Are former FBI Director James Comey’s memos protected by copyright?

Pink folder that says top secret

Under federal law, copyright protection in unavailable for “a work prepared by an officer or employee of the United States Government as part of that person’s official duties,” meaning that these works fall immediately into the public domain. So the key to answering this question is determining whether the memos were prepared as a part of Comey’s official duties as Director of the FBI.

Since the position is one created by statute, the first place to look is the text of federal statutes relating to the role and responsibilities of the FBI Director; no federal statute requires the Director of the FBI to memorialize conversations with the President of the United States. But heads of important agencies like the FBI are generally vested with a broad grant of authority which “carries with it the power to act in a variety of ways not enumerated in [a] formal position description,” and as the Supreme Court explained, “the duties of a high Government official should not be narrowly interpreted.”

So the next step is to examine the content of the memos and context in which they were written.

Content

Comey’s memos document conversations between himself and President Trump, some of which took place in the normal course of business i.e., the conversation during the one-on-one briefing in which Comey briefed the President on “personally sensitive” information while others, like the conversation the two had over a private dinner, seemed to stray from the normal course of business. As a result, some of the memos contain classified information while others do not. However, that they contain information learned within the scope of Comey’s employment does not necessarily mean that the memos themselves were created within that scope.

Context

According to his written testimony, Comey, who was appointed to the position in September 2013, began “creating written records immediately after one-on-one conversations with Mr. Trump” after a conversation between the two of them in January 2017, but he also stated that “this had not been [his] practice in the past.” In his oral testimony, he went on to say that he had never memorialized conversations with any senior official within the Obama administration. This suggests that writing memos of this sort was not a duty.

When asked his reasoning for writing the memos, Comey said “I knew there might come a day when I would need a record of what had happened, not just to defend myself, but to defend the FBI and our integrity as an institution and the Independence of our investigative function.” This statement could go either way. On the one hand, it suggests that Comey viewed the memos as a potential safeguard that he could use personally. However, he also mentions that the memos could be used professionally “to defend the FBI- and [its] investigative function.”

Nonetheless, that the memos could be used professionally in the future does not mean that at the time of writing they were a part of his professional responsibilities as Director. And although some of the memos were written using government computers, this is not dispositive one way or the other.

During his oral testimony, Comey testified that the memos are no longer in his possession because he “turned them over to Bob Mueller’s investigators.” Robert Mueller was recently appointed as Special Counsel to head the investigation into collusion between the Trump campaign and Russia, the same investigation that Comey was in charge of when he wrote the memos. This, in conjunction with the other information, seems to tip the scale in favor of the memos having been written within the scope of his duty to ensure the independence and impartiality of the FBI’s investigation into Russia. And if that’s the case, the memos are not protected by copyright.

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