended to be kept confidential was its property; the declaration to that effect in the employee manual merely removed any doubts on that score and made the finding of specific intent to defraud that much easier. Winans continued in the employ of the Journal, appropriating its confidential business information for his own use, all the while pretending to perform his duty of safeguarding it. In fact, he told his editors twice about leaks of confidential information not related to the stock-trading scheme, 612 F. Supp., at 831, demonstrating both his knowledge that the Journal viewed information concerning the “Heard” column as confidential and his deceit as he played the role of a loyal employee. Furthermore, the District Court’s conclusion that each of the petitioners acted with the required specific intent to defraud is strongly supported by the evidence. Id., at 847-850.

    Lastly, we reject the submission that using the wires and the mail to print and send the Journal to its customers did not satisfy the requirement that those mediums be used to execute the scheme at issue. The courts below were quite right in observing that circulation of the “Heard” column was not only anticipated but an essential part of the scheme. Had the column not been made available to Journal customers, there would have been no effect on stock prices and no likelihood of profiting from the information leaked by Winans.

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  18. Ed Darrell says:

    Jim, did you miss my earlier response? The Wall Street Journal puts out a product — and in Carpenter, that product was compromised and, according to testimony, purloined for profit.

    In the case before us, there is no product at issue. The donor list, as you admit, was not intended to be published, and especially not published for profit. Consequently, there is no proprietary property to the donor list as there was with the material from the stocks column in the WSJ in Carpenter.

    Here are the elements of wire fraud, from the Justice Department’s Criminal Resource Manual:

    941 18 U.S.C. 1343—Elements of Wire Fraud
    The elements of wire fraud under Section 1343 directly parallel those of the mail fraud statute, but require the use of an interstate telephone call or electronic communication made in furtherance of the scheme. United States v. Briscoe, 65 F.3d 576, 583 (7th Cir. 1995) (citing United States v. Ames Sintering Co., 927 F.2d 232, 234 (6th Cir. 1990) (per curiam)); United States v. Frey, 42 F.3d 795, 797 (3d Cir. 1994) (wire fraud is identical to mail fraud statute except that it speaks of communications transmitted by wire); see also, e.g., United States v. Profit, 49 F.3d 404, 406 n. 1 (8th Cir.) (the four essential elements of the crime of wire fraud are: (1) that the defendant voluntarily and intentionally devised or participated in a scheme to defraud another out of money; (2) that the defendant did so with the intent to defraud; (3) that it was reasonably foreseeable that interstate wire communications would be used; and (4) that interstate wire communications were in fact used) (citing Manual of Model Criminal Jury Instructions for the District Courts of the Eighth Circuit 6.18.1341 (West 1994)), cert. denied, 115 S.Ct. 2289 (1995); United States v. Hanson, 41 F.3d 580, 583 (10th Cir. 1994) (two elements comprise the crime of wire fraud: (1) a scheme or artifice to defraud; and (2) use of interstate wire communication to facilitate that scheme); United States v. Faulkner, 17 F.3d 745, 771 (5th Cir. 1994) (essential elements of wire fraud are: (1) a scheme to defraud and (2) the use of, or causing the use of, interstate wire communications to execute the scheme), cert. denied, 115 S.Ct. 193 (1995); United States v. Cassiere, 4 F.3d 1006 (1st Cir. 1993) (to prove wire fraud government must show (1) scheme to defraud by means of false pretenses, (2) defendant’s knowing and willful participation in scheme with intent to defraud, and (3) use of interstate wire communications in furtherance of scheme); United States v. Maxwell, 920 F.2d 1028, 1035 (D.C. Cir. 1990) (“Wire fraud requires proof of (1) a scheme to defraud; and (2) the use of an interstate wire communication to further the scheme.”).
    [cited in USAM 9-43.100]

    There was no intent to defraud Heartland of money. Gleick’s actions do not meet the scienter requirements of this statute and the cases surrounding it. There was no intent to defraud, nor did Gleick intend to collect any money for his actions, especially not money intended for Heartland.

