Outlawing Leaks
Disclosures of sensitive national security information can be damaging to the nation, but they can also be indispensable to democracy—sometimes both at once. The Pentagon Papers case established an equilibrium, in which the government could prevent leaks but could not prevent the publication of leaked information. Recent developments have undermined that equilibrium, so new measures are needed to protect the vitally important interests on both sides. This essay explores drafting a new statute that determines when leaking or publishing leaked information should be a crime. What information should be protected? How much does intent matter? How should the law distinguish between individuals to whom the government has entrusted sensitive information and individuals or entities with no connection to the government but that have come into possession of information, without authorization, which they then publicize? The essay proposes reform options reform and identifies strengths and problems with various approaches.