Espionage Act of 1917

Overview
National defense information in general is protected by the Espionage Act,21 18 U.S.C. §§ 793-98, while other types of relevant information are covered elsewhere. Some provisions apply only to government employees or others who have authorized access to sensitive government information,22 but the following provisions apply to all persons. 18 U.S.C. § 793 prohibits the gathering, transmitting, or receipt of defense information with the intent or reason to believe the information will be used against the United States or to the benefit of a foreign nation. Violators are subject to a fine or up to 10 years imprisonment, or both,23 as are those who conspire to violate the statute.24 Persons who possess defense information that they have reason to know could be used to harm the national security, whether the access is authorized or unauthorized, and who disclose that information to any person not entitled to receive it, or who fail to surrender the information to an officer of the United States, are subject to the same penalty.25 Although it is not necessary that the information be classified by a government agency, the courts seem to give deference to the executive determination of what constitutes “defense information.”26 Information that is made available by the government to the public is not covered under the prohibition, however, because public availability of such information negates the bad-faith intent requirement.27 On the other hand, classified documents remain within the ambit of the statute even if information contained therein is made public by an unauthorized leak.28

18 U.S.C. § 794 (aiding foreign governments or communicating information to an enemy in time of war) covers “classic spying” cases,29 providing for imprisonment for any term of years or life, or under certain circumstances, the death penalty.30 The provision penalizes anyone who transmits defense information to a foreign government (or foreign political or military party) with the intent or reason to believe it will be used against the United States. It also prohibits attempts to elicit information related to the public defense “which might be useful to the enemy.”31 The death penalty is available only upon a finding that the offense resulted in the death of a covert agent or directly concerns nuclear weapons or other particularly sensitive types of information. The death penalty is also available under § 794 for violators who gather, transmit or publish information related to military plans or operations and the like during time of war, with the intent that the information reach the enemy.32 These penalties are available to punish any person who participates in a conspiracy to violate the statute. Offenders are also subject to forfeiture of any ill-gotten gains and property used to facilitate the offense.33

The unauthorized creation, publication, sale or transfer of photographs or sketches of vital defense installations or equipment as designated by the President is prohibited by 18 U.S.C. §§ 795 and 797.34 Violators are subject to fine or imprisonment for not more than one year, or both.

The knowing and willful disclosure of certain classified information is punishable under 18 U.S.C. § 798 by fine and/or imprisonment for not more than 10 years.35 To incur a penalty, the disclosure must be prejudicial to the safety or interests of the United States or work to the benefit of any foreign government and to the detriment of the United States. The provision applies only to information related to cryptographic systems or communications intelligence that is specially designated by a U.S. government agency for “limited or restricted dissemination or distribution.”36