Protection of National Security Information
Released: 2006-12-26T00:00:00

Summary:
Recent cases involving alleged disclosures of classified information to the news media or others who are not entitled to receive it have renewed Congress's interest with regard to the possible need for legislation to provide for criminal punishment for the "leaks" of classified information. The Espionage Act of 1917 and other statutes and regulations provide a web of authorities for the protection of various types of sensitive information, but some have expressed concern that gaps in these laws may make prosecution of some disclosures impossible. The 106th Congress passed a measure to criminalize leaks, but President Clinton vetoed it. The 108th Congress reconsidered the same provision, but instead passed a requirement for the relevant agencies to review the need for such a proscription. The Department of Justice in turn reported that existing statutes and regulations are sufficient to prosecute disclosures of information that might harm the national security.
This report provides background with respect to previous legislative efforts to criminalize the unauthorized disclosure of classified information; describes the current state of the laws that potentially apply, including criminal and civil penalties that can be imposed on violators; and some of the disciplinary actions and administrative procedures available to the agencies of federal government that have been addressed by federal courts. Finally, the report considers the possible First Amendment implications of applying the Espionage Act to prosecute newspapers for publishing classified national defense information.

subsections: section_title: Introduction
paragraphs: Continued revelations involving alleged disclosures of classified information to the news media or to others who are not entitled to receive it have renewed Congress's interest with regard to the possible need for legislation to provide for criminal punishment for the "leaks" of classified information. Opponents of any such legislation express concern regarding the possible consequences to freedom of the press and other First Amendment values. The current laws for protecting classified information have been criticized as a patchwork of sometimes abstruse and antiquated provisions that are not consistent and do not cover all the information the government legitimately needs to protect. Certain information is protected regardless of whether it belongs to the government or is subject to normal classification. Information related to "the national defense" is protected even though no harm to the national security is intended or is likely to be caused through its disclosure. However, nonmilitary information with the potential to cause serious damage to the national security is only protected from willful disclosure with the requisite intent or knowledge regarding the potential harm. For example, under 50 U.S.C. § 783, the communication of classified information by a government employee is expressly punishable only if the discloser knows or has reason to believe the recipient is an agent or representative of a foreign government, but not, for example, if the recipient is an agent of an international terrorist organization.
To close some perceived gaps, the 106 th Congress passed a measure to criminalize all leaks of classified information; however, President Clinton vetoed the measure. The 108 th Congress considered passing an identical provision as part of the Intelligence Authorization Act for Fiscal Year 2001, but instead directed the Attorney General and heads of other departments to undertake a review of the current protections against the unauthorized disclosure of classified information, and to issue a report recommending legislative or administrative actions by May 1, 2002. In its response to Congress, the Department of Justice concluded that existing statutes and regulations are sufficient to prosecute disclosures of information that might harm the national security.
This report describes the current state of the law with regard to the unauthorized disclosure of classified information, including criminal and civil penalties that can be imposed on violators, as well as some of the disciplinary actions and administrative procedures available to federal agencies with respect to their employees, as such measures have been addressed by federal courts. The report also describes the background of legislative efforts to amend the laws, including the measure passed in 2000 and President Clinton's stated reasons for vetoing it. Finally, the report considers possible constitutional issues—in particular, issues related to the First Amendment—that may arise if Congress considers new legislation to punish leaks or if the Attorney General seeks to apply current law to punish newspapers that publish leaked classified information.
section_title: Background
paragraphs: The classification by government agencies of documents deemed sensitive has evolved from a series of executive orders. Congress has, for the most part, let the executive branch make decisions regarding the type of information to be subject to protective measures. The current criminal statutory framework providing penalties for the unauthorized disclosure of classified government materials traces its roots to the Espionage Act of 1917, which made it a crime to disclose defense information during wartime. The National Security Act of 1947 directed the Director of the CIA to protect "intelligence sources and methods." The Atomic Energy Act of 1954 provided for secrecy of information related to nuclear energy and weapons. The Invention Secrecy Act of 1951 gave the government the authority to declare a patent application secret if disclosure of an invention might expose the country to harm.
