New Bill Would Strengthen Protections for Whistleblowers Who Expose Classified Information

On Thursday, Democrats introduced legislation to update a 103-year old law to better protect whistleblowers, journalists and congressional members who expose classified government information. 

The “2020 Espionage Act Reform” would amend the 1917 Espionage Act, which was passed shortly after the United States entered World War I to punish those who published or shared information about the military. The bill introduced by Rep. Ro Khanna, D-Calif., and Sen. Ron Wyden, D-Ore., would narrow the law, so only those with security clearances can be criminally prosecuted for revealing classified information. This includes the approximately 4 million defense contractors, federal employees and people working in the critical infrastructure sectors.

“My bill with Senator Wyden will protect journalists from being prosecuted under the Espionage Act and make it easier for members of Congress, as well as federal agencies, to conduct proper oversight over any privacy abuses,” said Rep. Ro Khanna, D-Calif., in a press release. “Our nation’s strength rests on the freedom of the press, transparency, and a functioning system of checks and balances. This bill is a step toward ensuring those same principles apply to intelligence gathering and surveillance operations.”

The bill would protect journalists who obtain and report classified information and cybersecurity experts who publish research on government “surveillance backdoors” in communications applications and encryption algorithms from prosecution.

All members of Congress would be able to receive classified disclosures from whistleblowers. Presently, there has to be a “lawful demand” from a congressional committee in order to receive such information without a criminal penalty. Khanna and Wyden said that “members in the minority party and those not chairing any committee are at a significant disadvantage toward conducting effective oversight.”

Lastly, the bill would ensure that the Federal Communications Commission, inspectors general, federal courts, the Federal Trade Commission and the Privacy and Civil Liberties Oversight Board conduct oversight investigations into privacy abuses by the government. 

The lawmakers noted in a summary of the bill that every person convicted under the Espionage Act could have still been convicted under this bill. The legislation also keeps the criminal penalties for foreign spies.

“Whistleblowers play a particularly critical role in Congress’s ability to oversee the intelligence community,” wrote the attorneys who represented the intelligence community whistleblower—whose complaint sparked the impeachment probe against President Trump—in The New York Times on Sunday. “Rather than weakening the system, members of Congress should seek to strengthen it so they can be effective in their constitutionally mandated oversight role” of the executive branch and national security matters.

While the Obama administration has a “mixed” legacy on whistleblowers (as it advocated for an open government, yet had the highest prosecution rate under the Espionage Act), the Trump administration has been mainly tough on them. This was exemplified during the recent impeachment investigation. According to a December survey by the Government Business Council, the research arm of Government Executive, one-in-three of federal employees said they were less likely to report wrongdoing to the appropriate authorities because of Trump and congressional Republicans’ attacks on the whistleblower and surrounding media reports.

“As the son of an investigative reporter I believe it is un-American to prosecute journalists for what they write,” Wyden said. “Especially when it comes to how the government may be weaponizing the intelligence agencies for political gain.”