Socialist Charles T. Schenck was charged with violating the Espionage Act of 1917 when he circulated a flyer that opposed the draft. The Supreme Court upheld his conviction. Pictured is Justice Oliver Wendell Holmes who ruled in the case that the danger posed during wartime justified the restrictions on First Amendment rights to freedom of speech placed by the Espionage Act. (Photo available from the Library of Congress, public domain)
Congress enacted the Espionage Act of 1917 on June 15, two months after the United States entered World War I. Just after the war, prosecutions under the act led to landmark First Amendment precedents.
Espionage Act limited dissent to the war
Definition of espionage: the practice of spying or using spies to obtain information about the plans and activities especially of a foreign government or a competing company industrial espionage Synonyms More Example Sentences Learn More about espionage.
The Espionage Act of 1917 prohibited obtaining information, recording pictures, or copying descriptions of any information relating to the national defense with intent or reason to believe that the information may be used for the injury of the United States or to the advantage of any foreign nation.
- The act of securing information of a military or political nature that a competing nation holds secret. It can involve the analysis of diplomatic reports, publications, statistics, and broadcasts, as well as spying, a clandestine activity carried out by an individual or individuals working under secret identity to gather classified information on behalf of another entity or nation.
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The act also created criminal penalties for anyone obstructing enlistment in the armed forces or causing insubordination or disloyalty in military or naval forces.
Further, the Wilson administration determined that any written materials violating the act or otherwise “urging treason” were “nonmailable matter,” and Postmaster General Albert S. Burleson ordered local postmasters to report any suspicious materials. Along with Attorney General Thomas Watt Gregory, Burleson led the way in aggressively enforcing the Espionage Act of 1917 to limit dissent.
By 1918, in actions that seriously threatened First Amendment freedoms and that likely would not be upheld today, 74 newspapers had been denied mailing privileges.
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Court rules wartime danger justifies restrictions
In 1917 the socialist Charles T. Schenck was charged with violating the Espionage Act after circulating a flyer opposing the draft. In Schenck v. United States (1919), the Supreme Court upheld the act’s constitutionality. Writing for the majority, Justice Oliver Wendell Holmes Jr. held that the danger posed during wartime justified the act’s restriction on First Amendment rights to freedom of speech.
The Court upheld similar convictions under the Sedition Act of 1918 in Debs v. United States (1919), Frohwerk v. United States (1919), and Abrams v. United States (1919).
Although Congress repealed the Sedition Act of 1918 in 1921, many portions of the Espionage Act of 1917 are still law.
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Daniel Ellsberg, a former defense analyst who leaked the famous Pentagon Papers to the New York Times and other newspapers, faced charges under the Espionage Act, and went to trial in Los Angeles in 1973. The judge eventually dismissed charges against him and his colleague Anthony Russo.
People still being charged under Espionage Act
Two former lobbyists for the American Israel Public Affairs Committee (AIPAC) were charged with violating the Espionage Act of 1917 in August 2005. The charges were ultimately dropped in 2009.
In more recent years, former CIA analyst Edward Snowden was charged with violating the Epionage Act after he leaked classified documents related to the National Security Agency's widespread surveillance program in 2013, beginning with The Guardian. Many news outlets published the information from the documents, including the New York Times, Washington Post and NBC News. Snowden sought asylum in Russia, but could be prosecuted under the charges if he returned to the United States.
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In May 2019, a federal grand jury in Virginia issued an indictment against Wikileaks founder Julian Assange that included 17 counts of violation of the Espionage Act for receiving and publishing classified documents. Three of the counts are based exclusively on the act of publishing, which some have said could have implications for mainstream U.S. media publications who also sometimes publish classified material.
Send Feedback on this articleEspionage is a broad category of federal crimes defined by 18 USC Chapter 37. The motivating factor in most cases of espionage is the collection and provision of sensitive information from the United States government to other entities or agencies abroad. Since 9/11, the frequency and harshness of espionage case prosecution has increased. Whenever someone is made the custodian of classified information, such as defense or intelligence information, espionage charges are possible for willfully or negligently providing that information to any unauthorized party.
Espionage Laws
Strict federal espionage laws have been on the books since the early 20th century. As most individuals who come into contact with sensitive intelligence and defense information are politicians or members of the military, most people are not familiar with the requirements of such laws. However, as the U.S. has increased the depth and scope of its operations around the world, more and more civilian contractors have also been required to familiarize themselves with these laws.
Espionage Crimes & Charges
Statutes provide for a wide variety of different espionage crimes and charges depending upon the specific type of information that was disseminated or withheld and the security value of that information, as determined by competent authorities. Key charges include:
Espionage Definition
- Harboring or concealing any individual, whether domestic or foreign in origin, whom the concealing party has reason to believe has committed or is about to commit an offense under federal espionage laws.
- Gathering, transmitting, or losing defense information, including the gathering of information on bases, stations, vehicles, aircraft, and a wide variety of other national security assets, which may be injurious to the United States.
- Gathering or delivering such information as provided above to any foreign government or foreign agent. This can include the sale or other transfer of such information as provided above, or the sale or transfer of photographs, drawings, or other representations.
- Photographing or sketching any defense installation, or using aircraft to photograph any such installation, which can be compounded by charges of publishing or selling such representations.
- Disclosing classified information, including classified information to which a person had rightful legal access to at the time when they became aware of that information. This has been the basis of most modern espionage prosecutions.
Espionage
Espionage Punishment
Espionage punishment will vary based upon the facts of the case. Particularly, it is important to note that under the Uniform Code of Military Justice, members of the armed forces who engage in espionage may receive a death sentence. Civilians who engage in espionage under United States federal law can receive some of the harshest punishments provided for under any federal statute, which may include life in prison.
Espionage Sentencing Guidelines
Espionage sentencing guidelines are especially complex. Espionage cases are evaluated on the basis of a point level, with each different type of offense having a “Base Offense Level.” The authorities calculate various factors in order to develop a total point level that informs the sentence. For example, transmitting national defense information to aid a foreign government has a base offense level of 37, or 42 if the information is considered Top Secret.
Espionage
Espionage Statute of Limitations
Although federal statute USC 3282 provides for a five-year statute of limitation for the vast majority of federal crimes, this statute of limitations does not necessarily stand in the case of espionage prosecution. It is generally agreed by legal scholars that acts of espionage can be prosecuted for at least ten years after the alleged act. Certain executive acts and extenuating factors may provide for prosecution after an even longer period of time.
Espionage Cases
Although espionage cases are relatively rare, espionage prosecution has become much more commonplace in the post-9/11 world as society adapts to growing demands for social vigilance against acts of international terrorism.
- In April 2010, six federal employees were charged by the Obama Administration for communicating with the press about national security-related projects and programs in violation of the administration’s expectation of secrecy. (Reporters’ Committee)
- Organizations including WikiLeaks and alleged federal government leaker Edward Snowden have been considered for or charged with counts related to federal espionage. Snowden fled prosecution in the United States and is currently believed to be in Russia. (Los Angeles Times)
Espionage Quick Links & References
Espionage Laws by State
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming