Citation[edit | edit source]

Espionage Act of 1917, Act of October 6, 1917, ch. 106, §10(i), 40 Stat. 422, codified at 18 U.S.C. §§ 793-98 (full-text).

Overview[edit | edit source]

National defense information in general is protected by the Espionage Act, 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,[1] while other 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, as are those who conspire to violate the statute. Persons who possess defense information that they have reason to know could be used to harm 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. 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."[2] 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.[3] 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.[4]

18 U.S.C. §794 (aiding foreign governments or communicating information to an enemy in time of war) covers "classic spying" cases,[5] providing for imprisonment for any term of years or life, or under certain circumstances, the death penalty. 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 national defense "which might be useful to the enemy." 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.[6] 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.[7]

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. 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. 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."[8]

Jurisdictional reach of the Act[edit | edit source]

Application to American citizens[edit | edit source]

The Act gives no express indication that it is intended to apply extraterritorially, but courts have not been reluctant to apply it to overseas conduct of Americans, in particular because Congress in 1961 eliminated a provision restricting the Act to apply only "within the admiralty and maritime jurisdiction of the United States and on the high seas, as well as within the United States."[9]

Application to foreigners[edit | edit source]

This does not answer the question whether the Act is intended to apply to foreigners outside the United States. Because espionage is recognized as a form of treason,[10] which generally applies only to persons who owe allegiance to the United States, it might be supposed that Congress did not regard it as a crime that could be committed by aliens with no connection to the United States.

However, the only court that appears to have addressed the question concluded otherwise.[11] A district court judge held in 1985 that a citizen of East Germany could be prosecuted under §§793(b), 794(a) and 794(c) for having (1) unlawfully sought and obtained information regarding the U.S. national defense, (2) delivered that information to his own government, and (3) conspired to do so with the intent that the information be used to the injury of the United States or to the advantage of the German Democratic Republic, all of which offenses were committed within East Germany or in Mexico. The court rejected the defendant's contention that construing the act to cover him would permit the prosecution of noncitizens "who might merely have reviewed defense documents supplied to them by their respective governments."[12] The court considered the scenario unlikely, stating:

Under the statutorily defined crimes of espionage in §§793 and 794, noncitizens would be subject to prosecution only if they actively sought out and obtained or delivered defense information to a foreign government or conspired to do so.[13]

Under this construction, it is possible that noncitizens involved in publishing materials disclosed to them by another would be subject to prosecution only if it can be demonstrated that they took an active role in obtaining the information. The case was not appealed. The defendant, Dr. Alfred Zehe, pleaded guilty in February 1985, and was sentenced to eight years in prison, but was traded as part of a "spy swap" with East Germany in June of that year.[14]

Application of the Espionage Act to persons who do not hold a position of trust with the government, outside of the classic espionage scenario (in which an agent of a foreign government delivers damaging information to such hostile government), has been controversial. The only known case of that type involved two pro-Israel lobbyists in Washington, Steven J. Rosen and Keith Weissman, associated with the American Israel Public Affairs Committee (AIPAC), who were indicted in 2005 for conspiracy to disclose national security secrets to unauthorized individuals, including Israeli officials, other AIPAC personnel, and a reporter for the Washington Post.[15] Their part in the conspiracy amounted to receiving information from government employees with knowledge that the employees were not authorized to disclose it.[16] The prosecution was criticized for effectively "criminalizing the exchange of information,"[17] based in part on the government’s theory that the defendants were guilty of solicitation of classified information because they inquired into matters they knew their government informant was not permitted to discuss, something that many journalists consider to be an ordinary part of their job.[18] Charges were eventually dropped, reportedly due to a judge's ruling regarding the government's burden of proving the requisite intent and concerns that classified information would have to be disclosed at trial.[19]

References[edit | edit source]

