Last month, Edward Snowden, a former government employee and contractor, disclosed to newspaper reporters information about US intelligence activities that he obtained during the course of his work. Specifically, he revealed that the NSA engaged in widespread, warrantless surveillance of domestic and international telephone and Internet communications and also engaged in cyber spying on other governments, including allies. The revelations caused a public stir, especially given the questionable constitutionality of the NSA's domestic surveillance. But far more press, much of it hyperbolic, has focused on Snowden himself. Many officials and observers have called him a traitor while others labeled him a hero and a whistleblower who exposed massive government wrongdoing. The federal government recently brought criminal charges against him for theft of government property and violations of sections 793(d) and 798(a)(3) of the Espionage Act. These crimes carry possible prison sentences of up to thirty years and signal that the government does not view Snowden as a whistleblower. What are the implications of these particular charges for Snowden, especially in light of the First Amendment, which exists largely to protect public criticism of government and serve as a check against government wrongdoing?
Although officials have referred to Snowden as a traitor, he was not charged with treason. Nor should he be. The crime of treason requires that a person actually levy war against the US or act to aid enemies with whom the US is at war while showing allegiance to those enemies. Snowden's disclosure of confidential information does not rise to the level of treason, especially given that his apparent motive was to inform the general public about a surveillance scheme he viewed as "an existential threat to democracy." In fact, the crime of treason is purposefully difficult to prove against defendants like Snowden precisely because it was historically abused, often used to punish those who did nothing more than criticize the government.
Snowden has also been charged with crimes under the Espionage Act for intentionally revealing secret national security information. Once these charges became public, newspapers immediately claimed that he was charged with espionage. Such claims are not quite accurate. Espionage is generally defined as "the practice of spying ... to obtain information about the plans and activities especially of a foreign government." Although there has been speculation regarding whether the countries to which Snowden has fled (Russia and China) have seized his files, there is not yet any evidence that he acted on their behalf or willingly cooperated with them as would be the case with classic espionage.
More worrisome regarding the Espionage Act provisions under which Snowden is charged, is that he need not "spy" for another government to fall under them. Sections 793(d) and 798(a)(3) are broadly written and arguably extend to many kinds of disclosures. Section 793(d) prohibits intentionally communicating national defense information to unauthorized persons if one has reason to believe the information could hurt the US or help a foreign nation. Section 798(a)(3) prohibits intentionally communicating classified information concerning communications intelligence activities to an unauthorized person or using it in any manner prejudicial to the interests of the US or for the benefit of a foreign nation. In other words, these laws make it a crime to disclose to almost anyone (most of us are "unauthorized persons") secret government information if there is a possible scenario in which disclosure could harm us or help another nation. Surely, the US government could make a case that Snowden's disclosures fit these crimes as described. Such broad criminal provisions, however, essentially ignore the deliberate hurdles placed in the way of treason prosecutions. Why bother prosecuting Snowden with treason when you can label him a "traitor" in the news, charge him under the Espionage Act and throw him in jail for decades simply for communicating information to the public?
Which brings us back to the First Amendment. As with those early and often abused-treason prosecutions, the broad provisions of the Espionage Act raise significant First Amendment concerns. The laws give officials nearly unfettered discretion to determine when a release of confidential information may cause damage to US interests. Thus, officials can retaliate against certain leakers by charging them with crimes while ignoring other leaks. And leaks occur, often purposefully and at the behest of senior administration officials. As Professor David Pozen has explained, the executive branch "leaks like a sieve" and likely always will. Prior to the last decade, the federal government did not aggressively pursue criminal charges against government employees who leaked information to the press; rather, it punished such leaks if at all, via internal disciplinary actions. In recent years, however, government officials have increasingly used the Espionage Act against employees who leaked information embarrassing to the Executive Branch, such as disclosures that the US spied on the Israeli embassy and on UN leaders. The very breadth of the Espionage Act provisions allows just such abuse and gives officials the incentive to punish its critics while continuing to leak information favorable to it.
Such one-sided punishments under the Espionage Act undermine the First Amendment's checking function, which assumes that the strongest restraints on government power come from popular opinion. Secrecy about government activities is especially corrosive to the checking function. The public simply cannot have an opinion on government activities when it is unaware of them. The US government can legitimately argue that secrecy of some sort is necessary to its intelligence operations. But when the very constitutionality of those operations is questionable and involves violating the rights of its own citizens, complete secrecy weakens not just the First Amendment but democratic principles as well. Courts faced with individuals criminally charged with leaking information about actual, significant government abuses of power or illegal government activity should account for this important function of the First Amendment.
None of this means that government employees should have license to freely disclose information that is legitimately kept secret and critical to our national security. The US Supreme Court recognizes that government employees working with national security issues sit in positions of trust that limit their First Amendment right to disclose information. But it also recognizes that arbitrary criminal prosecutions of speech can chill public discussion on important political and social issues. We must come to some sort of balance in determining whether and how to punish public employee disclosures of confidential information while still allowing the checking function of the First Amendment to operate. Absent that balance, government officials have complete power over all debates by allowing favorable leaks while punishing embarrassing or critical leaks. As one court recently noted, once this happens we enter an "Alice-in-Wonderland" world where everything is upside down, "effectively allowing our Government to claim as perfectly lawful certain actions that seem on their face incompatible with our Constitution and laws."
Christina Wells is the Enoch H. Crowder Professor of Law at the University of Missouri - Columbia School of Law in Columbia, MO. She teaches Freedom of Speech, Remedies, Administrative Law and Gender & the Law. She has twice received the Shook, Hardy & Bacon Research award for her articles on the constitutionality of statutes regulating funeral protests and the effects of fear and risk assessment on decision-making in times of crisis.
Suggested citation: Christina Wells, Edward Snowden, the Espionage Act and First Amendment Concerns, JURIST - Forum, Jul. 25, 2013, http://jurist.org/forum/2013/07/christina-wells-snowden-espionage.php
This article was prepared for publication by Michael Kalis, an associate editor for JURIST's academic commentary service. Please direct any questions or comments to him at firstname.lastname@example.org