The Espionage Act and Today's "high-tech Terrorist"

• Publication year: 2010

Jamie L. Hester⁰

Throughout the twentieth century courts interpreted the Espionage Act of 1917 to criminalize leaking classified information, but consciously refused to extend the Act to prohibit press institutions from subsequently publishing leaked information. While the United States government has a significant interest in preventing dissemination of sensitive information, the courts allow news organizations to claim First Amendment protection to foster government transparency and public disclosure. The proliferation of digital media, highlighted by the recent exposure of WikiLeaks founder Julian Assange, presents an additional challenge to refine characteristics of press institutions to determine if online news organizations will qualify for the same First Amendment protections. Beyond the potential prosecution of Assange in American courts, both Houses of Congress are considering the SHIELD Act, a bill that would broaden the statutory language of the Espionage Act and facilitate targeting of publishers of classified information.

I. Introduction

The reach of the United States' criminal authority in the international sphere has roots in the Espionage Act of 1917¹ ("Act"). Since its inception the U.S. government has used the Act to pursue and prosecute American citizens, and later foreign nationals, acting against the interests of the United States' national security.² Provisions of the Act were first used to criminalize sharing sensitive information with foreign governments, but later the U.S. government used the Act to prosecute leaks to the press and attempted to target the media publishing such leaked information.³ The recent arrest of WikiLeaks⁴ founder Julian Assange in Great Britain, after he led efforts to release secret cables and documents from the United States military and foreign service, has raised the possibility that the United States might seek his extradition to prosecute him for espionage.⁵ Under the Espionage Act, acquiring and transmitting classified United States intelligence are crimes, though the Supreme Court has recognized safe havens for the press and publishers to protect the rights enshrined in the First Amendment.⁶ It is not clear if the current interpretation of the Act would give exception to Assange's publication if the U.S. government prosecuted him under the Act since his role as WikiLeaks founder and leader could be viewed as outside the scope of a traditional journalist. With Assange's potentially illegal acts of espionage playing out on a digital stage, technology has serious implications for defining the role of a journalist.

Anticipating the lack of clarity, U.S. legislators recently introduced legislation in both the House of Representatives and the Senate to broaden the definition and scope of espionage, encompassing not only the leaking of classified information but also the publication of such data.⁷ Passage of the Securing Human

[]Intelligence and Enforcing Lawful Dissemination ("SHIELD") Act would make successful conviction more likely. However, it would also throw the current balance between illegal espionage and investigative journalism, a line both the Supreme Court and lower courts have drawn between national security interests and freedom of the press, into dangerous disarray.

In Part II, this Recent Development will examine the Espionage Act's text and its treatment in American courts during the twentieth century, including application not only to American citizens located domestically and abroad, but also to foreign nationals allegedly acting against U.S. national security interests. This paper will grant particular attention to espionage cases in which freedom of the press colored the courts' opinions. In Part III, this Recent Development will examine the controversy surrounding WikiLeaks and its founder Julian Assange as an illustration of the tangled web technology has woven for applying the ambiguous provisions of the Act to online media organizations. However, as Part III will highlight, the recently introduced SHIELD Act purports to clarify some of those existing ambiguities and broaden the types of espionage criminalized by the Espionage Act, a move that indicates the direction of not only the judiciary but also the U.S. Congress. This Recent Development will conclude by recognizing the uncertain distinction of Assange as a journalist and propose that with the current interpretations of protections for media organizations he could evade conviction.

II. The Espionage Act of 1917

A. Statutory Language

The Espionage Act of 1917⁸ was passed during wartime to target individuals working against the interests of American

[]national security.⁹ For purposes of this Recent Development, the "Act" refers to §§ 792-798 of Title 18 of the United States Code, though certain provisions of § 793¹⁰ and § 798¹¹ are the most applicable to the taking, transmission, and dissemination of documents that threaten U.S. national security. Section 793(b) specifically prohibits copying, taking, or obtaining documents "connected with the national defense," or attempting to do any of the above, "for the purpose of obtaining information respecting the national defense 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."¹² In § 793(c), reception of such information, with the same intent as in subsection (b), is a criminal act.¹³ Section 793(e) criminalizes willful communication and transmission of information by any person having "unauthorized possession of access to or control over" documents and information "relating to the national defense."¹⁴ These three subsections are particularly applicable to actions of leakers of information and also could include the actions of publishers.

In contrast, § 798(a), added to the Act in 1951, states:

Whoever knowingly and willfully communicates furnishes transmits or otherwise makes available to an unauthorized person or publishes or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States [specific types of classified information will be criminally liable].¹⁵

Such classified information, as the law currently reads, relates specifically to use of codes, ciphers, communication intelligence activities, or obtained through communication intelligence activities of foreign governments.¹⁶ While § 793 has a broad conception of classified information (such that it is related or connected to national defense), the more recently formulated § 798 has a lower threshold for intent (such that it is detrimental to the interests of the United States) and specifically mentions publishing.

Under the Espionage Act, the United States criminalizes acts of espionage by American citizens inside and outside U.S. borders and acts of espionage by foreign nationals that occur within the United States. Recently, courts have interpreted the Act even more liberally, allowing the prosecution of foreign nationals outside the jurisdiction of the United States proper.¹⁷ Thus, the United States has not limited its jurisdiction by geographic location or nationality of the suspected criminal, but instead has focused on the nature of the act itself since the act is the source of the harm to national security interests.

A. Application and Interpretation

1. Criminalizing Publication

The U.S. government's first significant use of the Act occurred in 1919 when used against American citizens who passed out leaflets that derided conscription and compared it to slavery.¹⁸ Finding that there was a sufficiently clear and present danger in publishing the information to uphold the defendants' convictions, the Supreme Court said that the Espionage Act did allow prosecution of such behavior, despite First Amendment concerns and the abrogation of free speech.¹⁹

The Espionage Act was used perhaps most famously in the 1970's to stop the publication of the Pentagon Papers in The New York Times and The Washington Post.²⁰ The so-called "Pentagon Papers" "consisted of forty-seven volumes totalling [sic] 7,000 pages containing 2.5 million words,"²¹ published by The New York Times in a series of excerpts in 1971.²² These papers documented the United States' extensive involvement in Southeast Asia in the 1960's, information some government officials viewed as harmful to U.S. security interests, sufficient to require the U.S. District Court for the Southern District of New York to order an injunction against publication.²³ The Supreme Court determined that the U.S. government had not met its burden to continue the injunction against The New York Times and The Washington Post, but made no definite ruling on the application of the Espionage Act to the papers' publications after the fact.²⁴ However, Justice Douglas wrote a concurring opinion, joined by Justice Black, in which he explicitly recognized that if the government had invoked the Espionage Act statutes in their arguments to uphold the injunction, the specific inclusion of "publishes" versus "communicates" in various subsections of § 794, § 797, and § 798 showed Congressional intent to "distinguish between publishing and communication in the various sections of the Espionage Act."²⁵ At trial, the U.S. government had indeed used § 793(e) to support its injunction against The New York Times, but the District Court of New York firmly rejected the government's contention that prohibitions against communication of sensitive information covered publication by a newspaper, once information was already leaked.²⁶ In reference to § 793(e), the District Court held that "what is prohibited is the secret or clandestine communication to a person not entitled to receive it" while "in other sections of Chapter 37 [including §§ 794 and 798] there is specific reference to publication."²⁷ The U.S. government opted not to use the Espionage Act at the appellate...