subsections: section_title: Criminal Statutes for the Protection of Classified Information
paragraphs: National defense information is protected by the Espionage Act, 18 U.S.C. § 793 et seq . The penalty for violation of 18 U.S.C. § 793 (gathering, transmitting, or losing defense information) is a fine or imprisonment for not more than 10 years, or both. Thus, under § 793, persons convicted of gathering 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 may be fined or sentenced to no more than 10 years imprisonment. Persons who have access to defense information that they have reason to know could be used to harm the national security, whether the access is authorized or unauthorized, and who disclose that information to any person not entitled to receive it, or willfully retain the information despite an order to surrender it 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 give deference to the executive determination of what constitutes "defense information." 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. On the other hand, classified documents may remain within the ambit of the statute even if information contained therein is made public by an unauthorized leak. Any person who is lawfully entrusted with defense information and who permits it to be disclosed or lost, or who does not report such a loss or disclosure, is also subject to a penalty of up to 10 years in prison. The act covers information transmitted orally as well as information in tangible form.
18 U.S.C. § 794 (aiding foreign governments) provides 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 certain other foreign entities) with the intent or reason to believe it will be used against the United States. 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 or transmit information related to military plans and the like during time of war, with the intent that the information reach the enemy. Offenders are also subject to forfeiture of any ill-gotten gains and property used to facilitate the offense.
Members of the military who commit espionage, defined similarly to the conduct prohibited in 18 U.S.C. § 794, may be tried by court-martial for violating Article 106a of the Uniform Code of Military Justice (UCMJ), and sentenced to death if certain aggravating factors are found by unanimous determination of the panel. Unlike offenses under § 794, Article 106a offenses need not have resulted in the death of a covert agent or involve military operations during war to incur the death penalty. One of the aggravating factors enabling the imposition of the death penalty under Article 106a is that "[t]he accused has been convicted of another offense involving espionage or treason for which either a sentence of death or imprisonment for life was authorized by statute."
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 and information related to communications intelligence specially designated by a U.S. government agency for "limited or restricted dissemination or distribution." The provision protects information obtained by method of communications intelligence only if the communications were intercepted from a "foreign government," which, while broadly defined, may not include a transnational terrorist organization.
18 U.S.C. § 641 punishes the theft or conversion of government property or records for one's own use or the use of another. While this section does not explicitly prohibit disclosure of classified information, it has been used for that purpose. Violators may be fined, imprisoned for not more than 10 years, or both, unless the value of the property does not exceed the sum of $100, in which case the maximum prison term is one year.
18 U.S.C. § 952 punishes employees of the United States who, without authorization, willfully publish or furnish to another any official diplomatic code or material prepared in such a code, by imposing a fine, a prison sentence (up to 10 years), or both. The same punishment applies for materials "obtained while in the process of transmission between any foreign government and its diplomatic mission in the United States."
18 U.S.C. § 1030(a)(1) punishes the willful retention, communication, or transmission, etc., of classified information retrieved by means of knowingly accessing a computer without (or in excess of) authorization, with reason to believe that such information "could be used to the injury of the United States, or to the advantage of any foreign nation." The provision imposes a fine or imprisonment for not more than ten years, or both, in the case of a first offense or attempted violation. Repeat offenses or attempts can incur a prison sentence of up to twenty years.
18 U.S.C. § 1924 prohibits the unauthorized removal of classified material. The provision imposes a fine of up to $1,000 and a prison term up to one year for government officers or employees who knowingly take material classified pursuant to government regulations with the intent of retaining the materials at an unauthorized location.
