Order Code RL33502
CRS Report for Congress
Received through the CRS Web
Protection of National Security Information
June 30, 2006
Jennifer K. Elsea
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Criminal Statutes for the Protection of Classified Information . . . . . . . 2
Civil Penalties and Other Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Prior Legislative Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Constitutional Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
First Amendment Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

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Protection of National Security Information
Introduction
Recent cases 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. The current laws for protecting classified
information have been criticized as a patchwork of provisions that are not consistent
and do not cover all the information the government legitimately needs to protect.1
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.
To close the perceived gaps, the 106th Congress passed a measure to criminalize
all leaks of classified information; however, President Clinton vetoed the measure.2
The 108th Congress considered passing an identical provision as part of the
Intelligence Authorization Act for Fiscal Year 2001,3 but instead directed the
Attorney General and heads of other departments to undertake a review of the current
protections against the unauthorized disclosure of classified information, and to issue
a report recommending legislative or administrative actions by May 1, 2002.4 In its
response to Congress, the Department of Justice concluded that existing statutes and
regulations are sufficient to prosecute disclosures of information that might harm the
national security.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
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).
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.
4 See Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, § 310 (2001).
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).

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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.
Background
The classification by government agencies of documents deemed sensitive has
evolved from a series of executive orders.6 Congress has, for the most part, let the
executive branch make decisions regarding the type of information to be subject to
protective measures. The current criminal statutory framework providing penalties
for the unauthorized disclosure of classified government materials traces its roots to
the Espionage Act of 1917,7 which made it a crime to disclose defense information
during wartime.8 The National Security Act of 19479 directed the Director of the CIA
to protect “intelligence sources and methods.”10 The Atomic Energy Act of 195411
provided for secrecy of information related to nuclear energy and weapons.12 The
Invention Secrecy Act of 195113 gave the government the authority to declare a patent
application secret if disclosure of an invention might expose the country to harm.
Criminal Statutes for the Protection of Classified Information.
National defense information is protected by 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
6 See SENATE COMM’N ON PROTECTING AND REDUCING GOVERNMENT SECRECY, 103d
CONG., REPORT PURSUANT TO PUBLIC LAW 236 (Comm. Print 1997).
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.

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foreign nation may be fined or sentenced to no more than 10 years imprisonment.14
Persons who have access to defense information that they have reason to know could
be used to harm the national security, whether the access is authorized or
unauthorized, and who disclose that information to any person not entitled to receive
it, or willfully retain the information despite an order to surrender it to an officer of
the United States, are subject to the same penalty.15 Although it is not necessary that
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; or
(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
seq.];....
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
(continued...)

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the information be classified by a government agency, the courts give deference to
the executive determination of what constitutes “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 the
bad-faith intent requirement.17 On the other hand, classified documents remain
within the ambit of the statute even if information contained therein is made public
by an unauthorized leak.18 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.
18 U.S.C. § 794 (aiding foreign governments) provides for imprisonment for
any term of years or life, or under certain circumstances, the death penalty.19 The
15 (...continued)
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 superior officer —
Shall be fined under this title or imprisoned not more than ten years, or both.
16 See United States v. Morison, 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S.
(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).
19 § 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
(continued...)

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provision penalizes anyone who transmits defense information to a foreign
government (or other foreign entity) with the intent or reason to believe it will be
used against the United States. The death penalty is available only upon a finding
that the offense resulted in the death of a covert agent or directly concerns nuclear
weapons or other particularly sensitive types of information. The death penalty is
also available under §794 for violators who gather or transmit information related to
military plans and the like during time of war, with the intent that the information
reach the enemy.20 Offenders are also subject to forfeiture of any ill-gotten gains,
property used to facilitate the offense.21
Members of the military22 who commit espionage, defined similarly to the
conduct prohibited in 18 U.S.C. § 794, may be tried by court-martial for violating
Article 106a of the Uniform Code of Military Justice (UCMJ),23 and sentenced to
19 (...continued)
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 defense strategy.
(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....
20 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), and if convicted, punished by
“death or such other punishment as a court-martial or military commission may direct.”
10 U.S.C. § 904.
21 18 U.S.C. § 794(d). Proceeds go to the Crime Victims Fund.
22 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, and certain others with military status. 10 U.S.C. § 802.
23 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
(continued...)

