The federal law that is commonly used to prosecute leakers marks its 100th birthday on June 15,2017.
Signed into law on June 15, 1917, the Espionage Act 18 U.S.C. § 792 et seq., was Congress’s response to a fear that public criticism of U.S. participation in World War I would impede the conscript of soldiers to support the war effort and concerns about U.S. citizens undermining the war effort by spying for foreign governments. Although some parts of the law were repealed, many remain in effect 100 years later.
Most pertinent today, the law criminalizes both the disclosure and receipt of certain national security information. As a result, the Espionage Act remains the most common grounds upon which leakers of U.S. governmental information are prosecuted. Indeed, the recent charges against the alleged source of the NSA Russian Election Systems Phishing documents are based on the Espionage Act.
To date, however, the United States has never sought to prosecute a journalistic entity under the Espionage Act for either receiving secret government documents from a source or further disseminating the documents themselves or information from them in the course of reporting. There is nothing in the language of the law that prevents its use against a news organization, but it has been unofficially accepted that it should not apply to the press.
So it is alarming that the Justice Department is reportedly taking a serious look at bringing criminal charges against Wikileaks and Julian Assange for disclosing classified information . In so doing, the Trump administration is threatening to step over a never-crossed line – applying the secret documents provisions of the Espionage Act to journalistic practices. The threat is greatly concerning in the context of prosecuting whistleblowers, and, more broadly, preserving a free press.
The threat is greatly concerning in the context of prosecuting whistleblowers, and, more broadly, preserving a free press.
Leaks are a vital part of the free flow of information that is essential to our democracy. And reporting on leaked materials, including reporting on classified information, is an essential role of American journalism. The US Supreme Court, in Bartnicki v. Vopper, recognized that those who lawfully obtain information pertaining to a matter of public interest have a near absolute right to publish it even if their source illegally obtained the information. Prosecuting Wikileaks for its role in this fundamental democratic process will undermine these vital protections.
In sections 793(d), (e) and 798 the Espionage Act criminalizes the unauthorized communication of both certain classified information and information “connected with the national defense.” Section 793(c) also prohibits merely obtaining national defense documents “with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation.” Whether the principle of Bartnicki v. Vopper would bar a successful prosecution against a news organization under these provisions has never been tested.
A strong defense of Wikileaks is not simply an anti-Trump position. As current events indicate, leaks are non-partisan: those on both sides of the aisle typically embrace leaks that are politically useful and condemn leaks that are politically damaging. President Donald Trump famously praised Wikileaks when disclosures of DNC emails benefitted him. He now threatens to bring the strong arm of the law down on it.
It can be difficult to separate rhetoric from a planned course of action with this administration. But there are strong signs this White House intends to follow through on its bluster.
First, CIA Director Mike Pompeo labeled Wikileaks a “non-state hostile intelligence service,” at an April 13, 2017 speech at the Center for Strategic And International Studies. The director then followed up by asserting his “philosophical understanding,” as opposed to a legal conclusion, that Wikileaks and Assange are not exercising First Amendment rights.
About a week later, Attorney General Jeff Sessions explained that his department was “stepping up its efforts” “on all leaks” with the goal being to “put some people in jail.”
President Trump also reportedly urged then-FBI director James Comey to prosecute and imprison journalists who published classified information. Comey’s failure to prioritize this has been cited as the one of the reasons for his firing.
Moreover, the president’s reported initial first choice for FBI director, former Senator Joseph Lieberman, has a history of belligerence against both the news media broadly and Wikileaks in particular. In 2010, Lieberman called for an investigation of the New York Times and other news media for publishing Wikileaks documents, proposed an “anti-Wikileaks Law” that would have criminalized the disclosure of intelligence source names, and pressured Amazon and credit card processors to choke off funding for Wikileaks.
Many of the other threats the president and those speaking on his behalf have made against the news media both during the election and since he took office require legislative action by either Congress or the states. Unlike his threat to “open up the libel laws”—which would require action by 50 state legislatures or otherwise be subject to Congressional oversight—the executive branch can initiate a federal criminal prosecution on its own.
We condemn the threats of prosecution of Wikileaks and call for all to speak out against the them.
One hundred years is long enough to let the threat of prosecution under the Espionage Act cast a shadow over our free speech and press freedom protections. Sign our petition, and tell U.S. lawmakers to reform this outdated and overbroad law.
Read more about how the Espionage Act came to be and the law's murky legal history.