Espionage Act: Spies in the 21st century?

We encounter them often: Fascinating, well-dressed men, getting valuable information for the Soviets on a train with 007, or with the Third Man on the Vienna Ferris wheel. Spies. But how do they look like today, long after the Cold War? Are they sitting at the neighbouring table in a Café or rather in the Ecuadorian Embassy in London? Or perhaps do we actually need a re-definition of espionage in this age of big data and global interconnectedness?

An old Act

Just before entering WWI in 1917, a federal law, called the Espionage Act, became effective in the United States. As a forward-looking tool for national protection, the law was created to punish interference with foreign governments and to condemn all acts of espionage. In this way, the US government tried to prevent any spread of state and war secrets to potential enemies. It was Woodrow Wilson,  the US president at that time, who argued for its legislation in front of the Congress:

“There are citizens of the United States, I blush to admit, born under other flags but welcomed under our generous naturalization laws to the full freedom and opportunity of America, who have poured the poison of disloyalty into the very arteries of our national life; who have sought to bring the authority and good name of our Government into contempt (…) and to debase our politics to the uses of foreign intrigue.”

In the name of self-respect for the nation and neutrality of the government, convictions throughout the years affected many from anarchists to socialists and Soviet Spies, also during WWII. Some of them were put into prison, others, like the communists Ethel and Julius Rosenberg in 1953, were even sentenced to death, since they had allegedly provided information about nuclear weapons to the Soviet government.

Spies in the 21st Century

During the two World Wars and the Cold War, the sentenced consequences for clearly outlined state-opponents were, although arguable, comprehensible in the given scenario. Today, so-called spies act differently, in the name of transparency and openness considered rights of citizens. The new “enemies of the state” don’t come camouflaged anymore, they act openly for the good of society. Yet, they are convicted under the same criteria. This pattern can be seen with Chelsea Manning, who revealed thousands of government documents while working for the US Army in 2010 and was therefore accused on six counts of violating the Espionage Act and sentenced to 35 years in prison (recently, former President Barack Obama commuted her sentence). Edward Snowden represents a similar case of unauthorized leaking, when he revealed incredible amounts of information about the NSA (National Security Agency). Snowden’s case is still open, with an ongoing request to bring him back to the United States.

But what makes these cases ‘new‘? Both these two and others brings to light that the Espionage Act has shifted its application, from calling those who provide information to foreign governments criminals, to those who make them public in the name of common good and right. But is it still legitimate to apply the Espionage Act to these individuals? Is it legitimate to consider them “spies”?

A right to information?

Glenn Greenwald, author for The Guardian, asked the question of “Who is actually bringing ‘injury to America’: those who are secretly building a massive surveillance system or those who inform citizens that it’s being done?“  Now, a few years after Snowden’s disclosure of information, the discussions around the NSA and mass surveillance are increasingly disappearing from the media. Even more, the terrorism threat that is currently dominating the news, is also tricking us to believe that the work of people like Snowden is putting us in a greater danger rather than empowering us and enhancing our understanding. In the face of terrorism, we end up believing that convictions through the Espionage Act are necessary to protect ourselves.

Re-thinking the Espionage Act

However, do we consider people like Manning or Snowden criminals? Can we even compare them to the spies who were the target of the Espionage Act in its formulation? The PEN American Centre, a worldwide association of writers, published a study in 2015, showing that the law was inappropriately used in the cases of information leaks. The limits of governmental power were discussed together with the question about whether online privacy is a fundamental human right. Many officials like John F. Kerry or Hillary Clinton had declared that if Snowden had made his case internally calling out to the government directly, he would have stood under protection of the so-called whistle-blower law. But, in fact, PEN pointed out, this would not be the case, since he was a government contractor. The PEN report also claims that prior to the Obama administration, the Espionage Act had only been used three times against national security leakers. Under Obama, leakers were charged in eight cases. Some argue that this increase in occurrence is related to an improved technology that enables government to find out more about such cases. Some others, like Harvard Professor Yochai Benkler, relate the increase of convictions to a “security overreach” after 9/11. In interviews conducted by the PEN, Espionage Act has been described as a too aggressive tool, a “poor vehicle for prosecuting leakers and whistleblowers” and most of all, as an insult to the Rights of free speech, which is protected by both the U.S. Constitution and international law.

These informations leave us with the important question about how much right to information we have as citizens. An answer to that would help drawing the line between government-threatening espionage and a kiss-and-tell. Let’s hope that we can classify these cases as symptoms of restructuring modernity and not, in fact, a chilling illusion.

Katharina Kropshofer

You can find the PEN Report here.




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