The law that couldn’t keep a secret

Summary

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Podcast Summary: "Click Here" – The Law That Couldn’t Keep a Secret

Host: Dina Temple-Raston
Guest Expert: Stephen Vladeck (Georgetown Law Professor)
Date: November 7, 2025

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Episode Overview

This episode of "Click Here" explores the origins, evolution, and current controversies surrounding the Espionage Act—a century-old law originally designed to prosecute spies and saboteurs but now wielded against whistleblowers, leakers, and increasingly, the press. Through expert commentary and historical anecdotes, host Dina Temple-Raston investigates how a law written in World War I has become a broad tool for national security crackdowns, raising urgent questions about free speech, journalism, and the dangers of unchecked governmental power.

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Key Discussion Points & Insights

1. Introduction to the Espionage Act and Reality Winner’s Case

• Reality Winner Context: The episode revisits the 2017 prosecution of Reality Winner, an Air Force linguist jailed for leaking a classified document about Russian election interference.
• Espionage Act's Breadth:

  “The Reality Winner case should be understood as part of a series of cases where the government over the last 15 years has really thrown the book at folks who in other times might have been viewed as whistleblowers.”
  — Stephen Vladeck (00:46)

2. Unintended Consequences: From Traitors to Texting

• Vague Language and Prosecution Power:

  “The problem with the Espionage Act is that you don’t even have to solicit the leak to be guilty under the statute. … The statute makes it a crime for someone sitting at home to open up the New York Times or to listen to this podcast and know that they’re reading or hearing information related to the national defense.”
  — Stephen Vladeck (01:19)

• Journalists at Risk:

  “That led a lot of folks to worry that journalists who are the recipients of national security leaks might be next.”
  — Stephen Vladeck (01:57)

3. History and Evolution of the Espionage Act

• Origins: Requested by President Woodrow Wilson in 1917 to fight wartime espionage and sabotage.

  “It was written at a time when Congress would address those kinds of problems with a sledgehammer, not with a scalpel.”
  — Stephen Vladeck (05:13)

• Rare Use Until the 1970s:

  • 1938: Used against Soviet spy Mihal Goren.
  • Pentagon Papers (1971): First major use against a leaker (Daniel Ellsberg), not a spy (06:13–06:51).

• Landmark Shift—Samuel Morrison Case (1985):

  “Even though the statute’s called the Espionage Act, it really doesn’t matter whether your intent is to steal information for the purposes of benefiting a foreign power. All that matters is whether the thing you stole might benefit a foreign power.”
  — Stephen Vladeck (07:42)

4. Leak Prosecutions, Journalists, and the Expanding Net

• Expanding Scope:

  • Early 2000s: Fresh concern as the Bush administration signals willingness to prosecute journalists (08:10–08:45).
  • U.S. v. Rosen (2005): Private citizens prosecuted for sharing information with an ally, previewing potential use against the press (09:09–09:43).

• Media Anxiety:

  “We really started to see, not just for the first time, concerted worry about the scope of the statute, but also fear, I think, on the part of media organizations that the government had the power to leverage the capaciousness of the statute against, you know, whistleblowers, leakers, journalists, what have you.”
  — Stephen Vladeck (09:43)

5. Obama & Trump Administrations: From Whistleblowers to Reporters

• Obama Era:

  • More leak prosecutions than all previous administrations combined.
  • James Risen Subpoena: First Amendment invoked, but Supreme Court sidesteps issue (11:49–12:48).

• Legal Uncertainty:

  “There are incredibly powerful arguments that … traditional news gathering is protected by the First Amendment … but … the Supreme Court has never recognized that.”
  — Stephen Vladeck (12:14)

• Trump Era: Heightened rhetoric and policy shifts:

  • Trump calls for reporters to reveal sources (14:08).
  • Rolling Stone reports Trump considered charging the press under the Espionage Act.
  • DOJ reverses limits on searching reporter devices, Pentagon increases surveillance of journalists (15:12–15:31).