42 U.S.C. § 2274 punishes the unauthorized communication by anyone of "Restricted Data," or an attempt or conspiracy to communicate such data, by imposing a fine of not more than $500,000, a maximum life sentence in prison, or both, if done with the intent of injuring the United States or to secure an advantage to any foreign nation. An attempt to disclose or participate in a conspiracy to disclose restricted data with the belief that such data will be used to injure the United States or to secure an advantage to a foreign nation, is punishable by imprisonment for no more than 10 years, a fine of no more than $100,000, or both. The disclosure of "Restricted Data" by an employee or contractor, past or present, of the federal government to someone not authorized to receive it is punishable by a fine of not more than $12,500.
50 U.S.C. § 421 provides for the protection of information concerning the identity of covert intelligence agents. Any person authorized to know the identity of such agents who intentionally discloses the identity of a covert agent is subject to imprisonment for not more than 10 years or a fine or both. A person who learns the identity of an agent through authorized access to classified information and discloses the agent's identity to someone not authorized to receive classified information is subject to a fine, a term of imprisonment not more than five years, or both. A person who learns of the identity of a covert agent through a "pattern of activities intended to identify and expose covert agents" and discloses the identity to any individual not authorized access to classified information, with reason to believe that such activities would impair U.S. foreign intelligence efforts, is subject to a fine or imprisonment for a term of not more than three years. To be convicted, a violator must have knowledge that the information identifies a covert agent whose identity the United States is taking affirmative measures to conceal. An agent is not punishable under this provision for revealing his or her own identity, and it is a defense to prosecution if the United States has already publicly disclosed the identity of the agent.
50 U.S.C. § 783 penalizes government officers or employees who, without proper authority, communicate classified information to a person whom the employee has reason to suspect is an agent or representative of a foreign government. It is also unlawful for the representative or agent of the foreign government to receive classified information. Violation of either of these provisions is punishable by a fine of up to $10,000 or imprisonment for not more than 10 years. Violators are thereafter prohibited from holding public office. Violators must forfeit all property derived directly or indirectly from the offense and any property that was used or intended to be used to facilitate the violation.
Disclosure of a patent that has been placed under a secrecy order pursuant to the Invention Secrecy Act of 1951 can result in a fine of $10,000, imprisonment for up to two years, or both. Publication or disclosure of the invention must be willful and with knowledge of the secrecy order to be punishable.
section_title: Civil Penalties and Other Measures
paragraphs: In addition to the criminal penalties outlined above, the executive branch employs numerous means of deterring unauthorized disclosures by government personnel using administrative measures based on terms of employment contracts. The agency may impose disciplinary action or revoke a person's security clearance. The revocation of a security clearance is usually not reviewable by the Merit System Protection Board and may mean the loss of government employment. Government employees may be subject to monetary penalties for disclosing classified information. Violators of the Espionage Act and the Atomic Energy Act provisions may be subject to loss of their retirement pay.
Agencies also rely on contractual agreements with employees, who typically must sign non-disclosure agreements prior to obtaining access to classified information, sometimes agreeing to submit all materials that the employee desires to publish to a review by the agency. The Supreme Court enforced such a contract against a former employee of the Central Intelligence Agency (CIA), upholding the government's imposition of a constructive trust on the profits of a book the employee sought to publish without first submitting it to CIA for review.
In 1986, the Espionage Act was amended to provide for the forfeiture of any property derived from or used in the commission of an offense. Violators of the Atomic Energy Act may be subjected to a civil penalty of up to $100,000 for each violation of Energy Department regulations regarding dissemination of unclassified information about nuclear facilities.
The government can also use injunctions to prevent disclosures of information. The courts have generally upheld injunctions against former employees' publishing information they learned through access to classified information. The Supreme Court also upheld the State Department's revocation of passports for overseas travel by persons planning to expose U.S. covert intelligence agents, despite the fact that the purpose was to disrupt U.S. intelligence activities rather than to assist a foreign government.
