The Bush administration is seeking a change in the federal computer espionage law that would open the door to prosecution and conviction of whistle-blowers and journalists as well as spies.
The Justice Department said the proposal would make the espionage law "more useful." It would eliminate a provision in current law requiring proof of espionage and make it a crime simply to use -- or cause the use of -- a computer to obtain classified information without authorization.
The penalties would be the same as they are now. Violators would be subject to 10 years in prison for a first offense, or "an attempt to commit such an offense." Second offenders could be sent away for 20 years.
The proposal was submitted to Congress last month by Acting Assistant Attorney General Bruce C. Navarro as part of a package of changes in the computer fraud and abuse statute of 1986. It has drawn a frosty reception from lawmakers with jurisdiction over the issue.
"It seems they want to make far more people spies than actually are," said Rep. Charles E. Schumer (D-N.Y.), chairman of the House Judiciary subcommittee on criminal justice.
Under the current computer espionage law, it is a felony for anyone knowingly to gain unauthorized access to a computer and obtain classified information "with the intent or reason to believe that such information so obtained is to be used to the injury of the United States, or to the advantage of any foreign nation."
The Justice Department wants to drop the "intent or reason to believe" clause.
Although the clause is a staple of traditional espionage laws dating back to 1917, the Justice Department contends that it "has so narrowed the application of the computer espionage provision as to render it virtually useless."
Taking it out, Justice officials said in a section-by-section analysis, would establish a "new computer crime offense, which merely requires proof that the person obtained certain information, and not that he delivered it or transmitted it to any other person or government." Prosecutors would then have "another weapon for combating the increasing number of espionage cases."
Another part of the Justice Department package that drew criticism was a provision that would define information in a computer, as well as computer processing time, as "property."
"The thrust of that is to say that if you take information, that's property and you can be accused of stealing," Schumer said. "I think that's very dangerous. We need a law more finely honed than that."
Morton Halperin, Washington director of the American Civil Liberties Union (ACLU), said the proposals call to mind the controversial 1985 prosecution of former naval intelligence analyst Samuel Loring Morison, the first person convicted under espionage laws for leaking documents "relating to the national defense" to the news media.
Morison was found guilty of espionage and of theft of government property for leaking three spy satellite photographs that were classified secret to a British magazine. He also was convicted on separate espionage and theft charges for taking portions of two other Navy documents, also classified secret, and keeping them in an envelope at his Crofton, Md., apartment.
Morison's lawyers contended that the sections of espionage law used in the case were meant to apply only in a clandestine setting, to spies and saboteurs, and not to disclosures to the news media. As for the theft charges, they protested that making the law applicable to government "information" would give the executive branch unbridled discretion to control what the public may be told.
An advocate of bigger defense budgets and a supporter of president Ronald Reagan, Morison contended that he sent the magazine satellite photos, which showed the first Soviet nuclear aircraft carrier under construction at a Black Sea shipyard, primarily because he was interested in publicizing the Soviet threat. He was sentenced to two years in prison.
Under the Justice Department's computer espionage proposal, it could be even more dangerous to take the secrets from a computer than to get them on paper. The bill would make it a crime to pluck from a computer any "classified" information, even items stamped secret, because disclosure would be embarrassing. That is a much broader category than documents "relating to the national defense."
Halperin said the ACLU would strongly oppose any such change in the law. "Given the amount of information that is classified and the degree to which debate in the United States depends on that information, we have consistently opposed criminalizing access to classified information by private citizens, except where it involves transfer to foreign powers," Halperin said.
Justice Department officials acknowledged that their proposal would cover whistle-blowers and journalists.
"No one considered that in the drafting of it," said Grace L. Mastalli, special counsel in Justice's Office of Policy Development. But she said it was "probably not possible to narrow it without destroying the purpose of the bill."