Receiving Documents and Information from Government Sources

If you receive documents or other information relating to national security from a government employee (or other person who is authorized to access government documents and information), you could be criminally prosecuted for conspiring with that government employee to violate the federal Espionage Act, located at 18 U.S.C. § 793, or for aiding and abetting that employee's violation of the Act.

In a recent and highly controversial case, the Department of Justice prosecuted two lobbyists for the American Israel Public Affairs Committee (AIPAC) for conspiring with a former government employee to transmit national defense information to those "not entitled to receive it" in violation of 18 U.S.C. § 793. The indictment alleges that the two lobbyists cultivated a relationship with the former employee in order to gather national defense information relating to U.S. foreign policy in the Middle East and transmitted the information to members of the media, foreign policy analysts, and foreign officials. The indictment further charges one of the lobbyists for aiding and abetting the former employee's illegal disclosure of classified national security information by providing a fax machine on which to receive the employee's communications. The federal district court hearing the case held in 2006 that the prosecution did not violate the First Amendment to the U.S. Constitution. United States v. Rosen, 445 F. Supp.2d 602 (E.D. Va. 2006).

While the Department of Justice did not prosecute any members of the press in the AIPAC case, prosecutors could conceivably apply the same laws to journalists who receive sensitive government information through leaks from government insiders. This prospect is especially worrisome given the government's longstanding practice of making use of "controlled leaks" to get desired information out to the public.

Besides 18 U.S.C. § 793, other federal criminal statutes could apply to the receipt and publishing of sensitive government information from government insiders, including 18 U.S.C. § 794 (relating to dissemination of national defense information to an agent of a foreign government), 18 U.S.C. § 798 (relating to the dissemination of classified information about U.S. intelligence activities), the Atomic Energy Act (relating to the dissemination of information relating to nuclear weapons), the Intelligence Identities Protection Act of 1982 (relating to identification of intelligence agents),and 18 U.S.C. § 649 (relating to the theft and receipt of government records and "thing[s] of value"). All of these statutes, including the Espionage Act, require the government to prove some level of bad intent on the part of the defendant. The government has not previously prosecuted journalists under these provisions, but there is some cause for concern in the future as online publishing blurs the line between journalism and more suspect (at least from the government's point of view) forms of information sharing.


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