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death if certain aggravating factors are found by unanimous determination of the
panel.24 Unlike offenses under § 794, Article 106a offenses need not have resulted
in the death of a covert agent or involve military operations during war to incur the
death penalty. One of the aggravating factors enabling the imposition of the death
penalty under Article 106a is that “[t]he accused has been convicted of another
offense involving espionage or treason for which either a sentence of death or
imprisonment for life was authorized by statute.”
The unauthorized creation, publication, sale or transfer of photographs or
sketches of vital defense installations or equipment as designated by the President is
23 (...continued)
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.
24 10 U.S.C. § 906a(b)-(c).

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prohibited by 18 U.S.C. §§ 795 and 797.25 Violators are subject to fine or
imprisonment for not more than one year, or both.
The knowing and willful disclosure of certain classified information is
punishable under 18 U.S.C. § 798 by fine and/or imprisonment for not more than 10
years.26 To incur a penalty, the disclosure must be prejudicial to the safety or
25 § 795. Photographing and sketching defense installations

(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 [18], 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.
26 § 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 government; or
(4) obtained by the processes of communication intelligence from the
(continued...)

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interests of the United States or work to the benefit of any foreign government and
to the detriment of the United States. The provision applies only to information
related to cryptographic systems and information related to communications
intelligence specially designated by a U.S. government agency for “limited or
restricted dissemination or distribution.”27
18 U.S.C. § 641 punishes the theft or conversion of government property or
records for one’s own use or the use of another. While this section does not
explicitly prohibit disclosure of classified information, it has been used for that
purpose.28 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 1 year.
18 U.S.C. § 952 punishes employees of the United States who, without
authorization, willfully publish or furnish to another any official diplomatic code or
material prepared in such a code, by imposing a fine, a prison sentence (up to 10
years), or both. The same punishment applies for materials “obtained while in the
process of transmission between any foreign government and its diplomatic mission
in the United States.”29
26 (...continued)
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.
27 18 U.S.C. § 798(b).
28 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. Jeter,
775 F.2d 670, 680-82 (6th Cir. 1985)); United States v. Girard, 601 F.2d 69, 70-71 (2d Cir.
1979).
29 18 U.S.C. § 952.

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18 U.S.C. § 1924 prohibits the unauthorized removal of classified material.30
The provision imposes a fine of up to $1,000 and a prison term up to one year for
government officers or employees who knowingly take material classified pursuant
to government regulations with the intent of retaining the materials at an
unauthorized location.31
42 U.S.C. § 2274 punishes the unauthorized communication by anyone of
“Restricted Data,”32 or an attempt or conspiracy to communicate such data, by
imposing a fine of not more than $500,000, a maximum life sentence in prison, or
both, if done with the intent of injuring the United States or to secure an advantage
to any foreign nation.33 An attempt to disclose or participate in a conspiracy to
disclose restricted data with the belief that such data will be used to injure the United
States or to secure an advantage to a foreign nation, is punishable by imprisonment
for no more than 10 years, a fine of no more than $100,000, or both.34 The disclosure
of “Restricted Data” by an employee or contractor, past or present, of the federal
government to someone not authorized to receive it is punishable by a fine of not
more than $12,500.35
30 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.
31 Id.
32 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).
33 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.
34 42 U.S.C. § 2274(b).
35 42 U.S.C. § 2277.

