B. 18 U.S.C. & 79S

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COLUMBIA LAW REVIEtt7 [Vol. "13:929
sweeping restraints on revelation may therefore have been regarded as ap-
propriate.
B. 18 U.S.C. ? 798
Ambiguities do not cloud the relevance of section 798 to the coverage of
the Espionage Act of. 191.7.'70 This provision was enacted in 1950, virtually
contemporaneously with 793(d) and (e), to cover cryptographic information,
material surely at the heart of the "related to the national defense" concep-
tion.-Ill Explicit assumptions were made as to the coverage of 793 and 794.
Section 798 makes criminal knowingly and willfully communicating, trans-
mitting, furnishing or publishing classified information concerning: 1) the
"nature, preparation, or use of any" code, cipher' or cryptographic system "of
the United States or any foreign government" ; 2) the construction, use,
maintenance or repair of any device used, or planned to be used for crypto-
graphic intelligence purposes; 3) the communication intelligence activities
of the United States or any foreign government ; and. l) information obtained
by processes of communications intelligence from any foreign government.
knowing the same to have been obtained by such processes s7_
370. Congress inadvertently enacted two provisions codified as 18 U.S.C. ? 793.
371. Section 798 was enacted about four months prior to the enactment of 793(d)
and (e) in the Internal Security Act of 1950. hlo\vever. the bill was introduced. reported,
and debated in the same period as 793(d) and (e) were making their way through the
legislative process.
372. The full statute provides:
$ 798. Disclosure of Classified Information
(a) Whoever knowingly and willfully communicates, furnishes, transmits.
or otherwise makes available to an unauthorized person. or publishes, or uses in
any manner prejudicial to the safety or interest of the United States or for the
benefit of any foreign government to the detriment of the United States any
classified information-
(1) concerning the nature, preparation, or use of any code, cipher, or
cryptographic system of the United States or any `oreign government ;
or
(2) concerning the design, construction. use. maintenance, or repair of
any device, apparatus, or appliance used or prepared or planned for use by the
United States or any foreign government for ci yp oi-,raphic or communication
intelligence purposes : or
(3) concerning the communication intelligence activities of the United
States or any foreign government : or
(4) obtained by the processes of communication intelligence from the
comntunications of any foreign government, know; ing the same to have been
obtained by such processes-
Shall be fined not more than $10,000 or imprisoned not more than ten years,
or both.
(b) As used in subsection (a) of this section-
The term "classified information" means information which, at the time of a
violation of this section, is, for reasons of national security, specifically desig-
nated by a United States Government Agency for limited or restricted dis-
semination or distribution;
The terms "code," "cipher," and "cryptographic system" include in their
meanings, in addition to their usual meanings, any method of secret writing and
any mechanical or electrical device or method used for the purpose of dis-
guising or concealing the contents, significance, or meanings of communications:
Although a few
judicial gloss, compa
draftsmanslh!ip.3.3 Firs
occurs on knowing er
tional requirement tit
foreign motives. Secot
prohibition is intende.
in defining what cryl
stantially mitigated.
classification an eleme
One significant q
of improper classifica
"which . . . is, for r
United States Govert
for classification, the
the discretion to cla
phrase would be to
than national securit
Orders authorizing t
Reports state: [t]he
classification is a quo
weigh heavily this in
persons acting or pt
ntent. agency, burea
front such comuntni
(a) of this section,
with other espionage c
crtrity at 141 (1955).
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 ;arced as ap-
ie coverage of
19.50, virtually
c information,
;ease" eonep-
793 and 794.
nicating, trans-
rning: 1) the
hic system "of
struction, use,
;ed for crypto-
?ence activities
nation obtained
n government,
C. ? 793.
tment of 793(d)
oduced, reported.
way through the
s, transmits,
s, or uses in
es or for the
I States any
le, cipher, or
government ;
or repair of
or use by the
)nimunication
tf the United
ice from the
to have been
the time of a
ifically desig-
estricted dis-
lude in their
t writing, and
rpose of dis-
nmunications ;
ESPIONAGE STATUTES 1065
Although a few questions arise under this statute that has yet to receive
judicial gloss, compared to sections 793 and 794 it is a [Hot]el of precise
draftsmanship. '73 First, the statute and its history make evident that violation
occurs on knowing engagement in the proscribed conduct, without any addi-
tional requirement that the violator be animated by anti-American or pro-
foreign motives. Second, the use of the term "publishes" makes clear that the
prohibition is intended to bar public speech. Third., the inevitable vagueness
in defining what cryptographic information is subject to restriction is sub-
stantially mitigated, although perhaps at the cost of overbreadth, by making
classification an element of the offense.
