By David Greene
This week we celebrated National Whistleblower Appreciation Day—an appropriate time to speak out against the U.S. government’s continued use of the Espionage Act to prosecute government leakers, and in so doing, restrict the flow of important information to the press.
As we wrote on the 100th anniversary of the Act’s passage, the Espionage Act was designed to prosecute spies who disclosed military secrets to foreign nations, not sources who disclose newsworthy information to the press. Unfortunately, the Espionage Act has been misused throughout its existence, from silencing left-wing speech during the Red Scare days of its origin to the indictments of whistleblowers such as Daniel Ellsberg, Chelsea Manning, and Edward Snowden.
As the ACLU’s Jay Stanley sets out, the Espionage Act is particularly ill-suited and perhaps unconstitutional when used against government whistleblowers who share information with the press. Among other defects, the Espionage Act provides no public interest defense to a leaker, and contains no requirement that the government prove the information as properly and appropriately classified in the first place. Moreover, because a great number of leaks are either encouraged or at least tolerated by the U.S. government when they serve the government’s purpose, the Espionage Act provides a mechanism for the selective punishment of government critics rather than furthering the general interests of preserving classified information.
The Espionage Act is currently the basis for the charges against Reality Leigh Winner, the former federal intelligence contractor who is accused of leaking a National Security Agency memo containing information regarding Russian hacking attempts against a U.S. voting software supplier. The Espionage Act is as poor a fit for prosecuting Winner, as it was for going after other journalists’ sources.