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50 U.S.C. § 421 provides for the protection of information concerning the
identity of covert intelligence agents.36 Any person authorized to know the identity
of such agents who intentionally discloses the identity of a covert agent is subject to
imprisonment for not more than 10 years or a fine or both.37 A person who learns the
identity of an agent through authorized access to classified information38 and
discloses the agent’s identity to someone not authorized to receive classified
information is subject to a fine, a term of imprisonment not more than five years, or
both. A person who learns of the identity of a covert agent through a “pattern of
activities intended to identify and expose covert agents” and discloses the identity to
any individual not authorized access to classified information, with reason to believe
that such activities would impair U.S. foreign intelligence efforts, is subject to a fine
or imprisonment for a term of not more than three years. To be convicted, a violator
must have knowledge that the information identifies a covert agent whose identity
the United States is taking affirmative measures to conceal. An agent is not
punishable under this provision for revealing his or her own identity, and it is a
defense to prosecution if the United States has already publicly disclosed the identity
of the agent.39
50 U.S.C. § 783 penalizes government officers or employees who, without
proper authority, communicate classified information to a person whom the employee
has reason to suspect is an agent or representative of a foreign government.40 It is
36 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.
37 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.
38 “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.”
39 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).
40 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
(continued...)

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also unlawful for the representative or agent of the foreign government to receive
classified information.41 Violation of either of these provisions is punishable by a
fine of up to $10,000 or imprisonment for not more than 10 years.42 Violators are
thereafter prohibited from holding public office.43 Violators must forfeit all property
derived directly or indirectly from the offense and any property that was used or
intended to be used to facilitate the violation.44
Disclosure of a patent that has been placed under a secrecy order pursuant to the
Invention Secrecy Act of 195145 can result in a fine of $10,000, imprisonment for up
to two years, or both. Publication or disclosure of the invention must be willful and
with knowledge of the secrecy order to be punishable.46
Civil Penalties and Other Measures. In addition to the criminal penalties
outlined above, the executive branch employs numerous means of deterring
unauthorized disclosures by government personnel using administrative measures
40 (...continued)
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 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.
41 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.
42 50 U.S.C. § 783(c).
43 Id.
44 50 U.S.C. § 783(e).
45 Codified at 35 U.S.C. § 181 et seq.
46 35 U.S.C. § 186.

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based on terms of employment contracts.47 The agency may impose disciplinary
action or revoke a person’s security clearance.48 The revocation of a security
clearance is usually not reviewable by the Merit System Protection Board49 and may
mean the loss of government employment. Government employees may be subject
to monetary penalties for disclosing classified information.50 Violators of the
Espionage Act and the Atomic Energy Act provisions may be subject to loss of their
retirement pay.51
Agencies also rely on contractual agreements with employees, who typically
must sign non-disclosure agreements prior to obtaining access to classified
information,52 sometimes agreeing to submit all materials that the employee desires
to publish to a review by the agency. The Supreme Court enforced such a contract
against a former employee of the Central Intelligence Agency (CIA), upholding the
government’s imposition of a constructive trust on the profits of a book the employee
sought to publish without first submitting it to CIA for review.53
In 1986, the Espionage Act was amended to provide for the forfeiture of any
property derived from or used in the commission of an offense.54 Violators of the
Atomic Energy Act may be subjected to a civil penalty of up to $100,000 for each
violation of Energy Department regulations regarding dissemination of unclassified
information about nuclear facilities.55
47 See DuVal, supra note 12, at 597 (identifying administrative regulations as principal
means of enforcing secrecy procedures).
48 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 §5.7(c).
49 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).
50 See 42 U.S.C. § 2282(b) (providing for fine of up to $100,000 for violation of Department
of Energy security regulations).
51 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).
52 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).
53 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).
54 See 18 U.S.C. §§ 793(h), 794(d), 798(d); Klein, supra note 8, at 438-439.
55 42 U.S.C. § 2168(b).

