Intelligence Identities Protection Act

CRS Report for Congress
Received through the CRS W eb
Intelligence Identities Protection Act
Elizabeth B. Bazan
Legislative Attorney
American Law Division
Summary
Recent n ew s accounts h ave focused attention o n t he question o f whether disclosure
of the i dentity of a United S tates i ntelligence agent could give rise t o criminal liability.
In 1982, Congress passed t he In telligence Identities P rotection Act, P .L.97-200. The
Act , as am ended,¹ is codified at 50 U.S.C. §§ 421-426. Under 5 0 U.S.C. § 421 criminal
penalties are p r o v i d e d , i n cert a i n ci rcu m s t an ces , f o r i n t e n t i o n a l , u n a u t h o r i z ed disclosure
of information i dentifyi ng a covert agen t, where t hose m aking s uch a disclosure know
that the i nformation discl osed identifies t he covert agent as s uch and that the United
States is taking affirmative m easures to c onceal the covert agent’s foreign intelligence
relationship t o t he United S t a t es. Other s ections of the Act provide ex ceptions and
defenses to prosecution, make provision for ex t raterritorial application o f t he offenses
in section 421, include reporting requirements t o C ongress, and s et forth d efinitions of
the t erms used in the Act. There d o n o t appear to be any published cases involving
prosecutions under t his Act.
In 1982, the Intelligence Id entities P rotectio n A ct was enacted into law as an
amendment t o t he National S ecurity Act o f 1947. This Act was a response t o concerns
of members of t he House and Senate Intelligence Committees and others i n C ongress
“about the s ys tematic effort b y a s mall group of Americans, including some former
intelligence agency em ployees , t o discl ose t he names of covert intelligence agents.”² The
Senate J udici ary C ommittee’s report also discussed t he effo rt s of P hilip Agee, Lewis
Wolf, and others to identify and disclose U.S. intelligence officers as part of “a s ys tematic

¹ Ac t of J uly 26, 1947, c. 343, T itle VI, §§ 601-606, as added by P.L. 97-200, § 2(a), 96 Stat. 122
(J une 2 3 , 1 9 82). T he definitions section, 50 U. S.C. § 426, and f ine provi sions, 50 U.S.C. §§
421(a), ( b), a nd (c), were amended i n 19 9 9 b y P . L . 106-120, Title III, § § 304(a) and ( b), 113
Stat. 1611 (Dec. 3, 1999), while the defenses a nd exceptions provision i n 50 U.S.C. § 422 and
the r eporting r equireme nts i n 50 U.S.C. § 423 we re amended i n 2002 by P.L. 107-306, T itle III,
§§ 353(b)(1)(B), 353(b)(9), and T itle VIII, § 811(b)(1)(E), 116 Stat. 2402, 2422 (Nov. 27, 2002).
² S. Rep. 97-201, at 1, reprinted i n 1982 U.S.C.C.A.N. 145. In this report, the Senate J udiciary
Committee r eviewed t he legi slative history of S. 391 and t he companion bill, H.R. 4, and t heir
predecessors begi nning with proposals i n t he 94^th and 95^th Congresses. T he Congress passed H.R.
4, in lieu of t he Senate bill, after amending the House bill to encompass much of t he language of
theSenatebill.
Congressional Research Service ˜ The Library of Congress