    Several points distinguish the cases. In Carpenter, WSJ sued its own employee, a person who had a contract and, therefore, a duty to WSJ that Gleick never had to Heartland. In Carpenter, the reporter could use the information prior to publication to buy and sell stocks at an advantage not available to others in the market — a clear violation of securities laws, which colored the entire case — and in Heartland’s case, there was no information that could be traded for anything of any value, especially by Dr. Gleick. Since there was nothing that could provide him with any value, the Carpenter case simply does not apply. But also, since there was nothing of value, Gleick could not demonstrate the necessary intent to defraud someone of something of value. You have argued that there was some value in keeping the donor list secret, but there is no demonstration of that. Public embarrassment on the part of donors for having donated to a plastic-grass organization like Heartland can’t be valued — there is no right to avoid embarrassment for doing stupid things.

    Worse, Heartland did virtually nothing to keep their information secret, other than refuse to make a public divulgence. Information was freely shared inside the organization without anyone having to sign an agreement to keep the information confidential, nor does it appear there were any other safeguards of note on the information. If the information were so valuable, why was so little done to protect it?

    Now, you could argue that this case falls into the category of “no loss or gullible victims,” and according to the Manual, it’s still fraud.

    But then you’ve got a major problem with intent. Gleick didn’t set out to purloin the donor list. He was looking for other information.

    Wouldn’t you love to do the cross-examination of Heartland on this? “Let’s get this straight: You complain that Dr. Gleick discovered you intended to provide a curriculum to teachers in high schools and junior highs, and you say you had a right to keep that secret; but at the same time, you were advertising the pending curriculum on your website, in press releases, and to anyone who would listen, far and wide. How can you claim a right to keep secret something you were advertising?”

    So I repeat, there is no crime here. That is why Heartland has stopped banging the drum asking for investigations, and why the only investigations of Gleick, by academic institutions to make sure ethics rules were not violated, exonerate him.

    Heartland got a dose of the medicine it claimed was good when HADCRUT got hacked. Now it changes its tune. Quelle surprise!

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  19. JimR says:

    Ed “So, give me the citation to the law you claim was broken.”

    Sure, you gave it right your blog post. 18 U.S.C. 1343.

    However you then said: “Did you catch that, Dear Reader? Gleick would be guilty of federal wire fraud had he asked the perpetrators of Heartlandgate to send him money or property.”

    However you were considering the money and property section too literally as the Supreme Court in Carpenter ruled “Here, the object of the scheme was to take the Journal’s confidential business information — the publication schedule and contents of the “Heard” column — and its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes. McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights.”

    Peter Gleick impersonated a Heartland board member to obtain Heartland confidential documents. He didn’t need to actually take money or physical property as the meaning of property as defined by the Supreme Court is shown to include intangibles such as confidential information. The object of Peter Gleick’s scheme was to obtain confidential business information from Heartland just as in the Carpenter case.

    Come on Ed, you have at least a little education in the law. Put your politics and your hatred of Heartland and their politics aside for a minute and look at this objectively.

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  20. JimR says:

    James – this was just due to Ed’s confusion on the issue. Donor lists of 501(c)(3) non-profits such as Heartland or the liberal Center for American Progress are not required to be public, and in fact both organizations have refused requests to release their donor lists. The only illegal actions in play here are those of Peter Gleick.

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  21. Ed Darrell says:

    I’m not sure it was illegal not to identify donors — just not politick, not kosher, probably immoral.

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  22. James Kessler says:

    So Heartland tried to illegally shield some of its donors and Mr. Gleick exposed them?

    Isn’t that called “Whistleblowing”?

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  23. Ed Darrell says:

    What law was broken? I have found nothing in U.S. law that covers such a deception. There are possibilities of using some fraud laws, if there were money asked for, or money misdirected — but that didn’t occur here.

    So, give me the citation to the law you claim was broken. Please.

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  24. JimR says:

    Wow, all I can say is that it’s a good thing you aren’t in the legal profession with your limited understanding of the law.

    In the end whether there are charges filed or not Peter Gleick definitely broke laws and by observing those who defend him helped expose those who have integrity and those who don’t. And the sad thing is he could have left them alone, Heartland tends to shoot themselves in the foot with things like the billboard last month. They aren’t very effective at what they do anyway.

