by Benjamin Wittes
Senators Joseph Lieberman, John Ensign, and Scott Brown have introduced a bill to amend the Espionage Act in order to facilitate the prosecution of folks like Wikileaks. The bill is confusingly called the SHIELD Act, though it is anything but a media shield law–a term usually used to refer to laws that protect members of the media from having to testify as to the identities of their sources. As I read it, it would dramatically expand the scope of 18 U.S.C. 798, which is now a relatively targeted provision criminalizing the disclosure or publication of cryptographic systems and communications intelligence. As amended by the bill, the statute would read in relevant part:
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 or transnational threat to the detriment of the United States any classified information . . . concerning the human intelligence activities of the United States or any foreign government [or] concerning the identity of a classified source or informant of an element of the intelligence community of the United States . . . [s]hall be fined under this title or imprisoned not more than ten years, or both.
I am not entirely unsympathetic to the idea of passing a criminal leaks bill. I opposed it flatly for a long time, but the use of the Espionage Act as a surrogate for a leaks law has given me second thoughts. The relevant provision of the Espionage Act is so vague that its use to prosecute leaks and secondary transmissions of leaks is potentially more alarming than a well-drawn leaks law that may authorize some prosecution of publication. At the same time, the Espionage Act’s very vagueness and the legal uncertainty about it tend to inhibit its use. A well-drawn law might not induce the same sort of caution and might ironically, by criminalizing less, give prosecutors more confidence about the cases they can bring. The result might actually be more energetic prosecutions of media than we see under the absurdly broad current law.
This bill, however, seems like it offers the worst of both worlds. It leaves intact the current World War I-era Espionage Act provision, 18 U.S.C. 793(e), a law whose many problems we discussed last week, and then takes a currently well-drawn law and expands its scope to the point that it covers a lot more than the most reckless of media excesses. A lot of good journalism would be a crime under this provision; after all, knowingly and willfully publishing material “concerning the human intelligence activities of the United States or any foreign government” is no small part of what a good newspaper does.
These are dangerous waters, and it is well worth treading carefully here. I’m not sure what the right answer to this problem is–a matter on which I frankly go back and forth. But I’m confident that it’s not a general authorization to prosecute anyone who knowingly gives any unauthorized person any information related to the national defense and anyone who willfully publishes anything classified about human intelligence activities.