Security or Liberty

An analysis and comparison between the Espionage Act of 1917 and the
USA PATRIOT Act of 2001
This essay will seek to analyse the Espionage Act and the PATRIOT Act, and
compare how these acts were received in the time they were written. It will also
cover how they are used and thought of in a modern context, and how crisis
legislation can be detrimental in the long run.
Historical Usage of the Espionage Act
The Espionage Act was enacted in June 1917, just after the U.S. had entered
World War I. At this time public support for the war was at an all-time low. The
Act prohibited Spying, interfering with the draft and false statements that could
impede military success. This final prohibition was used as justification to stop
circulation of many journalistic publications that were critical of the government
at that time (Foner 2014, 742-743). The Espionage Act was followed by the
Seditions Act of 1918 which banned any statement that intend to cast contempt,
scorn or disrepute of the government. This controversial amendment was
repealed in 1921. Many believed that the U.S. government was using this Act as
justification to remove anyone who might undermine them or otherwise oppose
the war effort. In his writings on the history of Ninth Circuit Court, David C.
Frederick writes:
The Justice Department prosecuted more than 2,000 cases, over half
of which resulted in convictions, including those of senatorial
nominee J. A. Peterson of Minnesota, Eugene V. Debs, and more than
150 I.W.W. (International Worker of the World) leaders. None of these
convictions apparently involved a bona fide spy or saboteur. Instead,
the Justice Department employed the Espionage Act to suppress
anti-war opinion and anti-recruitment efforts... The court confronted
the third major set of war-related issues: those associated with
freedom of expression. (Frederick 1994, 146)
It is clear that Frederick, like many, believes that justice system and Espionage
Act Combined to supress freedom of expression. Frederick also mentions that
case of Eugene V. Debs. Debs was a prominent socialist and antiwar campaigner;
he was arrested and jailed for delivering an antiwar speech. Before the jury he
testified that the United States of America was founded by men who spoke out
against their government and that he believe that the constitution granted every
man the right to free speech, free press and the right to freely assemble and that
these were the fundamental principles in democratic government (Foner 2014,
746).
It would be a fallacy to say that the entire judicial system and government were
working together to supress the freedoms of the public. At the very least one
Judge, Judge Learned Hand, ruled that the revolutionary journal The Masses
should not be banned from circulation. He was able to do this because of the

vague and broad language of the Espionage Act. Geoffrey Stone argues that this
was congress intention for the Act, he states: It seems unarguable that Congress
did not intend this Act to outlaw any criticism of the government or the war that
could arouse discontent and disaffection among the people. Had Congress
wanted to prohibit expression so broadly, it could surely have said so. (Stone
2003). Congress did tone down the language of the original act before it passed;
originally the act would have granted the president far more power. It is quite
possible that it was not their intention to create such powerful law.
Espionage Act in a Modern Context
The Espionage Act is still in effect today and is mostly used for charging those
who have been involved in whistle-blowing activity, most famously Edward
Snowden. Snowden leaked many document, most importantly that the N.S.A.
(Nation Security Agency) had been spying on U.S. citizens under the auspices of
the PATRIOT Act. Kathrine Feuer brings up a major issue with the Espionage Act
being used against leakers in her comparison with the United Kingdoms Official
Secrets Act.
These provisions [of the Espionage Act] simultaneously cover all
people and all forms of disclosure. No distinction is made among
spies, government employees, members of the press, and the
public. There is also no distinction between leaks to the press that
may have legitimate social value and leaks to foreign states that
may pose a clear and present danger. (Feuer 2015)
Feuer goes on to conclude that while the practice of leaking iscommon
longstanding [and] widely understood to be vital to the press's ability to check
government secrecy, the Espionage Act is often used in a manner resembling
the Official Secrets Act in the U.K.. She states The number of prosecutions under
the Espionage Act in the past decade is unprecedented and that Journalists in
Washington, D.C. have reported a chilling of relations with sources (Feuer,
2015). It should also be noted that she suspects that this trend will soon end. But
this still raises the question of why a nation that is so dependent on leakers to
curb government secrecy should have a law that does not properly distinguish a
whistle-blower from a spy.
The Espionage Act has been around for almost 100 years, there are many who
believe that the Act does not need repealing but does need amending. Linsay B.
Barnes writes that The Espionage Act is problematic because its language
encompasses more conduct than what is typically understood to constitute
espionage (Barnes 2014, 514). Barnes states that the language of the law is
detrimental to legitimate leaker or whistle-blower and also detrimental to the
prosecution of actual espionage activities.
In order to effectively prosecute legitimate cases of espionage,
courts and prosecutors must clearly understand what constitutes
espionage. Overly broad and ambiguous terminology has resulted in
confusion, misapplication of the statute, and constitutional