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  25. Ed Darrell says:

    I guess realizing your previous legal argument was incorrect you are now going for a justification defense?

    My previous legal argument seems to be holding water. No crime. Heartland has even stopped flapping about it.

    No crime. Nothing of value compromised. No trade secrets. While there is no duty to disclose some donors, it’s difficult to make a case that there was any duty on anyone’s part not to find out who they are.

    No crime on Gleick’s part. Time for Heartland to hang it up (past time, if you ask me).

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  26. JimR says:

    I though this discussion died months ago.

    “Where’s the harm in Gleick’s having the donor list? Where’s the harm in my having the list, if I have it? ”

    In the 2 months since we discussed this a number of donors have withdrawn their support of Heartland. The confidential information Peter Gleick obtained was used to pressure donors and in some cases it worked. You may applaud this, but as a legal argument this defines the damage caused by Gleick.

    “There’s still no fraud. Gleick outfoxed the henhouse foxes at Heartland, but that’s not a crime. They look silly, but his having made them look silly is not a crime. They look venal, but their looking venal, or being venal, is not a crime, either.”

    I guess realizing your previous legal argument was incorrect you are now going for a justification defense? The problem is that it actually IS a crime to outfox the hen house foxes when you assume a real person’s identity to obtain confidential information electronically and/or by mail. Even if you think they are bad people… it’s still a crime. You may think Gleick’s actions were morally justified, but that shows a lack of integrity and has nothing to do with the legality of his actions.

    Ed, would you feel the same way if someone did the same thing, assumed a board members’s identity to obtain confidential information including donor lists from the Center for American Progress and Think Progress? They are a similar organization to Heartland, but pushing a different worldview and they will not release their owner list. That’s a common thing among these public policy organizations. And people who don’t agree with Think Progress policy positions could pressure their donors to not donate. As long as the thief thought Think Progress is either charlatans, hypocrites, political fixers or crooks and intended to expose them are you saying it is not against the law? Seriously?

    One thing that Gleickgate showed was those who are objective and can still tell right from wrong and those overcome by advocacy to the extent they are willing to defend Peter Gleick. NASA climate modeler and RealClimate blogger Gavin Schmidt said:

    “Gleick’s actions were completely irresponsible and while the information uncovered was interesting (if unsurprising), it in no way justified his actions. There is an integrity required to do science (and talk about it credibly), and he has unfortunately failed this test. The public discussion on this issue will be much the poorer for this – both directly because this event is (yet) another reason not to have a serious discussion, but also indirectly because his voice as an advocate of science, once powerful, has now been diminished.”

    It’s all about integrity and in the aftermath of Gleick people who think that breaking laws to expose “the bad guys” is justified shows an incredible lack of integrity. Peter Gleick started the abandon integrity trend and it’s interesting to see who has followed.

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  27. Ed Darrell says:

    Where’s the harm in Gleick’s having the donor list? Where’s the harm in my having the list, if I have it?

    There’s still no fraud. Gleick outfoxed the henhouse foxes at Heartland, but that’s not a crime. They look silly, but his having made them look silly is not a crime. They look venal, but their looking venal, or being venal, is not a crime, either. Their hypocrisy and troubling political agenda, taking a Leninist stand on our children (as Heartland advocates would describe it to me), is also exposed, and that may make people think twice or three times before sending them money, or trusting them to do the right thing or have unbiased data useful in schools — but that’s not against the law, either.

    It’s not against the law to expose charlatans, hypocrites, political fixers or crooks. It’s not against the law to dupe charlatans, hypocrites, political fixers or crooks into outing themselves.

    What had Gleick done illegal? Nothing I can see.

    Let me demonstrate: Hey, all you donors to Heartland Institute! Stop it! They are doing damage to America with your money. Don’t give them any more.

    See? Nothing illegal about telling donors to stop donating, either. I didn’t just commit a crime, I preached a sermon to the wayward urging them to repent. First Amendment protects that, you know.

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  28. JimR says:

    Ed – you seem to hate Heartland so much you have lost sight of researching the facts of the case.