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The government can also use injunctions to prevent disclosures of information.
The courts have generally upheld injunctions against former employees’ publishing
information they learned through access to classified information.56 The Supreme
Court also upheld the State Department’s revocation of passports for overseas travel
by persons planning to expose U.S. covert intelligence agents, despite the fact that
the purpose was to disrupt U.S. intelligence activities rather than to assist a foreign
government.57
Similarly, the government can enjoin publication of inventions when it is
determined that the release of such information is detrimental to the national security.
If an inventor files a patent application for an invention that the Commissioner of
Patents believes should not be made public, the Commissioner may place a secrecy
order on the patent and establish conditions for granting a patent, or may withhold
grant of a patent as long as the “national interest requires [it].”58 In addition to
criminal penalties cited previously, in the case of an unauthorized disclosure or
foreign filing of the patent information, the Patent Office will deem the invention to
be “abandoned,” which means a forfeiture by the applicant, his successors, or assigns
of all claims against the United States based on the invention.59
The government has had less success trying to enjoin the media from disclosing
classified information. Most famously, the government failed to enjoin publication
of the Pentagon Papers by a newspaper, even though the information was clearly
classified and had been stolen by someone with access to it.60 In that case, the
Supreme Court set very high standards for imposing prior restraint on the press. Yet
in another case, the government was able to enjoin a newspaper from printing
information about the design of an atomic bomb, even though the information did not
originate from classified material and the author’s purpose was not subversive.61
56 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).
57 See Haig v. Agee, 453 U.S. 280 (1981).
58 35 U.S.C. § 181. The determination must be renewed on a yearly basis.
59 35 U.S.C. § 182.
60 United States v. New York Times, 403 U.S. 713 (1971). See Klein, supra note 8, at 439-
40.
61 See DuVal, supra note 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 note
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).

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Prior Legislative Efforts
The current laws for protecting classified information have been criticized as a
patchwork of provisions that are not consistent and do not cover all the information
the government legitimately needs to protect.62 Certain information is protected
regardless of whether it belongs to the government or is subject to normal
classification. Technical and scientific information, for example, can be restricted
regardless of source.63 Information related to “the national defense” is protected even
though no harm to the national security is intended or is likely to be caused through
its disclosure. However, nonmilitary information with the potential to cause serious
damage to the national security is only protected from willful disclosure with the
specific intent to harm the national interest,64 or with the knowledge that such harm
could occur.65
In 2000, and again in 2002, Congress sought to create 18 U.S.C. § 798A,
subsection (a) of which would have read:
Whoever, being an officer or employee of the United States, a former or retired
officer or employee of the United States, any other person with authorized access
to classified information, or any other person formerly with authorized access to
classified information, knowingly and willfully discloses, or attempts to disclose,
any classified information acquired as a result of such person’s authorized access
to classified information to a person (other than an officer or employee of the
United States) who is not authorized access to such classified information,
knowing that the person is not authorized access to such classified information,
shall be fined under this title, imprisoned not more than 3 years, or both.
The new provision would have penalized the disclosure of any material
designated as classified for any reason related to national security, regardless of
whether the violator intended that the information be delivered to and used by foreign
agents. It would have been the first law to penalize disclosure of information to non-
foreign entities solely because it is classified, without a more specific definition of
the type of information covered.66 In short, the provision would have made it a crime
to disclose or attempt to disclose classified information67 to any person who does not
62 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).
63 See id. at 814.
64 See id. at 815.
65 See United States v. Morison, 844 F.2d 1057 (1988).
66 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 entity.
67 “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
(continued...)

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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 new language was
originally intended to make it easier for the government to prosecute unauthorized
disclosures of classified information, or “leaks” of information that might not amount
to espionage under the current statutes. The language was intended to ease the
government’s burden of proof in such cases by eliminating the need “to prove that
damage to the national security has or will result from the unauthorized disclosure,”68
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,69 but President Clinton vetoed it, calling
it “well-intentioned” as an effort to deal with a legitimate concerns about the damage
caused by unauthorized disclosures, but “badly flawed” in that it was “overbroad”
and posed a risk of “unnecessarily chill[ing] legitimate activities that are at the heart
of a democracy.”70
The 108th Congress considered passing an identical provision as part of the
Intelligence Authorization Act for Fiscal Year 2001,71 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.72
Constitutional Issues
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
67 (...continued)
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.”
68 See H.Rept. 106-969 at 44 (2000).
69 H.R. 4392 § 304, 106th Congress.
70 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).
71 The Classified Information Protection Act of 2001, H.R. 2943, 107th Cong.
72 Intelligence Authorization Act for Fiscal Year 2002, P.L. 107-108, § 310 (2001).

