The Espionage Act: How the Government Silences Leakers

The Espionage Act of 1917 was passed six weeks after the United States entered World War I, targeting German spies and saboteurs. Its core provisions — 18 U.S.C. § 793 (gathering, transmitting, or losing defense information) and § 798 (disclosing classified communications intelligence) — make it a crime to possess, transmit, or communicate national defense information without authorization. Section 793 does not require proof of intent to harm the United States; merely transmitting defense information to an unauthorized person while having reason to believe it could damage U.S. interests is sufficient for prosecution.

For most of the 20th century, the Espionage Act was rarely used against leakers. That changed in the Obama administration, which prosecuted more whistleblowers under the Act than all previous administrations combined — eight cases in eight years. The Trump administration continued aggressively using the Act, including the indictment of WikiLeaks founder Julian Assange in 2019. The Assange case was particularly significant because it applied the Espionage Act to a publisher — not a government employee — raising profound First Amendment questions about whether the Act can criminalize journalism.

Critics across the political spectrum point to the Act's fundamental structural flaw: it contains no public interest defense. A defendant cannot argue that the disclosed information exposed illegal government conduct, waste, fraud, or abuse. The Classified Information Procedures Act (CIPA) makes it nearly impossible to mount a defense based on the actual content of the information disclosed. The result is that Espionage Act defendants typically face an unwinnable choice: plead guilty or go to trial with almost no ability to present context to a jury.