We have been discussing protest related charges that raises troubling or novel issues. The charges against two protesters Viet Tran, 21, and Alexandria Dea, 26, are both. They are charged under a little known (and even less used) law barring unauthorized dissemination of intelligence data. The data came in the form of a Des Moines Police Department bulletin that was pulled from the back pocket of a police officer during struggles with protesters.
The bulletin contained photos of suspects who were wanted in the destruction of a Des Moines police car during a June 20th protest. Dea is accused of pulling the bulletin out of the back pocket. Tran then allegedly displaying and discussing a stolen Des Moines police document during an interview broadcast on a local TV station.
This is only the second time that the charge has been used in an actual case, but it can bring as high as five years in jail.
As always, I tend to approach these cases from the perspective of a criminal defense attorney. However, I find the charges troubling, particularly as to Tran. Dea is accused of actually stealing the bulletin from the possession of an officer. Tran somehow came into possession of that document. If a reporter had come into possession, the reporter would have likely discussed the document on television as a newsworthy find despite the words on the document warning that it dissemination is a crime.
The other concern is that this is a widely produced document in the field. It is certainly true that it reflects police intelligence (and also contains potentially sensitive information for the individuals). However, when dispersed into a riot situation, it seems likely that some copies may be compromised or lost. There is also the failure of the officer to adequately protect that information if it was highly sensitive. Conversely, there was a reason for the officer to have the document (and losing control of it). Three of the suspects had been arrested inside the Capitol when protesters moved against them. The officers were dealing with the threat when Dea is accused of lifting the document.
Legally, the prosecutors can argue that there is no difference between removing such a document from a pocket or from a desk. Dea could argue that the document actually had already fallen out of the pocket.
I think that the legal framing becomes more difficult if the document is found or is transferred into someone’s possession like Tran. I would also ask if this bulletin was already public information. An all-points bulletin (APB) is often based on the same information posted on social media and on actual bulletin boards in public areas of the police precinct. Usually the police post pictures of suspects being sought in crimes. Indeed, the protected categories is quite broad and ambiguous. Protected information includes anything “compiled in an effort to anticipate, prevent, or monitor possible criminal activity.” Photos are routinely shared publicly to enlist the help of the media and the public. If that is the case, the criminal penalties for showing the same information would seem excessive.
Finally, if Tran is guilty of displaying the information, why isn’t the television crew also guilty. Both could see the warning on the document. The reporter showed the bulletin and tweeted the photos. Obviously, the reporter is carrying out a first amendment function but prosecutors have actually refused to recognize that function as a license to violate criminal law. This is a long-standing controversy, particularly with the publication of national security information by investigative reporters.
For Tran, the situation is even more serious because he is being held for violating the terms of his probation from an assault case when he interfered with officers at the July 1 protest.