The
Espionage Act of 1917 was a United States federal law passed shortly after entering World War I, on June 15, 1917, which made it a
crimeCrime is the breach of one or more rules or laws for which some governing authority, via mechanisms such as police power, may ultimately prescribe a conviction...
for a person:
- To convey information with intent to interfere with the operation or success of the armed forces of the United States or to promote the success of its enemies. This was punishable by death or by imprisonment for not more than 30 years.
- To convey false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States or to promote the success of its enemies and whoever when the United States is at war, to cause or attempt to cause insubordination, disloyalty, mutiny, refusal of duty, in the military or naval forces of the United States, or to willfully obstruct the recruiting or enlistment service of the United States. This was punishable by a maximum $USD
The United States dollar is the unit of currency of the United States. The U.S. dollar is normally abbreviated as the dollar sign, $, or as USD or US$ to distinguish it from other dollar-denominated currencies and from others that use the $ symbol. It is divided into 100 cents .The U.S...
10,000 fine (almost $170,000 in today's dollars) and 20 years in prison (almost 22.5 years in today's years in respect to life expectancy).
The basic idea was to stop citizens from spying or interfering with military actions during WWI.
Thus, while "espionage" is usually defined as a clandestine activity of getting secret information and passing it on to the enemy, the law vastly extended the meaning of the term to include also the openly carried expressing of political opinions, without revealing any secret, and by persons who had no connection with the enemy - as long as the expressing of such opinions was construed as helping the enemy.
The
legislationLegislation is law which has been promulgated by a legislature or other governing body, or the process of making it. The term may refer to a single law, or the collective body of enacted law, while "statute" is also used to refer to a single law...
was passed at the urging of President
Woodrow WilsonThomas Woodrow Wilson was the 28th President of the United States. A leading intellectual of the Progressive Era, he served as President of Princeton University from 1902 to 1910, and then as the Governor of New Jersey from 1911 to 1913...
, who feared any widespread
dissentDissent is a sentiment or philosophy of non-agreement or opposition to a prevailing idea or an entity...
in time of
warWar is a reciprocated, armed conflict, between two or more non-congruous entities, aimed at reorganising a subjectively designed, geo-politically desired result...
, thinking that it constituted a real threat to an American victory.
There are other American Federal Laws that are referred to as "Espionage Acts" besides just this one. As a practical matter, most felons are convicted and tried under these Acts of Congress, rather than going about the very difficult process of trying and convicting someone for
TreasonIn law, treason is the crime that covers some of the more serious acts of disloyalty to one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife...
. In many cases, the maximum penalty for
espionageEspionage or spying involves an individual obtaining information that is considered secret or confidential without the permission of the holder of the information. Espionage is inherently clandestine, as the legitimate holder of the information may change plans or take other countermeasures once it...
is the same as that for treason - including imprisonment for life or possibly execution.
Enforcement of the Act
A year after the Act's passage,
Eugene V. DebsEugene Victor Debs was an American union leader, one of the founding members of the International Labor Union and the Industrial Workers of the World , as well as candidate for President of the United States as a member of the Social Democratic Party in 1900, and later as a member of the Socialist...
,
Socialist PartyThe Socialist Party of America was a democratic socialist political party in the United States, formed in 1901 by a merger between the three-year-old Social Democratic Party of America and disaffected elements of the Socialist Labor Party which had split from the main organization in 1899.In the...
presidential candidate in 1904, 1908, and 1912 was arrested and sentenced to 10 years in prison for making a speech that "obstructed recruiting". He ran for president again in 1920 from prison. He was pardoned by President
Warren G. HardingWarren Gamaliel Harding was the 29th President of the United States, serving from 1921 until his death from a heart attack or stroke in 1923. A Republican from Ohio, Harding was an influential newspaper publisher. He served in the Ohio Senate and later as Lieutenant Governor of Ohio and as a U.S...
after serving nearly 3 years. Eugene Debs and Bill Haywood were socialist and labor leaders who were jailed due to political actions.
The poet
E. E. CummingsEdward Estlin Cummings , popularly known as E. E. Cummings, with the abbreviated form of his name often written by others in lowercase letters as e. e. cummings , was an American poet, painter, essayist, author, and playwright...
and his friend
William Slater BrownWilliam Slater Brown was a novelist, biographer and translator of french literature. Most notably, he was a friend of the poet E. E...
