The Espionage Act

Many of us who have taken high school US history will likely recall learning about the Espionage Act. For those of us that crammed for our exams and then promptly forgot everything from the class, the Espionage Act was passed shortly after the United States entered World War One, and was intended to safeguard national security. I’ve previously written about whistleblowers Thomas Drake and Edward Snowden, both of whom have been charged with violating the Espionage Act, and realized it would be beneficial to explore that specific piece of legislation, especially considering I plan to continue the whistleblower series. This article simply aims to explain the history of the Espionage Act, and how it’s been used recently.

History

Intended to bolster American war efforts, the Act prohibited false statements about the military, punished disloyalty towards the country, and forbade citizens from accessing and sharing defense-related information. As part of a series of restrictive war-time legislation, the Espionage Act faced serious criticism. Many were, and many remain, concerned about First Amendment rights and other freedoms in a world where mere rhetoric could be a prison sentence. And these fears weren’t unfounded: thousands of anti-war protestors, socialists, and union workers were persecuted under the Act, often without substantial evidence or fair due process.

The Children’s Crusade – the children of those imprisoned for speaking out against the draft marched for the freedom of their parents in 1922

That’s why, now, the law has a complicated legacy. Many frown upon its history of persecution and restriction as it remains a critical legal aspect of US national security. The law has been repeatedly challenged as violating free speech, and some worry that it could open the door to more stringent restrictions in the future. However, the past implications of the Espionage Act have given way to different uses.

Modern Implications

Now, the law is more commonly used to criminalize unauthorized retention or disclosure of information that could either harm US national security, or aid US enemies. As such, it’s typically used to prosecute those who leak information, rather than spies. It’s important to note a couple of things. First, the classification status of documents and information is irrelevant. It doesn’t matter if a document is declassified or marked top secret; if it is unlawfully retained or if it could harm US national security, then there is a case to be made that the Act was violated. Second, courts deciding cases about the Espionage Act often defer to the government for enforcement and to determine what qualifies as a threat to national security. Third, there doesn’t necessarily have to be criminal intent in order to prosecute because the Act includes a ‘gross negligence’ standard.

It’s for some of these reasons that some have started to advocate for reform of the Espionage Act; after all, most people would consider a law last updated in 1950 to be antiquated. Critics of the legislation’s historical use to silence protestors and infringe on the First Amendment argue that more legal protections need to be added in the Act. Certain lawyers have stated that it’s difficult to win cases regarding the Espionage Act because they’re not allowed to present evidence related to the content of the information in question, or make any appeal to public interest. Others still think the Act needs to be broken down into two separate statutes – one for actual spies, and one for illegal leaking, since that’s becoming the more common use. However, opponents of reform maintain that changing the Espionage Act would undermine national security.

The Obama Administration became a turning point for the Act, as it was increasingly used to target those who leaked government information – for example, Thomas Drake, Edward Snowden, and Chelsea Manning, to name a few. In the two terms Obama held office, eight whistleblowers were prosecuted. That’s more than all other presidential administrations before him, combined.

Recently, former President Donald Trump was charged on 31 counts of violating the Espionage Act of unlawful retention of national security documents, which seems ironic considering his continued prosecution of whistleblowers such as Reality Winner. Naturally, Trump has handled this with poise, calling it “THE GREATEST WITCH HUNT OF ALL TIME”. Regardless, there seems to be a decent case against him, especially considering some of the documents found at his residence are related to Iranian missiles and Chinese intelligence.

The Espionage Act is an important piece of legislation with a unique role in American history, but it isn’t without its critics. In the next several months, it will be interesting to see its use, if any, in the case against Donald Trump. And in the future, we may see attempts to amend the law or see another shift in its role.

Bibliography

Admin (no date) The Espionage Act of 1917, INTEL. Available at: https://www.intelligence.gov/evolution-of-espionage/world-war-1/america-declares-war/espionage-act (Accessed: 04 July 2023). 

Barnes, J.E. (2022) What is the Espionage Act and how has it been used?, The New York Times. Available at: https://www.nytimes.com/2022/08/15/us/politics/espionage-act-explainer-trump.html (Accessed: 05 July 2023). 

Durkee, A. (2023) Espionage act: What to know about the century-old law Trump’s being charged under, Forbes. Available at: https://www.forbes.com/sites/alisondurkee/2023/06/09/espionage-act-what-to-know-about-the-century-old-law-trumps-being-charged-under/?sh=59b96c4c3f2f (Accessed: 17 July 2023). 

Gans, J. (2022) What is the Espionage Act?, The Hill. Available at: https://thehill.com/policy/national-security/3601538-what-is-the-espionage-act/ (Accessed: 06 July 2023). 

Myre, G. (2017) Once reserved for spies, Espionage Act now used against suspected leakers, NPR. Available at: https://www.npr.org/sections/parallels/2017/06/28/534682231/once-reserved-for-spies-espionage-act-now-used-against-suspected-leakers (Accessed: 07 July 2023).