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the government with “providing for the common defense.” Policymakers are faced
with the task of balancing these interests.
The First Amendment to the U.S. Constitution provides: “Congress shall make
no law ... abridging the freedom of speech, or of the press....”73 Despite this absolute
language, the Supreme Court has held that “[t]he Government may ... regulate the
content of constitutionally protected speech in order to promote a compelling interest
if it chooses the least restrictive means to further the articulated interest.”74
First Amendment Principles. Where speech is restricted based on its
content, the Supreme Court generally applies “strict scrutiny,” which means that it
will uphold a content-based restriction only if it is necessary “to promote a
compelling interest,” and is “the least restrictive means to further the articulated
interest.”75
Compelling Interest. Protection of the national security from external threat
is without doubt a compelling government interest.76 It has long been accepted that
the government has a compelling need to suppress certain types of speech,
particularly during time of war or heightened risk of hostilities.77 Speech likely to
incite immediate violence, for example, may be suppressed.78 Speech that would
give military advantage to a foreign enemy is also susceptible to government
regulation.79
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
73 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.
74 Sable Communications of California v. Federal Communications Commission, 492 U.S.
115, 126 (1989).
75 Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).
76 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)).
77 See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger”
test).
78 Brandenburg v. Ohio, 395 U.S. 444 (1969).
79 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 troops.”).

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defense or foreign relations of the United States.80 Actual damage need not be
proved, but potential damage must be more than merely speculative and incidental.81
Promotion of that Interest. In addition to showing that the stated interest
to be served by the statute is compelling, the government must also show that the law
actually serves that end. If the accused can show that the statute serves an unrelated
purpose — for example, to silence criticism of certain government policies or to
manipulate public opinion — a judge might be prepared to invalidate the statute.82
If, for example, the government releases some positive results of a secret weapons
program while suppressing negative results, a person prosecuted for releasing
negative information could challenge the statute by arguing that his prosecution is
related to the negative content of his speech rather than to valid concerns about the
damage it might cause. If he can show that those who disclose sensitive information
that tends to support the administration’s position are not prosecuted, while those
who disclose truthful information that is useful to its opponents are prosecuted, he
might be able to persuade a court that the statute as enforced is an unconstitutional
restriction of speech based on impermissible content-related interests.83
Least Restrictive Means. To survive a constitutional challenge, a law must
be narrowly drawn to affect only the type of speech that the government has a
compelling need to suppress.84 A statute that reaches speech that the government has
no sufficiently compelling need to regulate may be subject to attack due to
overbreadth. A law is overly broad if it prohibits more speech than is necessary to
achieve its purpose. If a defendant can show that a statute regulating speech is
“substantially overbroad,” he may challenge its validity on its face.85 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
80 “National Security” is defined as national defense and foreign relations. See Exec.Order
No. 12,958, 60 Fed. Reg.19,825 (Apr. 17, 1995).
81 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)).
82 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.
83 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 (1984).
84 See E.E.B. and K.E.M., supra note 1, at 849.
85 Broadrick v. Oklahoma, 413 U.S. 601 (1973).

