On March 5, Senator Ron Wyden (D-Ore.) and Representative Ro Khanna (D-Calif.) introduced sorely needed legislation to reform the Espionage Act, a sweeping World War I-era statute whose expansive and vague language once led prominent legal scholars to characterize it as a “loaded gun pointed at newspapers and reporters.” Though future legislation should go further, Wyden and Khanna’s bill takes an important step forward in clarifying and circumscribing the reach of the law.
The bill significantly narrows the circumstances in which the Espionage Act can be deployed against the press. For starters, the bill resolves the question of whether reporters can be subjected to direct liability under the Act. Legal scholars and press advocates have for decades warned that the Department of Justice (DOJ) could rely on the Act to prosecute members of the press and the public for receiving or publishing government secrets. Those warnings proved well-founded last year, when the DOJ relied on the Act to indict Julian Assange for publishing classified documents supplied by Chelsea Manning. As we and others have noted, the indictment focuses almost entirely on activities that reporters engage in routinely, including soliciting information from government sources, communicating documents online, and protecting sources’ identities. The Wyden–Khanna bill largely addresses this concern, by making clear that only those with authorized access to classified information, as well as foreign agents, are subject to direct liability under the Act. Furthermore, the bill defines the term “foreign agent” relatively narrowly, mitigating the concern that the Act could be used to sweep in members of foreign press organizations.
The bill also limits the circumstances in which reporters can be subject to indirect liability under the Act. In its current form, the Act permits the DOJ to prosecute a reporter for conspiring with a source to disclose classified information. The Wyden–Khanna bill forecloses these kinds of prosecutions except where the reporter’s coordination with the source involved a separate federal crime, or where the reporter “directly and materially” aided the disclosure or supplied the source with something of monetary value. The latter ground for indirect liability is subject to two important caveats. First, the bill clarifies that engaging in “speech activity” or providing an electronic communication service doesn’t constitute direct and material aid, which means that a reporter couldn’t be prosecuted just for conversing with a source or communicating documents over an encrypted channel like SecureDrop. Second, the DOJ would have to show that the reporter had the “specific intent” either to harm U.S. national security or to aid a foreign government to the detriment of the United States. If passed, the Wyden-Khanna bill would impose the kind of intent requirement that one federal court read into the statute a decade ago. The specific intent requirement would protect reporters who are doing the work the public needs them to do.
In our view, the bill would be better if it went further. While the bill provides crucial safeguards for reporters, it offers only very limited protections for whistleblowers. The bill would permit whistleblowers to pass classified information to Congress, the courts, intelligence-community inspectors general, and certain government agencies. But whistleblowers would still risk prosecution under the Act if they disclosed official misconduct to the press or the public—even if they did so as a last resort, and even if they made every effort to safeguard the government’s legitimate secrets. It bears emphasis that whistleblowers play an essential role in informing public debate, and that they’ve played an especially important role over the past two decades. Without whistleblowers, we would know much less about the CIA’s torture program, the NSA’s surveillance of Americans, Russian interference in the 2016 election, and U.S. drone killings. We hope that future legislation will offer whistleblowers more protection by, for example, foreclosing the DOJ from prosecuting them under the Espionage Act without first showing that their disclosures resulted in actual harm to national security, and that those harms outweighed the benefits to public deliberation.
All of this said, the Wyden–Khanna bill would reform the Espionage Act in important ways at a moment when press freedoms seem both especially crucial and especially vulnerable. Congress should pass it without delay.
Carrie DeCell is a Staff Attorney at the Knight First Amendment Institute.
Meenakshi Krishnan was a 2019-2020 Legal Fellow at the Knight Institute.