    The Carpenter case is the legal precedent on the definition of “money and property” in regards to wire and mail fraud and shows that intangible property such as information is defined as property. You tried to use the narrow definition of “money and property” in your blog post just as the lawyers in the Carpenter case did, but the Supreme Court doesn’t agree with you. That’s why I posted here, I didn’t understand how you could point to ClimateAudit as defending Gleick if you had actually read and understood the blog post. It seems you either didn’t read or understand the post.

    As far as the facts of the case:

    “In fact, all of that donor information should have been available to the public on the Institute’s IRS Form 990.”

    Nope. If you had followed the Gleick case you would know that Peter Gleick already possessed Heartland’s 990 which does not include donor information. This information is not public, which is common for a 501(c). Just ask the Center for American Progress (another 501(c)) for their donor list. It’s been done and they won’t release it. It is very common for these left and right wing “think tanks” to keep their donor information private. That is why Gleick had to commit fraud to obtain the list.

    You repeatedly ask what is the harm of this? There have already been groups pressuring Heartland donors to no longer donate. While you may think this is a good thing, it clearly establishes the harm as a result of Gleick’s activities.

    In this case the wire fraud was in obtaining the confidential documents through identify theft. The documents are the property obtained through fraud as defined by law. I don’t know if this will ever go to court but the legal precedent shows there are grounds if action is pursued. And regardless of one’s feelings toward Heartland it is a sad statement that so many are still condoning Peter Gleick’s actions.

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  29. Ed Darrell says:

    You seem too caught up in the dudgeon of the Heartland Institute — they’re like Richard Nixon complaining about Archibald Cox asking to see his records.

    The Carpenter case turned on the fact that the information taken, though it would be public in a short period, could be used for financial gain contrary to SEC rules — legally-defined fraud.

    I’ll ask again: What’s the harm to Heartland? Their skullduggerous plans to misinform teachers and students is something I’m sure they would prefer not be revealed, but there’s no profit to be made from their embarrassment. There is no value to their donor list if not used to raise money, and no one is accusing Dr. Gleick of doing that.

    In fact, all of that donor information should have been available to the public on the Institute’s IRS Form 990. So where’s the harm?

    What’s that you say? They had donors they had failed to report as required by law? If so, they have no right to keep that secret, but instead are bound by law to reveal it and repent.

    Where’s the harm? How could any of that information possibly be used for fraud?

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  30. JimR says:

    “That’s right. What, do you claim, did Gleick intend to defraud the Heartland Institute out of? ”

    The right to their confidential information.

    “I have two points: Heartland’s schemes are immoral, and perhaps illegal, and consequently they have no right to claim them as property that can be stolen.”

    Seriously? LOL while I have no love for Heartland I find this disturbing. Perhaps I have erred in trying to discuss this rationally with you.

    “Second, Carpenter deals with information that has extrinsic value, information that can move markets. If Heartland has such information it’s illegal under its claimed 501(c)(3) organization.”

    That’s not true in the least. For example Peter Gleick had been asking for a Heartland donor list and had been refused as it was confidential. Gleick obtained by fraud and released the confidential list of Heartland donors among other confidential documents. This was their property that was obtained by fraudulent means.

    You seem too caught up in the market related information in Carpenter. That was just a part of the case, mail and wire fraud for the taking of the intangible property of information was a major part of Carpenter and the court ruling on the definition of property is applicable here.

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  31. Ed Darrell says:

    You said in your blog post “Gleick would be guilty of federal wire fraud had he asked the perpetrators of Heartlandgate to send him money or property.” You are trying to argue that confidential information isn’t “money or property” by definition. Carpenter’s lawyers argued the same point and lost. The Supreme Court ruled:

    “Petitioners assert that their activities were not a scheme to defraud the Journal within the meaning of the mail and wire fraud statutes;[6] and that in any event, they did not obtain any “money or property” from the Journal, which is a necessary element of the crime under our decision last Term in McNally v. United States, 483 U. S. 350 (1987). We are unpersuaded by either submission and address the latter first.

    That’s right. What, do you claim, did Gleick intend to defraud the Heartland Institute out of?

