Former CIA employee Joshua Schulte was indicted in 2017 in the United States District Court for the Southern District of New York and charged with four counts of violating 18 USC 793, better known as the Espionage Act of 1917. It has been alleged that in the spring of 2016, Schulte, while working  for the CIA, specifically the Center for Cyber Intelligence, Engineering Development Group, stole defense information and transmitted it to Wikileaks. The charges explicitly accuse Schulte of accessing certain CIA systems without permission and stealing repositories of CIA cyber tools and source code, which he later released to an unauthorized third party (Wikileaks). Needless to elaborate further on was the fact that Schulte had proper training on handling classified material and had signed the requisite non-disclosure forms that are associated with clearance-required jobs.

This past summer, Schulte filed a motion through counsel to dismiss charges against him. The legal argument that Schulte based his motion on is grounded in constitutional law, specifically the First Amendment right to free speech. The argument that a law is “overbroad” and “vague” imply that the specific language in the United States Code prohibits conduct that would otherwise be lawful. That language includes the statutory phrases “relating to national defense” and “reason to believe that information could be used to injure the United States or to the advantage of a foreign nation” are so expansive that according to the defendant “if applied literally could allow the government to prosecute members of the media for obtaining and publishing truthful information about U.S foreign policy.” While Schulte is not a member of the media, there is precedence that one can use the media being denied free speech to argue over breadth of a law. The power of this argument, if successful, can make the entire Espionage Act null and void and make prosecution under the Act unattainable.

The district court denied Schulte’s motion in late January using a long-standing precedence of cases in which there are exceptions to free speech when it is a matter of criminal conduct and national security. The court further noted that the Espionage Act, when taken as a whole, expands on the challenged language by requiring the mental state or criminal intent to commit a crime.  It also denied the basis of the motion relating to the argument of “vagueness” for virtually the same reasons. Many time these motions are filed using overbreadth and vagueness terminology in tandem as the legal arguments are very similar, that being the law is written as to confuse legal conduct with illegal conduct through ambiguous and overarching language.

Will these arguments ever succeed as to the Espionage Act? Past case history says no, but it does not seem to dissuade defendants and counsel from re-attacking the issue.

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Joe Jabara, JD, is the Director, of the Hub, For Cyber Education and Awareness, Wichita State University. He also serves as an adjunct faculty at two other universities teaching Intelligence and Cyber Law. Prior to his current job, he served 30 years in the Air Force, Air Force Reserve, and Kansas Air National Guard. His last ten years were spent in command/leadership positions, the bulk of which were at the 184th Intelligence Wing as Vice Commander.