Defense Secrets Act of 1911

The Defense Secrets Act of 1911 was one of the first laws in the United States specifically criminializing the disclosure of government secrets. It was based in part on the British Official Secrets Act^[which?] and criminalized obtaining or delivering "information respecting the national defense, to which he is not lawfully entitled". Much of the language of the 1911 law was repeated in the Espionage Act of 1917, still in force.^[1].

Particulars

The language of the 1911 act, especially the notion of information 'relating' to the 'national defense' being obtained or delivered to 'those not entitled to receive it', was retained through subsequent American secrecy laws, including the Espionage Act of 1917 and the McCarran Internal Security Act of 1950. Many later Espionage Act cases, for example Gorin v. United States, involved arguments about the exact meaning of terms like 'national defense'. ^[2][3][4]

The 1911 act differed from the later acts in certain aspects. First, it's penalties were more lenient, being only a year in prison^[5], and having no death penalty provision at all. ^[1] Second, the 1917 act included the requirement that the information was intended to "injure the US" or "aid a foreign country"^[4] Third, the 1917 act criminalized 'retention' of documents, something the 1911 did not do.^[4]

Brief history of US government secrecy

Ericson argues that historically the US government had been somewhat lax regarding secrecy. For example, Thomas Paine in 1777 published information from the Committee of Secret Correspondence about France's aid to the American revolutionary war effort; he was simply fired. Alexis de Tocqueville also commented on the casual nature in which he was given original documents into his permanent possession just by asking for them. The storage of documents was haphazard as well. President Jackson even proclaimed he did not care if his political enemies obtained his documents. ^[1]

However there was a death penalty implemented for certain forms of spying during the Revolutionary War; for more information please see: Intelligence in the American Revolutionary War.

The 1869 "General Orders no. 35" limited collection of information about fortifications, and this was expanded at the time of the Spanish American War in the late 1890s. ^[6][1] Edgar and Schmidt write that when the DSA was passed, the few state secrets laws that existed (35 Stat 1038 and 35 Stat 1097 (1909)) related to "treason, unlawful entry into military bases, and theft of government property".^[4]

Text of the law

As the laws have been revised, the original act has disappeared or been modified. Thus, the actual text of the act can only be obtained by looking at previous versions of the law. The text of the original Section 1 can be found reproduced in the US v Rosen opinion of 2006, linked in the 'External Links' section below.

See Also

• Intelligence in the American Revolutionary War
• Espionage Act of 1917
• McCarran Internal Security Act of 1950
• Computer Fraud and Abuse Act 1980s (inherited some language from DSA)

External Links

• 2006 US v Rosen @ fas.org (includes text of Section 1 of the original 1911 act)

References

1. ^ ^{a b c d} Timothy L. Ericson (2005). "Building Our Own “Iron Curtain”: The Emergence of Secrecy in American Government". American Archivist 68. http://archivists.metapress.com/content/9m260j244177p553/. Retrieved 2011 4 11. 
2. ^ US District Court, Judge T.S. Ellis III (2006). "Memorandum Opinion, US v Rosen & Weissman". Federation of American Scientists, http://fas.org. http://www.fas.org/sgp/jud/rosen080906.pdf. Retrieved 2011 4 11.  Ellis refers to Harold Edgar & Benno C. Schmidt, Jr. 1973 in his opinion.
3. ^ Mark R. Alson (2008). "Someone Talked! The Necessity of Prohibitions Against Publishing Classified Financial Intelligence Information - 42 Val. U. L. Rev. 1277". http://scholar.valpo.edu/vulr/vol42/iss4/6. Retrieved 2011 4 11. 
4. ^ ^{a b c d} Harold Edgar & Benno C. Schmidt, Jr. (1973). "The Espionage Statutes and Publication of Defense Information". 73 Columbia Law Review 929, 940. http://www.fas.org/sgp/library/. Retrieved 2011 4 11. 
5. ^ Referencing the text of the act
6. ^ Herbert N. Foerstel (1997). Free expression and censorship in America: an encyclopedia. Greenwood Publishing Group. p. 158. http://books.google.com/books?id=_eFgZJCX8VUC. Retrieved 2011 4 11.