    I have two points: Heartland’s schemes are immoral, and perhaps illegal, and consequently they have no right to claim them as property that can be stolen. You can’t complain if someone steals your stash of crack cocaine, and Heartland can’t complain that someone stole their cache of disinformation.

    Second, Carpenter deals with information that has extrinsic value, information that can move markets. If Heartland has such information it’s illegal under its claimed 501(c)(3) organization. I don’t think Heartland has such information at all. But if you think so, please identify that information for us. What of Heartland’s schemes should be considered valuable so that it could be fungible in any sort of way to make it a crime to “steal” it?

    Here’s a test: If a couple of executives from Apple have lunch in the park, and they leave behind their notes from that morning’s staff meeting in which it was announced to their group that the company was buying back stock in a few weeks, and I find that information, if I trade on it I’m guilty of insider trading. What information did or does Heartland have which meets the same criterion, of being information I cannot legally use, when Heartland’s executives leave it accidentally in the park?

    See the part you quoted about the court’s comments about the McNally case. That’s a lot closer analogy to this than Carpenter.

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  32. JimR says:

    Ed – I read Carpenter v. United States and they are pretty clear that intangible property such as a yet to be published news column is “property”. Yes, the case involved the Securities and Exchange Acts, however the court spent considerable time on the issue of mail and wire fraud and the definition of “money and property” as it relates to wire fraud.

    You said in your blog post “Gleick would be guilty of federal wire fraud had he asked the perpetrators of Heartlandgate to send him money or property.” You are trying to argue that confidential information isn’t “money or property” by definition. Carpenter’s lawyers argued the same point and lost. The Supreme Court ruled:

    “Petitioners assert that their activities were not a scheme to defraud the Journal within the meaning of the mail and wire fraud statutes;[6] and that in any event, they did not obtain any “money or property” from the Journal, which is a necessary element of the crime under our decision last Term in McNally v. United States, 483 U. S. 350 (1987). We are unpersuaded by either submission and address the latter first.

    We held in McNally that the mail fraud statute does not reach “schemes to defraud citizens of their intangible rights to honest and impartial government,” id., at 355, and that the statute is “limited in scope to the protection of property rights.” Id., at 360. Petitioners argue that the Journal’s interest in prepublication confidentiality for the “Heard” columns is no more than an intangible consideration outside the reach of § 1341; nor does that law, it is urged, protect against mere injury to reputation. This is not a case like McNally, however. The Journal, as Winans’ employer, was defrauded of much more than its contractual right to his honest and faithful service, an interest too ethereal in itself to fall within the protection of the mail fraud statute, which “had its origin in the desire to protect individual property rights.” McNally, supra, at 359, n. 8. Here, the object of the scheme was to take the Journal’s confidential business information — the publication schedule and contents of the “Heard” column — and its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes. McNally did not limit the scope of § 1341 to tangible as distinguished from intangible property rights.”

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  33. To quote:
    The have in fact tried to exclude those who disagree with them from the discussion.

    It probably would help “those who disagree” if they came up with actual evidence to support their contention.

    As it is, they have none. They just want to snap their fingers, conjure claims out of thin air and pretend that’s science.

    It’s not. So do the job or get out.

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  34. Ed Darrell says:

    Jim, read the decision in Carpenter. It deals with a Wall Street Journal column which got inside information on stocks, and the accusation was that the author made purchases on the basis of that information prior to the publication of the information. In short, it was information covered under the Securities and Exchange Acts, information required by law to be divulged at a set point, and also protected by law from divulgence for insider trading purposes. (Listen to the arguments in the case at the Oyez site — it’ll become clear quickly that the case does not apply to the information Heartland Institute had, nor to Dr. Gleick’s actions.)

    Nothing in the Heartland Institute could possibly come close to meeting the definitions of that case, unless Heartland were engaged in much greater criminal activity than anyone lets on.

    Heartland sells no shares, Heartland engages in no for-profit enterprises, and Heartland has no proprietary right to information that it planned to defraud thousands of school teachers. In fact, Heartland has no right to engage in such activities at all, and consequently, if they allege they have a right to cover up their schemes, they must first admit to the schemes and their illegality.

