The Espionage Act of 1917

A Law Written for Spies

The Espionage Act was passed on June 15, 1917, two months after the United States entered World War I. Its stated purposes were straightforward:

• Prohibit obtaining defense information with intent to harm the United States or help foreign nations
• Prevent interference with military operations or recruitment
• Punish insubordination in the military
• Criminalize support for U.S. enemies during wartime

The law was designed for Julius and Ethel Rosenberg, executed in 1953 for passing nuclear secrets to the Soviet Union. For actual spies selling secrets to adversaries.

What it was not designed for: a young analyst who believed the public should know their government was lying about a war. A contractor who revealed unconstitutional mass surveillance. A linguist who exposed foreign interference in elections.

But the law doesn't distinguish between these cases. It treats them identically.

From Spy Cases to Leak Prosecutions

For most of the 20th century, the Espionage Act was rarely used against leakers. Between 1917 and 2009 (nearly a century), only one person was convicted under the Act for leaking to a news organization.

Daniel Ellsberg was charged in 1973, but his case was dismissed due to government misconduct. The government prosecuted leaker Samuel Morison in 1985. After that: decades of restraint.

Then came the Obama administration.

The Obama Acceleration

President Barack Obama, a constitutional law professor who campaigned on transparency, prosecuted more leakers under the Espionage Act than all previous presidents combined:

Notable Obama-Era Prosecutions

• Thomas Drake: NSA executive who disclosed waste and surveillance concerns to a reporter. Faced 35 years. Charges eventually reduced to a misdemeanor after the government's case collapsed.
• Chelsea Manning: Army intelligence analyst who provided classified documents to WikiLeaks. Sentenced to 35 years, served 7 before Obama commuted her sentence.
• Edward Snowden: NSA contractor who revealed mass surveillance programs. Fled to Russia. Faces up to 30 years if he returns.
• Jeffrey Sterling: CIA officer who disclosed details about a flawed operation to a journalist. Sentenced to 3.5 years.

Trump and Beyond

The Trump administration continued the pattern:

• Reality Winner: NSA contractor who leaked a document about Russian election interference. Sentenced to 5 years, 3 months, the longest Espionage Act sentence for a leak to media at the time.
• Daniel Hale: Air Force intelligence analyst who revealed details of the drone assassination program. Sentenced to 45 months.
• Julian Assange: WikiLeaks founder indicted on 17 Espionage Act counts in 2019, the first time a publisher was charged under the Act.

No Public Interest Defense

The most dangerous aspect of the Espionage Act isn't the penalties. It's what defendants are forbidden from saying.

Under the Act:

• Defendants cannot argue their disclosures served the public interest. It doesn't matter if they exposed illegal surveillance, war crimes, or corruption. The law doesn't recognize this as a defense.
• Defendants cannot explain their motives to a jury. Whether they acted out of conscience, patriotism, or greed is legally irrelevant.
• Defendants cannot argue information was improperly classified. Even if the government classified something to hide embarrassment rather than protect security, that argument is inadmissible.

The law has effectively become what legal scholars call "strict liability." The government only needs to prove the defendant disclosed classified information. Intent, motive, and public benefit are all excluded.

Ellsberg's Silenced Defense

This pattern was established in the first major leak case. When Daniel Ellsberg took the stand in 1973, his attorney asked a simple question: "Why did you copy the Pentagon Papers?"

The judge stopped him. Since the government only needed to prove Ellsberg gave classified documents to the press, his reasons were "not relevant or admissible."

Ellsberg never got to explain to the jury why he believed Americans deserved to know their government was lying about Vietnam. Every subsequent Espionage Act defendant has faced the same gag.

What This Means in Practice

Trevor Timm, executive director of the Freedom of the Press Foundation, explains the practical effect: "Basically any information the whistleblower or source would want to bring up at trial to show that they are not guilty of violating the Espionage Act, the jury would never hear. It's almost a certainty that because the law is so broadly written, they would be convicted no matter what."

This is why Edward Snowden says he cannot get a fair trial. This is why Chelsea Manning pleaded guilty. This is why Reality Winner pleaded guilty. The trial is rigged from the start.

The Assange Precedent

For over a century, prosecutors drew a line: they would charge sources who leaked, but not publishers who printed. This distinction protected journalism.