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legitimately prohibit. For this reason, a statute that relies solely on the Executive’s
classification of information to determine the need for its protection might be
contested as overbroad. If a challenger were able to show that agencies classify
information that it is unnecessary to keep secret, he could argue that the statute is
invalid as overly broad because it punishes protected speech that poses no danger to
the national security.
Although information properly classified in accordance with statute or executive
order carries by definition, if disclosed to a person not authorized to receive it, the
potential of causing at least identifiable harm to the national security of the United
States,86 it does not necessarily follow that government classification by itself will be
dispositive of the issue in the context of a criminal trial. Government classification
will likely serve as strong evidence to support the contention. Typically, courts have
been unwilling to review decisions of the executive related to national security, or
have made a strong presumption that the material at issue is potentially damaging.87
In the context of a criminal trial, especially in a case with apparent First Amendment
implications, courts may be more willing to engage in an evaluation of the propriety
of a classification decision than they would in a case of citizens seeking access to
information under the Freedom of Information Act (FOIA).88
The Supreme Court seems satisfied that national security is a vital interest
sufficient to justify some intrusion into activities that would otherwise be protected
by the First Amendment — at least with respect to federal employees. Although the
Court has not held that government classification of material is sufficient to show
that its release is damaging to the national security,89 it has seemed to accept without
86 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 is able to identify or describe.
(Emphasis added).
87 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.”).
88 5 U.S.C. § 552(b)(1) exempts classified information from release to requesters.
89 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”
(continued...)

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much discussion the government’s assertion that the material in question is
damaging. Lower courts have interpreted 18 U.S.C. § 798, which criminalizes the
unauthorized release of specific kinds of classified information,90 to have no
requirement that the government prove that the classification was proper or
personally approved by the President.91 It is unlikely that a defendant’s bare assertion
that information is unlikely to damage U.S. national security will be persuasive
without some convincing evidence to that effect, or proof that the information is not
closely guarded by the government.92
Snepp v. United States93 affirmed the government’s ability to enforce contractual
non-disclosure agreements against employees and former employees who had had
access to classified information. The Supreme Court allowed the government to
impose a constructive trust on the earnings from Frank Snepp’s book about the CIA
because he had failed to submit it to the CIA for prepublication review, as he had
agreed to do by signing an employment agreement. Although the CIA stipulated to
the fact that the book contained no classified information,94 the Court accepted the
finding that the book caused “irreparable harm and loss” to the American intelligence
services.95 The Court suggested that the CIA did not need a signed agreement in
order to protect its interests by subjecting its former employees to prepublication
review and possible censorship.96
Haig v. Agee97 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.
89 (...continued)
to convict employee under 50 U.S.C.§ 783, which prohibits government employees from
transmitting classified documents to foreign agents or entities).
90 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 ....”
91 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.”).
92 See United States v. Dedeyan, 594 F.2d 36, 39 (4th Cir. 1978).
93 444 U.S. 507 (1980).
94 Id. at 511.
95 Id. at 512.
96 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).
97 453 U.S. 280 (1981).

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In order to put a stop to this activity, the Department of State revoked his passport.
Agee challenged that action as an impermissible burden on his freedom to travel and
an effort to penalize his exercise of free speech to criticize the government.98 The
Supreme Court disagreed, finding the passport regulations constitutional because
they may be applied “only in cases involving likelihood of ‘serious damage’ to
national security or foreign policy.”99
United States v. Morison100 is significant in that it represents the first case in
which a person was convicted for selling classified documents to the media. Morison
argued that the espionage statutes did not apply to his conduct because he could not
have had the requisite intent to commit espionage. The Fourth Circuit rejected his
appeal, finding the intent to sell photographs that he clearly knew to be classified
sufficient to satisfy the scienter requirement under 18 U.S.C. § 793. The definition
of “relating to the national defense” was not overbroad because the jury had been
instructed that the government had the burden of showing that the information was
so related.101
Prior Restraint. In addition to restricting the disclosure of information by
prosecuting the person responsible after the fact, the government may seek to prevent
publication by prior restraint (i.e., seeking a temporary restraining order or an
injunction from a court to enjoin publication).102 The Supreme Court, however, is
unlikely to uphold such an order. It has written:
[P]rior restraints are the most serious and least tolerable infringement on First
Amendment rights.... A prior restraint, ... by definition, has an immediate and
irreversible sanction. If it can be said that a threat of criminal or civil sanctions
after publication “chills” speech, prior restraint “freezes” it at least for the time.
The damage can be particularly great when the prior restraint falls upon the
communication of news and commentary on current events.103
The government’s ability to protect sensitive information was explored in the
context of prior restraints of the media in the Pentagon Papers case.104 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
98 Id. at 305.
99 Id. at 305-06.
100 844 F.2d 1057 (4th Cir.), cert. denied, 488 U.S. 908 (1988).
101 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).
102 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).
103 Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court
order restraining the publication or broadcast of accounts of confessions or admissions made
by the defendant at a criminal trial).
104 New York Times Co. v. United States, 403 U.S. 713 (1971).

