Opinion: Repeal the Espionage Act

In 1918, Eugene V. Debs, a labor activist and former presidential candidate, spoke to a group of socialists at a picnic in Canton, Ohio, a town about an hour south of Cleveland.

“I realize that, in speaking to you this afternoon, there are certain limitations placed upon the right of free speech,” he said, alluding to a law that President Woodrow Wilson passed that prevented people from obstructing the draft, collecting or releasing government information that might “be used to the injury of the United States,” and criticizing Congress. World War I was raging, and the law — known as the Espionage Act — was a response to German plots to infiltrate American newspapers and businesses in order to weaken its military potential.

Debs’ precautions, unfortunately, would ultimately fail. Because he blamed “the ruling class” for the war and demanded that “if war is right let it be declared by the people,” he was accused of “obstructing the draft” and sentenced to prison under the Espionage Act.

The Espionage Act remains on the books today, albeit having been amended so that it no longer bans criticism of the government. Rather than punishing the foreign spies it was aimed at, it has largely been used to target domestic leakers and whistleblowers.

According to ProPublica, a nonprofit investigative newsroom, 11 people have been prosecuted under the Espionage Act for leaking information since 1975. Seven of those prosecutions took place under the Obama administration.

In many cases, the information provided through these leaks has genuinely benefited the public. When former Army private Chelsea Manning leaked information relating to the U.S. government’s imprisonment and killing of innocent people, she helped shift public opinion of the Iraq war and catalyze the Arab Spring protest movement. Similarly, Edward Snowden, who is wanted under the Espionage Act for leaking documents showing the extent of U.S. government spying, inspired many companies to provide better security for their users.

Despite defending civil liberties and human rights, these whistleblowers have faced extensive retaliation from the government. Yet others, whose actions did not benefit the public in the same way, have not faced consequences for actions that could also be seen as violations of the Espionage Act.

David Petraeus, the former head of the CIA, shared information with his mistress that was much more highly classified than what Chelsea Manning released. Hillary Clinton’s use of a private email server may have violated a section of the Espionage Act related to “gross negligence” in safeguarding secret information. but, as University of Texas law professor Steven Vladeck pointed out for Slate, this section is so broad that “nobody knows” what does and doesn’t violate it. Similarly, Harvard law professor Lawrence Tribe claimed that Donald Trump violated the Espionage Act by calling upon Russian president Vladimir Putin to hack Clinton’s emails.

None of these people provided any public good by these actions, and none of these people have been prosecuted under the Espionage Act.

So what’s the common theme here? Power. While lower-level employees who provide information embarrassing to the government’s reputation are punished, those who do not challenge the establishment are not. This is easy and perfectly legal, because the law is subjective — “national defense” can mean anything you want it to. We need to repeal this fuzzy law that allows the government to infringe on civil liberties.