effort to destroy t he ability of [U.S.] intelligence agenci es to operate cl andestinel y,” and
their apparent repercus s i o n s .³ S u ch di scl o sures p receded and m ay have cont ri but ed t o
ci rcumstances resulting i n t he deat h o r attempted assassination of s ome C IA officers,
ex pulsion of others from a foreign country follo wing charges o f s pying, and impairment
of relations with foreign i ntelligence sources. T wo of Agee’s books revealed over 1,000
names of alleged C IA officers. Wolf was co-editor of t he “C overt Action Information
Bulletin,” a publication which contai ned a section entitled “Naming Nam es .” Wolf
claimed t o h ave revealed the n ames of over 2,000 C IA o f f i cers. He also provided
addresses, phone numbers, license tag numbers, and colo r s o f the automobiles of s ome
alleged i ntelligence agents.⁴ S u ch c al cul at ed di scl o sures s et t h e s t age for t he
consideration and passage of the Intelligence Identities P rotection Act .
The criminal provisions of the Act are contained i n 5 0 U.S.C. § 421:
§ 421. P rotection of i dentities of certain United States undercover i ntelli g e n c e
of f i cers, agents, inf ormants, and sources.
(a) Disclosure of i nformation by persons havi ng or havi ng had access t o c lassified
information t hat i dentifies covert agent
Whoever, havi ng or havi ng had authorized access t o classified information t hat
identifies a covert agent, i ntentionally di scloses any information i dentifyi ng such
covert agent t o any indivi dual n o t a u t horized to receive classified information,
knowing t hat t he information disclosed so identifies s uch covert a ge n t and t hat t he
United States i s t aking affirmative me a s ures to conceal such covert agent’s
intelligence rela t i o n s h i p t o t he United States, shall be f ined under T itle 18 or
imprisoned not more than ten years, or both.
(b) Disclosure of i nforma tion by persons wh o l earn i dentify of covert agents as r esult
of havi ng access t o classified information
Whoever, as a r esult of having authorized access t o classified information, learns
the i dentity of a covert agent and i ntentiona lly discloses any information i dentifyi ng
such cove rt agent t o a ny indivi dual not authorized to receive classified information,
knowing t hat t he information disclosed so identifie s s u c h covert agent and t hat t he
United States i s t aking affirmative measures to conceal s u c h c overt agent’s
intelligence relationship t o t he United State s , s h a l l be f ined under T itle 18 or
imprisoned not more than five years , or both.
(c) Disclosure of i nformation by persons in course of pattern of activities i n t e n d e d
to identify and expose covert agents

³ S. Rep. 97-201,at 1 -7 , reprinted i n 1982 U.S.C.C.A.N. at 145-51. S. R e p . 9 7 -201, 7-10,
reprinted i n 1982 U.S.C.C.A.N. at 151-54. See also, H.R. 4, The I ntelligence Identities
Protection Act: Hearings before the Subcomm. on Legislation of t he House Permanent Select^th^st
Comm. on Intelligence ,, 97 Cong., 1 Sess. (1981); Intelligence Identities Protection Act of 1981
— S. 391: Hearing before t he Subcomm. on Secur ity and Terrorism of the Senate Comm. on the^th^st
Judiciary,97 Cong., 1 Sess. (1981).
⁴ S. Rep. 97-201, at 7-10, reprinted i n 1982 U.S.C.C.A.N. at 151-54.

Whoever, in the course of a pattern of activities i ntended t o i dentify and expose
covert agents and with reason to believe that such activities would i mpair or i mpede
the f oreign intelligence activities of t he United States, discloses any information t hat
identifies an i ndivi dual as a covert agent t o any indivi dual not authorized to receive
classified information, knowing t hat t he information disclosed so identifies such
indivi dual and that the United States i s t aking affirmative measures to conceal such
i n divi dual’s classified intelligence relationship t o t he United States, shall be f i n e d
under T itle 18 or imprisoned not more than three years, or both.
(d) Imposition of consecutive s entences
A t erm of i mprisonment i mposed under t his s ection s hall be consecutive t o any
other s entence of i mprisonment.
Each of these o ffenses is a felony. Under 18 U.S.C. § 3571, individuals convicted
of a felony may b e fined the g r e ater of either the amount set forth in the offense s tatute
or an amount not more than $250, 0 00, while the m ax imum fine for an organiz ation
convicted of a felony would b e t he greater of the amount set forth in the o ffense s tatute
or an amount of not more than $500,000. This section also p rovides fo r a n a l t e r n a tive
fi ne b a s e d o n p ecuni ary gai n o r l oss. If anyone has d eri v ed pecuni ary gai n from t he
o ffense o r i f t he offense results in pecuniary l oss t o any person, the d efendant ma y b e
fined not more than the greater of twice t he gross gain o r t wice the gross loss, unless t he
imposition of a fine under t his s ubsection would unduly compli cat e or prolong the
sentencing process.
The o ffenses set forth in 50 U.S.C. §§ 421 (a), (b), and (c) share s ome elements i n
common: (1) i ntentional d isclosure⁵ of the i dentity of a covert agent⁶ (2) t o s omeone not
authoriz ed to receive classified information, (3) knowing t hat t he information d isclosed