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Times and the Washington Post from printing a classified study of the U.S.
involvement in Vietnam. A majority of the justices indicated in dicta, however, that
the newspapers — as well as the former government employee who leaked the
documents to the press — could be prosecuted under the Espionage Act.105
Due Process. A statute is unconstitutionally vague if it does not permit the
ordinary person to determine with reasonable certainty whether his conduct is
criminally punishable. Therefore, a statute prohibiting the unauthorized disclosure
of classified information must be sufficiently clear to allow a reasonable person to
know what conduct is prohibited. Where First Amendment rights are implicated, the
concern that a vague statute will have a chilling effect on speech not intended to be
covered may make that law particularly vulnerable to judicial invalidation.106
The Espionage Act of 1917107 has been challenged for vagueness without
success. There have been very few prosecutions under that Act for disclosing
information related to the national defense. The following elements are necessary to
prove an unauthorized disclosure offense under 18 U.S.C. § 793:
1.
The information or material disclosed must be related to the national
defense, that is, pertaining to any matters “directly and reasonably connected
with the defense of our nation against its enemies” that “would be potentially
damaging to the United States, or might be useful to an enemy of the United
States” and are “closely held” in that the relevant government agency has sought
to keep them from the public generally and that these items have not been made
public and are not available to the general public.108
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.109 An evil motive is not necessary to satisfy the scienter requirement; the
willfulness prong is satisfied by the knowledge that the information may be used to
105 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 the documents).
106 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).
107 18 U.S.C. § 793 et seq.
108 See United States v. Morison, 622 F. Supp. 1009, 1010 (D. Md.1985).
109 See United States v. Morison, 844 F.2d 1057, 1074 (4th Cir. 1988).

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the injury of the United States.110 It is irrelevant whether the information was passed
to a friendly foreign nation.111 A patriotic motive will not likely change the
outcome.112
The Espionage Act has also survived challenges based on vagueness. The
Supreme Court, in Gorin v. United States,113 upheld portions of the Act now codified
as sections 793 and 794 of title 18, U.S. Code (communication of certain information
to a foreign entity) against assertions of vagueness, but only because jury instructions
properly established the elements of the crimes, including the scienter requirement
and a definition of “national defense” that includes potential damage in case of
unauthorized release of protected information and materials. Gorin was a “classic
case” of espionage, and there was no challenge based on First Amendment rights.
The Court agreed with the government that the term “national defense” was not
vague; it was satisfied that it “is a generic concept of broad connotations, referring
to the military and naval establishments and the related activities of national
preparedness.”114 Whether information was “related to the national defense” was a
question for the jury to decide,115 based on its determination that the information
“may relate or pertain to the usefulness, efficiency or availability of any of the above
places, instrumentalities or things for the defense of the United States of America.
The connection must not be a strained one nor an arbitrary one. The relationship
must be reasonable and direct.”116 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.
Conclusion
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
110 Id. at 1073.
111 Gorin v. United States, 312 U.S. 19, 29 (1941).
112 United States v. Morison, 622 F.Supp. 1009 (D. Md. 1985).
113 312 U.S. 19 (1941).
114 Id. at 28.
115 Id. at 32.
116 Id. at 31.

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CRS-23
without harming the public’s right to know what its government is doing may remain
elusive.

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