, then volunteers in the Norton-Harjes Ambulance Corps in France, were arrested on September 21, 1917. Cummings' "espionage" consisted mainly of his having openly spoken of his lack of hatred for the Germans. The two were sent to a military detention camp, the
Dépôt de Triage, in
La Ferté-MacéLa Ferté-Macé is a commune in the Orne department in north-western France.During the First World War the village housed a military detention camp, the Dépôt de Triage. Among others, the American poet E. E...
,
OrneOrne is a department in the northwest of France, named after the river Orne.- History :Orne is one of the original 83 departments created during the French Revolution, on March 4, 1790. It was created from parts of the former provinces of Normandy and Perche.- Geography :Orne is in the region of...
,
NormandyNormandy is a geographical region corresponding to the former Duchy of Normandy. It is situated along the English Channel coast of Northern France between Brittany and Picardy and comprises territory in northern France and the Channel Islands.Normandy is divided between French and British...
, where they languished for 3½ months. Cummings' experiences in the camp were later related in his novel,
The Enormous RoomThe Enormous Room is a 1922 autobiographical novel by the poet and novelist E. E. Cummings about his temporary imprisonment in France during World War I....
.
Publications which the Wilson Administration determined were guilty of violating the Act "were subject to being deprived of mailing privilege, a blow to most periodicals," according to Sidney Kobre's book
Development of American Journalism. A section of the Act allowed the
Postmaster GeneralThe United States Postmaster General is the executive head of the United States Postal Service. The office, in one form or another, is older than both the United States Constitution and the United States Declaration of Independence...
to declare all letters, circulars, newspapers, pamphlets, packages and other materials that violated the Act to be unmailable. As a result, about 75 newspapers either lost their mailing privileges or were pressured to print nothing more about World War I between June 1916 and May 1918. Among the publications which were censored as a result of the Act were two Socialist Party daily newspapers, the
New York CallThe New York Call, also known as the New York Evening Call or simply The Call, was a socialist daily newspaper published in New York City, founded in 1908...
and the
Milwaukee LeaderThe Milwaukee Leader was a socialist daily newspaper established in Milwaukee, Wisconsin in December 1911 by Socialist Party chief Victor L. Berger...
. The editor of the
Leader, Victor Berger, was sentenced to 20 years imprisonment after being convicted on a charge of conspiracy to violate the Act; this was later reversed on a technicality. Other publications banned from the mails were the
Industrial Workers of the WorldThe Industrial Workers of the World is an international union currently headquartered in Cincinnati, Ohio, USA. At its peak in 1923 the organization claimed some 100,000 members in good standing, and could marshal the support of perhaps 300,000 workers. Its membership declined dramatically after a...
(IWW) journal
Solidarity,
American Socialist, bohemian radical magazine
The MassesThe Masses was a graphically innovative magazine of socialist politics published monthly in the U.S. from 1911 until 1917, when Federal prosecutors brought charges against its editors for conspiring to obstruct conscription. It was succeeded by The Liberator and then later The New Masses...
, German-American or German-language newspapers, pacifist publications, and Irish nationalist publications (such as
Jeremiah O'Leary'sJeremiah O'Leary was an American newspaper reporter and columnist.He served as a U.S. Marine in the Pacific theater during World War II and fought in the invasions of New Britain, Guam and Peleliu. He also served in Korea during the Korean War....
Bull).
The Act in the courts
The laws were ruled to be compliant with the
United States ConstitutionThe Constitution of the United States of America is the supreme law of the United States. It is the foundation and source of the legal authority underlying the existence of the United States of America and the federal government of the United States...
in the United States Supreme Court case
Schenck v. United StatesSchenck v. United States, , was a United States Supreme Court decision which concluded that a defendant did not have a First Amendment right to free speech against the draft during World War I...
, 249
U.S. 47The United States Code is a compilation and codification of the general and permanent federal law of the United States. It contains 50 titles and is published every six years by the Office of the Law Revision Counsel of the US House of Representatives.- Codification process :The official text of...
(1919). Schenck, an anti-war Socialist, had been convicted of violating the Act, after he published a pamphlet urging resistance to the World War I draft. Although Supreme Court Justice
Oliver Wendell HolmesOliver Wendell Holmes, Jr. was an American jurist who served as an associate justice on the Supreme Court of the United States from 1902 to 1932...
joined the Court majority in upholding Schenck's conviction in 1919, he also introduced the theory that punishment in such cases can only be limited to political expression which constitutes a "
clear and present dangerClear and present danger is a term used by Justice Oliver Wendell Holmes, Jr. in the unanimous opinion for the case Schenck v. United States, concerning the ability of the government to regulate speech against the draft during World War I:...
