Classified Information

Leaking information to the media is illegal only if the information is classified, and it can legally be classified only if its disclosure would be detrimental to national security. The three official categories of classification are: confidential (disclosure “reasonably could be expected to cause damage to the national security”), secret (disclosure “reasonably could be expected to cause serious damage to the national security”), and top secret (disclosure “reasonably could be expected to cause exceptionally grave damage to the national security”). In practice, higher categories have been created—such as special access program (SAP) or sensitive compartmented information (SCI)—but these have been sandwiched in as subcategories of top secret (e.g., “TS/SCI”). It is illegal to classify information solely for the purpose of avoiding embarrassment, but that is not to say that it never happens.

Unfortunately, the definitions are extremely vague, and disputes between individuals and among agencies over the appropriate classification (if any) of a particular document are common. One entity, the Interagency Security Classification Appeals Panel (ISCAP), exists solely to address such disputes when the relevant agencies fail to work them out on their own. (Between 1996 and 2012, ISCAP overturned the classification decision of an executive agency in 24 percent of the cases it reviewed and partially overturned the classification decision in another 40 percent.) Moreover, while legal penalties have been laid out for failing to classify information, none exist for classifying information at too high a level. That incentive, added to the ambiguity of the rules and the ambiguity of much of the information itself, means that “overclassification” is rampant. Thus many intelligence specialists will agree, in the abstract, that much information is classified at too high a level and much is classified that should not be classified at all, even if they do not agree as to which information that is. The knowledge that some information is overclassified or should never have been classified, may make it easier in some people’s minds to leak classified information to the media.

Motivations for Leaks

Generally speaking, journalists to not find classified information on their own. Rather, it is supplied to them clandestinely by government employees. The motives of those employees may be complex.

The popular image is that of the leaker as whistle-blower, and this is often proclaimed as the motivation even when it is not. The purpose of whistle-blowing is to disclose wrongdoing or mismanagement within government. Not only is it viewed favorably by the public, there are also legally condoned procedures for whistle-blowing and laws to protect whistle-blowers from retaliation. Under U.S. law (5 U.S.C. §2302[b][8]), this relates only to unclassified information that the whistle-blower reasonably believes constitutes evidence of a violation of a law, rule, or regulation or of gross mismanagement, a gross waste of funds, abuse of authority, or a substantial and specific danger to public health or safety. Internal, nonpublic means exist for reporting wrongdoing in classified matters. Beyond the obvious advantages of such whistle-blower reports, they are an often overlooked resource for leaders, containing information about bureaucratic shortcomings or internal turmoil that would otherwise go unnoticed.

The law protecting whistle-blowers, however, is not always effective. Whistle-blowers may face administrative discipline even for divulging unclassified government information, or bureaucratic ombudsmen may be unresponsive or may not agree that wrongdoing is involved. This may lead honest whistle-blowers to avoid the legal path and leak their revelations clandestinely to the media.

In many instances, leaking serves a more self-interested purpose. It may, for example, be used as a tool in bureaucratic infighting. Thus leaks may be intended to shape an internal debate over policy, or even to reverse a policy decision already made, by drawing public opinion into the arena. In such cases, leaking may be highly selective so as to shine a more favorable light on the position being advanced. On the other hand, in certain instances, leaks could be a reaction by bureaucrats to a politician lying to the public about the content of secret information. Apart from that, further possible motivations for leaks are ego, a desire to curry favor with journalists, or a perceived need to settle grudges.

Finally, it should be noted that many apparent unauthorized leaks are in fact authorized disclosures masquerading as leaks. Decision makers may choose to disclose certain bits of information to the public anonymously to shape public opinion, to reveal unfavorable information while avoiding blame, or to test public sentiment before making an official policy announcement. The relative tolerance for leaks on the part of many administrations may stem from the desire to retain the capacity to leak for themselves.

Legal Aspects

The disclosure of classified information, even if unauthorized, is not always illegal. Congress passed a bill in 2000 that would have made any unauthorized disclosure of classified information a felony, but President Bill Clinton vetoed it. Leaking is criminal in certain circumstances, however, under a variety of specific laws.

Most prominent is the Espionage Act(18 U.S.C. §§793–798), first passed in 1917, which makes it a felony to disclose “national defense information” to those who are not authorized to have it. The Supreme Court, in Gorin v. United States (1941), determined that conviction under the Espionage Act requires a finding of scienter, a legal term indicating bad faith or a knowledge of wrongdoing. Interpreted otherwise, in the Court’s opinion, the law would be unconstitutionally vague. Thus, conviction requires proof of intent or a pattern of disclosures sufficient to show intent. A single accidental disclosure would not normally lead to prosecution.

