Unauthorized Disclosure of Classified Information

By FindLaw Staff | Legally reviewed by Evan Fisher, Esq. | Last reviewed November 18, 2021

When classified intelligence is disclosed to the general public or to a foreign entity, it can be a serious matter of national security. Following the September 11, 2001, terrorist attacks on the United States, President George W. Bush said the following in relation to guarding classified information:

"Any sources and methods of intelligence will remain guarded in secret. My administration will not talk about how we gather intelligence, if we gather intelligence, and what the intelligence says. That's for the protection of the American people."

Whether Americans agree that keeping select information "secret" is really best for the American people or not, unauthorized disclosure of classified information in the United States is a crime under the Espionage Act of 1917. Those who are found in violation of this crime against the government face severe criminal sanctions.

Read on to learn more about how a person can be accused of violation of the law against unauthorized disclosure of classified information and where to go for legal help if you're charged with a federal crime.

Unauthorized Disclosure Laws Explained

There are several federal laws prohibiting the leaking of classified information. Under Title 18 of the U.S. Code, Section 798, the law prohibits the knowing and willful transmittal of specified classified information to an unauthorized person. This section pertains only to information relating to the communications intelligence systems and activities of the United States.

A person is in violation of the law if they knowingly and willfully perform any of the following acts involving confidential information:

Communicate, furnish, transmit, or otherwise make it available to an unauthorized person
Publish it
Use it in a way that is either prejudicial to the safety or interest of the U.S., or for the benefit of any foreign government to the detriment of the U.S.

The penalty for a conviction of unauthorized disclosure includes up to 10 years in prison, a large fine, or both.

What is Considered Classified Information?

It is important to understand the type of confidential information that is included in the statute. For purposes of this statute, information is considered classified if it:

Concerns the nature, preparation, or use of any code, cipher, or cryptographic system of the U.S. or any foreign government
Concerns the design, construction, use, maintenance, or repair of any device used, prepared, or planned for use by the U.S. or any foreign government for cryptographic or communication intelligence purposes
Concerns the communication intelligence activities of the U.S. or any foreign government
Is obtained by the processes of communication intelligence from the communications of any foreign government

More generally, classified information means information which, at the time of a violation, is specifically designated by a U.S. Government Agency for limited or restricted dissemination or distribution, for reasons of national security. Put another way, it's information created or received by an agency of the federal government or a government contractor that would damage national security if improperly released.

The government has a number of ways it labels information as classified, including the following labeling system:

TOP SECRET, which is the highest level.
SECRET, which would cause "serious damage" if released.
CONFIDENTIAL, which is the lowest level.

Dissemination of information at any of these levels of classification could be charged as an offense. Additionally, courts have ruled that there is no defense to the charge on the basis that information was improperly classified.