" to the government action at issue.
Later court decisions have cast serious doubt upon the constitutionality of the Espionage Act, including
Brandenburg v. OhioBrandenburg v. Ohio, , was a United States Supreme Court case based on the First Amendment to the U.S. Constitution. It held that government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action....
(which changed the "clear and present danger" test derived from Schenck to the "
imminent lawless actionImminent lawless action is a term used in the United States Supreme Court case Brandenburg v. Ohio to define the limits of constitutionally protected speech. The rule overturned the decision of the earlier Schenck v. United States , which had established "clear and present danger" as the...
" test),
New York Times Co. v. United StatesNew York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.Then-U.S...
, and
United States v. The Progressive, Inc., although none of these decisions directly overruled it.
Changes to the Act
The law was later extended by the
Sedition Act of 1918The Sedition Act of 1918 was an amendment to the Espionage Act of 1917 passed at the urging of President Woodrow Wilson, who was concerned that dissent, in time of war, was a significant threat to morale. The passing of this act forbade Americans to use "disloyal, profane, scurrilous, or abusive...
, which made it illegal to speak out against the government.
During and after World War I, the Espionage Act and the Sedition Act were used in some prosecutions that would be considered constitutionally unacceptable in today's United States, even in the political climate after the
September 11, 2001 attacksThe September 11 attacks were a series of coordinated suicide attacks by Al-Qaeda upon the United States on September 11, 2001. On that morning, 19 Al-Qaeda terrorists hijacked four commercial passenger jet airliners...
on New York's
World Trade CenterThe World Trade Center was a complex in Lower Manhattan in New York City whose seven buildings were destroyed in 2001 in the September 11 terrorist attacks...
. While many of the laws were
repealedA repeal is the removal or reversal of a law. This is generally done when a law is no longer effective, or it is shown that a law is having far more negative consequences than were originally envisioned....
in 1921, major portions of the Espionage Act remain part of United States law (18 USC 793, 794). The libel decision of
New York Times Company v. Sullivan (1964), by granting enhanced protection to criticism of public figures, including government officials, largely eliminated what remained of the crime of
seditionSedition is a term of law which refers to overt conduct, such as speech and organization, that is deemed by the legal authority as tending toward insurrection against the established order. Sedition often includes subversion of a constitution and incitement of discontent to lawful authority...
in the United States.
The
United States CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
has enacted other laws to protect specific types of privately held information including:
- cryptographic intelligence and methods
Cryptography is the practice and study of hiding information. Modern cryptography intersects the disciplines of mathematics, computer science, and engineering...
- 18 USC 798
- nuclear weapon
A nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission or a combination of fission and fusion...
s and materials (Restricted Data) - Atomic Energy ActThe Atomic Energy Act may refer to a number of different laws around the world, usually meant to govern nuclear power and/or nuclear weapons production.In the United States, there are two federal laws known by the name:...
of 1954 (42 USC 2162, 2163, 2168, and 7383)
- industrial trade secret
A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers...
s - Industrial Espionage Act of 1996 (18 USC Chapter 90)
- intelligence sources
SPY may refer to: * SPY , ticker symbol for Standard & Poor's Depositary Receipts* SPY , a satirical monthly, trademarked all-caps* SPY , airport code for San Pédro, Côte d'Ivoire* SPY , a U.S...
- in particular the Intelligence Identities Protection ActThe Intelligence Identities Protection Act of 1982 is a United States federal law that makes it a federal crime to intentionally reveal the identity of an agent whom one knows to be in or recently in certain covert roles with a U.S...
(50 USC 421–426)
- data stored on computers - Computer Fraud and Abuse Act
The Computer Fraud and Abuse Act is a law passed by the United States Congress in 1984 intended to reduce cracking of computer systems and to address federal computer-related offenses...
(18 USC 1030) and the Stored Communications ActThe Stored Communications Act was passed by the United States Congress in 1986 as part of the Electronic Communications Privacy Act, and is codified at 18 U.S.C. §§ 2701 to 2712...
(18 USC 2701)
- patient medical records (HIPAA
The Health Insurance Portability and Accountability Act was enacted by the U.S. Congress in 1996. According to the Centers for Medicare and Medicaid Services website, Title I of HIPAA protects health insurance coverage for workers and their families when they change or lose their jobs...