Other laws that have come into play in the prosecution of news leaks relate to the theft of federal property (18 U.S.C. §641), the disclosure of classified information relating to communications activities (18 U.S.C. §798), computer security (18 U.S.C. §1030[a]), or the disclosure of the identity of a secret agent (50 U.S.C. §3121). People may also be convicted of making false statements, perjury, or obstruction of justice(18 U.S.C. §§1001, 1503, 1512, 1623)in the course of a news-leak investigation. Indeed, prosecutors may prefer the latter charges, even if they have evidence of guilt under charges more directly tied to espionage, inasmuch as they are easier to prove and they entail less risk of divulging the underlying classified information in open court.

In addition to laws related to the disclosure of classified information, government employees with authorized access to such information are required to sign nondisclosure agreements as a condition of employment. These agreements require them to keep classified information secret both during and after the term of their employment. They are also obliged to submit all relevant materials that they write for prepublication review to assure that no classified information is divulged. Frank Snepp, a former CIA analyst in South Vietnam, was sued by the CIA for publishing his memoirs, Decent Interval (1977), without submitting them for review. The CIA did not claim that the book divulged any secrets, only that it had not been reviewed. The Supreme Court, in Snepp v. United States (1980), found for the agency, and the CIA seized all proceeds from the book’s sale.

The Law and the Press

Prosecutions for news leaks have generally been directed at government employees who have disclosed classified information to journalists. The government has not prosecuted journalists for publishing classified information handed to them, but neither has it fully conceded that it does not have the right to do so.

The main protection for the press comes under the First Amendment: “Congress shall make no law . . . abridging the freedom of speech, or of the press; . . .”Generally speaking, citizens have a right to discuss governmental affairs. The Supreme Court has held that restrictions on speech are allowable only when they are necessary to promote a compelling interest and when they are the least restrictive means to further that interest. On the other hand, the Preamble of the Constitution states that one of the purposes of the government is to “provide for the national defense.” The Supreme Court has described national security as a compelling government interest, and that may at times require secrecy.(National security is defined as encompassing both national defense and foreign relations.) It is the job of courts and policy makers to balance these aspects of the law within the constitutional framework. Courts often insist that the government make some showing, beyond the mere fact of classification, that a specific disclosure has a potential to harm national interests, but they do not require prosecutors to prove that the disclosure has already caused a specific harm, and they rarely attempt to second-guess the executive as to what is necessary to protect national security.

With regard to the rights of the press to publish classified information, intelligence agencies and law enforcement sometimes take a strict view. In 1942, after the Chicago Tribune published classified details about the Battle of Midway while the battle was still on, the Justice Department’s Office of Legal Counsel opined that the government had the right to prosecute the reporter and, depending of the circumstances, the managing editor, the publisher, and the company as well. No prosecution followed only because the Navy refused to divulge in court exactly which details were the secrets it was trying to conceal.

In practice, although the case did not involve classified information, the principal protection for journalists is the Supreme Court finding, in Bartnicki v. Vopper (2001), that a reporter who has passively received information is free to publish it, even if the reporter’s source obtained the information illegally. The presumption follows, although there is no explicit precedent, that actively soliciting classified information or cooperating with the source prior to the illegal act could land a journalist in legal peril. There is a sizable gray zone here. For example, Barton Gellman, a seasoned journalist in this field, describes a process of gathering information that seems to veer quite close to this. He notes that sources rarely send stories to a journalist out of the blue. Rather, Gellman follows an “iterative” process that begins with hunches and guesses as to who would know whether his hunches are true. He begins with officials with the least at stake in the issue and then works toward the center. He accumulates small facts that collectively lead to larger facts. If it goes well, by the time he arrives at the classified core of the issue, he can act as if he already knows the answers and is merely seeking confirmation. (Or as Gellman puts it, placing the onus on the potential source: “Hardly anyone in government is comfortable about explicitly crossing the line into classified material. Sometimes a person will rationalize it with the notion that he is saying something I already seem to know.”) In 2018 the director of national intelligence expanded the definition of leaks to include the “confirmation” or “acknowledgment” of classified information to an unauthorized person.

Journalists could also be in jeopardy if they knowingly accept information from a hostile foreign intelligence service—even if the information is received passively—rather than a whistle-blower or other domestic leaker. If the source is a hostile foreign intelligence service, the journalist will have difficulty relying on a presumption that the source meant to expose wrongdoing for the good of the country. Even then, however, a case might be made if the information does prove to be true and of profound public value.

Journalists do face constraints, however. The Supreme Court, in Branzburg v. Hayes (1972), the only case that explicitly considers the question of a “reporters’ privilege” in testimony, held that the Constitution does not protect journalists any more than other citizens from being compelled to testify before a grand jury, regardless of whether the journalist promised sources confidentiality, if the information sought concerns a matter of overriding and compelling state interest. Consequently, in 2005, Judith Miller of the New York Times spent 12 weeks in jail before finally agreeing to tell a grand jury exactly who had revealed to her that Valerie Plame Wilson was an employee of the CIA. Ambiguity persists, however. While Justice Byron White’s plurality opinion in Branzburg rejected the notion of a reporters’ privilege, refusing “to grant newsmen a testimonial privilege that other citizens do not enjoy,” Justice Lewis Powell’s more hedged concurring opinion, which made it a majority, implied that some sort of reporters’ privilege should be recognized, speaking of “striking a proper balance between freedom of the press and the obligations of all citizens to give relevant testimony with respect to criminal conduct.” (Notes published years later show that Powell was thinking of “a privilege analogous to an evidentiary one” to be applied on a case-by-case basis, but “we should not establish a constitutional privilege.”) Journalists have latched onto a favorable interpretation of Powell’s opinion.