One significant question left open tinder 798 is whether there is a defense
of improper classification. Classified information is statutorily defined as that
"which . . . is, for reasons of :national security, specifically designated by a
United States Government Agency for limited or restricted dissemination or
distribution." If "for reasons of national security" referred simply to the motive
for classification, then no defense would be appropriate on the grounds that
the discretion to classify was improperly exercised. The only effect of the
phrase would be to make clear that information classified for reasons other
than national security, and thus improperly classified under the Executive
Orders authorizing the classification program. was not within the scope of
798. On the other hand, both the Senate and House Judiciary Committee
Reports state: [t]he bill specifies that the classification must be in fact in the
interests of national security."a'' This suggests that the appropriateness of the
classification is a question of fact for the jury. Presumabi V. the courts ~, onld
weigh heavily this indication of legislative intent, particularly since the result-
The terns "foreign government" includes in its meaning any person or
persons acting or purporting to act for or on behalf of any faction, party, depart-
ment, agency, bureau, or military force of or within a foreign country, or for or
on behalf of any government or any person or persons purporting to act as a
government within a foreign country, whether or not such government is recog-
nized by the United States;
The term "communication intelligence" means all procedures and methods
used in the interception of communications and the obtaining of information
from such communications by other than the intended recipients;
The tern[ "unauthorized person" means any person who, or agency which,
is not authorized to receive information of the categories set forth in subsection
(a) of this section, by the President. or by the head of a department or agency
of the United States Government which is expressly designated by the President
to engage in communication intelligence activities for the United States.
(c) Nothing in this section shall prohibit the furnishing, upon lawful
demand, of information to any regularly constituted corm ittec of the Senate or
House of Representatives of the United States of America, or joint committee
thereof.
18 U.S.C. ? 798 (1970).
373. There has been at least one prosecution which ended in a guilty [?lea As is true
with other espionage cases, covert transmission to an agent of a orunn government
was involved,,;Scc Hcnrinrts on ResohUion to Establish Cu;ttu:tssion on C1 ernNin'nI Sc-
curit\' at 141 (1955).
374. S. Rer. No. 111. 31st Cong. Ist Scss., at 3 (1949), I-I.R, a.-P. No. 1895, 81st
Cong., 2d Sess., at 3 (1950) (emphasis added).
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?
1066 COLUMBIA LAJV REVIEW [Vol. 73:929
ing interpretation of 798 v. ould accord with the position of 793 and 794 on
this question .375
\Vhether, as a matter of sound policy, improper classification should be a
defense is a difficult judgment to make. The principal argument against it is
the familiar one, rejected in 793 and 794. that the 6uyernment may have to
reveal too much in refuting the claim of improper classification.'''' It may be
that cryptographic techniques would be rendered especially vulnerable if the
Government was required to demonstrate why particular information must be
classified. The countervailing consideration is, of course, the fact routinely
accepted in all quarters that the Executive branch abuses the power of classift-
cation. To give the Executive unreviewahle power to invoke a prohibition
on the communications of everyone, even as to a relatively narrow category
of information, seems to be of doubtful wisdom. '
The conclusion that the legislative history would support a defense of
improper classification' is an important one in assessing the reasons why Con-
gress, despite the 1917 Act, thought section 798 was necessary. Under the
1917 Act, the Government must prove defense-relatedness as an element of
its case, and such a demonstration may itself significantly compromise Govern-
ment secrecy. Prohibitions on disclosure of classified information as such,
with no defense of improper classification, do not put the Government to
this counterproductive burden of proof. Apparent!}, however, the committees
did not intend to relieve the Government of this burden in prosecutions under
section 798, and thus elimination of this problem for the Government under
the 1917 Act cannot have been what moved Congress to adopt section 798.
