Earlier this year, Joe Muto, an associate producer for "The O'Reilly Factor," apparently decided that he "[couldn't] just leave [his employment at Fox News] quietly." Instead, he contracted with the Gawker Media blog network to become the "Fox News Mole," a role in which role he would be "gathering intel, and passing it along" to the world via posts on gawker.com.
The Fox News Mole's career as a double agent was extremely short-he posted only three anonymous blog posts over the course of two days before being suspended without pay, and ultimately, terminated. His posts did not contain information that would traditionally be considered as trade secrets; rather, Muto posted unaired footage of a Mitt Romney interview, and a photograph of the surprisingly unpretentious bathroom used by Bill O'Reilly. The posts were of marginal informational value, and they were not particularly amusing-hardly the stuff of Deep Throat or Mark Whitacre (aka, The Informant!). Muto was probably only motivated by the same thing that motivates many disgruntled employees - a desire to embarrass his employer.
How was Fox News able to determine who the culprit was so quickly? Muto says that "In the end, it was the digital trail that gave me away. They knew that someone, using my computer login, had accessed the sources for two videos that ended up on Gawker over the past few weeks. They couldn't prove it entirely, but I was pretty much the only suspect." Shortly thereafter Fox News served Muto and Gawker Media with preservation notices, demanding that they preserve evidence for potential civil and criminal investigations. Later that week, investigators from the Manhattan District Attorney's office searched Muto's apartment, and took his iPhone, laptop, and notebooks.
Had the story stopped here, it would simply be a story of a company successfully using the tools at its disposal to terminate a disloyal employee and protect its informational assets, and it would serve as a deterrent to other potentially disgruntled employees. After all, most people don't want investigators from the DA's office to show up at their door with a warrant.
But, this is a different story. Somehow, the short and rather lackluster career of the Fox News Mole resulted in Muto receiving a "low six-figure book deal" under which Dutton Publishers will publish a book tentatively titled "An Atheist in the Foxhole." The press release describes the book as "a How To Lose Friends And Alienate People-style industry memoir in a Dave Barry/David Sedaris tone."
Even more surprising, after Muto was exposed, gawker.com published a blog post entitled "How to Leak to Gawker Without (Hopefully) Getting Caught," a lengthy and detailed post advising employees how to do things such as scrub metadata, visit a FedEx Kinkos to transmit a sensitive document without being tracked by their phone's GPS, and block their IP address.
The moral of the story is the same as it ever was -employers must remain ever vigilant against the theft of their confidential information by employees.
As we have previously advised, there are smart steps that employers can and should take. Carefully consider which employees should have access to which information. Among other things, use the different technical means that are available to segregate different categories of information so that access is limited to those with a "need to know." Consider other physical safeguards that restrict access to computerized information under circumstances that are relevant to the employer's security regime, such as requiring that employees use high-security passwords, or change passwords often.
Employers should have comprehensive confidentiality agreements (and, where applicable, enforceable restrictive covenants), as well as detailed computer use policies. And remember that policies are only helpful if they are consistently enforced. Even the best policy is of very little value if its violation is not accompanied with meaningful consequences. Accordingly, employers should, with appropriate notice, regularly monitor their employees' computer usage for unusual usage patterns and any usage that may be in violation of the company's computer usage policy and, if an employee is caught violating a clearly expressed policy, he or she should be appropriately disciplined. Disciplining one employee today may prevent an even more brazen employee tomorrow or next week.
For more information, please contact Christina Bost Seaton or John Hutchins.
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