Protection of National Security Information
Prepared for Members and Committees of Congress
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 th
these laws may make prosecution of some disclosures impossible. The 106 Congress passed a th
measure to criminalize leaks, but President Clinton vetoed it. The 108 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
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.
Introduc tion ............................................................................................................................... 1
Backgr ound ............................................................................................................................... 2
Criminal Statutes for the Protection of Classified Information..........................................3
Civil Penalties and Other Measures....................................................................................9
Prior Legislative Efforts...........................................................................................................11
First Amendment Principles..............................................................................................14
Conclusion .............................................................................................................................. 19
Author Contact Information..........................................................................................................20
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 1
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
To close some perceived gaps, the 106th Congress passed a measure to criminalize all leaks of 2th
classified information; however, President Clinton vetoed the measure. The 108 Congress
considered passing an identical provision as part of the Intelligence Authorization Act for Fiscal 3
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, 4
2002. In its response to Congress, the Department of Justice concluded that existing statutes and
1 See E.E.B. and K.E.M., Note, Plugging the Leak: The Case for a Legislative Resolution of the Conflict between the
Demands of Secrecy and the Need for Open Government, 71 VA. L. REV. 801, 811 (1985). With respect to a major
component of the legal framework, one district court judge had the following to say:
The conclusion that the statute is constitutionally permissible does not reflect a judgment about
whether Congress could strike a more appropriate balance between these competing interests, or
whether a more carefully drawn statute could better serve both the national security and the value
of public debate. Indeed, the basic terms and structure of this statute have remained largely
unchanged since the administration of William Howard Taft. The intervening years have witnessed
dramatic changes in the position of the United States in world affairs and the nature of threats to
our national security. The increasing importance of the United States in world affairs has caused a
significant increase in the size and complexity of the United States’ military and foreign policy
establishments, and in the importance of our nation’s foreign policy decision making. Finally, in
the nearly one hundred years since the passage of the Defense Secrets Act mankind has made great
technological advances affecting not only the nature and potential devastation of modern warfare,
but also the very nature of information and communication. These changes should suggest to even
the most casual observer that the time is ripe for Congress to engage in a thorough review and
revision of these provisions to ensure that they reflect both these changes, and contemporary views
about the appropriate balance between our nation’s security and our citizens’ ability to engage in
public debate about the United States’ conduct in the society of nations.
United States v. Rosen, 445 F.Supp.2d 602, 646 (E.D. Va. 2006)(Ellis, J.).
2 H.R. 4392 § 304, 106th Congress; See Statement by the President to the House of Representatives, 36 WEEKLY COMP.
PRES. DOC. 278 (Nov. 4, 2000).
3 The Classified Information Protection Act of 2001, H.R. 2943, 107th Cong.
regulations are sufficient to prosecute disclosures of information that might harm the national 5
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.
The classification by government agencies of documents deemed sensitive has evolved from a 6
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 7
government materials traces its roots to the Espionage Act of 1917, which made it a crime to 89
disclose defense information during wartime. The National Security Act of 1947 directed the 10
Director of the CIA to protect “intelligence sources and methods.” The Atomic Energy Act of 1112
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.
4 See Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, § 310 (2001). An identical measure was
introduced in the 109th Congress, S. 3774, but was not reported out of committee.
5 Letter from John Ashcroft, Attorney General of the United States, to Congress, October 15, 2002, reported 148 CONG.
REC. S11,732 (daily ed. Nov. 20, 2002), available online at http://www.fas.org/sgp/othergov/dojleaks.html(Last visited
June 29, 2006).
6 See SENATE COMM’N ON PROTECTING AND REDUCING GOVERNMENT SECRECY, 103d CONG., REPORT PURSUANT TO
PUBLIC LAW 236 (Comm. Print 1997); CRS Report RS21900, The Protection of Classified Information: The Legal
Framework, by Jennifer K. Elsea.
7 Act of June 15, 1917, ch. 30, title I, §§ 1, 6, 40 Stat. 217, 219, codified as amended at 18 U.S.C. §§ 793 et seq.
8 See Anthony R. Klein, Comment, National Security Information: Its Proper Role and Scope in a Representative
Democracy, 42 FED. COMM. L.J. 433, 437(1990) (describing evolution of anti-espionage laws).
9 Codified at 50 U.S.C. § 401 et seq.
10 50 U.S.C. § 403(g).
11 Codified at 42 U.S.C. § 2271 et seq. The dissemination of certain unclassified information related to nuclear facilities
may be restricted by the Secretary of Energy pursuant to 42 U.S.C. § 2168 upon a finding that dissemination “could
reasonably be expected to result in a significant adverse effect on the health and safety of the public or the common
defense and security....” 42 U.S.C. § 2168(a)(4)(B).
12 See Benjamin S. DuVal, Jr., The Occasions of Secrecy, 47 U. PITT. L. REV. 579, 596 (1986) (detailing restrictions
directed at protecting nuclear secrets, or “Restricted Data”).
13 Codified at 35 U.S.C. § 181 et seq.
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 14
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, 15
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
14 18 U.S.C. § 793(a)-(c) provides:
(a) Whoever, 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, goes upon, enters, flies over, or otherwise obtains information
concerning any vessel, aircraft, work of defense, [etc.], or any prohibited place so designated by the
President by proclamation in time of war or in case of national emergency in which anything for
the use of the Army, Navy, or Air Force is being prepared or constructed or stored, information as
to which prohibited place the President has determined would be prejudicial to the national defense;
(b) Whoever, for the purpose aforesaid, and with like intent or reason to believe, copies, takes,
makes, or obtains, or attempts to copy, take, make, or obtain any sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, document, writing, or note of
anything connected with the national defense; or
(c) Whoever, for the purpose aforesaid, receives or obtains or agrees or attempts to receive or
obtain from any person, or from any source whatever, any [protected thing] connected with the
national defense, knowing or having reason to believe... that it has been or will be obtained, taken,
made, or disposed of by any person contrary to the provisions of this chapter [18 U.S.C. §§ 792 et
15 18 U.S.C. § 793(d)-(f) provides:
(d) Whoever, lawfully having possession of, access to, control over, or being entrusted with any
document [or other protected thing] relating to the national defense, or information relating to the
national defense ... 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 ... to
any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand
to the officer or employee of the United States entitled to receive it; or
(e) Whoever having unauthorized possession of, access to, or control over any document [or other
protected thing], 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 ... 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; or
(f) Whoever, being entrusted with or having lawful possession or control of any document [or other
protected thing], or information, relating to the national defense,
(1) through gross negligence permits the same to be removed from its proper place of custody
or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or
(2) having knowledge that the same has been illegally removed from its proper place of
custody or delivered to anyone in violation of his trust, or lost, or stolen, abstracted, or
destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his
Shall be fined under this title or imprisoned not more than ten years, or both.
“defense information.”16 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 17
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 18
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 19
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 21
and the like during time of war, with the intent that the information reach the enemy. Offenders 22
are also subject to forfeiture of any ill-gotten gains and property used to facilitate the offense.
16 See United States v. Morison, 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988)(upholding conviction under
18 U.S.C. § 793 for delivery of classified photographs to publisher).
17 Gorin v. United States, 312, U.S. 9, 27-28 (1941) (“Where there is no occasion for secrecy, as with reports relating to
national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood
be no reasonable intent to give an advantage to a foreign government.”).
18 United States v. Squillacote, 221 F.3d 542, 578 (4th Cir. 2000). But see United States v. Rosen, 445 F.Supp.2d 602,
620 (E.D. Va. 2006) (interpreting the reference in Squillacote to apply not to the document at issue, but rather, to
information pertaining to the government’s assessment of the validity of the information contained in it).
19 United States v. Rosen, 445 F.Supp.2d 602, 616 (E.D. Va. 2006).
20 § 794. Gathering or delivering defense information to aid foreign government
(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States
or to the advantage of a foreign nation, communicates, delivers, or transmits. . . to any foreign
government, or to any faction or party or military or naval force within a foreign country, whether
recognized or unrecognized by the United States, or to any representative, officer, agent, employee,
subject, or citizen thereof, either directly or indirectly, any document [or other protected thing], or
information relating to the national defense, shall be punished by death or by imprisonment for any
term of years or for life, except that the sentence of death shall not be imposed unless the jury or . .