The Digital Age

While the general patterns of news leaks have continued into the digital age, modern communications technology and practices have introduced some new aspects. For example, in the digital age, it has become easier to steal and leak classified documents, easier to catch leakers, and easier to leak inadvertently, but harder to identify who is part of the press.

First, technology has made it easier to acquire and leak documents. In 1969, Daniel Ellsberg and Anthony Russo set out to photocopy much of the 7,000-page Pentagon Papers, one page at a time, on a Xerox machine (with occasional help from Ellsberg’s 13-year-old son and 10-year-old daughter). It was, needless to say, a tedious and time-consuming operation. In 2013, Edward Snowden could use a commercially available application for making backup files to sweep up an estimated 1.5 million classified computer documents and copy them onto thumb drives that he could fit in his pocket. Technology had not only made it easier to leak but to leak unprecedented amounts of material. Most major newspapers now provide secure drop boxes for the anonymous online transfer of digital information or documents. Some analysts believe that the very anonymity, supportive rationalizations/trivializations (for virtually any act), and abundance of dissemination options made available by the Internet can prime certain personality types to engage in prohibited activities that they otherwise might not have undertaken.

Second, at the same time, technology has made it easier to catch leakers. In 2009, Fox News reported on North Korean plans for nuclear tests (with allusions to a CIA source within North Korea). The story itself had limited news value, and certainly disclosed no wrongdoing, but it alerted North Korea to U.S. knowledge of its activities and intentions and doubtless triggered a manhunt to find the CIA source. Using digital forensics, investigators were quickly able to determine that State Department contractor Stephen Kim had the relevant document on his computer monitor at the exact same time that he was talking to Fox journalist James Rosen on his cellphone. Kim eventually pleaded guilty to a felony account of disclosing classified defense information and was sentenced to 13 months in prison.(Kim’s account suggests that Rosen followed Gellman’s prescriptions, persisting, flattering his source, and implying that he only needed confirmation for something he already knew.) Rosen, as a journalist, was not arrested, although prosecutors had named him an unindicted coconspirator in order to subpoena his email and phone records. (The latter point became a cause célèbre among journalists who saw it as a violation of the First Amendment.)

The availability of such technological investigative tools, along with a growing intolerance for unauthorized leaks, contributed to a sharp increase in leak prosecutions. Prior to the Barack Obama years, there had only been three prosecutions in all. The Obama administration prosecuted eight more, although some of those cases were inherited from the George W. Bush administration. The Donald Trump administration, in the summer of 2017, announced that it would pursue leakers with even greater determination, resulting in two guilty pleas and two indictments in its first 18 months. Journalists understandably decried such measures for their chilling effect, reporting that their past sources were drying up, yet overall it failed to stem the phenomenon of leaking. From 2009 to 2016, despite Obama’s legal assault on leakers, the number of leaks reported to the Department of Justice for possible investigation remained steady at nearly 40 a year.

Third, technology has made it easier to “spill” intelligence. “Spillage” is the term used by intelligence agencies to describe the accidental exposure of classified information. Despite the precautions taken, computerized systems and the Internet have made it possible to divulge things unintentionally by pushing the wrong button at the wrong time or by discussing classified matters on the wrong email system.

Finally, a further complication of the digital age is the rise of “informal” media that fulfill or claim to fulfill the function of journalism. If there is a reporters’ privilege that prevents prosecution for publishing leaks, does that privilege extend only to well-established and recognized media corporations or does it include openly partisan websites, independent bloggers, WikiLeaks? The final verdict may not be in, but the standard to date, based on circuit court decisions, seems to be that the intent—the gathering of information for public dissemination—rather than the technology or platform employed is determinative of the journalistic nature of an enterprise.

Concluding Remarks

Given the nature of today’s technology, some now believe that information, including classified government information, is simply not controllable. Both government agencies and leakers may be fooling themselves by thinking that it is.

In any event, the issue of news leaks has no simple solution. Some degree of leaking is probably inevitable, and some of those leaks are probably desirable and even necessary for government accountability. Arguably, disclosures should be limited to real wrongdoing with clear and convincing evidence of abuse, and they should be done in ways that minimize potentially adverse effects on national security. That said, definitions of what constitutes real wrongdoing and what is really required for national security will always be contested.

Further Reading

See also: Bartnicki v. Vopper; Doxing; Espionage Act; First Amendment; Journalism and the protection of sources; Official Secrets Act; Plame Affair; U.S. Department of Justice v. Reporters Committee; Whistleblower; WikiLeaks