R ecent unauthorized disclosures to the press concerning activities in the White House, and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets, has prompted congressional interest in criminal prohibitions on disclosure of classified information. While President Trump and certain media outlets have described certain White House leaks as "criminal" and "illegal , " there is no single statute that criminalizes any unauthorized disclosure of classified information. Instead, criminal prohibitions on unauthorized disclosure of classified information are based on a complex and often overlapping set of statutes with provisions that differ depending on, among other factors, what material was leaked, to whom it was given, and the intent of the discloser. Historically, the criminal statutes prohibiting the disclosure of protected information have been used almost exclusively to prosecute (1) individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents and (2) foreign agents who obtain classified information unlawfully while present in the United States. These prosecutions and the related proceedings that have been filed against members of the press who receive leaked information implicate unique constitutional considerations concerning the scope of First Amendment rights to freedom of speech and freedom of the press. And the term "classified information" is limited to information that was classified "for reasons of national security[.]" Other Relevant Statutes

In addition to the Espionage Act and its UCMJ counterparts, other criminal prohibitions in the U.S. Code have been or potentially could be utilized to prosecute the disclosure of classified information. Legal Proceedings Involving the Press or Other Recipients of Unlawful Disclosures

While courts have held that the Espionage Act and other relevant statutes allow for convictions for leaks to the press, the government has never prosecuted a traditional news organization for its receipt of classified or other protected information.
Recent unauthorized disclosures of information concerning activities in the White House, and the publication of large quantities of classified information by WikiLeaks and other organizations and news outlets, have prompted congressional interest in criminal prohibitions on disclosure of classified information. While some have described recent leaks of classified information as "illegal" and "criminal," there is no single statute that criminalizes any unauthorized disclosure of classified information. Instead, the legal framework is based on a complex and often overlapping set of statutes with provisions that differ depending on, among other factors, what information was disclosed, to whom it was given, and the intentions of the discloser. This report identifies statutory prohibitions that may be implicated by the unauthorized release of classified information, and it examines the elements necessary to secure a conviction under the Espionage Act and applicable statutes.
Historically, the Espionage Act and other relevant statutes have been used almost exclusively to prosecute (1) individuals with access to classified information (and a corresponding obligation to protect it) who make it available to foreign agents, and (2) foreign agents who obtain classified information unlawfully while present in the United States. While prosecutions appear to be on the rise, disclosures of classified information to the press have been punished as crimes less frequently, and the government has never prosecuted a traditional news organization for publishing classified information that it received as a result of a leak.
This report examines prosecutions of individuals who leak information to the press or policy organizations, such as lobbying groups and think tanks, as well as civil and criminal actions that have been brought against the recipients of leaked information—often the press. Because these cases implicate unique First Amendment concerns regarding freedom of speech and freedom of the press, the constitutional framework relevant to prosecutions and other legal proceedings filed as a result of leaked classified information is also analyzed in this report.
Lastly, this report provides a summary of previous legislative efforts to criminalize the unauthorized disclosure of classified information and to address potential gaps or ambiguities in current statutes.