. the court, further finds that the offense resulted in the identification by a foreign power (as defined
in section 101(a) of the Foreign Intelligence Surveillance Act of 1978 [50 U.C.S. § 1801(a)]) of an
individual acting as an agent of the United States and consequently in the death of that individual,
or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or
other means of defense or retaliation against large-scale attack; war plans; communications
intelligence or cryptographic information; or any other major weapons system or major element of
(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy,
collects, records, publishes, or communicates, or attempts to elicit any information with respect to
the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships,
aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed
plans or conduct of any naval or military operations, or with respect to any works or measures
undertaken for or connected with, or intended for the fortification or defense of any place, or any
other information relating to the public defense, which might be useful to the enemy, shall be
punished by death or by imprisonment for any term of years or for life....
21 During time of war, any individual who communicates intelligence or any other information to the enemy may be
prosecuted by the military for aiding the enemy under Article 104 of the Uniform Code of Military Justice (UCMJ),
Members of the military23 who commit espionage, defined similarly to the conduct prohibited in
Military Justice (UCMJ), and sentenced to death if certain aggravating factors are found by 25
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
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. §§ 26
and if convicted, punished by “death or such other punishment as a court-martial or military commission may direct.”
10 U.S.C. § 904. Persons convicted by a general court-martial or by a military commission for “lurking as a spy or
acting as a spy in or about any place, vessel, or aircraft, [etc.]” during time of war are to be punished by death. 10
U.S.C. § 906. Alien unlawful combatants within the meaning of chapter 47A of title 10, who, “with intent or reason to
believe that it is to be used to the injury of the United States or to the advantage of a foreign power, collects or attempts
to collect information by clandestine means or while acting under false pretenses, for the purpose of conveying such
information to an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished by death or
such other punishment as a military commission ... may direct.” 10 U.S.C.A. § 950v(27).
22 18 U.S.C. § 794(d). Proceeds go to the Crime Victims Fund.
23 Persons subject to the UCMJ include members of regular components of the armed forces, cadets and midshipmen,
members of reserve components while on training, members of the national guard when in Federal service, members of
certain organizations when assigned to and serving the armed forces, prisoners of war, persons accompanying the
armed forces in the field in time of war or a “contingency operation,” and certain others with military status. 10 U.S.C.
24 10 U.S.C. § 906a(a) provides:
Art. 106a. Espionage
(a)(1) Any person subject to [the UCMJ, chapter 47 of title 10, U.S.C.] who, with intent or reason
to believe that it is to be used to the injury of the United States or to the advantage of a foreign
nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to
any entity described in paragraph (2), either directly or indirectly, anything described in paragraph
(3) shall be punished as a court-martial may direct, except that if the accused is found guilty of an
offense that directly concerns (A) nuclear weaponry, military spacecraft or satellites, early warning
systems, or other means of defense or retaliation against large scale attack, (B) war plans, (C)
communications intelligence or cryptographic information, or (D) any other major weapons system
or major element of defense strategy, the accused shall be punished by death or such other
punishment as a court-martial may direct.
(2) An entity referred to in paragraph (1) is—
(A) a foreign government;
(B) a faction or party or military or naval force within a foreign country, whether recognized
or unrecognized by the United States; or
(C) a representative, officer, agent, employee, subject, or citizen of such a government,
faction, party, or force.
(3) A thing referred to in paragraph (1) is a document, writing, code book, signal book, sketch,
photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or
information relating to the national defense.
25 10 U.S.C. § 906a(b)-(c).
26 § 795. Photographing and sketching defense installations
The knowing and willful disclosure of certain classified information is punishable under 18 27
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 28
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 29
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
(a) Whenever, in the interests of national defense, the President defines certain vital military and
naval installations or equipment as requiring protection against the general dissemination of
information relative thereto, it shall be unlawful to make any photograph, sketch, picture, drawing,
map, or graphical representation of such vital military and naval installations or equipment without
first obtaining permission of the commanding officer of the military or naval post, camp, or station,
or naval vessels, military and naval aircraft, and any separate military or naval command
concerned, or higher authority, and promptly submitting the product obtained to such commanding
officer or higher authority for censorship or such other action as he may deem necessary....
