There is often a stark divide in the public’s discussion of the legal and moral culpability of spies and leakers. In common parlance, spies are duplicitous individuals who are sent to a country solely to obtain secrets or who betray their own country to divulge secrets to a foreign adversary, whereas leakers are principled individuals who assume great personal risk to publicly uncover government wrongdoing. Spies operate in the realm of foreign relations, prompting discussions of international law, while leakers work domestically, prompting analysis of government overreach and First Amendment protections. However, a legal and operational analysis of spies and leakers indicates that their actions are not as different as public discourse suggests.

This Note seeks to place spies and leakers within the same legal framework. By exploring the inadequacy of international law to regulate the collection and disclosure of government secrets, this Note centers on the Espionage Act’s criminal prohibitions of the unauthorized access, disclosure, and receipt of sensitive information. Exploring the contours of the Espionage Act’s application to spying and leaking requires understanding intelligence gathering operations and appreciating the harms resulting from the disclosure of sensitive information, whether from a spy or a leaker. This Note then argues that common calls to reform the Espionage Act—from asserting absolute First Amendment protection to exploring a defendant’s subjective intent—are untenable in practice and undermine the goals of the Act: to protect against harms to national security by deterring the unauthorized disclosure of sensitive information. Instead, this Note argues that the current operation of the Espionage Act strikes a fair balance between protecting national security and upholding the fundamental values of this country. This Note calls for prosecutorial decisions that promote the Act’s deterrent effect and improve public perceptions of the Act’s legitimacy. Finally, this Note hopes to spark the simultaneous appreciation for the complex decisions necessary to keep this country secure and gratitude for the values and principles that make this country worth securing.

Continue reading Playing the Same Game: Why Prosecuting Robert Hanssen Requires Prosecuting Edward Sowden