Washington — With its talk of signal books, sketches and photographic negatives, the Espionage Act suggests a period long ago consigned to Cold War-era thrillers.
In fact, the law is even older, first drafted in 1917, at a time when secret orders were conveyed by telegraph and semaphore codes were bound in pocket-sized books weighted with lead so they could be thrown overboard at the approach of the enemy. The era also was the beginning of the Red Scare, the belief that the socialist revolution in Europe soon would infect the United States.
Communications since then have evolved quite a bit. Yet the law’s most controversial statute — targeting those who receive defense information, including reporters and lobbyists — persists.
Recently it formed the basis for a warrant used by the FBI to monitor the email and phone records of James Rosen, a Fox News reporter at the center of an investigation into government leaks. The disclosure of the investigation has embroiled the Obama administration in controversy over what looks to some like an attempt to criminalize journalism.
“Rosen was not charged with any crime, but it is unprecedented for the government, in an official court document, to accuse a reporter of breaking the law for conducting the routine business of reporting on government secrets,” wrote Ryan Lizza, The New Yorker’s Washington correspondent.
The controversial statute also was at the heart of a case several years ago targeting two former lobbyists for the American Israel Public Affairs Committee, or AIPAC. The case eventually was dropped.
The statute, known as 793(e), has been vexing reporters and lawyers for decades and was updated by Congress in 1950 over a veto by President Harry Truman. The statute criminalizes the “willful” retention of “unauthorized” national defense information and the failure to return such information to the government.