    Is that your claim?

    Even were Heartland to admit criminal schemes, there is no allegation, not even from Heartland, that they lost any thing of monetary value (they alleged for several days that all or some of the divulged papers were bogus — now they claim it’s very valuable? Give us a break) there is no allegation that Peter Gleick could have profited in any way, nor could anyone else.

    Read the case. It does not apply in this case to this non-insider information on non-regulated issues that have nothing to do with moving a stock market.

    I gave the link so people could go see how silly ClimateAudit can be, how inaccurate, and how much stretching of the law and the facts they’d do to manufacture a dudgeon. I assumed people could see through their fog and misinformation. I hope I was not in error.

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  35. JimR says:

    Just curious why you linked to ClimateAudit saying it is “establishing Peter Gleick’s lack of criminality” when the text of the actual blog post explains and provides case law on the point? The case of Carpenter v. United States shows that “money or property” does include information. The court stated “its intangible nature does not make it any less “property” protected by the mail and wire fraud statutes”.

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  36. Ed Darrell says:

    It’s only fraud if there is something to be gained by it. Heartland’s information isn’t trade secret, nor in any other category that would make it intrinsically valuable — in fact, the only value seems in keeping the truth away from the public and not-for-profit regulators.

    No fraud in exposing a fraud. Heartland’s embarrassed, not adequately, by the exposure of their campaign to get high school teachers to teach false stuff to kids. Gleick exposed that. Any man who exposes such assaults on minors is a hero, or should be.

    Scientists engage in politics all the time. It’s legal, and some argue it’s ethically necessary. See here, for example.

    Gleick’s science work is well known, accurate, and I take from your lack of any complaint about it, even you know he’s right.

    An objective scientist defends the facts, the truth, and speaks out against error, misinformation and especially outright fraud. That’s one of the reasons John Adams set up a panel of scientists for advice during his presidency, why Abraham Lincoln helped establish the National Science Foundation, and let’s not forget John F. Kennedy’s asking his science advisors to check the accuracy of Rachel Carson’s Silent Spring (they found it accurate to the last detail).

    If you know of any “liberal” institution in government that pressures people to do something other than the truth in science, you are under obligation to take that information to your U.S. attorney. Such actions are criminal under federal law. Of course, making a false report is criminal, too. (Let us know what you do.)

    The Earth warms. More than 6,000 record highs have been recorded in the U.S. since January 1, 2012. Every year since 2000 has been above the 20th century average temperature, many considerably above. Warming continues, and we need to clean up pollution in our atmosphere, especially from greenhouse gases. You don’t really want to go down in history arguing for pollution, do you?

    If you have contrary facts, bring them. If not, consider repenting. We’re in Lent, after all. Your grandchildren will thank you if you repent and work to mitigate the damage. Do the right thing, for them.

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  37. hewhaw says:

    Glieck most likely composed a fraudulent letter, one that you seems to think is proof of some sort of immorality on the part of Heartland. If he did not, then someone else did and he will fully passed it along as genuine, which is almost as immoral.

    Whatever the case, this sort of behavior is not the behavior of a objective scientist engaged in empirical analysis. It is the behavior of a political operative. An objective scientist would merely put forward theories, evidence and and rely on the scientific method.
    This “climate scientist” have repeatedly refused to do.

    Again and again we have seen this corrupt and dishonest behavior out of “climate scientists” in the USA and the EU. It is immoral. It is corrupt. It is not science at all.

    So it turns out that you allegations about heartland are unfounded.

    Beyond that, you do not mention the liberal institutions, including those in government that they control, that have tried to pressure so-called “climate science”. The have in fact tried to exclude those who disagree with them from the discussion.

    It amazes that you turn reality on its head here and project onto other what your faction does. This ia a constant with you, along with lies and personal attacks.

    Over and over, AGW has been proven to be fraud perpetrated on the taxpayer by the Left in order to control property rights and economies.

    Shame on you. You really need to grow up–you do not have that much time left.

    Like this

Play nice in the Bathtub -- don't splash soap in anyone's eyes.

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