§ 797. Publication and sale of photographs of defense installations
On and after thirty days from the date upon which the President defines any vital military or naval
installation or equipment as being within the category contemplated under section 795 of this title
, whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing,
map, or graphical representation of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer ... or higher authority, unless such
photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon
that it has been censored by the proper military or naval authority, shall be fined under this title or
imprisoned not more than one year, or both.
27 § 798. Disclosure of classified information
(a) 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 any classified information—
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the
United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or
appliance used or prepared or planned for use by the United States or any foreign government for
cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign
(4) obtained by the processes of communication intelligence from the communications of any
foreign government, knowing the same to have been obtained by such processes—
Shall be fined under this title or imprisoned not more than ten years, or both.
28 18 U.S.C. § 798(b).
29 Id. (“The term ‘foreign government’ includes in its meaning any person or persons acting or purporting to act for or
on behalf of any faction, party, department, agency, bureau, or military force of or within a foreign country, or for or on
behalf of any government or any person or persons purporting to act as a government within a foreign country, whether
or not such government is recognized by the United States.”).
information, it has been used for that purpose.30 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 31
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.32 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 33
intent of retaining the materials at an unauthorized location.
42 U.S.C. § 2274 punishes the unauthorized communication by anyone of “Restricted Data,”34 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 35
United States or to secure an advantage to any foreign nation. An attempt to disclose or
30 See United States v. Morison, 844 F.2d 1057 (4th Cir. 1988)(photographs and reports were tangible property of the
government); United States v. Fowler, 932 F.2d 306 (4th Cir. 1991)(“information is a species of property and a thing of
value” such that “conversion and conveyance of governmental information can violate § 641,” citing United States v. th
Jeter, 775 F.2d 670, 680-82 (6 Cir. 1985)); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir. 1979).
31 18 U.S.C. § 952.
32 18 U.C.S. § 1924 provides:
(a) Whoever, being an officer, employee, contractor, or consultant of the United States, and, by
virtue of his office, employment, position, or contract, becomes possessed of documents or
materials containing classified information of the United States, knowingly removes such
documents or materials without authority and with the intent to retain such documents or materials
at an unauthorized location shall be fined not more than $ 1,000, or imprisoned for not more than
one year, or both.
(b) For purposes of this section, the provision of documents and materials to the Congress shall not
constitute an offense under subsection (a).
(c) In this section, the term “classified information of the United States” means information
originated, owned, or possessed by the United States Government concerning the national defense
or foreign relations of the United States that has been determined pursuant to law or Executive
order to require protection against unauthorized disclosure in the interests of national security.
34 The term “Restricted Data” is defined by the Atomic Energy Act of 1954 to include “all data concerning (1) design,
manufacture, or utilization of atomic weapons; (2) the production of special nuclear material; or (3) the use of special
nuclear material in the production of energy, but shall not include data declassified or removed from the Restricted
Data category pursuant to [42 U.C.S. § 2162].” 42 U.C.S. § 2014(y).
35 42 U.S.C. § 2274(a). Receipt or tampering with Restricted Data with like intent is punishable in the same way under
42 U.S.C. §§ 2275 and 2276.
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 36
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 37
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 39
fine or both. A person who learns the identity of an agent through authorized access to classified 40
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 41
prosecution if the United States has already publicly disclosed the identity of the agent.
communicate classified information to a person whom the employee has reason to suspect is an 42
agent or representative of a foreign government. It is also unlawful for the representative or
36 42 U.S.C. § 2274(b).
37 42 U.S.C. § 2277.
38 The Intelligence Identities and Protection Act of 1982, codified at 50 U.S.C. §§ 421-26. For more information, see
CRS Report RS21636, Intelligence Identities Protection Act, by Elizabeth B. Bazan.
39 50 U.S.C. § 421(a) provides:
(a) Whoever, having or having had authorized access to classified information that identifies a
covert agent, intentionally discloses any information identifying such covert agent to any individual
not authorized to receive classified information, knowing that the information disclosed so
identifies such covert agent and that the United States is taking affirmative measures to conceal
such covert agent’s intelligence relationship to the United States, shall be fined under title 18,
United States Code, or imprisoned not more than ten years, or both.