⁵ 50 U.S.C. § 426 (3 ) d e f i nes “disclose” to mean “to communicate, provide, impart, t ransmit,
transfer, convey, publish, or otherwise make available.”
⁶ 50 U.S.C. § 426(4) defines “cove rt agent” to mean:
(A) a present or r etired officer or employee of an intelligence agency or a present or
retired member of the armed forces assigned to duty with an intelligence agency —
(i) whose i dentity as such an officer, employee, or member is c l a s s i f i ed
information,and
(ii) who i s servi ng outside the United States or ha s within the l ast f ive years
served outside the United States; or
(B) a United States citizen whose i ntelligence rela t i onship t o t he United States i s
classified information, and —
(i) who resides and acts outside the United States as an agent of, o r i n f ormant
or source of operational assistance to, and intelligence agency, or
(ii) who i s at t he time of t he disclosure acting as an agent of, or i nformant to, t he
foreign counterintelligence or foreign counterterrorism components o f t he
Federal Bureau of Investigation; or
(C) an i ndivi dual, other t han a United States citizen, whose past or present intelligence
r e lationship t o t he United States i s classified information and who i s a pr e s e n t o r
former agent of, or a present or former informant or s ource of operational assistance
to, an i ntelligence agency.

identifies t hat agent, and (4) knowing further that the United S tates i s t aking affirmative
measures to conceal the agent’s intelligen ce relationship with the United S tates.
Subsections 421(a) and (b) contemplate o ffe nses where t he perpetrator h as or has had
authoriz ed access t o classified informa tion, wh i l e s u bsection 421(c) has n o s imilar
requirement. Under 50 U.S.C. § 421(a), an offender m ust have or have had acces s t o
classified information which ident i f i e s a c overt agent. Under 5 0 U.S.C. § 421(b), t he
perpet rator m ust have l earned t he identity of a covert agent as a result of hav i n g
aut hori z ed access t o cl assi fi ed i n form at i on. In cont rast t o t h ese p rovi si ons, s ubsect i o n
421(c) does not require that the p erpetrat or have or have had authoriz ed access t o
cl assified information. Rather, i t provides t hat t he perpet rator m ust discl ose t he identity
of the covert agent (1) in the course of a pattern of activities i ntended t o i dentify and
ex pose covert agents, and (2) m ust m ake t he disclosure with reason to believe that his o r
her activities would impai r or impede U.S. forei gn intelligence activ ities. Subsection
426(10) defines a “pattern of activities” as involving “a series of acts w i t h a c o m m o n
purpose o r objective.”
Much of the focus o f attention during t he consideration o f t he measure was upon
subsection 421(c), and its Fi rst Amendment implications.⁷ The S enat e J udi ci ary and t h e
C o nference Committee addressed t hese concerns at length. Both concluded t hat t h e
language of the m eas ure would pas s constitutional m uster.⁸ The C onference Committee
charact eri z ed t h e goal o f t he provi si on as fol l o ws:
T he r ecord indicates that the harm t his bill seeks t o p r e ve n t is most likely t o
result from disclosure of covert agents’ identities i n such a course designed, f irst, t o
make an effort at identifyi ng covert age n t s and, second, to expose s uch agents
publicly. T he gr atuitous li s ting of agents’ names i n certain publications goes far
beyond information t hat might contribute t o i nformed public debate on foreign policy
or foreign i ntelligence activities. That effort to identify U.S. i ntelligence officers and
agents in countries throughout the world and t o expose t heir identities r epeatedly ...
serves no legitimate purpose. It does not alert t o abuses; i t does not fur t h er civil
liberties; it does not enlighten public debate; and it does not contribute one iota to the
goal of an educated and i nformed electorate. Instead, i t r eflects a total disregard for
the consequences that may j eopardize t he lives and s afety of i ndivi duals and damage
the ability of the United States t o s afeguard the national defens e a nd conduct an
effective f oreign policy....
T he s tandard adopted in section 601(c) applies crimi nal penalties only i n very
limited circums tances to deter t hose who make it their business t o f erret out and
p u b l i s h t h e i d entities of agents. At the same time, it does not affect the First
Amendment r ights of t hose who disclose the i dentities of agents as an i ntegral part of
another enterprise such as news media reporting of i ntelligence failures or abuses,
academic stu d i e s of U.S. government policies and programs , or a private
organization’s enforcement of its internal rules.⁹

⁷ U.S. C^ONST . Ame nd I. H. Conf. Rep. 97-580, at 6-8; reprinted i n 1982 U.S.C.C.A.N., a t 170-

72.

⁸ S. Rep. 97-2 0 1 , a t 14-18; reprinted i n 1982 U.S.C.C.A.N., a t 158-62; H. Conf. Rep. 97-580,
at 7-10; reprinted i n 1982 U.S.C.C.A.N., a t 171-75.
⁹ H. Conf. Rep. 97-580, at 7-8; reprinted i n 1982 U.S.C.C.A.N., a t 171-72.

