The Espionage Act and Today’s "High-Tech Terrorist"

June 16, 2012

Throughout the twentieth century courts interpreted the Espionage Act of 1917 to criminalize leaking classified information, but consciously refused to extend the Act to prohibit press institutions from subsequently publishing leaked information. While the United States government has a significant interest in preventing dissemination of sensitive information, the courts allow news organizations to claim First Amendment protection to foster government transparency and public disclosure. The proliferation of digital media, highlighted by the recent exposure of WikiLeaks founder Julian Assange, presents an additional challenge to refine characteristics of press institutions to determine if online news organizations will qualify for the same First Amendment protections. Beyond the potential prosecution of Assange in American courts, both Houses of Congress are considering the SHIELD Act, a bill that would broaden the statutory language of the Espionage Act and facilitate targeting of publishers of classified information.