challenges. If Congress truly desires an Act that protects our national

security, it must adequately encompass modern developments, such
as technology and the classification system, to refine the antiquated
law. (Barnes 2014, 541-542)
In the modern age the Espionage Act is a relic that is in dire need of amendment.
The USA PATRIOT Act
The Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept and Obstruct Terrorism Act, or PATRIOT Act, was signed in by
President Bush in October 2001 following the September 11 attacks. Despite it
being over 300 pages long and few members of the house or senate had
actually read [it] (Foner 2014, 1115), the act passed the Senate with only one
nay vote (Senate.gov). In short the law would give law enforcement and
intelligence authorities unprecedented tools and authority to thwart plots against
the United States. Like the Espionage Act the PATRIOT Act suffered from vague
and undefined wording, such as the crime of domestic terrorism (Fomer 2014,
1115). One of the major concerns with the PATRIOT Act was the blind speed with
which it passed through Congress. It is a case of crisis legislation, a bill that was
passed through congress with pi-partisan support due to it following a major
crisis. The issue with passing this legislation so quickly is parts of it can often slip
through the cracks, The Patriot Act wasreplete with hitchhikers seeking a ride
on an antiterrorism bill (Welch 2015, 551). Kyle Welch argues that the PATRIOT
Act is more an amendment to U.S. Law than an anti-terrorism bill
Congress used terrorism and the exigencies of 9/11 as a cloak to
pass a "wish list" for prosecutors, complete with wiretapping and
surveillance abilities subsequently used against the unwitting
American public and "garden-variety criminals." The Patriot Act
could be the "best" addition to U.S. law since the Bill of Rights, but
it was passed on to the American public as an antiterrorism bill,
which was inaccurate and disingenuous. (Welch 2015, 553)
One of the most controversial parts of the PATRIOT Act is section 215 which
allows the N.S.A. to collect telephone metadata. It was only after the recent leaks
by Edward Snowden that the U.S. people realised to what extent the N.S.A had
been collecting their private information. Section 215 had an expiry date in 2015,
which sparked a debate over whether or not the PATRIOT Act was just or right.
The 2nd circuit court recently ruled that the N.S.A. does not have the right to
collect phone data, even under the PATRIOT Act. Brendan Sasso writes:
Section 215 of the Patriot Act currently gives the NSA the authority
to seize any "tangible thing" that is "relevant" to an intelligence
investigation. The government argues that all U.S. phone numbers,
call times, and call durations are "relevant" because the agency
uses them to compile a vast database that it then sifts through for
terrorism connectionsThe court said privacy advocates are right to

believe that such an expansive concept of 'relevance' is

unprecedented and unwarranted. (Sasso 2015)
Another prominent argument is over whether or not the Collection of metadata is
an effective tool in the war on terrorism, Critics of the programquestion if it is
really having an impact on the war on terrorism Supporters of the program
assert that it has been and is a critical element of our national security (Pike
2015). There are many supporters of the PATRIOT Act. They argue that the media
and press have overstated the abilities of the Act. They contend that there are
specific rules and requirements that must be met for a federal or state
investigator to have access to specific data (Gilbert 2015). Gilbert also notes
that the Act is not a law in and of itself, but rather a series of amendments to
already existing laws. Section 215 was not renewed but replaced by the USA
Freedom which is even less clear on the legality of the actions of the N.S.A.
Conclusion
It is clear that the PATRIOT Act and the Espionage Act were similar in many ways.
Their clarity was an issue; the Espionage Act was full of undefined and vague
terms while the PATRIOT Act was too long and dense to be easily comprehended.
Both Acts were controversial in their time and today. Opponents claiming that
they infringed civil liberty while proponents argue that they are necessary for the
protection of the nation. The espionage act was used to supress free speech
while the PATRIOT Act infringed upon personal privacy. War and crisis was the
justification for both these acts. World War I sparked fear of German spies and a
need for the country to unite, while the fear caused by the 9/11 attack ensured
quick and bipartisan support from Congress. No law is perfect, but especially
when a law is made in time of crisis and tumult, it can very beneficial to look
back on these laws in peaceful time to properly assess whether they truly serve
the people.
References
Barnes, Lindsay B. 2014. The Changing Face of Espionage: Modern Times Call
for Amending the Espionage Act. McGeorge Law Review 46: 511-542
Feuer, Katherine. 2015. Protecting Government Secrets: A Comparison of the
Espionage Act and the Official Secrets Act. Boston College International and
Comparative Law Review 38.1: 91-127.
Foner, Eric. 2014. Give Me Liberty Volume 2. New York: W.W. Norton & Company.
Frederick, David C. 1994. The Ninth Circuit Court of Appeals and the American
West, 18911941. Los Angeles: University of California Press.
Gilbert, Francoise. 2013. Demystifying the United States PATRIOT ACT. Journal
of Internet Law 16.8: 3-7
Pike, George H. 2015. USA PATRIOT Act still raising questions. Information
Today 32.6: 13

Sasso, Brendan. 2015. PATRIOT Act in Uncharted Legal Territory as Deadline

Approaches. National Journal Daily, May 10: 13
Stone, Geoffrey R. 2003. Judge Learned Hand and the Espionage Act of 1917: A
mystery unravelled. The University of Chicago Law Review 70.1: 335-358
U.S. Senate Roll Call. 2001. October 25, On Passage of the Bill (H.R. 3162).
http://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?
congress=107&session=1&vote=00313
Welch, Kyle. 2015. The Patriot Act and Crisis Legislation: The Unintended
Consequences of Disaster Lawmaking. Capital University Law Review 43: 481554