T h e C onference Committee distinguished bet ween the m ai n purpose of a pers o n
engaged i n “the business o f ‘naming n ames , ’ ” w h o s e i ntent i s t o i dentify and ex pose
covert agents, and side effects o f one’s conduct t hat one “anticipates but allows to occur.”
“Those who republish previous disclosures and critics of U.S. i ntelligence would all stand
beyo n d t h e r each of the l aw if they did not engage in a pattern of activities i ntended t o
identify and ex pose covert agents.”¹⁰ Despi t e t h ese assurances, s om e com m ent at ors h ave
questioned t he constitutional s ufficiency of subsection 421(c) on Fi rst A m endment
grounds, finding it overbroad, and questioning the absence of a s pecific i ntent requirement
instead of the “reason to believe” s tandard.¹¹ The courts have yet t o consider the i ssue.
Under 50 U.S.C. § 422, it is a defense to a prosecution under 50 U.S.C. § 421that,
prior t o t he commission of the o ffen s e , t h e United S tates pub licly acknowledged or
revealed the i n t e l ligence relationship t o t he United S tates o f t he covert agent i nvolved.
In a d dition, this provision precludes prosecution o f anyone other t han t he perso n w h o
made the discl osure of t he identity of a covert agent for a s ection 421 offense on t he
grounds of misprision o f felony, aiding and abetting, or conspiracy, unless t he elements
of subsection 421(c) are s atisfied. Nor is it an offense against section 421 for a person to
transmit information directly to either the House or S enat e i ntelligence committees. An
agent cannot be prosecuted for disclosing just his o wn identificat i o n as a covert agent.
S ect i o n 423 requi res t he P resi d ent , aft er recei vi ng i n form at i o n from t he Di rect or of
Intelligence, to report to the House and Senate intelligence committees annually on
m easures t o prot ect covert agent s , a n d ot her relevant i nformation. Such reports are
ex empt from any publication o r d isclosure requirement.
Section 424 authorizes ex t r at erritorial jurisdiction where the offender i s a U.S.
citizen or a permanent resident alien.
Under s ection 425, the Act may not be c o n s t r u e d t o p ermit withholding of
information from C ongress or a committee of t he House or S enat e. Fi nally, s ection 426
includes t he definitions of terms u sed i n t his s ubchapter.
There d o not appear to be any published cas es involving prosecutions under t his Act.
Depending upon the circumstances of a g i v en case, other criminal statutes may also b e
implicat ed.¹²

¹⁰ H. Conf. Rep. 97-580, at 9-10; reprinted i n 1982 U.S.C.C.A.N., a t 173-74.
¹¹ “Note: The Constitutionality of the Intelligence Identities Protection Act,” 83 Colum. L. Rev.
727 (1983); “ Note: T he In t e lligence Identities Protection Act of 1982: An Assessment of t he
Constitutionality of Section 601(c),” 49 Br ooklyn L. Rev. 479 (1983).
¹² See, e.g., 18 U.S.C. § 111 (assaulting, resisting or i mpeding f ederal officers or employee s
while enga ge d i n or on account of the performance of o f f i c i a l d u ties); 18 U.S.C. § 371
(conspiracy to commi t a federal offense); 18 U.S.C. § 641 (theft or knowing conversion to one’s
own use or the use of anoth e r o f government property or t hing of va lue); 18 U.S.C. § 793
(gathering, t ransmitting, or losing information r elating t o t he national defense); 18 U.S.C. § 794
(gathering or delivering defense information t o aid a f o r e i gn government; among other t hings,
this section provi des f or a possible death penalty upon conviction upon a f inding that the offense
resulted i n t he identification by a foreign power of an indivi dual acting as an agent of the United
(continued...)

¹² (...continued)
S t a t es and consequently resulted i n t he death of t hat i ndivi dual); 18 U.S.C. § 1114 (killin g o r
attempting t o kill an officer or employee of the U n i t e d S t a t es or an agency t hereof while the
officer or employee is engaged i n or on account of performance of official duties). For a r ecent
discussion of the a pplication of 18 U.S.C. § 641 to leaks of confidential government i nformation,
see “St ealing Information: Application of a Cr iminal Anti-Theft Statute to Leaks of Confidential
Gove rnme nt Information,” 55 Fla. L. Rev. 1043 (2003).