  “This administration is also not big into nuance when it comes to prosecuting those with whom it disagrees... [it] would be only too quick to vilify the reporter who’s in the middle of a big national security leak.”
  — Stephen Vladeck (14:34)

6. Chilling Effect and Ongoing Uncertainty

• Intensified Risk for Journalists & Whistleblowers:

  “We have a statute that just doesn’t draw the kind of distinctions that it should, and that in not drawing those distinctions, gives the government an awful lot of leverage over people who might fancy themselves whistleblowers, over reporters who may not be so careful when it comes to how they handle and how they receive national security information.”
  — Stephen Vladeck (16:19)

• Calls for Reform (Congress repeatedly considers but never enacts meaningful changes):

  “Every 10 or 15 years, Congress wakes up and decides that it’s time to reform the Espionage Act... But Congress never fixes it. Until it does.”
  — Stephen Vladeck (16:57)

7. Future Outlook: Heightened Dangers

• Advice to Newsrooms:

  “Reporters and news organizations should be bracing for more aggressive use of the Espionage Act than we’ve ever seen before—more aggressive use against leakers, more aggressive use against journalists, and frankly, more aggressive use against anyone in between.”
  — Stephen Vladeck (17:34)

• Host Warning:

  “When secrecy and transparency collide, it isn’t always spies who get caught in the crossfire. Sometimes it’s the people trying to tell the rest of us what’s really going on.”
  — Dina Temple-Raston (18:47)

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Notable Quotes and Memorable Moments

• "The statute makes it a crime for someone sitting at home to open up the New York Times or to listen to this podcast and know that they're reading or hearing information related to the national defense."
  — Stephen Vladeck, 01:19

• "Every new leak and every administration’s response becomes a test case in real time."
  — Dina Temple-Raston, 12:48

• "Congress never fixes it. Until it does."
  — Stephen Vladeck, 17:12

• "When secrecy and transparency collide, it isn’t always spies who get caught in the crossfire."
  — Dina Temple-Raston, 18:47

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Important Timestamps

| Time | Segment | |------------|--------------------------------------------------------| | 00:46 | Introduction to the Reality Winner case and its context | | 04:46 | Origins of the Espionage Act | | 06:13 | Pentagon Papers and Nixon’s response | | 07:29 | Samuel Morrison leak prosecution and precedent | | 09:09 | U.S. v. Rosen and prosecuting non-government recipients| | 11:35 | Prosecutions during Obama administration | | 12:14 | Limits of First Amendment protection for journalists | | 13:31 | Trump era leak and press crackdown | | 15:31 | Surveillance and scrutiny of journalists | | 16:57 | Congressional attempts at Espionage Act reform | | 17:34 | Forecasted risks for the press and whistleblowers | | 18:47 | Closing warning on secrecy vs. transparency |

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Tone and Style

The episode is clear and accessible, avoiding technical jargon while building a sense of mounting urgency about how a vague, century-old law threatens both whistleblowers and the free press. Dina Temple-Raston and Stephen Vladeck combine legal expertise with historical storytelling and plainspoken warnings, making the stakes readily understandable for listeners beyond the cybersecurity world.

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For further listening:
Check out more episodes of "Click Here" and explore news on cybersecurity and intelligence at The Record by Recorded Future News.

Transcript

[A]

Chatgpt AI Machine Satellite Engine Ignition. Click here and lift up From Recorded Future News and prx, this is Click Here's Mic Drop A longer listen to one of our favorite conversations of the week. I'm Dina Temple Rasta. On Tuesday, we brought you a conversation with Reality Winner, the former Air Force linguist who went to prison for leaking a classified document about Russian election interference. Back in 2017, she was charged under the Espionage Act, a century old law originally written to stop spies and saboteurs during World War I. I think the.

[B]

Reality Winner case should be understood as part of a series of cases where the government over the last 15 years has really thrown the book at folks who in other times might have been viewed as whistleblowers.

