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A brief look at the history of the Espionage Act

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Michael Rosenberg, 10, right, and his brother, Robert, 6, children of Julius and Ethel Rosenberg, read in the newspaper that their parents have one day more to live.

Michael Rosenberg, 10, right, and his brother, Robert, 6, children of Julius and Ethel Rosenberg, read in the newspaper that their parents have one day more to live, in this undated file photo. With controversy raging over their convictions for espionage conspiracy and all of their appeals exhausted, the Rosenbergs were electrocuted on June 19, 1953.

Associated Press

The Espionage Act has been swirling about throughout the media in recent weeks, mainly concerning former U.S. President Donald Trump and the FBI’s raid of his Mar-a-Lago estate in August of this year.

Why it matters: According to federal agents’ search warrant of his Florida home, Trump is under investigation for potentially violating the Espionage Act.

When hearing the word “espionage,” one might picture an old-fashioned spy or a 21st-century hacker. In actuality, the Espionage Act was originally passed by Congress in an effort to address opposition to the United States’ role in World War I, per The New York Times. The modern application of the act in today’s court of law has been used to charge or prosecute whistle-blowers that leak classified data — think Edward Snowden, Reality Winner and Chelsea Manning.

With the act still being relevant more than 100 years after it was introduced, let’s take a look at some of the central tenets of the Espionage Act and its historical role in domestic and international relations.

When was the Espionage Act passed?

Fresh into a new war against Germany, the U.S. Congress passed the act on June 15, 1917, under President Woodrow Wilson’s administration, and it was heavily utilized by then U.S. Attorney General A. Mitchell Palmer.

The act’s original rendering “made it a crime for any person to convey information intended to interfere with the U.S. armed forces prosecution of the war effort or to promote the success of the country’s enemies. Anyone found guilty of such acts would be subject to a fine of $10,000 and a prison sentence of 20 years,” according to History.

While the entirety of the law isn’t fully utilized today, the Espionage Act’s most notable sections are still applicable and can be used in current court proceedings, per USA Today.

What is the punishment for violating the Espionage Act?

In most contemporary cases — though not all — the Espionage Act applies to mishandling or sharing classified information. “The law criminalizes the unauthorized retention or disclosure of information related to national defense that could harm the United States or aid its enemies,” The New York Times reported.

The punishment for someone found guilty of violating the act can range in severity, depending on which section an individual is charged under. Sections 793 and 794 are noteworthy, because while they have key similarities, they don’t share what is arguably the most significant offense — sharing classified defense information with a foreign government for its aid.

The two sections, presumably due to the important distinction of involving a foreign government in the offense, carry drastically different sentences.

CBS News highlighted the following differences between the two sections:

  • Section 793 involves “gathering, transmitting or losing defense information, which also includes refusal to return information that is demanded by the government.” This carries a maximum of a 10 year prison sentence if convicted. A potential violation of section 793 is what Trump is currently under investigation for.
  • Section 794 relates to “gathering or delivering defense information to aid a foreign government.” If found guilty under this provision, the punishment is much more severe — up to life in prison or the death penalty.

Notable times when the Espionage Act has been used

Julius and Ethel Rosenberg

In 1950, Julius Rosenberg, a U.S. Army engineer, was arrested for suspicion of espionage. The arrest of Ethel Rosenberg — Julius Rosenberg’s wife — followed several weeks later. In 1951, the two were accused of divulging secrets regarding the atomic bomb to the Soviet Union via a spy ring. That same year, the couple was found guilty of conspiracy to commit espionage and sentenced to death.

Although they vehemently maintained their innocence, the Rosenbergs were ultimately executed by method of electric chair at New York’s Sing Sing Prison in 1953.

In his statement refusing to grant clemency to the Rosenbergs, then President Dwight D. Eisenhower said, per Politico, “The nature of the crime for which they have been found guilty and sentenced far exceeds that of the taking of the life of another citizen; it involves the deliberate betrayal of the entire nation and could very well result in the death of many, many thousands of innocent citizens.”

Julius Rosenberg and his wife, Ethel, are shown during their espionage trial in New York’s federal courthouse in this March, 1951, file photo.

Julius Rosenberg and his wife, Ethel, are shown during their espionage trial in New York’s federal courthouse in this March, 1951, file photo.

Associated Press

Edward Snowden

During former President Barack Obama’s eight-year administration, eight individuals were either charged or convicted under a provision of the Espionage Act, “more such cases than under all previous administrations combined,” NPR reported. All eight cases included the defendant having been accused of illegally releasing United States security secrets. Edward Snowden is one of those cases.

Snowden, a former National Security Agency contractor who exposed U.S. surveillance intelligence practices in 2013, has been living in exile in Russia since fleeing the states that same year.

Snowden, who still faces espionage charges in the U.S., was granted official Russian citizenship by Russian President Vladimir Putin in September, per BBC News.

Edward Snowden

Edward Snowden

Reality Winner

The Trump administration seemingly followed in its predecessor’s footsteps, aggressively pursuing charges against individuals and entities under the Espionage Act.

An important distinction, though, is that the Trump administration used the Espionage Act against media outlets, The Intercept reported. According to that reporting, the administration charged five journalistic sources under provisions within the Espionage Act.

Reality Winner, an Air Force veteran and former national security contractor, was pursued by the Trump administration for violating the act. Winner served over four years in federal prison after pleading guilty to leaking a classified document concerning Russian interference in the 2016 presidential election, per NBC News.

Though her original sentence had been five years and three months, she was released early in 2021. She was subsequently released “amid revelations that the U.S. Justice Department received data about Democratic members of Congress as part of an effort to stem leaks,” BBC News reported at the time.

In an interview with NBC News last month, Winner said that the Department of Justice’s investigation into whether or not Trump mishandled classified government documents is “incredibly ironic” and that the situation “wasn’t hard to believe.”