Espionage is a broad category of federal crimes defined by 18 USC Chapter 37. The motivating factor in most cases of espionage is the collection and provision of sensitive information from the United States government to other entities or agencies abroad. Since 9/11, the frequency and harshness of espionage case prosecution has increased. Whenever someone is made the custodian of classified information, such as defense or intelligence information, espionage charges are possible for willfully or negligently providing that information to any unauthorized party.
Strict federal espionage laws have been on the books since the early 20th century. As most individuals who come into contact with sensitive intelligence and defense information are politicians or members of the military, most people are not familiar with the requirements of such laws. However, as the U.S. has increased the depth and scope of its operations around the world, more and more civilian contractors have also been required to familiarize themselves with these laws.
Espionage Crimes & Charges
Statutes provide for a wide variety of different espionage crimes and charges depending upon the specific type of information that was disseminated or withheld and the security value of that information, as determined by competent authorities. Key charges include:
- Harboring or concealing any individual, whether domestic or foreign in origin, whom the concealing party has reason to believe has committed or is about to commit an offense under federal espionage laws.
- Gathering, transmitting, or losing defense information, including the gathering of information on bases, stations, vehicles, aircraft, and a wide variety of other national security assets, which may be injurious to the United States.
- Gathering or delivering such information as provided above to any foreign government or foreign agent. This can include the sale or other transfer of such information as provided above, or the sale or transfer of photographs, drawings, or other representations.
- Photographing or sketching any defense installation, or using aircraft to photograph any such installation, which can be compounded by charges of publishing or selling such representations.
- Disclosing classified information, including classified information to which a person had rightful legal access to at the time when they became aware of that information. This has been the basis of most modern espionage prosecutions.
Espionage punishment will vary based upon the facts of the case. Particularly, it is important to note that under the Uniform Code of Military Justice, members of the armed forces who engage in espionage may receive a death sentence. Civilians who engage in espionage under United States federal law can receive some of the harshest punishments provided for under any federal statute, which may include life in prison.
Espionage Sentencing Guidelines
Espionage sentencing guidelines are especially complex. Espionage cases are evaluated on the basis of a point level, with each different type of offense having a “Base Offense Level.” The authorities calculate various factors in order to develop a total point level that informs the sentence. For example, transmitting national defense information to aid a foreign government has a base offense level of 37, or 42 if the information is considered Top Secret.
Espionage Statute of Limitations
Although federal statute USC 3282 provides for a five-year statute of limitation for the vast majority of federal crimes, this statute of limitations does not necessarily stand in the case of espionage prosecution. It is generally agreed by legal scholars that acts of espionage can be prosecuted for at least ten years after the alleged act. Certain executive acts and extenuating factors may provide for prosecution after an even longer period of time.
Although espionage cases are relatively rare, espionage prosecution has become much more commonplace in the post-9/11 world as society adapts to growing demands for social vigilance against acts of international terrorism.
- In April 2010, six federal employees were charged by the Obama Administration for communicating with the press about national security-related projects and programs in violation of the administration’s expectation of secrecy. (Reporters’ Committee)
- Organizations including WikiLeaks and alleged federal government leaker Edward Snowden have been considered for or charged with counts related to federal espionage. Snowden fled prosecution in the United States and is currently believed to be in Russia. (Los Angeles Times)
Espionage Quick Links & References
- United States Codes and Statues Related to Federal Espionage Charges
- Understanding Charges of Economic Espionage in the United States
- Espionage Act of 1917 and Related Implications for Federal Charges
- Cornell Overview of Federal Laws Related to Disclosure of Classified Information
- U.S. Codes and Statutes Related to Gathering, Disseminating, or Losing Defense Data
- United States Federal Prosecution Sentencing Guidelines for Espionage Offenses
Espionage Laws by State
Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, Wyoming