[A]

That's Stephen Vladek, a professor at Georgetown Law. He says the Espionage act wasn't designed to target leakers. It was built for traders. And because of how broadly Congress wrote it, the law can be stretched to fit almost anyone who handles national security information.

[B]

The problem with the Espionage act is that you don't even have to solicit the leak to be guilty under the statute. I mean, the statute makes it a crime for someone sitting at home to open up the New York Times or to listen to this podcast and know that they're reading or hearing information related to the national defense.

[A]

Over time, that vague language gave prosecutors enormous leeway. What started as a tool to stop spies became a weapon against people who share secrets with the press, and so far it's only been used against leakers. But Steve Vladek worries it might not stop there.

[B]

That led a lot of folks to worry that journalists who are the recipients of national security leaks might be next.

[A]

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[C]

Cheers and songs and flag waving. America goes to war. Wide eyed and eager. 10 million register for the draft.

[A]

And while the United States was still trying to stay out of the fighting, Wilson could feel the pressure mounting. German subs were sinking ships. American factories were producing weapons for the Allies. And the President worried that foreign spies or even anti war activists might undermine the country from within. So he asked Congress for new powers, a law that would let the government punish anyone who threatened national security or revealed military secrets. When the US Entered the war less than two years later, he got what he asked for. It was called the Espionage Act. For somebody who may not be steeped in all things Espionage act, can you talk a little bit about that?

[B]

The statute was enacted in the middle of World War I, on the eve of the United States entry into World War I. And the thing it was principally concerned with was what we might call conventional espionage. You know, German spies in the United States stealing our national security secrets.

[A]

And for a while, Georgetown professor Steve Vladeck says that's precisely how it worked.

[B]

It was also enacted before just about all of the modern Supreme Court's jurisprudence, respecting both the First Amendment, freedom of speech and the idea that criminal statutes need to be specific. It was written at a time when Congress would address those kinds of problems with a sledgehammer, not with a scalpel.

[A]

That sledgehammer approach worked during wartime, but when the war ended, the Espionage act didn't disappear. It just sat there waiting. It wasn't used again until 1938, when a Los Angeles dry cleaner found a classified Navy memo in a customer's pocket. That customer, Mihal Goren, turned out to be a Soviet spy. The government dusted off the Espionage act and Gorn was sent back to the Soviet Union. For decades, that was the pattern. The law was rarely used and only for spies. Then in the 1970s, came the Pentagon Papers.

[C]

A federal judge today ordered the New York Times to suspend temporarily publication of a series of reports based on a secret Pentagon study of how.

[A]

For younger listeners, those were top secret Defense Department studies that revealed how the US Government had misled the public about the Vietnam war.

[C]

In Boston, Dr. Daniel Ellsberg, the man named as the source of the Pentagon copy that appeared in the New York times, turned himself in today to federal authorities. We must not have the Ellsberg thing be a reason for dissension in the bureau.

[A]

President Nixon was furious, as his now famous oval office tapes revealed.

[C]

Absolutely. But he just. He just. I just. Don't I just say that we've got to keep our eye on the main ball. The main ball's Ellsberg. We got to get this son of a bitch.

[A]

For one of the first times, the espionage act, a law built for spies, was used against someone who leaked to the press. The charges against Ellsberg were eventually dropped, but the idea stuck. The law could be stretched. And it was again in 1985 when a Navy analyst, Samuel Morrison, was tried for leaking satellite photos to a defense magazine. He got two years in prison.

[B]

This was not, you know, espionage. This was basically just leaking.

[A]

That case cemented a shift. The espionage act's focus quietly expanded from foreign spies to government insiders.

[B]

You know, Morrison was this really important precedent for the proposition that even though the statute's called the espionage act, it really doesn't matter whether your intent is to steal information for the purposes of benefiting a foreign power. All that matters is whether the thing you stole might benefit a foreign power.

[A]

By the early 2000s, even journalists began to wonder where the line was.

[B]

We really actually didn't see the government really try to use the espionage act to prosecute journalists or do you know what we might say? Other downstream recipients of national security information until the George w. Bush administration in the early 2000s.

