Born during World War I, the Espionage Act of 1917 was created to prevent the disclosure of classified information that could threaten national security. Today, it’s being used to target journalists.
Since the Obama administration, the use of the Espionage Act against leakers and whistleblowers has surged. What began as a tool of national defense against spies is now a flashpoint in the fight over press freedom as government officials attempt to force news organizations to reveal their sources. Most recently, President Donald Trump threatened to prosecute those who leaked a report revealing that the recent Iran strikes were not as effective as he claimed.
Attorneys Abbe David Lowell and Mark Zaid spoke at the National Press Club last week on what journalists should know about protecting their sources and themselves under the Act. (Watch the livestream here.)
“It’s the journalists, the lawyers, and the judges who are going to make the difference to ensure the rule of law is upheld for at least as long as we can,” said Zaid, an attorney who represents federal workers, whistleblowers, and representatives of the media.
Here are some takeaways from the July 1 conversation:
Familiarize yourself with existing legal protections and regulations: While there is no universal whistleblower law in the U.S., there are protections offered through various federal and state laws, including the Whistleblower Protection Act. Journalists should recognize the risks and implications of working with these sources. And be mindful that sources within the intelligence community might be subject to different rules.
Establish a relationship with potential sources: Zaid suggests working with members of Congress who can legally receive classified information; for example, inspectors general and members of authorized congressional committees.
Protect sources (and yourself): Zaid cautioned that digital footprints matter, as cell phone records and building access logs can usually be traced. Avoid using traditional email when communicating with government sources and stay up to date on the most secure methods of communication. (Here is a handy digital safety checklist from the Freedom of the Press Foundation.)
In addition, if your previous job involved access to highly classified intelligence that requires special handling, publishing under your own name could raise security concerns. “If you work on those stories, let someone else in the office take the byline … because the risk in this administration is too great,” Zaid said.
Handle sensitive information carefully: Use encrypted data storage and strong passwords. Zaid noted that screenshots can still compromise encrypted messages. Since not everyone uses the same disappearing message settings, it’s important to set clear expectations with your sources about how information will be stored.
Be aware that potential sources might share classified information or other documents obtained illegally. Lowell brought up the 2001 ruling on the Bartnicki v. Vopper Supreme Court case, which determined the media has a right to publish under the First Amendment, “illegally intercepted communications” if the media outlet did not partake in the illegal actions. He notes that this case adds a level of protection for journalists. (See more advice for reporting on information illegally obtained by a third party.)
Be prepared for potential new requirements to access government buildings: For example, the Pentagon recently banned reporters from certain areas of the building. So always understand your First Amendment rights and document any restrictions that might impede your reporting.
“The First Amendment still exists,” Lowell said. “I am very optimistic that there are district court judges around the United States who understand the parameters.”
Contact RCFP’s Legal Hotline for advice on access roadblocks.
And finally, consider meeting with legal counsel experienced in press freedom cases if you are worried about the Espionage Act.