40 “Classified Information” is defined in 50 U.S.C. § 426(1) as “information or material designated and clearly marked
or clearly represented, pursuant to the provisions of a statute or Executive order (or a regulation or order issued
pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for
reasons of national security.”
41 See Lawrence P. Gottesman, Note, The Intelligence Identities Protection Act of 1982: An Assessment of the
Constitutionality of Section 601(c), 49 BROOKLYN L. REV. 479, 483 - 485 (1983)(outlining the elements of an offense
under 50 U.S.C. § 421).
42 50 U.S.C. § 783(a) provides:
Communication of classified information by Government officer or employee. It shall be unlawful
for any officer or employee of the United States or of any department or agency thereof, or of any
corporation the stock of which is owned in whole or in major part by the United States or any
department or agency thereof, to communicate in any manner or by any means, to any other person
whom such officer or employee knows or has reason to believe to be an agent or representative of
any foreign government , any information of a kind which shall have been classified by the
President (or by the head of any such department, agency, or corporation with the approval of the
agent of the foreign government to receive classified information.43 Violation of either of these 44
provisions is punishable by a fine of up to $10,000 or imprisonment for not more than 10 years. 45
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 46
used to facilitate the violation.
Disclosure of a patent that has been placed under a secrecy order pursuant to the Invention 47
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 48
order to be punishable.
In addition to the criminal penalties outlined above, the executive branch employs numerous
means of deterring unauthorized disclosures by government personnel using administrative 49
measures based on terms of employment contracts. The agency may impose disciplinary action 50
or revoke a person’s security clearance. The revocation of a security clearance is usually not 51
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
President) as affecting the security of the United States, knowing or having reason to know that
such information has been so classified, unless such officer or employee shall have been
specifically authorized by the President, or by the head of the department, agency, or corporation
by which this officer or employee is employed, to make such disclosure of such information.
43 50 U.S.C. 783(b) provides:
Receipt of, or attempt to receive, by foreign agent or member of Communist organization,
classified information. It shall be unlawful for any agent or representative of any foreign
government knowingly to obtain or receive, or attempt to obtain or receive, directly or indirectly,
from any officer or employee of the United States or of any department or agency thereof or of any
corporation the stock of which is owned in whole or in major part by the United States or any
department or agency thereof, any information of a kind which shall have been classified by the
President (or by the head of any such department, agency, or corporation with the approval of the
President) as affecting the security of the United States, unless special authorization for such
communication shall first have been obtained from the head of the department, agency, or
corporation having custody of or control over such information.
44 50 U.S.C. § 783(c).
46 50 U.S.C. § 783(e).
47 Codified at 35 U.S.C. § 181 et seq.
48 35 U.S.C. § 186.
49 See DuVal, supra footnote 12, at 597 (identifying administrative regulations as principal means of enforcing secrecy
50 See, e.g., Exec. Order 12,958. Sanctions may include “reprimand, suspension without pay, removal, ... loss or denial
of access to classified information, or other sanctions in accordance with applicable law and agency regulation.” Id. at
51 See Department of Navy v. Egan, 484 U.S. 518, 526-29 (1988). Federal courts may review constitutional challenges
based on the revocation of security clearance. Webster v. Doe, 486 U.S. 592 (1988).
classified information.52 Violators of the Espionage Act and the Atomic Energy Act provisions 53
may be subject to loss of their retirement pay.
Agencies also rely on contractual agreements with employees, who typically must sign non-54
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 55
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 56
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 57
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 58
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 59
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 60
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 61
against the United States based on the invention.
52 See 42 U.S.C. § 2282(b) (providing for fine of up to $100,000 for violation of Department of Energy security
53 5 U.C.S. § 8312 (2001)(listing violations of 18 U.S.C. §§ 793 & 798, 42 U.S.C. § 2272-76, and 50 U.S.C. § 421,
among those for which forfeiture of retirement pay or annuities may be imposed).
54 See United States v. Marchetti, 466 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972) (enforcing contractual
non-disclosure agreement by former employee regarding “secret information touching upon the national defense and
the conduct of foreign affairs” obtained through employment with CIA).
55 See Snepp v. United States, 444 U.S. 507 (1980); see also Alan E. Garfield, Promises of Silence: Contract Law and
Freedom of Speech, 83 CORNELL L. REV. 261, 274 (1998)(noting the remedy in Snepp was enforced despite the
agency’s stipulation that the book did not contain any classified information).
56 See 18 U.S.C. §§ 793(h), 794(d), 798(d); Klein, supra footnote 8, at 438-439.
57 42 U.S.C. § 2168(b).
58 See United States v. Marchetti, 466 F.2d 1309 (4th Cir. 1972) (granting an injunction to prevent a former CIA agent
from publishing a book disclosing government secrets).
59 See Haig v. Agee, 453 U.S. 280 (1981).
60 35 U.S.C. § 181. The determination must be renewed on a yearly basis.
61 35 U.S.C. § 182.
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 62
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 63
not originate from classified material and the author’s purpose was not subversive.
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 64
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 65
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 6667
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
62 United States v. New York Times, 403 U.S. 713 (1971). See Klein, supra footnote 8, at 439-40.
63 See DuVal, supra footnote 12, at 604 (describing Progressive magazine article at issue in United States v.
Progressive, Inc., 467 F.Supp. 990 (W.D. Wis. 1979)); Klein, supra footnote 8, at 435 (noting disparity between rulings
in New York Times and Progressive). The information the Progressive sought to publish was related to the building of a
nuclear bomb and was thus classified as “Restricted Data” under the Atomic Energy Act, even though the information
had been compiled from unclassified, publicly available documents. One reason for the different outcomes in the two
cases is that the Atomic Energy Act contains statutory authorization for the Attorney General to seek injunction. See 42
U.S.C. § 2280. In New York Times, a majority of Justices took into account the fact that Congress had not authorized an
injunction. 403 U.S. at 718 (Black, J., concurring); id. at 721-22 (Douglas, J., concurring); id. at 730 (Stewart, J.,
concurring); id. at 731-40 (White, J., concurring); id. at 742 (Marshall, J., concurring).
64 See E.E.B. and K.E.M., Note, Plugging the Leak: The Case for a Legislative Resolution of the Conflict between the
Demands of Secrecy and the Need for Open Government, 71 VA. L. REV. 801, 811 (1985).
65 See id. at 814.
66 See id. at 815.
67 See United States v. Morison, 844 F.2d 1057 (1988).
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 68
of the type of information covered. In short, the provision would have made it a crime to 69
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 70
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 106th Congress passed the measure,71 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 72
“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 73
68 18 USCS § 1924 prohibits removal of government-owned or controlled classified information by a government
employee without authorization. 50 U.S.C. § 783 covers only information classified by the President or an executive
agency transmitted by a government employee to a foreign government. 18 U.S.C. §§ 793 and 794 are potentially
broader than these in that they cover information “related to the national defense,” by government employees and
others without regard to the identity of the recipient of the information, but these require intent or knowledge regarding
harm to the national defense.
69 “Classified information” was defined in the proposed measure to mean “information or material designated and
clearly marked or represented, or that the person knows or has reason to believe has been determined by appropriate
authorities, pursuant to the provisions of a statute or Executive Order, as requiring protection against unauthorized
disclosure for reasons of national security.”
70 See H.Rept. 106-969 at 44 (2000).
71 H.R. 4392 § 304, 106th Congress.
72 Message on Returning Without Approval to the House of Representatives the “Intelligence Authorization Act for
Fiscal Year 2001”, 36 WEEKLY COMP. PRES. DOC. 278 (Nov. 4, 2000).
The 108th Congress considered passing an identical provision as part of the Intelligence 74
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 75th
administrative actions. An identical measure was introduced late in the 109 Congress, but was 76
not reported out of committee.
The Attorney General, in his report to the 108th 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 77
disclosures of classified information or deterring such activity is unclear, however.
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 ... 78
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 79
the articulated interest.”
74 The Classified Information Protection Act of 2001, H.R. 2943, 107th Cong.
75 Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, § 310 (2001).
76 S. 3774, 109th Cong.
77 Report to Congress on Unauthorized Disclosure of Classified Information, Oct. 15, 2002 (citations omitted).
78 For an analysis of exceptions to the First Amendment, see CRS Report 95-815, Freedom of Speech and Press:
Exceptions to the First Amendment, by Henry Cohen.