Similarly, the government can enjoin publication of inventions when it is determined that the release of such information is detrimental to the national security. If an inventor files a patent application for an invention that the Commissioner of Patents believes should not be made public, the Commissioner may place a secrecy order on the patent and establish conditions for granting a patent, or may withhold grant of a patent as long as the "national interest requires [it]." In addition to criminal penalties cited previously, in the case of an unauthorized disclosure or foreign filing of the patent information, the Patent Office will deem the invention to be "abandoned," which means a forfeiture by the applicant, his successors, or assigns of all claims against the United States based on the invention.
The government has had less success trying to enjoin the media from disclosing classified information. Most famously, the government failed to enjoin publication of the Pentagon Papers by a newspaper, even though the information was clearly classified and had been stolen by someone with access to it. In that case, the Supreme Court set very high standards for imposing prior restraint on the press. Yet in another case, the government was able to enjoin a newspaper from printing information about the design of an atomic bomb, even though the information did not originate from classified material and the author's purpose was not subversive.
section_title: Prior Legislative Efforts
paragraphs: The current laws for protecting classified information have been criticized as a patchwork of provisions that are not consistent and do not cover all the information the government legitimately needs to protect. Certain information is protected regardless of whether it belongs to the government or is subject to normal classification. Technical and scientific information, for example, can be restricted regardless of source. Information related to "the national defense" is protected even though no harm to the national security is intended or is likely to be caused through its disclosure. However, nonmilitary information with the potential to cause serious damage to the national security is only protected from willful disclosure with the specific intent to harm the national interest, or with the knowledge that such harm could occur.
In 2000, and again in 2002, Congress sought to create 18 U.S.C. § 798A, subsection (a) of which would have read:
Whoever, being an officer or employee of the United States, a former or retired officer or employee of the United States, any other person with authorized access to classified information, or any other person formerly with authorized access to classified information, knowingly and willfully discloses, or attempts to disclose, any classified information acquired as a result of such person's authorized access to classified information to a person (other than an officer or employee of the United States) who is not authorized access to such classified information, knowing that the person is not authorized access to such classified information, shall be fined under this title, imprisoned not more than 3 years, or both.
The new provision would have penalized the disclosure of any material designated as classified for any reason related to national security, regardless of whether the violator intended that the information be delivered to and used by foreign agents (in contrast to 50 U.S.C. § 783). It would have been the first law to penalize disclosure of information to entities other than foreign governments or their equivalent solely because it is classified, without a more specific definition of the type of information covered. In short, the provision would have made it a crime to disclose or attempt to disclose classified information to any person who does not have authorized access to such information, with exceptions covering disclosures to Article III courts, or to the Senate or House committees or Members, and for authorized disclosures to persons acting on behalf of a foreign power (including an international organization). The provision would have amended the espionage laws in title 18 by expanding the scope of information they cover. The proposed language was intended to make it easier for the government to prosecute unauthorized disclosures of classified information, or "leaks" of information that might not amount to a violation of current statutes. The language was intended to ease the government's burden of proof in such cases by eliminating the need "to prove that damage to the national security has or will result from the unauthorized disclosure," substituting a requirement to show that the unauthorized disclosure was of information that "is or has been properly classified" under a statute or executive order.
The 106 th Congress passed the measure, but President Clinton vetoed it, calling it "well-intentioned" as an effort to deal with a legitimate concerns about the damage caused by unauthorized disclosures, but "badly flawed" in that it was "overbroad" and posed a risk of "unnecessarily chill[ing] legitimate activities that are at the heart of a democracy." The President explained his view that
[a] desire to avoid the risk that their good faith choice of words—their exercise of judgment—could become the subject of a criminal referral for prosecution might discourage Government officials from engaging even in appropriate public discussion, press briefings, or other legitimate official activities. Similarly, the legislation may unduly restrain the ability of former Government officials to teach, write, or engage in any activity aimed at building public understanding of complex issues. Incurring such risks is unnecessary and inappropriate in a society built on freedom of expression and the consent of the governed and is particularly inadvisable in a context in which the range of classified materials is so extensive. In such circumstances, this criminal provision would, in my view, create an undue chilling effect.
