Protecting Government Secrets: A Comparison of the Espionage Act and the Official Secrets Act

INTRODUCTIONSince 2009, the United States has prosecuted six government employees and two contractors for disclosing confidential government information to the press in violation of the Espionage Act.1 Prior to 2009, only three such prosecutions had ever been initiated.2In 2009, in an effort to rein in a culture of leaking, the government decided to fashion a more aggressive strategy for pursuing and punishing those who leaked.3 As Dennis Blair, the former Director of National Intelligence, said at the time, "[I]t is good to hang an admiral once in a while."4Then, in 2010, Wikileaks began its release of an unprecedented number of classified documents leaked by Army Private Chelsea Manning.5 Three years later, Edward Snowden, the former defense contractor, released another trove of government secrets.6 When asked if the harsh treatment of prior leakers influenced him, Snowden responded that the aggressive prosecutions, instead of deterring him, actually had the opposite effect, "[O]verly harsh responses to publicinterest whistle-blowing only escalate the scale, scope, and skill involved in future disclosures. Citizens with a conscience are not going to ignore wrongdoing simply because they'll be destroyed for it: the conscience forbids it. Instead, these draconian responses simply build better whistleblowers."7 While the government's aggressive tactics may encourage some leakers, it seems to be deterring others.8 Washington, D.C.-based journalists have reported chilled relations with their government contacts.9The inappropriateness of the response to government employees who leak confidential information, whether regarded as traitors or whistleblowers, and the efficacy of the government's renewed efforts to stamp them out has reignited a national debate between two seemingly irreconcilable values: the government's need for secrecy and the people's right to know.10Of central importance to the discussion of leak prosecution is the Espionage Act, the government's primary tool to fight against leaks.11 The Act criminalizes the unauthorized disclosure of any information the government has deemed secret.12 Those charged with violating it face up to ten years of imprisonment per count.13 Critics of the Act contend that it is both overly broad and overly harsh.14 It lumps whistleblowers and spies together and lacks any overarching policy or legal principle as to how vigorously it should be applied.15Conventional wisdom, on the other hand, maintains that the Espionage Act is nowhere near as sweeping, nor as severe, as the United Kingdom's Offigovernment cial Secrets Act.16 First enacted in 1889, the Official Secrets Act punishes the retention and dissemination of certain types of government information, including by members of the press.17 Underlying the Official Secrets Act is a general understanding that the disclosure of information gleaned in the course of government service is dangerous, disloyal, and naive.18 The general refrain in the United States is that such an act is antithetical to First Amendment guarantees and the tradition of a free press.19A closer examination, however, reveals that the Espionage Act and the Official Secrets Act are not as dissimilar as typically presumed.20 In light of the debate over government transparency, it is important to consider the extent to which the Espionage Act may be used.21 This Note compares the United Kingdom's use of the Official Secrets Act with the United States' use of the Espionage Act in the prosecution of government employees accused of disclosing confidential information. Part I surveys the culture of leaking in the United States and Great Britain and provides background information on each country's key prosecutions. Part II discusses the enactment and application of both laws, including what the government must prove and the available defenses. In addition, Part II details common prosecutorial tactics and judicial interpretation and application of the statutes. …