)
- video tape rental and sale records — Video Privacy Protection Act
The Video Privacy Protection Act was a bill passed by the United States Congress in 1988 as and signed into law by President Ronald Reagan...
— (18 USC 2710)
Note that some of the aforementioned acts either are related to very personal and private data of individuals and companies, such as health records, the contents of personal computer hard drives, or secrets used by manufacturers to gain a competitive advantage, or, when related to records of government activities, they prohibit unlawful disclosure of a secret by someone lawfully privy to the secret in question. Unlike the Espionage Act, they do not prohibit disclosure by someone who merely obtained the secret (i.e. whom the secret was leaked to) from someone lawfully privy to it.
As a general rule, even if the Espionage Act were construed to be Constitutional, the publication of alleged state secrets obtained by non-governmental personnel may not be interfered with by the government; only the act of publishing may be punished, after the fact; see
prior restraintPrior restraint is a legal term related to censorship in the United States referring to government actions that prevent communications from reaching the public. Its main use is to keep materials from being published...
. This was established with the last attempted use of the act occurred with the
Pentagon PapersThe Pentagon Papers, officially titled United States–Vietnam Relations, 1945–1967: A Study Prepared by the Department of Defense, were a top-secret United States Department of Defense history of the United States' political-military involvement in Vietnam from 1945 to 1967. Commissioned by United...
of 1971, in which the government argued they could not be published-
New York Times Co. v. United StatesNew York Times Co. v. United States, 403 U.S. 713 , was a United States Supreme Court per curiam decision. The ruling made it possible for the New York Times and Washington Post newspapers to publish the then-classified Pentagon Papers without risk of government censure.Then-U.S...
(403 US 713), but lost their case, although the act was not directly held as unconstitutional.
An important exception to this doctrine is the so-called "troop-ship exception", which relates to the dissemination of information that is likely to result in extraordinary endangerment of national security, and to loss of life, such as the disclosure of the position of a flotilla of troop-ships in a time of war, or the actual schematics and specifications (as opposed to the theory of operations) of a nuclear weapon.
See also
- Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress, who were waging an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
- Executive Order 13292
Executive Order 13292 is an executive order issued by United States President George W. Bush on March 25 2003, entitled "Further Amendment to Executive Order 12958, as Amended, Classified National Security Information." The Executive Order modified the manner in which sensitive information was...
Classified National Security Information
- Freedom of Information Act (United States)
The Freedom of Information Act , as amended, represents the implementation of freedom of information legislation in the United States. It was signed into law by President Lyndon B. Johnson on September 6, 1966 , and went into effect the following year...
- History and background of New York Times Co. v. United States
- Official Secrets Act
The Official Secrets Act is any of several Acts of the Parliament of the United Kingdom for the protection of official information, mainly related to national security...
(U.K.The United Kingdom of Great Britain and Northern Ireland is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of Ireland, and many small islands...
and others)
- Masses Publishing Co. v. Patten
Masses Publishing Co. v. Patten, 244 F. 535 , was a decision by the United States District Court for the Southern District of New York, that addressed advocacy of illegal activity under the First Amendment.- Background :...
- Security clearance
For use by the United Nations, see Security Clearance A security clearance is a status granted to individuals allowing them access to classified information, i.e., state secrets, or to restricted areas. The term "security clearance" is also sometimes used in private organizations that have a...
External links
Books
- Kohn, Stephen M. American Political Prisoners: Prosecutions under the Espionage and Sedition Acts. Westport, CT: Praeger, 1994.
- Murphy, Paul L. World War I and the Origin of Civil Liberties in the United States. New York: W.W. Norton, 1979.
- Peterson, H.C., and Gilbert C. Fite. Opponents of War, 1917-1918. Madison: University of Wisconsin Press, 1957.
- Preston, William, Jr. Aliens and Dissenters: Federal Suppression of Radicals, 1903-1933. 2nd ed. Urbana: University of Illinois Press, 1994.
- Rabban, David M. Free Speech in Its Forgotten Years. New York: Cambridge University Press, 1997.
- Scheiber, Harry N. The Wilson Administration and Civil Liberties 1917-1921. Ithaca: Cornell University Press, 1960.
- Thomas, William H., Jr. Unsafe for Democracy: World War I and the U.S. Justice Department's Covert Campaign to Suppress Dissent. Madison: University of Wisconsin Press, 2008.