Reference no: EM133617120

Problem

Should the Espionage Act be Legislatively Amended?

The Espionage Act, which dates back to 1917, has not been amended since the Korean conflict. It refers to "national defense information" rather than "classified information", the term we use today, and clearly it does not take into account modern technology. Based on the statutory language, literally anyone in possession of "national defense information" could be prosecuted, whether they hold a security clearance or not. If you downloaded a still classified document illegally released by Wikileaks or read a newspaper article or book that discusses classified information, you could be prosecuted. Now, these scenarios unlikely scenarios but even in the 1971 Pentagon Papers decision four of the nine Justices on the Supreme Court said that if the NYT/WaPO had been prosecuted, instead of facing a civil injunction preventing them from publishing the information, the outcome would likely have been different. Whether founded in reality or not, many journalists and media outlets do fear that they could be prosecuted under the Espionage Act for publishing classified information or for refusing to reveal their sources. The only thing that stops this from occurring is a DOJ policy position.

A. Should the Act be amended by Congress?

B. Should the statute only apply to actual espionage rather than classified leak circumstances?

C. Or is it too dangerous to even let Congress get near - could Congress make it worse?

D. If it is amended, should Congress include a public interest defense - that the leak of information was motivated by a desire to help and not endanger US security interests?

E. Who would get to make that decision? A jury? Are they mutually exclusive (both helping and hurting)?