An Explainer on the Espionage Act and the Third-Party Leak Prosecutions

The press scandals keep on coming for the Obama Administration. Hot on the heels of revelations that the administration subpoenaed the Associated Press's phone records as part of a leak investigation, the Washington Post reported on Monday that the Department of Justice (DOJ) targeted James Rosen, a Fox News reporter, in the Espionage Act investigation of Stephen Jin-Woo Kim, a former State Department contractor who allegedly disclosed to Rosen classified information about a North Korean nuclear test. As Jack noted on Monday, the DOJ affidavit behind the search warrant for Rosen's emails stated that "there is probable cause to believe that the Reporter has committed or is committing a violation of section 793(d) [of the Espionage Act], as an aider and abettor and/or co-conspirator, to which the materials relate." These revelations fit in a now-longstanding narrative about the Obama Administration's "war" on leaks (or on whistleblowers or journalists, depending on whom you ask). While some of the leak prosecutions --- e.g., those of Thomas Drake and Jeffrey Sterling --- began during the Bush Administration, it is nevertheless true that the Obama Administration has both started its own prosecutions and has, overall, prosecuted more leak cases than all other administrations in history combined. This post offers some background on the relevant law, as well as on the aspect of leak prosecutions that has become particularly controversial and deeply troubling to many both in and outside the media: the use of the Espionage Act to prosecute the recipients of the leaked information in addition to the leakers themselves.

The Espionage Act

In the United States, unauthorized disclosure of national security information is not subject to a blanket prohibition. The United States, for instance, has no formal analogue to Britain’s Official Secrets Act. However, the Espionage Act of 1917, codified at 18 U.S.C. § 793–-798, imposes broad and wide-ranging criminal liability on individuals who disclose, and in some cases receive, classified national-security information. (For useful background on the Espionage Act, see this CRS report.) The Espionage Act is only one of numerous anti-leaking and -disclosure statutes. See, e.g., 18 U.S.C. § 1030(a)(1) (criminalizing the use of a computer in accessing classified foreign-relation or national-security information); 50 U.S.C. § 421 (prohibiting unauthorized disclosure of a covert agent's identity). This post focuses on the Espionage Act, because it is the most high-profile of the anti-leak statutes and because of its role in the controversial search of Rosen's email. The history of the Espionage Act is interesting, although often overlooked today. As David Greenberg, a professor of history, journalism, and media studies at Rutgers University writes, "[t]he Espionage Act had a legitimate purpose: to try to stop the real threat of subversion, sabotage, and malicious interference with the war effort, including the controversial reinstatement of the draft." At the time, the threat of (particularly German) sabotage was a real one, and the Espionage Act, while broad (and, to Greenberg, overly so), was actually less than what the Wilson Administration wanted. Congress refused, for instance, to allow press censorship, and circumscribed the postmaster general's powers to filter the mails. In the end, Greenberg argues, "the act wasn't meant, as it has often been represented, to stifle antiwar dissent, but to address particular wartime problems that officials had good reason to worry about: draft avoidance, sabotage, espionage." The statute has a number of different provisions, addressing different elements of unauthorized disclosures of information. Two provisions in particular speak to the unauthorized receipt of sensitive information and its subsequent retransmission:

1. § 793(c) covers an individual who, "for the purpose of obtaining information respecting the national defense" (§ 793(a)), "receives or obtains or agrees or attempts to receive or obtain from any person, or from any source whatever, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note, of anything connected with the national defense, knowing or having reason to believe, at the time he receives or obtains, or agrees or attempts to receive or obtain it, that it has been or will be obtained, taken, made, or disposed of by any person contrary to the provisions of [the Espionage Act]."
2. § 793(e) covers anyone who, "having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it."

