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Abstract

This paper will investigate the current law as it relates to the unlawful public release of classified information. Noting that the federal government has used multiple statutes to prosecute individuals that release classified information inappropriately, the vast majority of the prosecutions utilize the Espionage Act, 18 U.S.C. Chapter 37 Sections 791-799. The primary sections of this act that have been utilized are 18 U.S.C. §§ 793 and 794. As such, Part II of this paper will focus on the required paperwork and training necessary to obtain a government security clearance, as well as the use of the Espionage Act, specifically 18 U.S.C. §§ 793 and 794, and the common challenges to those provisions. This information will provide an understanding of the current law, what federal employees and contractors are told with respect to the access and release of classified information, and how that law is applied. This section includes a sampling of recent cases and instances where the current law has been applied to individuals and demonstrates the confusion and lack of consistency in the application and prosecution of disclosure violations. In Part III of this paper, the public’s perception of classified information and what protection is given such information will be explored. Finally, in Part IV, I argue that the laws pertaining to the disclosure of classified information must be clarified and consistently implemented to effectively protect classified information. Specifically, (1) §§ 793 and 794 should be modified and simplified; (2) prosecutions should be emphasized for both high profile government officials and low-level staff; (3) training of employees and contractors with security clearances should be improved; and (4) the public should be better informed as to the reasons information is made classified and as to why government officials and contractors cannot comment on the information.

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