As reported in this paper's earlier coverage of the bill's introduction, the Daniel Ellsberg Press Freedom and Whistleblower Protection Act — introduced by Rep. Rashida Tlaib in the House on March 13 and formally entered into the Congressional Record on March 18 — seeks to amend the Espionage Act of 1917 to preclude its use against journalists and whistleblowers who transmit or receive information in the public interest.

The Espionage Act is 109 years old. It was written to prosecute German spies during the First World War. Its text is broad — broad enough, courts have consistently found, to cover the act of receiving and publishing classified information, not just stealing or transmitting it to an enemy. This breadth has made it the government's preferred tool in a succession of leak prosecutions that have included Daniel Ellsberg himself, who leaked the Pentagon Papers in 1971 and was charged under the Act before his case was dismissed; Julian Assange, whose extradition proceedings consumed a decade; and a growing number of federal employees and journalists under both Democratic and Republican administrations.

Fourteen organizations have formally endorsed the bill, including Amnesty International, the Freedom of the Press Foundation, and the Center for Constitutional Rights. Their statement calls the Espionage Act "a century-old law that has been misused and abused by Democratic and Republican presidents alike — not to go after spies, but to punish those who expose government wrongdoing."

The bill's specific provisions, as described in the Congressional Record, would establish a public interest defense for those who handle classified information in order to inform the public, and would require the government to demonstrate that a defendant intended to harm the United States — not merely that classified information was disclosed.

The legislation is introduced by the minority party, which means it will not pass. This is not a reason to ignore it. Laws begin as arguments. The Ellsberg Act names a specific legal mechanism — the Espionage Act's breadth — and proposes a specific remedy. Whether or not it passes in this Congress, it will be cited in the next round of Espionage Act prosecutions, and the round after that.

Daniel Ellsberg died in 2023 having never been convicted of anything. The Act named for him would ensure that future Ellsbergs — people who do what he did, in a context where his judgment has since been vindicated by history — would have a defense in law rather than relying on prosecutorial discretion or case dismissal on procedural grounds.

That is the argument the bill makes. It is a coherent one. Whether it persuades anyone with the power to act on it remains, for now, an open question.

-- ANNA WEBER, Berlin

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