[A]

In 2006, then u. S. Attorney general Alberto gonzalez hinted that New York times reporters could be prosecuted for publishing details of NSA surveillance programs. During a congressional hearing, he was asked if the white house had a double standard on leaks.

[D]

For the record, sir, let me just.

[B]

Say whether or not I say anything publicly here on out, I condemn all leaks.

[A]

So just for the record, it was mostly bluster. No one from the times was ever charged. And then A new case, U.S. v. Rosen, brought the use of the espionage act back into the headlines. Two aipac lobbyists were accused of passing pentagon information to Israel.

[B]

Even though these two defendants were not themselves government employees, they were the intermediaries that they had violated the espionage act by basically helping to get the information from point a to point b.

[A]

The case eventually fell apart, but its logic was alarming. It marked the first time that prosecutors had tried to use the espionage act against private citizens, people outside the government, simply for sharing Classified information with an ally. That meant the same argument could, in theory at least, be applied to journalists.

[B]

And so it's on the heels of the Rosen case that we really started to see, not just for the first time, concerted worry about the scope of the statute, but also fear, I think, on the part of media organizations that the government had the power to leverage the capaciousness of the statute against, you know, whistleblowers, leakers, journalists, what have you.

[A]

It was a glimpse of how a law written for spies could, in the right hands or the wrong ones, be turned on the people reporting on them. When we come back, how that fear grew during the Trump years. Stay with us.

[D]

You should tell the people who we are and what our new show is. I'm Robert Smith, and this is Jacob Goldstein, and we used to host a show called Planet Money. And now we're back making this new podcast about the best ideas and people and businesses in history and some of the worst people, horrible ideas, and destructive companies in the history of business. We struggled to come up with a name, decided to call it business history.

[B]

You know why? Why?

[D]

Because it's a show about the history.

[A]

Of business, available everywhere you get your podcasts. When President Wilson signed the espionage act in June 1917, he was actually disappointed. He'd wanted even more power, including the right to censor the press. The Senate rejected that by a single vote. But every generation since has tested that boundary. During the Obama administration, the Justice Department used the act to prosecute eight sources who'd leaked to journalists. That was more than all the previous presidents combined.

[B]

Some of that was unquestionably provoked by the Edward Snowden leaks. And so I think some of it was. The Obama administration felt pressure to look like it was being tough on national security leaks, and this was one way to do it.

[A]

It also subpoenaed reporters, including New York Times journalist James Risen, to reveal his confidential sources. Risen refused, invoking the First Amendment, a defense that to this day, the Supreme Court has never formally endorsed. Do journalists actually have any legal protection from being prosecuted under the Espionage act if they're just doing routine news gathering?

[B]

So this is the question, and it is a question the Supreme Court has never answered. There are incredibly powerful arguments that what you might call traditional news gathering is protected by the First Amendment and that the First Amendment necessarily provides a defense right against Espionage act prosecutions. But, Dina, the Supreme Court has never recognized that this Supreme Court in particular might not be in a hurry to recognize that.

[A]

That silence is meaningful. For decades, the court has sidestepped Opportunities to draw a clear line between leaking and reporting, between those who break a secrecy law and and those who expose what those secrets reveal. So even though news organizations rely on the first amendment as a kind of shield, that protection isn't spelled out anywhere in any of the court's rulings. And without a definitive decision, it means that every new leak and every administration's response becomes a test case in real time. Which brings us to the Trump administration and a moment that made many reporters pretty uneasy.

[C]

We're getting breaking news.

[B]

President Trump posting on Truth Social moments.

[C]

Ago that the US has completed an.

[B]

Attack on three nuclear sites in Iran.

[A]

After U. S airstrikes on Iran earlier this year, President Trump claimed that the facilities were completely obliterated. But leaked Defense Intelligence Agency documents told a different story.

