If I Told You, Would They Have to Kill Me, You, or Both of Us?
May 24, 2013 8:18 AM   Subscribe

If a civilian in the US (who does not work for the gov't) learns top secret national security information through no active choice of her own (not snooping, stuff just happens in front of her or she is clearly dragged into the matter against her will), can the government legally compel her to keep said secret?

This is, for the record, a question about a fictional story I'm writing. There are no real people or real secrets involved. My story boils down to civilians being dragged into an investigation of espionage/terrorism, and the gov't agents don't want them to talk about it after it's over. On the one hand, it involves FBI types involved in legally questionable shenanigans, and on the other the revelation of said secrets would definitely lead to loss of lives. The gov't therefore wants the civilians to keep it all quiet.

Is there a statute for this? Does the gov't say, "Under [blah] act, if you pass this info on to anyone, you will be prosecuted and put in prison?" Is the gov't reduced to appeals to patriotism and/or intimidation?
posted by scaryblackdeath to Law & Government (10 answers total) 1 user marked this as a favorite
 
Here (pdf) is a whitepaper from the Congressional Research Service that may be relevant to your question (see page 7 and following).
posted by Admiral Haddock at 8:25 AM on May 24, 2013


It looks like the relevant legislation would probably be the Espionage Act of 1917.
posted by Acheman at 8:28 AM on May 24, 2013


There are certainly federal statutes against treason and espionage. A security clearance is not required to provide information would be violate these acts, but it sure helps in terms of access to the information. There is no escape clause (to my knowledge) for information learned inadvertently.

I had a case a few years back to sue on a bounced corporate check. The reason the check was bounced was because the feds had frozen the bank account because the debtor was being indicted for selling aircraft parts to Yemen via the UAE. To my knowledge, none of that company's employees had a security clearance.
posted by Tanizaki at 8:29 AM on May 24, 2013 [1 favorite]


No.

18 USC 793 prevents willful unauthorized disclosure of information by someone not authorized to disclose the information. However, your scenario does not involve that. Your scenario appears to involve a person actually witnessing events, not receiving unauthorized information belonging to the government in the first place.

On the other hand, if they came upom the nuclear codes, they could not legally transmit that information to another. Being a witness is not the same as having control over information.

MeMail me if there are details you wish to discuss without releasing the plot of Die Hard 7, Judy Miller's Revenge.
posted by Ironmouth at 8:36 AM on May 24, 2013 [5 favorites]


No, I don't think there's an on-point law. However, for purposes of your story, it might be helpful to know that law enforcement officials of all stripes can constitutionally lie to civilians about all sorts of stuff -- so the threat of a law might be sufficient to keep your characters in check for a while.

I would imagine that the sworn law enforcement officers might be in deep shit for letting civilians see things they aren't supposed to because of their oaths and all that.

I also imagine that if your story were realistic, the civilians would be arrested on some bogus charge, shaken down and gaslighted until no one believes their babbling tin-hat story when they finally get out.
posted by mibo at 8:39 AM on May 24, 2013 [1 favorite]


What civilians are obligated to "keep quiet" about under the Espionage Act are very, very specific, and it has to be done knowingly. These are things like information that interferes with the operations of the military at a time of war or knowingly leaking the identity of an undercover operative for the intent purpose of harming the US. For guidance, you should at what people who have actually been prosecuted for these types of things have been prosecuted for. (do we even have an example?)

On the other hand, if they came upon the nuclear codes, they could not legally transmit that information to another.

That's because the information is specifically about military operations. If you happened to overhear top secret information about what Nixon and Kissinger were discussing and you were not otherwise doing anything illegal, then this would rise to the level of "public controversy" rather than "legal transgression."

In the Stephen Kim investigation, James Rosen isn't going to be prosecuted for anything. The reason they're subpoena'ing all of Rosen's records is to build a case against Kim, who is the person who possibly did something illegal-- leaking the information. Any legal risk the person to receives the information faces is all about the incidental circumstances to what he was doing when he got the information. Like were the civilians trespassing on a military base, even on a technicality? Well, that exposes them to risk.

The issue is more likely not that they would face any charges for not keeping what they saw secret. It's more likely that a prosecutor would find some technical violation of the law that they're vulnerable to, and that would be the threat they would face.

The Pentagon Papers case is on-point here: the government was not trying to prosecute the editors of the WaPo and NY Times. They were seeking a legal injunction to prevent publication on national security grounds, which failed. The people who did face prosecution were Daniel Ellsberg and Anthony Russo, who were the people who had access to the documents, presumably as a result of their clearances, and released that information to the press.
posted by deanc at 9:18 AM on May 24, 2013


It may be covered under 18 USC ยง 2381 for treason.
posted by unreasonable at 9:19 AM on May 24, 2013


I wonder what the Patriot Act could be used/abused for in this kinda situation. Topical? Sorta! Factual? No idea! Scary... well, yeah.
posted by Jacen at 11:00 AM on May 24, 2013 [1 favorite]


One other point--If there were major malfeasance, how would the government prosecute them in open court? It's a big hole in the story. They would have to prove that the material was classified and released willingly and knowingly All of this would likely result in the revelation of the criminal conduct. The last thing the government would do is go after them on these charges. If this was a typical story, there would be trumped up charges of another sort.

The Patriot Act really has very little in it regarding all of this.
posted by Ironmouth at 11:44 AM on May 24, 2013


scaryblackdeath: "on the other the revelation of said secrets would definitely lead to loss of lives. "

In such a scenario there is the possibility of a civil case from the family of those killed
posted by 2manyusernames at 4:00 AM on May 25, 2013


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