Instead, the passage of section 798 reflects other significant congressional
assumptions about the limited scope of the Espionage Act of 1917. In addition,
section 798 also evidences strong concern for freedom of the press at virtually
the same time Congress was revising subsection 1(d) of the 1917 Act into the
present subsections 793(d) and (e).
Information about cryptographic processes would clearly meet the test
of "information relating to the national defense" within the meaning of the
1917 Act. Thus, the failure of the earlier Act to cover publication of code
information must have been regarded as resulting from other limits in its
scope. The legislative history of the cryptography- provision strongly suggests
that Congress and the Executive believed general publication of comm nlica-
tions intelligence information would fail to meet the "intent or reason to be-
lieve that the information [communicated, obtained, copied, etc.] is to be used
375. Compare Scarbeck v. United States. 317 F.2d 546 (D.C. Cir. 1962). refusing to
hear a defense of improper classification under 50 U.S.C. ? 783(b) which bars govern-
ment employees from knowingly giving "information of a kind which shall have been
classified by the President . . as affecting the security of the United States" to agents
of foreign governments or Communist party members or organizations.
376. See text accompanying note 124 supra.
WO ~
1973]
to the injury of the U
required by the 1917
1917 "protect[ed] thi:
on to state that under
kind can be penalizes
revelation did so with
Report concluded:
The present
willful publicatiot
tion affecting Ut
and all direct info
The committees clear'
by 793 and that "reve
the United States. TI
culpability standard a
cation to the enemy i
of injury to the Unite
tion may be different.
The enactment o
the culpability stand.
Passage of a special s
from "knowing and v
derstanding of subsec
ing of section 1(d) i.
the passage of 798 i
either as applicable of
the restrictive Espio
fully," or as reaching
entitled to receive it"
out force. Thus, secti
377. H.R. REP. No.
Cong.. 1st Sess., at 2 (19.
378. Id.
379. H. R. REP. ito.
380. Both Committe
prohibit former goverm
quired during public serf
As the matter
our cryptographic s
rnunication intelliger
judgment of nunler
persons who acquire
their duties. Most o~
and are not now pro
to the security of
personal gain and o,
information within
H.R. REP. No. 1895 at 2'
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 Vol. 73:929
and 794 on
should be a
against it is
hay have to
6 It may be
erablc if the
tion must be
tct routinely
r of classifi
prohibition
ON.., category
defense of
is why Con-
Under the
i element of
use Govern-
on IS such.
vcrnment to
committees
utions under
ment under
section 798.
:ongressional
In addition,
s at virtually
Act into the
feet the test
aping of the
tion of code
limits in its
gly suggests
connnunica-
?eason to be-
is to be used
). refusing to
i bars govern-
!all have been
ties" to agents
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1973]
to the injury of the United States, or to the advantage of any foreign t ation"
required by'the 1917 Act. Both committees noted that the Espionage Act of
1917 "Protect[ed] this information, but only in a limited way."377 They went
on to state that tinder the Act "unauthorized revelation of information of this
kind can be penalized only if it can be proved that the person making the
revelation did so with an intent to injure the United States."a78 The House
Report concluded:
The present bill is designed to protect against knowing and
willful publication or any other revelation of a?i Important informa-
tion affecting United States communication intelligence operations
and all direct information about all United States codes and ciphers.379
The committees clearly. assumed that cryptographic information was covered
by 793 and that "revelation" of it was proscribed, if done with intent to injure
the United States. Thus, the committees must have interpreted the 1917 Act's
culpability standard as tantamount to a purpose requirement, since communi-
cation to the enemy is implicit in general publication, and therefore knowledge
of injury to the United States can be assumed although the purpose of publica-
tion may be, different.
The enactment of section 798 accordingly supports our understanding of
the culpability standards of section 794 and subsections 793(a) and (b).
Passage of a special statute to protect communications intelligence information
from "knowing and willful publication" also reflects a reasonably narrow un-
derstanding of subsection 1(d) of the 1917 Act. The committees' understand-
ing of section 1(d) is entirely speculative. About all that can be said is that
the passage of 798 is consistent with a narrow reading of subsection 1(d),
either as applicable only to current government en,ployees,38U or as embodying
the restrictive Espionage Act culpability standard through the word "will-
fully," or as reaching communications but not publication, or because the "not
entitled to receive it" phrase had never been implemented, leaving 1(d) with-
out force. Thus, section 798 is consistent with our conclusion that Congress
377. H.R. REP. No. 1895, 81st Cong., 2d Sess., at 2 (1950) ; S. REP. No. 111, 81st
Cong., 1st Sess., at 2 (1949).