79 Sable Communications of California v. Federal Communications Commission, 492 U.S. 115, 126 (1989).
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 80
Protection of the national security from external threat is without doubt a compelling government 81
interest. It has long been accepted that the government has a compelling need to suppress 82
certain types of speech, particularly during time of war or heightened risk of hostilities. Speech 83
likely to incite immediate violence, for example, may be suppressed. Speech that would give 84
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 85
States. Actual damage need not be proved, but potential damage must be more than merely 86
speculative and incidental.
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 87
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
81 See Haig v. Agee, 453 U.S. 280 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more
compelling than the security of the Nation.”)(citing Aptheker v. Secretary of State, 378 U.S., at 509; accord Cole v.
Young, 351 U.S. 536, 546 (1956)).
82 See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger” test).
83 Brandenburg v. Ohio, 395 U.S. 444 (1969).
84 Near v. Minnesota, 283 U.S. 697, 716 (1931) (“No one would question but that a government might prevent actual
obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of
85 “National Security” is defined as national defense and foreign relations. See Exec.Order No. 12,958, 60 Fed.
Reg.19,825 (Apr. 17, 1995).
86 See, e.g., New York Times Co. v. United States, 403 U.S. 713, 725 (1971) (Brennan, J., concurring) (rejecting as
insufficient government’s assertions that publication of Pentagon Papers “could,” “might,” or “may” prejudice the
national interest); Elrod v. Burns, 427 U.S. 347, 362 (1976) (“The interest advanced must be paramount, one of vital
importance, and the burden is on the government to show the existence of such an interest.”)(citing Buckley v. Valeo,
424 U.S. 1, 94(1976); Williams v. Rhodes, 393 U.S. 23, 31-33(1968); NAACP v. Button, 371 U.S. 38, 45 (1963); Bates
v. Little Rock, 361 U.S. 516, 524 (1960); NAACP v. Alabama, 357 U.S. 449, 464-466 (1958); Thomas v. Collins, 323
U.S. 516, 530 (1945)).
87 In all likelihood, such a defendant would have to prove not only that such an impermissible use is possible, but also
that it is pertinent to the particular case.
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 88
restriction of speech based on impermissible content-related interests.
To survive a constitutional challenge, a law must be narrowly drawn to affect only the type of 89
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 90
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 91
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 92
identifiable harm to the national security of the United States, it does not necessarily follow that
88 Cf. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); but see Snepp v. United States, 444 U.S. 507 (1980)(Stevens, J.,
dissenting). Snepp’s assertion of selective enforcement against his book based on its critical treatment of the CIA failed
to persuade the Supreme Court that any violation of the First Amendment had occurred. See Judith Schenk Koffler and
Bennett L. Gershman, National Security and Civil Liberties: The New Seditious Libel, 69 CORNELL L. REV. 816, 847
89 See E.E.B. and K.E.M., supra footnote 1, at 849.
90 Broadrick v. Oklahoma, 413 U.S. 601 (1973).
91 Courts have rejected challenges of the Espionage Act based on overbreadth stemming from the imprecision of the
term “information related to the national defense” by reading other requirements into the statute. See, e.g., United
States v. Rosen, 445 F.Supp.2d 602, 643 (E.D. Va. 2006)(rejecting overbreadth challenge on the basis of judicial
interpretation of 18 U.S.C. § 793 that requires the government to prove “(1) that the information relates to the nation’s
military activities, intelligence gathering or foreign policy, (2) that the information is closely held by the government,
in that it does not exist in the public domain; and (3) that the information is such that its disclosure could cause injury
to the nation’s security”).
92 Exec. Order No. 12,958, 60 Fed. Reg.19,825 (Apr. 17, 1995)(“Classified National Security Information”).
Sec. 1.3 defines three levels of classification:
(1) “Top Secret” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause exceptionally grave damage to the national security that the original
classification authority is able to identify or describe.
(2) “Secret” shall be applied to information, the unauthorized disclosure of which reasonably could
be expected to cause serious damage to the national security that the original classification
authority is able to identify or describe.
(3) “Confidential” shall be applied to information, the unauthorized disclosure of which reasonably
could be expected to cause damage to the national security that the original classification authority
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 93
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 94
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 95
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 96
unauthorized release of specific kinds of classified information, to have no requirement that the 97
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 98
information is not closely guarded by the government.
