![]() While the Supreme Court has never concluded whether applying § 793(e) to the press would violate the First Amendment, a member of the press has still never successfully been prosecuted for publishing classified government information. ![]() Section 793(e) of the Act also contains a provision pertaining to individuals having unauthorized possession of the documents set out above, and its text almost perfectly mirrors the language of § 793(d).10 So, since the government brought charges against Edward Snowden under § 793(d), is it fair to say that the government may also bring charges against Pulitzer-Prize winning newspaper The Guardian, or its journalists and editors, under § 793(e) of the Act? After all, The Guardian had unauthorized possession of documents that, according to the government, related to national defense. Shall be fined under this title or imprisoned not more than ten years, or both ( emphasis added).9 Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it. Federal prosecutors filed a criminal complaint against Edward Snowden.6 He was charged with three felonies, including two under the Espionage Act of 1917.7 One charge specifically fell under § 793(d) of the Act, which states:8 In 2013, an employee of a defense contractor at the National Security Agency (“NSA”) provided journalists with top-secret agency documents.1 This led to revelations about widespread Internet and phone surveillance by the NSA of both domestic and foreign targets, including tens of millions of Americans and thirty-five world leaders.2 On June 5, 2013, The Guardian published the first article based on these leaks.3 The Guardian, as well as The Washington Post, would go on to win the 2014 Pulitzer Prize for Public Service for their reporting on this surveillance.4 In describing why The Guardian won, the Pulitzer Prize website states, “For its revelation of widespread secret surveillance by the National Security Agency, helping through aggressive reporting to spark a debate about the relationship between the government and the public over issues of security and privacy.”5 The government employee, on the other hand, would not meet with such praise. The views expressed in this article do not reflect the views of her employer. She thanks Professor Steven Heyman for his guidance on her first few drafts. Catherine thanks her friends and family for helping her in the writing process. Catherine Taylor earned her J.D from Chicago-Kent College of Law in 2017 and she is currently licensed to practice law in Illinois.
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