The Trump administration crossed that line in 2019, indicting Julian Assange on 17 Espionage Act counts for publishing classified documents WikiLeaks received from Chelsea Manning.

Assange spent years fighting extradition from the UK. In June 2024, he accepted a plea deal: guilty to one Espionage Act count in exchange for immediate release, with credit for time served.

The legal stakes are huge. For the first time, a publisher has been convicted under the Espionage Act.

The Journalism Problem

Supporters argued Assange isn't a "real journalist." Critics noted the plea deal's language doesn't distinguish between what Assange did and what traditional journalists do daily.

One legal observer noted: "When you read the plea deal, it says nothing about sources and methods. It says nothing about redactions. You could take the most ethical, careful journalist in the world who checks their sources a million times, and under the letter of what this plea deal says, the U.S. government thinks that they can also be prosecuted for the same thing."

Assange himself summarized it after his release: "I pleaded guilty to journalism."

Press freedom organizations called it "a ticking time bomb for journalists." The precedent now exists. Whether future administrations use it depends entirely on prosecutorial discretion, not legal protection.

Failed Reform Efforts

Members of Congress have repeatedly tried to fix the law. None have succeeded.

Proposed Reforms

• Public interest defense: Allow defendants to argue their disclosures benefited the public
• Intent requirement: Require proof the defendant meant to harm the U.S., not just that they leaked information
• Whistleblower carve-outs: Exempt disclosures to journalists about government misconduct
• Publisher protections: Explicitly protect journalists who receive and publish leaked information

In 2020, then-Representative Tulsi Gabbard introduced a bill that would have allowed defendants to discuss intent and added a public interest defense. It went nowhere.

The fundamental problem: the people who would have to vote for reform are the same people whose misconduct whistleblowers expose. Congress has little incentive to make it easier to reveal what government is doing in secret.

The Two-Tier System

The Espionage Act creates a stark divide in American law:

Report corporate wrongdoing and you might get rich. Report government wrongdoing and you go to prison.

This isn't accidental. The financial whistleblower laws were written by Congress specifically to encourage disclosure. The Espionage Act was written to prevent it. The result is a system where exposing fraud at a defense contractor is rewarded, but exposing the illegal war that contractor profits from is criminalized.

The Chilling Effect

The aggressive prosecution of leakers has measurable effects on journalism:

• Source reluctance: Current and former officials are increasingly unwilling to talk to reporters, even about unclassified matters. The risk is too high.
• Self-censorship: Journalists report killing stories rather than putting sources at legal risk.
• Classification creep: More information gets classified, knowing that disclosure carries severe penalties.
• Delayed accountability: Government misconduct that would have been exposed in months now takes years or decades to surface.

A 2015 PEN American Center study found that almost all journalists, lawyers, and activists they interviewed believed "the Espionage Act had been used inappropriately in leak cases that have a public interest component."

But "inappropriate" doesn't mean "illegal." The law is being used exactly as written. That's the problem.

The Bottom Line

The Espionage Act of 1917 has become something its authors never intended: a tool for prosecuting people who tell the public what their government is doing.

The law draws no distinction between selling nuclear secrets to adversaries and exposing unconstitutional surveillance to journalists. It bars defendants from explaining why they acted. It makes conviction virtually automatic once prosecutors prove disclosure occurred.

Every modern administration has used it against leakers. Obama normalized it. Trump expanded it to publishers. The precedent set by the Assange case means journalists could theoretically face the same charges as their sources.

Reform would require Congress to vote for transparency about its own activities. That hasn't happened in over a century of the law's existence. The most likely path to change is the same one that has always worked: someone with access to the truth decides the public's right to know outweighs their own freedom.

Then they face 30 years for that decision.

References

1. Wikipedia: Espionage Act of 1917
2. Freedom of the Press: Obama's Espionage Act Record
3. Just Security: Weaponizing the Espionage Act
4. Defending Rights & Dissent: Reform the Espionage Act
5. NPR: What Assange's Plea Deal Means for Journalists
6. Freedom of the Press: Reality Winner and the Espionage Act
7. Government Accountability Project: Why Snowden Can't Get a Fair Trial
8. First Amendment Encyclopedia: Espionage Act of 1917

Related

• Edward Snowden: A Decade Later
• The Pentagon Papers: How Leaks Changed History
• Whistleblower Protection Laws: What They Actually Cover
• FOIA Requests: Uncovering Government Secrets