378. Id.
379. H.R. REP. No. 1895, 81st Cong., 2d Sess., at 2 (1950).
380. Both Committees assumed that nothing in the Espionage Act of 1917 would
prohibit former government employees from disclosing cryptographic information ac-
quired during public service:
As the matter now stands, prevention of the disclosure of information of
our cryptographic systems, exclusive of State Department codes, and of coin-
munication intelligence activities rests solely on the discretion, loyalty, and good
judgment of numerous individuals. During the recent war, there were many
persons who acquired some information covered by this bill in the course of
their duties. Most of these individuals are no longer connected with the services
and are not now prohibited from making disclosures which can be most damaging
to the security of the United States. They are subject to the temptations of
personal gain and of publicity in making sensational disclosures of the personal
information within the purview of'this act.
H.R. REP. No. 1895 at 2; S. REP. No. 111 at 2.
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 .. ~?:r rtiinl~t~.,cC+T t`.d~3~~:~:;i.+~:'~"i,.c ~y+Y::-.>. 'vnT?.`33: ''h.:. _~', .~.i-^ -
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T
I
s
1068 COLUMBIA LAID REVIEW
7
V
l
[
o
.
3:929
did not understand subsection I (d) to accomplish broad prohibitions on any
and all communications of defense information to persons out of the line of
Executive authority.
Section 798 is also an interesting example of Congress' approach to pub-
lication controls at the time of the revision of subsection 1(d). It represents a
conscious narrowing by Congress of sweeping proposals to criminalize dis-
closure of defense information. What Congress refused to do in 798 is as
important as what it did do. The Joint Congressional Committee for the
Investigation of the Attack on Pearl Harbor had urged Congress to prohibit
revelation of any classified information ;341 however, the House Judiciary
Committee rejected such an extensive prohibition on publication. Section 798,
the committee said, "is an attempt to provide just such legislation for only a
small category of classified matter, a category which is both vital and vulnerable
to an almost unique degree."3S2 Even with respect to the narrow category of
cryptographic 'information, section 798 represents a conscious narrowing of
suggested coverage. The initial proposal, according to the committee, would
have penalized the "revelation or publication, not only of direct information
about United States codes and ciphers themselves but of information trans-
mitted in United States codes and ciphers. "3'3 Such a measure would have
prohibited the publication of a great number of military and diplomatic dis-
patches sent by the Government to its overseas posts. The committee, however,
reported out a bill that covered only information from foreign governments
intercepted by cryptographic techniques. In the words of the Committee:
Under the bill as now drafted there is no penalty for publishing
the contents of United States Government communications (except.
of, course, those which reveal information in the categories directly
protected by the bill itself). Even the texts of curled Government
messages can be published without penalty as far as this bill is con-
cerned, whether released for such publication by cite authority of a
Government department or passed out without authority or against
orders by personnel of a department. In the latter ca.;e, of course, the
Government personnel involved might. be subject to punishment by
administrative action but not, it is noted, under the provisions of
this .bi11.384
381. The Report of the Joint Committee urged:
Based on the evidence in the Committee's record, the following recommendations
are respectfully submitted: . That effective steps be taken to insure that
statutory or other restrictions do not operate to the benefit of an enemy or other
?forces inimical to the Nation's security and to the handicap of our own intel-
ligence agencies. With this in Inind, the Congress should give serious study, to,
among other things,... to legislation designed to prevent unauthorized. sketching.
photographing, and mapping of military and iiaval reservations in peacetime: and
to legislation fully protecting the security of classified matter.
REPORT OF TFIE JOINT COMMITTEE ON THE INVESTIGATION. OF TILE PEARL, HARBOR ATTACK,
S. Doc: No. 244; 79.th?Cong., 2d Sess. 252-531 (1946).
382. H.R. REP. No. 1895. 81st Cong., 2d Sess., at 2 (1950).
383. Id. The proposals referred to were S. 805, 79th Cong.; S.'1019, 80th Cong.;
S.'2680, 80th Cong.