The 108 th Congress considered passing an identical provision as part of the Intelligence Authorization Act for Fiscal Year 2001, but instead directed the Attorney General and heads of other departments to undertake a review of the current protections against the unauthorized disclosure of classified information, and to issue a report recommending legislative or administrative actions. An identical measure was introduced late in the 109 th Congress, but was not reported out of committee.
The Attorney General, in his report to the 108 th Congress, concluded that
[a]lthough there is no single statute that provides criminal penalties for all types of unauthorized disclosures of classified information, unauthorized disclosures of classified information fall within the scope of various current statutory criminal prohibitions. It must be acknowledged that there is no comprehensive statute that provides criminal penalties for the unauthorized disclosure of classified information irrespective of the type of information or recipient involved. Given the nature of unauthorized disclosures of classified information that have occurred, however, I conclude that current statutes provide a legal basis to prosecute those who engage in unauthorized disclosures, if they can be identified. It may be that carefully drafted legislation specifically tailored to unauthorized disclosures of classified information generally, rather than to espionage, could enhance our investigative efforts. The extent to which such a provision would yield any practical additional benefits to the government in terms of improving our ability to identify those who engage in unauthorized disclosures of classified information or deterring such activity is unclear, however.
section_title: Constitutional Issues
paragraphs: The publication of information pertaining to the national defense may serve the public interest by providing citizens with information necessary to shed light on the workings of government, but some observe a consensus that the public release of at least some defense information poses a significant enough threat to the security of the nation that the public interest is better served by keeping it secret. The Constitution protects the public right to access government information and to express opinions regarding the functioning of the government, among other things, but it also charges the government with "providing for the common defense." Policymakers are faced with the task of balancing these interests.
The First Amendment to the U.S. Constitution provides: "Congress shall make no law ... abridging the freedom of speech, or of the press...." Despite this absolute language, the Supreme Court has held that "[t]he Government may ... regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest."
subsections: section_title: First Amendment Principles
paragraphs: Where speech is restricted based on its content, the Supreme Court generally applies "strict scrutiny," which means that it will uphold a content-based restriction only if it is necessary "to promote a compelling interest," and is "the least restrictive means to further the articulated interest."
subsections: section_title: Compelling Interest
paragraphs: Protection of the national security from external threat is without doubt a compelling government interest. It has long been accepted that the government has a compelling need to suppress certain types of speech, particularly during time of war or heightened risk of hostilities. Speech likely to incite immediate violence, for example, may be suppressed. Speech that would give military advantage to a foreign enemy is also susceptible to government regulation.
Where First Amendment rights are implicated, it is the government's burden to show that its interest is sufficiently compelling to justify enforcement. Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States. Actual damage need not be proved, but potential damage must be more than merely speculative and incidental.
section_title: Promotion of that Interest
paragraphs: In addition to showing that the stated interest to be served by the statute is compelling, the government must also show that the law actually serves that end. If the accused can show that the statute serves an unrelated purpose—for example, to silence criticism of certain government policies or to manipulate public opinion—a judge might be prepared to invalidate the statute. If, for example, the government releases some positive results of a secret weapons program while suppressing negative results, a person prosecuted for releasing negative information could challenge the statute by arguing that his prosecution is related to the negative content of his speech rather than to valid concerns about the damage it might cause. If he can show that those who disclose sensitive information that tends to support the administration's position are not prosecuted, while those who disclose truthful information that is useful to its opponents are prosecuted, he might be able to persuade a court that the statute as enforced is an unconstitutional restriction of speech based on impermissible content-related interests.
