Criminal Prohibitions on the Publication of Classified Defense Information
Congressional Research Service 6
information related to the public defense “which might be useful to the enemy.”
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The death
penalty is available only upon a finding that the offense resulted in the death of a covert agent or
directly concerns nuclear weapons or other particularly sensitive types of information. The death
penalty is also available under § 794 for violators who gather, transmit or publish information
related to military plans or operations and the like during time of war, with the intent that the
information reach the enemy.
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These penalties are available to punish any person who
participates in a conspiracy to violate the statute. Offenders are also subject to forfeiture of any
ill-gotten gains and property used to facilitate the offense.
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The unauthorized creation, publication, sale or transfer of photographs or sketches of vital
defense installations or equipment as designated by the President is prohibited by 18 U.S.C.
§§ 795 and 797.
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Violators are subject to fine or imprisonment for not more than one year, or
both.
The knowing and willful disclosure of certain classified information is punishable under 18
U.S.C. § 798 by fine and/or imprisonment for not more than 10 years.
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To incur a penalty, the
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§ 794(b) provides:
(b) Whoever, in time of war, with intent that the same shall be communicated to the enemy,
collects, records, publishes, or communicates, or attempts to elicit any information with respect to
the movement, numbers, description, condition, or disposition of any of the Armed Forces, ships,
aircraft, or war materials of the United States, or with respect to the plans or conduct, or supposed
plans or conduct of any naval or military operations, or with respect to any works or measures
undertaken for or connected with, or intended for the fortification or defense of any place, or any
other information relating to the public defense, which might be useful to the enemy, shall be
punished by death or by imprisonment for any term of years or for life....
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During time of war, any individual who communicates intelligence or any other information to the enemy may be
prosecuted by the military for aiding the enemy under Article 104 of the Uniform Code of Military Justice (UCMJ),
and if convicted, punished by “death or such other punishment as a court-martial or military commission may direct.”
10 U.S.C. § 904.
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18 U.S.C. § 794(d). Proceeds go to the Crime Victims Fund.
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§ 795. Photographing and sketching defense installations
(a) Whenever, in the interests of national defense, the President defines certain vital military and
naval installations or equipment as requiring protection against the general dissemination of
information relative thereto, it shall be unlawful to make any photograph, sketch, picture, drawing,
map, or graphical representation of such vital military and naval installations or equipment without
first obtaining permission of the commanding officer of the military or naval post, camp, or station,
or naval vessels, military and naval aircraft, and any separate military or naval command
concerned, or higher authority, and promptly submitting the product obtained to such commanding
officer or higher authority for censorship or such other action as he may deem necessary....
§ 797. Publication and sale of photographs of defense installations
On and after thirty days from the date upon which the President defines any vital military or naval
installation or equipment as being within the category contemplated under section 795 of this title
[18], whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing,
map, or graphical representation of the vital military or naval installations or equipment so defined,
without first obtaining permission of the commanding officer ... or higher authority, unless such
photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon
that it has been censored by the proper military or naval authority, shall be fined under this title or
imprisoned not more than one year, or both.
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§ 798. Disclosure of classified information
(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes
available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or
interest of the United States or for the benefit of any foreign government to the detriment of the
United States any classified information—
(continued...)