  1. See, e.g., 18 U.S.C. §§952 (prohibiting disclosure of diplomatic codes and correspondence), 1924 (unauthorized removal and retention of classified documents or material); 50 U.S.C. §783 (unauthorized disclosure of classified information to an agent of a foreign government, unauthorized receipt by foreign government official).
  2. The government must demonstrate that disclosure of the information is at least "potentially damaging" to the United States or advantageous to a foreign government. See United States v. Morison, 844 F.2d 1057, 1072 (4th Cir.) (full-text), cert. denied, 488 U.S. (1988) (upholding conviction under 18 U.S.C. §793 for delivery of classified photographs to publisher). Whether the information is "related to the national defense" under this meaning is a question of fact for the jury to decide. Id. at 1073.
  3. Gorin v. United States, 312 U.S. 19, 27-28 (1941) (full-text) ("Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.").
  4. United States v. Squillacote, 221 F.3d 542, 578 (4th Cir. 2000) (full-text).
  5. Morison, 844 F.2d at 1064-65 (explaining that critical element distinguishing §794 from §793 is the requirement that disclosure be made to an agent of a foreign government rather than anyone not entitled to receive it).
  6. During time of war, any individual who communicates intelligence or any other information to the enemy may be prosecuted by the military for aiding the enemy under Article 104 of the Uniform Code of Military Justice (UCMJ), and if convicted, punished by "death or such other punishment as a court-martial or military commission may direct." 10 U.S.C. §904.
  7. 18 U.S.C. §794(d). Proceeds go to the Crime Victims Fund.
  8. Id. §798(b).
  9. See United States v. Zehe, 601 F. Supp. 196, 198 (D. Mass. 1985) (full-text) (citing former 18 U.S.C. §791, repealed by Pub. L. No. 87-369, 75 Stat. 795 (1961)).
  10. See 70 Am. Jur. 2d "Sedition, Subversive Activities and Treason" §15 (2005). Courts have not been persuaded that the Treason Clause of the U.S. Constitution requires the safeguards associated with treason apply also to similar crimes such as espionage or levying war against the United States. See id., United States v. Rosenberg, 195 F.2d 583 (2d. Cir.) (full-text), cert. denied, 344 U.S. 838 (1952) (espionage); United States v. Rodriguez, 803 F.2d 318 (7th Cir.) (full-text), cert. denied, 480 U.S. 908 (1986) (levying war).
  11. Zehe, at 198 ("Espionage against the United States, because it is a crime that by definition threatens this country's security, can therefore be punished by Congress even if committed by a noncitizen outside the United States.").
  12. Id. at 199.
  13. Id.
  14. Henry Giniger & Milt Freudenheim, "Free to Spy Another Day?," N.Y. Times, June 16, 1985, at A.4.
  15. See United States v. Rosen, 445 F.Supp.2d 602 (E.D. Va. 2006) (full-text); Jerry Markon, "U.S. Drops Case Against Ex-Lobbyists," Wash. Post, May 2, 2009, at A1 (stating the case is the first prosecution under the Espionage Act against civilians not employed by the government).
  16. See William E. Lee, "Deep Background: Journalists, Sources, and the Perils of Leaking," 57 Am. U.L. Rev. 1453, 1519 (2007) (opining that "the conspiracy charge especially threatens reporter-source transactions where the reporter promises not to disclose the identity of the source").
  17. "Time to Call It Quits," Wash. Post, Mar. 11, 2009 (editorial urging Attorney General to drop charges).
  18. See William E. Lee, "Probing Secrets: The Press and Inchoate Liability for Newsgathering Crimes," 36 Am. J. Crim. L. 129, 132-34 (2009). The solicitation theory relied on a 2008 U.S. Supreme Court case finding that solicitation of an illegal transaction is not speech deserving of First Amendment protection. United States v. Williams, 553 U.S. 285 (2008) (full-text). See id. at 133 (citing Brief of the United States at 43-44, United States v. Rosen, 557 F.3d 192 (4th Cir. 2008) (No. 08-4358)). Williams had to do with solicitation of child pornography, but Justice Scalia posed as a rhetorical question whether Congress could criminalize solicitation of information thought to be covered by the Espionage Act:
    Is Congress prohibited from punishing those who attempt to acquire what they believe to be national-security documents, but which are actually fakes? To ask is to answer.

    Williams at 304.

  19. See Markon, supra (quoting Dana J. Boente, the acting U.S. attorney in Alexandria, VA, where the trial was scheduled to take place). The judge found the scienter requirement of 18 U.S.C. §793 to require that the defendants must have reason to believe the communication of the information at issue "could be used to the injury of the United States or to the advantage of any foreign nation." 445 F. Supp. 2d at 639. Moreover, the judge limited the definition of "information related to the national defense" to information that is "potentially damaging to the United States or . . . useful to an enemy of the United States." Id. (citing United States v. Morison, 844 F.2d 1057, 1084 (4th Cir. 1988) (Wilkinson, J., concurring)).

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