section_title: Least Restrictive Means
paragraphs: To survive a constitutional challenge, a law must be narrowly drawn to affect only the type of speech that the government has a compelling need to suppress. A statute that reaches speech that the government has no sufficiently compelling need to regulate may be subject to attack due to overbreadth. A law is overly broad if it prohibits more speech than is necessary to achieve its purpose. If a defendant can show that a statute regulating speech is "substantially overbroad," he may challenge its validity on its face. If the law is found to be substantially overbroad, a court will invalidate the law even if the defendant's conduct falls within the ambit of conduct that the government may legitimately prohibit. For this reason, a statute that relies solely on the Executive's classification of information to determine the need for its protection might be contested as overbroad. If a challenger were able to show that agencies classify information that it is unnecessary to keep secret, he could argue that the statute is invalid as overly broad because it punishes protected speech that poses no danger to the national security
Although information properly classified in accordance with statute or executive order carries by definition, if disclosed to a person not authorized to receive it, the potential of causing at least identifiable harm to the national security of the United States, it does not necessarily follow that government classification by itself will be dispositive of the issue in the context of a criminal trial. Government classification will likely serve as strong evidence to support the contention. Typically, courts have been unwilling to review decisions of the executive related to national security, or have made a strong presumption that the material at issue is potentially damaging. In the context of a criminal trial, especially in a case with apparent First Amendment implications, courts may be more willing to engage in an evaluation of the propriety of a classification decision than they would in a case of citizens seeking access to information under the Freedom of Information Act (FOIA).
The Supreme Court seems satisfied that national security is a vital interest sufficient to justify some intrusion into activities that would otherwise be protected by the First Amendment—at least with respect to federal employees. Although the Court has not held that government classification of material is sufficient to show that its release is damaging to the national security, it has seemed to accept without much discussion the government's assertion that the material in question is damaging. Lower courts have interpreted 18 U.S.C. § 798, which criminalizes the unauthorized release of specific kinds of classified information, to have no requirement that the government prove that the classification was proper or personally approved by the President. It is unlikely that a defendant's bare assertion that information is unlikely to damage U.S. national security will be persuasive without some convincing evidence to that effect, or proof that the information is not closely guarded by the government.
Snepp v. United States affirmed the government's ability to enforce contractual non-disclosure agreements against employees and former employees who had had access to classified information. The Supreme Court allowed the government to impose a constructive trust on the earnings from Frank Snepp's book about the CIA because he had failed to submit it to the CIA for prepublication review, as he had agreed to do by signing an employment agreement. Although the CIA stipulated to the fact that the book contained no classified information, the Court accepted the finding that the book caused "irreparable harm and loss" to the American intelligence services. The Court suggested that the CIA did not need a signed agreement in order to protect its interests by subjecting its former employees to prepublication review and possible censorship.
Haig v. Agee was a First Amendment challenge to the government's ability to revoke a citizen's passport because of his intent to disclose classified information. Philip Agee was a former CIA agent who engaged in a "campaign to fight the United States CIA," which included publishing names of CIA operatives around the world. In order to put a stop to this activity, the Department of State revoked his passport. Agee challenged that action as an impermissible burden on his freedom to travel and an effort to penalize his exercise of free speech to criticize the government. The Supreme Court disagreed, finding the passport regulations constitutional because they may be applied "only in cases involving likelihood of 'serious damage' to national security or foreign policy."
United States v. Morison is significant in that it represents the first case in which a person was convicted for selling classified documents to the media. Morison argued that the espionage statutes did not apply to his conduct because he could not have had the requisite intent to commit espionage. The Fourth Circuit rejected his appeal, finding the intent to sell photographs that he clearly knew to be classified sufficient to satisfy the scienter requirement under 18 U.S.C. § 793. The definition of "relating to the national defense" was not overbroad because the jury had been instructed that the government had the burden of showing that the information was so related.
section_title: Prior Restraint
paragraphs: In addition to restricting the disclosure of information by prosecuting the person responsible after the fact, the government may seek to prevent publication by prior restraint (i.e., seeking a temporary restraining order or an injunction from a court to enjoin publication). The Supreme Court, however, is unlikely to uphold such an order. It has written:
[P]rior restraints are the most serious and least tolerable infringement on First Amendment rights.... A prior restraint,... by definition, has an immediate and irreversible sanction. If it can be said that a threat of criminal or civil sanctions after publication "chills" speech, prior restraint "freezes" it at least for the time. The damage can be particularly great when the prior restraint falls upon the communication of news and commentary on current events.