Snepp v. United States99 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 100
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
is able to identify or describe.
93 See, e.g., Haig v. Agee, 453 U.S. 280, 291 (1981) (“Matters intimately related to foreign policy and national security
are rarely proper subjects for judicial intervention.”).
94 5 U.S.C. § 552(b)(1) exempts classified information from release to requesters.
95 See, e.g. Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding government did not have to show
documents were properly classified “as affecting the national defense” to convict employee under 50 U.S.C.§ 783,
which prohibits government employees from transmitting classified documents to foreign agents or entities).
96 18 U.S.C. § 798 provides in pertinent part:
“(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an
unauthorized person, ... any classified information ... (2) concerning the design, construction, use, maintenance, or
repair of any device, apparatus, or appliance used or prepared or planned for use by the United States ... for
cryptographic or communication intelligence purposes; ... (s)hall be fined ... or imprisoned ....”
97 See, e.g. United States v. Boyce, 594 F.2d 1246, 1251 (9th Cir. 1979) (“Under section 798, the propriety of the
classification is irrelevant. The fact of classification of a document or documents is enough to satisfy the classification
element of the offense.”).
98 See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
99 444 U.S. 507 (1980).
100 Id. at 511.
services.101 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 102
Haig v. Agee103 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 104
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 105
security or foreign policy.”
United States v. Morison106 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 107
instructed that the government had the burden of showing that the information was so related.
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 108
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 109
prior restraint falls upon the communication of news and commentary on current events.
101 Id. at 512.
102 Id. at 509, n3 (“Moreover, this Court’s cases make clear that - even in the absence of an express agreement - the
CIA could have acted to protect substantial government interests by imposing reasonable restrictions on employee
activities that in other contexts might be protected by the First Amendment”)(citations omitted).
103 453 U.S. 280 (1981).
104 Id. at 305.
105 Id. at 305-06.
106 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988).
107 But see Scarbeck v. United States, 317 F.2d 546 (D.C. Cir. 1962) (holding that government did not need to prove
proper classification of documents to prove a violation).
108 The Supreme Court struck down an injunction against publishing the Pentagon Papers, writing: “Any system of
prior restraints of expression comes to the Court bearing a heavy presumption against its constitutional validity.” New
York Times Co. v. United States, 403 U.S. 713, 714 (1971).
109 Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the
The government’s ability to protect sensitive information was explored in the context of prior 110
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 111
the press—could be prosecuted under the Espionage Act.
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 112
be covered may make that law particularly vulnerable to judicial invalidation.
The Espionage Act of 1917113 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
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 114
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.115 An evil motive
is not necessary to satisfy the scienter requirement; the willfulness prong is satisfied by the
publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial).
110 New York Times Co. v. United States, 403 U.S. 713 (1971).
111 See David Topol, Note, United States v. Morison: A Threat to the First Amendment Right to Publish Security
Information, 43 S.C. L. REV. 581, 586 (noting that six of the nine Pentagon Papers justices suggested that the
government could convict the newspapers under the Espionage Act even though it could not enjoin them from printing
112 See Aptheker v. Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 U.S. 258 (1967); Smith v.
Goguen, 415 U.S. 566, 573 (1974); Village of Shaumberg v. Citizens for a Better Environment, 444 U.S. 620 (1980).
113 18 U.S.C. § 793 et seq.
114 See United States v. Morison, 622 F. Supp. 1009, 1010 (D. Md.1985).
115 See United States v. Morison, 844 F.2d 1057, 1074 (4th Cir. 1988).
knowledge that the information may be used to the injury of the United States.116 It is irrelevant 117
whether the information was passed to a friendly foreign nation. A patriotic motive will not 118
likely change the outcome.
The Supreme Court, in Gorin v. United States,119 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 120
preparedness.” Whether information was “related to the national defense” was a question for 121
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 122
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.
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.
116 Id. at 1073.
117 Gorin v. United States, 312 U.S. 19, 29 (1941).
118 United States v. Morison, 622 F.Supp. 1009 (D. Md. 1985).
119 312 U.S. 19 (1941).
120 Id. at 28.
121 Id. at 32.
122 Id. at 31.
Jennifer K. Elsea