The Espionage Act: A 1917 Law Used Against Modern Whistleblowers

TL;DR: The Espionage Act of 1917 was designed to prosecute spies during World War I. Today, it's the primary legal weapon against whistleblowers who reveal classified information to the press. No public interest defense is allowed, a defendant cannot argue that their disclosure served the public good. The Obama and Trump administrations prosecuted more people under the Espionage Act than all prior presidents combined. Notable targets include Daniel Ellsberg (Pentagon Papers), Chelsea Manning, Edward Snowden, and Reality Winner. The law predates the classification system by 35 years, makes no distinction between spies and sources, and virtually guarantees conviction for anyone who leaks classified information, regardless of motive or public benefit.

Origins: The War Propaganda Law

The Espionage Act was passed on June 15, 1917, two months after the United States entered World War I ^[1].

What it was designed to do:

Prohibit interference with military operations or recruitment
Prevent insubordination in the military
Prevent support of U.S. enemies during wartime
Criminalize sharing defense information with unauthorized persons

President Woodrow Wilson requested the legislation in his 1915 State of the Union address, warning of "citizens of the United States... who have poured the poison of disloyalty into the very arteries of our national life."

The Sedition Act of 1918:

The law was expanded a year later to prohibit "any disloyal, profane, scurrilous, or abusive language about the form of government of the United States... or the flag of the United States, or the uniform of the Army or Navy."

More than 2,000 Americans were arrested under these laws. Some received sentences of up to 20 years for speaking against the war. Eugene V. Debs, Socialist Party leader, was sentenced to 10 years for a speech criticizing conscription.

The Sedition Act was repealed in 1921. The Espionage Act remains in force.

How the Law Works

The key provisions used against whistleblowers are in 18 U.S.C. § 793 and § 798 ^[2]:

Section 793 (Gathering, transmitting, or losing defense information):

Criminalizes unauthorized possession of "information relating to the national defense"
Criminalizes transmission of such information to persons "not entitled to receive it"
Penalties up to 10 years per count

Section 798 (Disclosure of classified information):

Criminalizes disclosure of classified communications intelligence
Includes information about cryptographic systems
Penalties up to 10 years per count

Critical problem: The law was written in 1917, 35 years before the modern classification system was created in 1951. It makes no distinction between:

A spy selling secrets to a foreign power
A whistleblower revealing wrongdoing to the press
A source providing information the public has a right to know

The law treats them identically.

No Public Interest Defense

The most consequential feature of the Espionage Act is what it doesn't allow: a public interest defense ^[3].

What this means:

A defendant cannot argue that their disclosure served the public good
Evidence of government wrongdoing revealed is irrelevant to guilt
Jury never hears why the defendant leaked
Only question is: did they possess and transmit classified information?

Attorney Jesselyn Radack, who has represented multiple Espionage Act defendants: "Under the Espionage Act, no prosecution of a non-spy can be fair or just... 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 that they would be convicted no matter what."

Compare this to whistleblower protections in other contexts. Under the False Claims Act, for instance, whistleblowers who report fraud can receive a portion of recovered funds. Under the Espionage Act, whistleblowers who report government wrongdoing go to prison.

Notable Prosecutions

Daniel Ellsberg (1971), Pentagon Papers:

First person charged under the Espionage Act for leaking to the press
Leaked 7,000 pages revealing the government had lied about the Vietnam War
Faced 115 years in prison
Charges dismissed due to government misconduct (illegal wiretapping, break-in at psychiatrist's office)
Never acquitted on the merits, freed on procedural grounds ^[4]

Chelsea Manning (2010), WikiLeaks:

Army intelligence analyst who leaked diplomatic cables and military documents
Released "Collateral Murder" video showing U.S. helicopter killing civilians
Convicted by military court-martial
Sentenced to 35 years, longest sentence for a leaker at the time
Sentence commuted by President Obama after 7 years ^[5]

Edward Snowden (2013), NSA Surveillance:

NSA contractor who revealed mass surveillance programs
Exposed PRISM, bulk phone records collection, and global surveillance
Charged with Espionage Act violations
Fled to Russia to avoid prosecution
Remains in exile; would face conviction if returned ^[6]

Reality Winner (2017):

NSA contractor who leaked report on Russian election interference
First whistleblower prosecuted under Trump administration
Sentenced to 5 years, 3 months, longest federal sentence for a leak to media
Released in 2021 after serving over 4 years ^[7]

Other recent prosecutions:

Thomas Drake: NSA executive who reported waste and illegality; charges reduced to a misdemeanor
John Kiriakou: CIA officer who revealed torture program; served 23 months
Jeffrey Sterling: CIA officer convicted of leaking; served 3.5 years
Daniel Hale: Air Force analyst who leaked drone war documents; sentenced to 45 months
Terry Albury: FBI agent who leaked documents on surveillance; sentenced to 4 years

The Prosecution Surge

The use of the Espionage Act against leakers accelerated dramatically in the 21st century ^[8]:

Historical prosecutions (1917-2008):

Only 3 people charged under the Espionage Act for leaking to the press
Daniel Ellsberg (charges dismissed)
Samuel Morison (convicted 1985, pardoned 2001)
Larry Franklin (convicted 2006)

Obama administration (2009-2017):

8 individuals charged under the Espionage Act for leaks
More than all previous presidents combined
Included Chelsea Manning, Edward Snowden, Jeffrey Sterling, John Kiriakou, Thomas Drake, Stephen Kim, James Hitselberger, Donald Sachtleben

Trump administration (2017-2021):

Continued aggressive prosecution
Reality Winner, Daniel Hale, Terry Albury, Henry Frese
Indicted Julian Assange (first publisher charged under Espionage Act)

The escalation was bipartisan. Both administrations treated leaks as criminal matters requiring maximum prosecution, regardless of public interest in the disclosures.

Two-Tiered Justice

The pattern of Espionage Act enforcement reveals stark disparities ^[9]:

Those prosecuted aggressively:

Lower-level employees and contractors
Those who leak to journalists
Disclosures revealing government wrongdoing
Sources without political connections

Those who escape prosecution:

Senior officials who leak for political advantage
"Authorized" leaks to favored reporters
Mishandling of classified information by high officials

The Petraeus example:

CIA Director David Petraeus shared classified information with his biographer, including code word-level intelligence. He received a misdemeanor plea deal with probation and a fine. No prison time. Compare to Reality Winner's 5-year sentence for a single document.

The Trump documents case:

Former President Trump was charged with 32 counts under the Espionage Act for retaining classified documents at Mar-a-Lago. The case was dismissed on procedural grounds related to the special counsel's appointment. He retained documents rather than leaking them, a distinction in the law, but the contrast with treatment of lower-level defendants remains striking.

Reform Proposals

Legal scholars and press freedom advocates have proposed several reforms ^[10]:

Public interest defense:

Allow defendants to argue disclosure served the public
Let juries weigh harm against benefit
Would bring Espionage Act in line with other whistleblower protections

Narrow the law:

Distinguish between espionage (aiding foreign powers) and leaking (informing the public)
Require proof of intent to harm national security
Exclude disclosures to media that serve democratic accountability

Judicial review of classification:

Allow courts to assess whether information was properly classified
Prevent use of classification to hide embarrassment or illegality

Extend whistleblower protections:

National security employees currently lack meaningful protections
Intelligence community whistleblowers face retaliation with little recourse
Internal channels have proven ineffective

None of these reforms have been enacted. The Espionage Act remains unchanged from its 1917 framework.

The Chilling Effect

The aggressive use of the Espionage Act has measurable effects on journalism and public knowledge ^[11]:

Source reluctance: Potential sources know that any leak of classified information could mean years in prison. Many stories go unreported because sources won't take the risk.

Self-censorship: Journalists report that sources are harder to develop and more cautious about what they'll share. National security reporting has become more difficult.

Whistleblower deterrence: Employees who witness wrongdoing inside intelligence and defense agencies have few safe options. Internal channels are often ineffective or lead to retaliation. Going to the press means risking everything.

What remains hidden: The public only learns what it does because some individuals accept the consequences of disclosure. For every Snowden or Manning, how many stayed silent?

The Bottom Line

The Espionage Act is a century-old law designed for a world of wartime spies and seditious propaganda. Today, it serves a different purpose: ensuring that anyone who reveals classified information to the press faces severe criminal penalties, regardless of the public benefit of their disclosure.

Key points:

Written in 1917, predates modern classification system by 35 years
No distinction between spies and whistleblowers
No public interest defense allowed
More prosecutions under Obama and Trump than all prior presidents combined
Effectively guarantees conviction for any leak of classified information

The law makes it nearly impossible to reveal government wrongdoing hidden behind classification without facing prison. That's not an unintended consequence, it's how the law now functions.

Every major surveillance revelation, from the Pentagon Papers to NSA mass surveillance, came from someone who broke this law. The public benefited. The sources paid the price.

The question isn't whether the Espionage Act is being misused. The question is whether a democracy can function when its most important secrets can only be revealed at the cost of imprisonment.