Espionage isn’t what it used to be. When the U.S. Congress passed the Espionage Act in 1917, the target was, in the words of President Woodrow Wilson, those naturalized citizens “who have poured the poison of disloyalty into the very arteries of our national life.” In the decades since, the law was used almost exclusively to prosecute U.S. agents who sold secrets abroad. But the act also covers the release of secrets “in any manner prejudicial to the safety or interest of the United States.” It wasn’t used against alleged leakers of classified information until 1973, and was used this way just twice more before 2009. Under President Barack Obama, nine people have been charged under the Act with passing classified information to media outlets, making leaks the focus of enforcement.
By far the biggest current Espionage Act case is against an acknowledged leaker, Edward Snowden, a former National Security Agency contractor who gave reporters massive amounts of information on surveillance programs. Snowden fled the U.S. to avoid prosecution and has been given temporary asylum by Russia. His case began just as the trial of Bradley Manning, the Army private who passed hundreds of thousands of government documents to the website WikiLeaks, neared its end. Manning was sentenced in August 2013 to 35 years in prison. In June 2014, the Supreme Court rejected an appeal by a New York Times reporter in an Espionage Act case. The reporter, James, Risen, had challenged an appellate ruling that said he must reveal an anonymous source in a case involving a former Central Intelligence Agency officer charged with leaking classified information. The week before the court ruling, Attorney General Eric H. Holder Jr. hinted that he might choose not to jail Risen for defying the order to testify.