[C]

Three sources tell CNN that according to an early U. S Intelligence assessment, the U. S. Military strikes on three of Iran's nuclear fac last weekend did not destroy the core components of the country's nuclear program.

[A]

Trump was furious and he vowed to find out who the leaker is, even hinting that reporters could be forced to reveal their sources if they wanted. They could find out easily. You go up and tell the reporter national security who gave it, you have to do that and I suspect we'll be doing things like that later. Rolling Stone reported that he even asked why the press itself couldn't be charged under the Espionage Act.

[B]

This administration is also not big into nuance when it comes to prosecuting those with whom it disagrees. And so, you know, whereas even the Obama administration, which was to my mind far too aggressive in using the Espionage Act, I think would still have admitted publicly that it understood that a reporter who helped sort of disseminate a national security leak wasn't in the same boat as the leaker or as even a spy. I don't think this administration is going to take that view. If anything, I think this administration would be only too quick to vilify the reporter who's in the middle of a big national security leak.

[A]

So far most of that has been rhetoric. But behind the scenes policies are changing. The Justice Department reversed earlier limits on searching reporters phones. The Pentagon has said reporters in the building have to sign a non disclosure agreement and take random polygraph tests.

[B]

I think one of the real concerns is sort of the risk that this administration will use the Espionage act as a pretext to try to basically see who journalists are talking to, whether it's a search warrant, whether it's a subpoena for phone records. And that brings with it all kinds of concerns about outing the journalist sources, finding on their phone who they've been texting with, who's on their signal threads.

[A]

The Trump administration hasn't rewritten the Espionage act, but it revealed how easily it could be reinterpreted. A century old law written for spies and saboteurs was now being openly discussed as a weapon against the press. And that shift from punishing espionage to policing reporting has changed the stakes for everyone handling classified information.

[B]

We have a statute that just doesn't draw the kind of distinctions that it should, and that in not drawing those distinctions, gives the government an awful lot of leverage over people who might fancy themselves whistleblowers, over reporters who may not be so careful when it comes to how they handle and how they receive national security information.

[A]

In other words, a law written for a different war now being fought on a different battlefield. Now, Congress could fix that, narrow the language, clarify who counts as a spy or a leaker or a journalist. And they've tried.

[B]

Every 10 or 15 years, Congress wakes up and decides that it's time to reform the Espionage act. And it holds hearings and it calls witnesses. The hearing on the espionage case is.

[C]

Now about to take place.

[B]

I've been that witness in two of the cycles. Our next witness, Professor Steve Vladec, is professor of law. And, you know, the witnesses all show up and say, yes, you've got to fix it. And some of them even have ideas for how to fix it. But Congress never fixes it until it does.

[A]

Steve Vladek says everyone handling sensitive information should stay alert.

[B]

I think reporters and news organizations should be bracing for more aggressive use of the Espionage act than we've ever seen before. More aggressive use against leakers, more aggressive use against journalists, and frankly, more aggressive use against anyone in between, will that materialize?

[A]

Who knows? But if and when you start seeing big stories about national security leaks and the White House making noise about how we've got to get to the bottom of who's doing this, I'd be nervous and I'd want to be careful. If I had any potential hypothetical liability and I'd done everything possible to cover not just my tracks, but the tracks of the other folks who might be liable as well. Because when secrecy and transparency collide, it isn't always spies who get caught in the crossfire. Sometimes it's the people trying to tell the rest of us what's really going on. From recorded future news, this has been Click Here's Mic Drop. It was written and produced by Megan Dietre, Sean Powers, Erica Gaeda, Zach Hirsch, Lukas Riley and me, Dina Temple Ras. It was edited by Karen Duffin. We'll be back on Tuesday with an all new episode of Click Here. Have a great weekend.

[E]

Looking for more of the cybersecurity and intelligence coverage you get on Click Here? Then check out our sister publication the Record from Recorded Future News. You'll get breaking cyber news from reporters in New York, Washington, London and Kyiv, among others. And you'll see for yourself why it attracts hundreds of thousands of page views every month. Just go to the Record Media.