Intelligence Identities Protection Act - First Amendment Implications

First Amendment Implications

The criminal provisions of the act are contained in 50 U.S.C. § 421. During Congress's consideration of the measure, much attention is paid to subsection 421(c), which states:

421(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents. Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than three years, or both.

Under this subsection, journalists and political commentators alike could be prosecuted should they show an effort towards discovering or revealing identities of covert agents. However, it was ultimately concluded by the Senate Judiciary and the Conference Committee that the measure is constitutionally sound. Individuals would only be prosecuted if they engage in a pattern of activities intended to identify and expose covert agents, on the grounds that such actions goes beyond information that might contribute to informed public debate on foreign policy or foreign intelligence activities.

The Conference Committee assured that U.S. intelligence critics would be beyond the reach of law so long as they do not actively seek to identify or expose covert agents. However, commentators are still wary of the measure, finding 421(c) standard over-broad since it lacks a 'specific intent requirement' and instead relies on a 'reason to believe' standard.