Restoring the Balance Between Secrecy and Transparency: The Prosecution of National Security Leaks Under the Espionage Act

Author(s): 
Christina E. Wells
Publication Date: 
October 24, 2017

In this Issue Brief, Christina Wells argues that as we mark the 100th anniversary of passage of the Espionage Act, the time has come to amend it. Wells notes that for years “[c]onventional wisdom held that the government had broad power to keep national security information secret, but the press also had broad authority to publish that information once received.” But in recent years, there has been a significant and troublesome increase in the prosecution of leakers under the Act, involving subpoenas served for journalists’ phone records, journalists named as unindicted co-conspirators, and the pursuit of criminal sanctions against publishers. After reviewing how the law has historically treated leakers and the underlying rationales for that treatment, Wells suggests specific ways that Congress and the courts could improve the law in this area to restore the balance.