Violations of either of these provisions, as with the rest of the Espionage Act, can lead to sentences of up to ten years in prison. Taken together, § 793(c) and § 793(e) broadly criminalize receipt and retransmission of leaked material. As Steve has explained elsewhere, neither § 793(c) nor § 793(e) require any intent beyond simply willful receipt or transmission. And as Ben noted during the WikiLeaks scandal more than two-and-a-half years ago, one of the Espionage Act's most concerning features is "that it contains no limiting principle in its apparent criminalization of secondary transmissions of proscribed material":

By its terms, it criminalizes not merely the disclosure of national defense information by organizations such as Wikileaks, but also the reporting on that information by countless news organizations. It also criminalizes all casual discussions of such disclosures by persons not authorized to receive them to other persons not authorized to receive them --- in other words, all tweets sending around those countless news stories, all blogging on them, and all dinner party conversations about their contents. Taken at its word, the Espionage Act makes felons of us all.

Prosecuting Third-Party Recipients Under the Espionage Act

The government has prosecuted several leakers/whistleblowers under the Espionage Act, including Drake, John Kiriakou, and Bradley Manning. But the government has twice now targeted third-party recipients. The first time occurred during the Bush Administration, as part of the 2005 prosecution of Lawrence Franklin. Franklin, at the time a DOD policy analyst, in 2003 gave classified information about U.S. foreign policy toward Iran to two AIPAC employees, Steve J. Rosen and Keith Weissman. The Bush Administration prosecuted Franklin under the Espionage Act, and Franklin pled guilty in 2005 to conspiracy to violate the Espionage Act and was ultimately sentenced to ten months of house arrest. More controversially, the Bush Administration also indicted Rosen and Weissman, third parties who had received rather than disclosed the classified information, with conspiracy to violate § 793(e). In 2006, Judge T.S. Ellis, III of the Eastern District of Virginia rejected Rosen and Weissman's First Amendment and Due Process Clause challenges to their Espionage Act indictments, holding that the statute was neither unconstitutionally vague nor overbroad. Ellis did, however, require the government to prove not only that the information Rosen and Weissman received and intended to pass on was classified, but that it was in fact potentially harmful to American national interests. See United States v. Rosen, 445 F.Supp.2d 602 (E.D. Va. 2006). In part of because of this and other pretrial setbacks, the government ultimately dropped the charges against Rosen and Weissman in 2009. The AIPAC prosecutions are both related to and distinct from the government's investigation of James Rosen. In both cases, the government has targeted third-party recipients and retransmitters in addition to the leaker themself. But unlike in the AIPAC prosecutions, the government has not charged James Rosen with any crime. The government suggested that Rosen might be an aider and abettor or co-conspirator in the context of an affidavit submitted to a court in support of a search warrant; prosecutors stopped short of indicting Rosen outright. But, as Slate's Fred Kaplan argues, this may in the long term be a distinction without a difference:

It’s possible that the prosecutors won’t indict Rosen, that they called him a criminal co-conspirator in their court affidavit in order to boost the chances that the judge would approve their request to track his email, phone calls, and movements. However, even if that is the case, it’s a dangerous game. Some future prosecutor could use the Rosen affidavit as a precedent to go all the way, to treat some similar reporter --- potentially all reporters on the national security beat --- as criminal conspirators.

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Because third-party prosecutions under the Espionage Act are rare and have only recently been attempted, there's little case law. It's thus hard to predict whether the government will actually be able to prosecute more such cases in the future, should it desire to do so. In light of Judge Ellis's opinions in the AIPAC prosecutions, other courts might well find the Espionage Act constitutionally applicable to third parties, even if the government's burdens of proof as to the various elements are relatively high. Still, to the extent that the government's muscular anti-leaking efforts provoke a backlash, it probably won't come from the courts --- at least in the short term. Instead the media will continue to do most of the pushing back. As the controversy over both the Rosen investigation and the AP subpoenas shows, the press is more than willing to circle the wagons when it feels attacked. Invoking the statute against third parties also invites criticism --- some quite sincere, some less so --- from an administration's opponents, and even sometimes from political allies. And here, Republicans and some Democrats in Congress already have blasted the DOJ's handling of the AP matter. Whether this (or any other) administration is willing to prosecute leak recipients and retransmitters under the Espionage Act in the face of fierce resistance from legislators and the press --- to say nothing of the headaches involved in presenting classified court evidence --- remains to be seen.