zmudzinskit@imo-uvax.dca.mil (zmudzinski, thomas) (07/07/90)
>From The Washington Post, 5 July 1990:
A Revised Computer Espionage Law?
Change Would Allow Prosecution of Whistle-Blowers and Journalists
By George Lardner Jr., Washington Post Staff Writer
The Bush administration is seeking a change in the federal computer
espionage law that would open the door to prosecution and conviction of
whistle-blowers and journalists as well as spies.
The Justice Department said the proposal would make the espionage
law "more useful." It would eliminate a provision in current law
requiring proof of espionage and make it a crime simply to use -- or
cause the use of -- a computer to obtain classified information without
authorization.
The penalties would be the same as they are now. Violators would
be subject to ten years in prison for a first offense, or "an attempt to
commit such an offense." Second offenders could be sent away for twenty
years.
The proposal was submitted to Congress last month by Acting
Assistant Attorney General Bruce C. Navarro as part of a package of
changes in the computer fraud and abuse statute of 1986. It has drawn
a frosty reception from lawmakers with jurisdiction over the issue.
"It seems they want to make far more people spies than actually
are," said Rep. Charles E. Schumer (D-N.Y.), chairman of the House
Judiciary subcommittee on criminal justice.
Under the current computer espionage law, it is a felony for
anyone knowingly to gain unauthorized access to a computer and obtain
classified information "with the intent or reason to believe that such
information so obtained is to be used to the injury of the United
States, or to the advantage of any foreign nation."
The Justice Department wants to drop the "intent or reason to
believe" clause.
Although the clause is a staple of traditional espionage laws dating
back to 1917, the Justice Department contends that it "has so narrowed
the application of the computer espionage provision as to render it
virtually useless."
Taking it out, Justice officials said in a section-by-section
analysis, would establish a "new computer crime offense, which merely
requires proof that the person obtained certain information, and
not that he delivered it or transmitted it to any other person or
government." Prosecutors would then have "another weapon for combating
the increasing number of espionage cases."
Another part of the Justice Department package that drew criticism
was a provision that would define information in a computer, as well
as processing time, as "property."
"The thrust of that is to say that is if you take information,
that's property and you can be accused of stealing," Schumer said. "I
think that's very dangerous. We need a law more finely honed than that."
Morton Halperin, Washington director of the American Civil Liberties
Union (ACLU), said the proposals call to mind the controversial 1985
prosecution of former naval intelligence analyst Samuel Loring Morison,
the first person convicted under espionage laws for leaking documents
"relating to the national defense" to the news media.
Morison was found guilty of espionage and of theft of government
property for leaking three spy satellite photographs that were
classified secret to a British magazine. He also was convicted on
separate espionage and theft charges for taking portions of two other
Navy documents, also classified secret, and keeping them in an envelope
at his Crofton, Md., apartment.
Morison's lawyers contended that the sections of espionage law used
in the case were meant to apply only in a clandestine setting, to spies
and saboteurs, and not to disclosures to the news media. As for the
theft charges, they protested that making the law applicable to
government "information" would give the executive branch unbridled
discretion to control what the public may be told.
An advocate of bigger defense budgets and a supporter of president
Ronald Reagan, Morison contended that he sent the magazine satellite
photos, which showed the first Soviet nuclear aircraft carrier under
construction at a Black Sea shipyard, primarily because he was
interested in publicizing the Soviet threat. He was sentenced to two
years in prison.
Under the Justice Department's computer espionage proposal, it
could be even more dangerous to take the secrets from a computer than
to get them on paper. The bill would make it a crime to pluck from a
computer any "classified" information, even items stamped secret, because
disclosure would be embarassing. That is a much broader category than
documents "relating to the national defense."
Halperin said that the ACLU would strongly oppose any such change in
the law. "Given the amount of information that is classified and the
degree to which debate in the United States depends on that information,
we have consistantly oppsed criminalizing access to classified
information by private citizens, except where it involves transfer to
foreign powers," Halperin said.
Justice Department official acknowledged that their proposal would
cover whistle-blowers and journalists.
"No one considered that in the drafting of it," said Grace L.
Mastalli, special counsel in Justice's Office of Policy Development.
But she said it was "probably not possible to narrow it without
destroying the purpose of the bill."
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"Posterity, you will never know how much it cost...
...to preserve your freedom! I hope you make good use of it"
-- John Adams
"Punish the guilty ... and keep the innocent nervous" -- Judge Dread, 2000AD