Spies appear in popular media as sophisticated and strong elites (Ian Fleming's James Bond) or comic fools (Mad Magazine's Spy v. Spy). In reality, the crime of espionage involves a variety of motives. The offender may not always work for a foreign power. The crime may involve the disclosure of classified documents for any unauthorized purpose.

Chelsea Manning was a private in the United States Army. She had access to classified and otherwise sensitive government documents, photographs, and videos. This included diplomatic correspondence, files from the U.S. base at Guantanamo Bay, and various military reports. Sometimes, such sensitive information revealed higher than reported civilian deaths and other unsettling details in the operations of the U.S. military.

Manning said she found much of the information in these documents "profoundly troubling." Claiming she was acting as a whistleblower, she leaked the files through the WikiLeaks platform in 2010. From there, much of this information became public through the mainstream media. There were more than 700,000 leaked files in all.

Manning faced a military court martial in 2013. She pled to several offenses before trial. At trial, the military judge convicted her of further violations related to the massive leak. This included six counts of violating the Espionage Act (18 U.S.C. Sections 792-799) for transmitting defense information. The judge did not convict her of aiding the enemy, which was the most serious charge she faced.

More recently, a federal grand jury indicted former President Donald Trump for retaining classified documents and other top-secret defense information at his Mar-a-Lago estate in Florida. The Attorney General appointed a special prosecutor to handle the case, which is before the federal district court in Florida.

The federal crime of espionage seeks to punish those who share sensitive information that would be harmful to U.S. security interests. Yet, violations of the law can take many forms. Industrial espionage has increased in recent years, especially with the advance of technology. Read on to learn more about federal laws defining the crimes in this area.

A Brief History of the Espionage Act

Soon after the United States entered World War I, Congress passed the Espionage Act of 1917. This law prohibited sharing defense information intended to disrupt U.S. military interests or aid its enemies. It was punishable by up to 20 years in prison and a $10,000 fine. The Sedition Act was passed the following year, reinforcing the Espionage Act by prohibiting the issuance of false statements intended to disrupt the war effort. In addition, it provided broad provisions that were eventually overturned (such as banning "disloyal, profane, scurrilous, or abusive language" about the U.S.).

Congress repealed the Sedition Act in 1921 due to its heavy-handed suppression of free speech. But while there have been many First Amendment challenges to the Espionage Act since its passage, it has remained largely intact.

In Schenck v. U.S. (1919), the U.S. Supreme Court unanimously held that the distribution of flyers urging draft-age men to resist military induction was not protected by the First Amendment. It may not seem like espionage in the classic sense. Still, the petitioner's conviction was upheld as a violation of the Espionage Act due to the "clear and present danger" the conduct had of bringing about harms Congress had a right to prevent.

The Elements of an Espionage Offense

As the Manning case illustrates, even those who leak or share sensitive government information without the intention of harming the United States may be found guilty of espionage. Manning insisted her intention was to expose sensitive government information as a whistleblower. She claimed she was disclosing bad conduct by others. Military prosecutors were not required to prove that she intended to harm the United States. Instead, they only had to show that Manning had (or should have had) reason to believe the information she shared could have harmed U.S. interests.

Generally, to obtain an espionage conviction requires U.S. prosecutors to prove the following elements:

  1. Information transmitted includes classified documents or information, or relates to national defense; and
  2. The accused acted with the intent or reason to believe the information will harm the United States or will help a foreign nation; and
  3. There was a willful communication, transfer, or receipt of the information

In cases of conspiracy, the government must show there was an agreement of two or more people, and at least one party took an overt act in furtherance of a conspiracy to commit the espionage.

The offender's actions do not have to cause any actual harm to the United States (or provide actual help to a foreign nation). The federal government does not have to prove that the disclosed information was closely held and a threat to national security. For example, the offender leaks information that is incorrect or otherwise not a threat to national security. They may still face conviction if the government proves all the elements of the crime.

What It Means To Commit Espionage

The United States Code specifies the following acts as violations of the Espionage Act:

  • To enter or obtain information about any place connected with national defense for the purpose of obtaining information respecting national defense with intent or reason to believe that the information is to be used to the injury of the United States or to the advantage of any foreign nation;
  • For one who has lawful possession of certain documents, photographs, models, and similar material to transmit such material to one not authorized to receive it;
  • To make or copy, or attempt to make or copy, any sketch, photograph, plan, and the like of anything connected with national defense for such purpose; or
  • To receive or agree or attempt to receive from any person such materials when the recipient has reason to believe that they were taken in violation of the Espionage Act

Additionally, the law also prohibits several related activities. They include:

  • Harboring or concealing any individual, when the concealing party has reason to believe that individual has committed or is about to commit an offense under federal espionage laws;
  • Photographing or representing defense installations without prior permission of and censorship by the commanding officer;
  • The use of aircraft to accomplish the same proscribed purpose;
  • The publication and sale of photographs or representations of defense installations without prior permission of and censorship by the commanding officer;
  • The knowing and willful disclosure of classified information to an unauthorized person, or its use in any manner prejudicial to the United States or beneficial to any foreign government to the detriment of the United States; or
  • The willful violation, attempted violation, or conspiracy to violate regulations of the National Aeronautics and Space Administration pertaining to the security of its facilities or equipment

Sentencing and Penalties for Espionage

Sentences and other penalties for espionage under federal law vary according to the facts of the case. These crimes often carry long prison sentences, even life imprisonment (as do other crimes against the government). If convicted, members of the military may face the death penalty "or such other punishment as a court-martial may direct" (see the Uniform Code of Military Justice).

Most federal crimes have a five-year statute of limitations. This means that the government must bring any criminal charges within five years of the act at issue. In contrast, acts of espionage generally carry a 10-year statute of limitations. This gives the FBI and other federal investigators more time to research, file, and present a case.

Who Investigates Violations of the Espionage Act?

Several federal law enforcement agencies may investigate such violations. The U.S. Department of Justice (DOJ) National Security Section and the Federal Bureau of Investigation (FBI) often take the lead in such matters. Upon a finding of probable cause, the case would proceed to federal prosecutors. They would review for espionage charges and then present the case to a federal grand jury when appropriate for indictment.

The Economic Espionage Act of 1996

The acts of spies, including the theft of sensitive or secret information, do not only occur between governments. Business leaders may prioritize security efforts to prevent corporate or industrial espionage.

Congress created the Economic Espionage Act of 1996 to help address the increased theft of trade secrets from American businesses. The Act appears at 18 U.S.C. Sections 1831-1839.

One part of the law prohibits the theft of trade secrets when the actor intends or knows that the crime will benefit a "foreign government, foreign instrumentality, or foreign agent" (see 18 U.S.C. Section 1831). Upon conviction, an offender may face up to 15 years in prison, a fine of up to $5 million, or both. Fines for organizations may be up to $10 million, along with other costs. A different part of the law prohibits such theft or misappropriation when the trade secret interacts with interstate or foreign commerce, and the intent is to injure the owner and act for the economic benefit of anyone other than the owner (see 18 U.S.C. Section 1832). Penalties here may include up to 10 years in prison. An organization can face up to $5 million in fines.

Don't Go It Alone: Get Professional Legal Help

If the U.S. government charged you with espionage, chances are you already have legal representation. Those who spy or send classified information outside the government may also face other federal charges. Such crimes are very serious and can result in lengthy prison sentences. If you have questions about a federal crime, it's critical to seek the advice of an experienced attorney. Even if you're only looking for a second opinion, a qualified criminal defense attorney in your area can help.

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