A key component of national security is safeguarding the country's secrets. To that end, if you have been accused of disclosing classified information under 18 U.S. Code 798, you are likely facing serious prison time if you are convicted.
This statute, a crucial part of The Espionage Act, is designed to protect the United States' national security by criminalizing the unauthorized disclosure of sensitive government information.
Title 18 U.S. Code 798 says, "(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information-
(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or
(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or
(3) concerning the communication intelligence activities of the United States or any foreign government; or
(4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes-
Shall be fined under this title or imprisoned not more than ten years, or both."
What is the Espionage Act?
18 U.S.C. 798 is part of The Espionage Act of 1917; a broader law passed during World War I to address espionage and the unauthorized disclosure of sensitive information.
While The Espionage Act covers a wide range of offenses related to national defense, 18 U.S.C. 798 specifically targets the unauthorized publishing or sharing of information officially designated as "classified" to other parties who are not authorized to know that information.
This includes details about the nature, preparation, or use of codes, ciphers, or cryptographic systems, as well as the communication intelligence activities of the United States or foreign governments. The statute also covers information obtained through communication intelligence processes.
Specifically, the statute criminalizes any of the following uses of classified information:
- Communicating the information or making it "available" to unauthorized persons (e.g., leaving a classified folder of information on a desk in plain view in a spot where unauthorized people could view it),
- Publishing the information in any manner, or
- Using the information in any other manner that goes against U.S. interests or benefits a foreign entity.
18 U.S.C. 798(b) says, "The term "classified information" means information which, at the time of a violation of this section, is, for reasons of national security, specifically designated by a United States Government Agency for limited or restricted dissemination or distribution."
"The terms "code," "cipher," and "cryptographic system" include in their meanings, in addition to their usual meanings, any method of secret writing and any mechanical or electrical device or method used for the purpose of disguising or concealing the contents, significance, or meanings of communications."
What Must Be Proven to Convict?
For the government to successfully prosecute someone under 18 U.S.C. 798, they must prove several key elements of the crime beyond a reasonable doubt. These elements include:
- Classified Information: The information in question must be classified at the time of the alleged disclosure.
- Unauthorized Disclosure: You must have shared the information with someone who is not authorized to receive it. This could be in the form of direct/indirect communication, publication, or passively making the information accessible.
- Knowledge and Intent: You must have known that the information was classified and willfully chose to disclose it. Accidental or unintentional disclosure of classified information, while serious, does not typically rise to the level of a U.S.C. 798 violation unless it is an act of reckless negligence.
What are Some Examples?
EXAMPLE 1: John, a government employee with security clearance, knowingly sells classified cryptographic documents to a foreign agent in exchange for money. John can be charged under 18 U.S.C. 798.
EXAMPLE 2: Frieda, a communications officer, accidentally leaves a folder containing classified documents in a cafe for passers-by to view, then returns quickly to retrieve it. While Frieda's irresponsible actions constitute negligence and may result in other penalties, a conviction under 18 U.S.C. 798 would be more difficult to secure because her disclosure was not willful or intentional.
What are Related Federal Laws?
18 U.S. Code Chapter 37 Espionage and Censorship have several related federal statutes, including the following:
- 18 U.S.C. 792 - Harboring or concealing persons.
- 18 U.S.C. 793 - Gathering, transmitting, or losing defense information.
- 18 U.S.C. 794 - Gathering or delivering defense information to aid a foreign government.
- 18 U.S.C. 795 - Photographing and sketching defense installations.
- 18 U.S.C. 796 - Use of aircraft for photographing defense installations.
- 18 U.S.C. 797 - Publication and sale of photographs of defense installations.
- 18 U.S.C. 798 - Disclosure of classified information.
- 18 U.S.C. 798A - Temporary extension of section 794.
- 18 U.S.C. 799 - Violation of regulations of the National Aeronautics and Space Administration.
The related offense of treason in the United States, as stated in Title 18 U.S. Code 2381, is defined as "levying war against the United States, or adhering to their enemies, giving them aid and comfort."
Any act of rebellion or insurrection against the U.S. government constitutes a serious federal crime punishable by serious jail time and fines. This crime is embodied under Title 18 U.S. Code 2383.
What are the Penalties for Disclosing Classified Information?
The penalties for disclosing classified information under 18 U.S.C. 798 are severe. If you are convicted of this crime, you could face any or all of the following consequences:
- Fines: You may be required to pay fines up to $250,000.
- Imprisonment: You may be sentenced to up to 10 years in federal prison.
- Forfeiture of Proceeds and Property: Federal authorities may confiscate the value of any compensation you received for disclosing the classified information. They may also seize any property you may have used in the commission of the offense (e.g., computers, real estate, etc.).
What Are Common Defenses?
If you are charged with disclosing classified information, several potential defenses may be available to you, depending on the specific facts of your case. Some of the most common defenses a federal criminal defense attorney may use include:
- Lack of Intent: One of the key elements of the crime is that the disclosure of classified information must have been made knowingly and willfully. If your attorney can show evidence that the disclosure was accidental or the information was shared under duress, it could undermine the intent element.
- Information Was Not Classified: Your attorney argues (with accompanying evidence) that the information in question was not actually classified at the time of disclosure or that it had been declassified.
- Authorization: In some cases, individuals may believe they had authorization to disclose the information. If you can show that you were acting under the belief that you were authorized to share the information or were instructed by a superior to do so, this could serve as a defense.
- Whistleblower Defense: In certain specific cases, the disclosure of classified information may be protected under the Whistleblower Protection Act. While this defense is complex and not always successful, it has been raised in high-profile cases and may be relevant depending on the circumstances of the disclosure.
For additional information, contact our federal criminal defense law firm, Eisner Gorin LLP, which has offices in Los Angeles, California.
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