I reached out to Steven Aftergood, the head of the Project on Government Secrecy at the Federation of American Scientists, and David Pozen, a professor at Columbia Law School who has written extensively about leaks, to learn more.
Q. Is all leaking of government information illegal? What is the threshold, and does it have to be classified information?
Aftergood: No, there is no law that says all leaking of government information is illegal, although the choice of the word “leak” usually implies a disclosure that someone disapproves of. A question of illegality only arises if the information is specifically protected by law, as various categories of government information are — such as personal privacy information, tax returns and some types of classified information.
Interestingly, not all disclosures of classified information to uncleared persons are against the law. Some are positively permitted. There is such a thing as “authorized” leaks. Officials may choose to discuss classified information with a reporter in order to avoid damaging errors or to protect sensitive information or sources from further disclosure. Such authorized disclosures were discussed in a report to Congress here.
Even when disclosures of classified information to the press are not authorized, they are not necessarily a crime. There is no catchall statute that prohibits unauthorized disclosure of “classified information.” Instead, most leak prosecutions have turned to the Espionage Act statutes, and especially to 18 USC 793. But that statute applies to “national defense information” and doesn't use the term “classified information” at all. So it may not apply, for example, to leaks of diplomatic secrets or some other types of classified information that are unrelated to “national defense.”
On the other hand, there is another statute, at 18 USC 798, that applies specifically to classified information concerning “communication intelligence.” And that statute would likely be relevant to unauthorized disclosure of the Russian Embassy intercepts.
And even if the leaks are potential crimes, it may not be possible or practical to prosecute them. The first thing that agencies are told to do when they discover a leak is to fill out an 11-point questionnaire for the Justice Department. Unfavorable answers to those questions will stop a leak case before it starts. Investigators and prosecutors only pursue a fraction of the leaks that are reported to them.
Pozen: Much leaking of government information is not illegal; it depends on the nature of the information, who is revealing it, in what ways, and for what purposes. I have written before that:
Although there are many ambiguities in the statutes and the case law, it has been reasonably clear for at least the past few decades that (i) virtually any deliberate leak of classified information to an unauthorized recipient is likely to fall within the reach of one or more criminal statutes; and (ii) the government may prosecute most if not all employees, ex-employees, and contractors for such leaks so long as it can prove the information was not already in the public domain and the defendant knew or should have known her actions were unlawful.
This is what the relevant legal authorities seem to say, at least. For many decades, however, enforcement practices have been far more permissive of leaking than the laws on the books might suggest.
Q. What kind of penalties could be in store for the kind of leaks we’re seeing today on Michael Flynn, Russia, and on internal White House operations?
Aftergood: It is premature to speak of penalties, since we don't know the specifics of how the disclosures occurred. But in general, and assuming the leaker(s) could be identified, there is a spectrum of penalties available to the government. These range from administrative punishments such as reprimands, loss of clearance or termination of employment all the way up to criminal prosecution. The espionage statutes related to mishandling of classified information allow for up to 10 years' imprisonment per felony count.
Q. Have we ever seen a president or politician launch a campaign against leaks like this? Some are saying the Obama administration’s targeting of leakers paved the way. Is that fair?
Aftergood: Every administration in living memory has railed against leaks. It's a pretty standard and predictable complaint. The Obama administration prosecuted more leakers than in the past, partly because it could and partly because the nature of leaks changed from isolated facts to massive hemorrhaging of government records that could not be overlooked or tolerated.
Pozen: Certainly many presidents have complained about unauthorized disclosures before. Indeed, denouncing leakers has been something of a presidential ritual since at least Woodrow Wilson. The rhetoric right now seems to be rawer, and the speed with which things have come to a head is striking. But it is not yet clear, at least to me, what sort of actual campaign to prevent or punish leaks is being contemplated, or with what degree of seriousness.
The Obama administration's legacy in this regard is mixed, I think. On the one hand, the uptick in criminal actions against leakers may have shifted norms in a more enforcement-friendly direction. On the other hand, that uptick caused bipartisan backlash, and the Obama administration pulled back in the second term -- both by bringing fewer cases and by taking relatively concrete steps, such as strengthening the Justice Department guidelines on media subpoenas.
President Trump may find, like numerous presidents before him, that launching anything that is seen as a "campaign against leaks" carries significant political and practical risks.
Q. With technological advancements, is it easier to discover who is leaking information or more difficult?
Aftergood: Both. It is easier to discover sloppy or careless leakers, because they leave electronic footprints that provide investigators with the kinds of leads they lacked in the past. On the other hand, it is also easier than ever to communicate confidentially with news organizations.
Pozen: I think technological advancements cut both ways. In recent years, certain new technologies seem to have made it easier for investigators to track and monitor government employees' communications, as well as to develop cases without questioning reporters about their sources. But the advent of other new technologies, in particular encryption, may now be shifting power back to the leakers and the media.