The government's ability to protect sensitive information was explored in the context of prior restraints of the media in the Pentagon Papers case. In a per curiam opinion accompanied by nine concurring or dissenting opinions, the Court refused to grant the government's request for an injunction to prevent the New York Times and the Washington Post from printing a classified study of the U.S. involvement in Vietnam. A majority of the justices indicated in dicta , however, that the newspapers—as well as the former government employee who leaked the documents to the press—could be prosecuted under the Espionage Act.
section_title: Due Process
paragraphs: A statute is unconstitutionally vague if it does not permit the ordinary person to determine with reasonable certainty whether his conduct is criminally punishable. Therefore, a statute prohibiting the unauthorized disclosure of classified information must be sufficiently clear to allow a reasonable person to know what conduct is prohibited. Where First Amendment rights are implicated, the concern that a vague statute will have a chilling effect on speech not intended to be covered may make that law particularly vulnerable to judicial invalidation.
The Espionage Act of 1917 has been challenged for vagueness without success. There have been very few prosecutions under that act for disclosing information related to the national defense. The following elements are necessary to prove an unauthorized disclosure offense under 18 U.S.C. § 793:
1. The information or material disclosed must be related to the national defense, that is, pertaining to any matters "directly and reasonably connected with the defense of our nation against its enemies" that "would be potentially damaging to the United States, or might be useful to an enemy of the United States" and are "closely held" in that the relevant government agency has sought to keep them from the public generally and that these items have not been made public and are not available to the general public.
2. The disclosure must be made with knowledge that such disclosure is not authorized.
3. There must be an "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.
There does not appear to be a requirement that the disclosure cause actual harm. An evil motive is not necessary to satisfy the scienter requirement; the willfulness prong is satisfied by the knowledge that the information may be used to the injury of the United States. It is irrelevant whether the information was passed to a friendly foreign nation. A patriotic motive will not likely change the outcome.
The Supreme Court, in Gorin v. United States , upheld portions of the Espionage Act now codified as sections 793 and 794 of title 18, U.S. Code (communication of certain information to a foreign entity) against assertions of vagueness, but only because jury instructions properly established the elements of the crimes, including the scienter requirement and a definition of "national defense" that includes potential damage in case of unauthorized release of protected information and materials. Gorin was a "classic case" of espionage, and there was no challenge based on First Amendment rights. The Court agreed with the government that the term "national defense" was not vague; it was satisfied that it "is a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness." Whether information was "related to the national defense" was a question for the jury to decide, based on its determination that the information "may relate or pertain to the usefulness, efficiency or availability of any of the above places, instrumentalities or things for the defense of the United States of America. The connection must not be a strained one nor an arbitrary one. The relationship must be reasonable and direct." As long as the jury was properly instructed that information not likely to cause damage was not "related to the national defense" for the purpose of the statute, the term was not unconstitutionally vague.
No other challenge to a conviction under the Espionage Act has advanced to the Supreme Court.
section_title: Conclusion
paragraphs: Under the present legal framework, the publication of national security information by non-government personnel may be prosecuted under various provisions, but only if the information meets the definition set forth by statute and the disclosure is made with the requisite knowledge or intent with regard to the nature of the damage it could cause. The First Amendment limits Congress's ability to prohibit the publication of information of value to the public, especially with regard to pre-publication injunctions against non-government employees. That the publication of some information has the potential to damage U.S. national security interests is rarely denied, but an agreement on how to protect such information without harming the public's right to know what its government is doing may remain elusive.