384. Id.
SY
-'yt "
66 Jas..:;".
1 ROM
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1973]
With the bill l
and with concern i
mittee, it is no woo
ciety of Newspaper
and the Senate wit
Is it likely th
concern for the va
telligence informati
information--and
to accomplish swe
related to the nati
operating on entire
months later, subs
gress' evident con
the legislative host
controls on public
C. The PTrotogra
781
Section 797 o.
material whether c
Section 797's pro]
making of any "p
representation" of
designation by the
gemination of info
rized by appropria
punishable by one
385. Sec remarks
386. 96 LONG. RE.
387. The Senate
proposed out of fear
tions intelligence info
adequate in this panic
way the free dissemin
95 COND. REC. 2774-75
388. 18 U.S.C. ? i
(a) Wlienev
certai;i vital milit
against the gene
unlawful to mak
representation of
first obtaining p
post, camp, or s
separate military
submitting the p
for censorship or
(b) Whoev
imprisoned not
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[Vol. 73:929
roach to pub-
iminalize dis-
in 798 is as
ittee for the
ss to prohibit
use Judiciary
. Section 798,
ion for only a
nd vulnerable
v category of
narrowing of
tmittee, would
ct information
nation trans-
e would have
liplomatic dis-
ittee, however,
ommittee:
iblishing
(except.
s directly
vernment
ill is con-
ority of a
r against
hment by
visions of
insure that
my or other
s study to,
1973]
With the bill limited to a narrow category of highly sensitive information,
and with concern for public speech having been thus respected by the com-
mittee, it is no wonder that section 798 was supported by the American So-
ciety of Newspaper Editors.-185 The House passed the bill without debate,186
and the Senate with virtually none 187
Is it likely that Congress could have contemporaneously evidenced such
concern for the values of public debate in the' context of communications in-
telligence information-surely among the most sensitive categories of defense
information--and at the same time intended subsections 793(d) and (e)
to accomplish sweeping controls on all communications of any information
related to the national defense? It is possible. of course, that Congress was
operating on entirely inconsistent premises in adopting section 798 and, four
months later, subsections 793(d) and (e). We believe, however, that Con-
gress' evident concern in narrowing section 798 supports the statements in
the legislative history of subsections 793(d) and (e) that indicate sweeping
controls on public speech about defense matters were not intended.
C. The. Photographic Statutes: 18 U.S.C. ?? 795, 797 and 50 U.S.C. App.
781
Section 797 of Title IS expressly proscribes publication of a category of
material whether or not undertaken with intent to injure the United States.
Section 797's prohibition is derived from section 795 which prohibits the
making of any "photograph, sketch, picture, drawing, map, or geographical
representation" of "vital military installations or equipment," following their
designation by the President "as requiring protection against the general dis-
semination of information relative thereto." unless the duplication is autho-
rized by appropriate authority and submitted for censorship.388 The offense is
punishable by one year's imprisonment. Section 797 implements section 795
385. See remarks of Senator Hunt, 95 Coxc. REC. 2774 (1949).
386. 96 CONG. Rec. 6082 (1950).
387. The Senate debates on 798 add little. Senator Hunt explained the bill was
proposed out of fear that persons no longer in the government might reveal communica-
tions intelligence information "for personal gain," and because "the present laws are not
adequate in this particular respect." He emphasized that the bill "would not control in any
way the free dissemination of information which might be transmitted in code or cipher."
95 Co.-,r,. RFc. 2774-75 (1949).
388. 18 U.S.C. ? 795 (1970). Section 795 provides:
(a) Whenever, in the interests of national defense, the President defines
certain vital military and naval installations or equipment as requiring protection
against the general dissemination of information relative thereto, it shall he
unlawful to make any photog:,ph, sketch, picture, drawing, :nap, or graphical
representation of such vital rulirarv and naval installations or equipment v; iti out
first obtaining permission of the commanding officer of the military or naval
post, camp, or station, or naval vessels, military and naval aircraft, and any
separate military or naval command concerned, or higher authority, and promptly
submitting the product obtained to such commanding officer or higher authority
for censorship or such other action as he may deem necessary.
(b) Whoever violates this section shall he fined not more than $1,000 or
imprisoned not more than one year, or both.
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