In her interview on the Whistleblower Network News Whistleblower of the Week podcast, Reality Winner reflected on many elements of her whistleblower journey, from her decision to blow the whistle to her incarceration. Among her major takeaways were the issues with the century-old law used to prosecute her: the Espionage Act.

“Moving forward, the most important thing is that we don’t necessarily decriminalize this behavior, but we do modify the Espionage Act to give it more nuance,” she said. “Under the law, it’s black or white. You did, or you didn’t.”

“[Under the Espionage Act] there is no difference between what I did and somebody else actually making personal money selling information to a hostile government,” she continued. “It doesn’t matter if you gave the information to your grandma, to the media, or to North Korea. Under the law, it does not matter, and I find that to be concerning.”

Winner is spot on in her assessment. There are responsible mechanisms for policing truly abusive leaks, but in its current construction, the Espionage Act is not such a tool.

While the Espionage Act is meant to prosecute spies, recent administrations have increasingly used it against intelligence community whistleblowers. A look at its history showcases how dangerous of a law it is.

In 1991, whistleblower attorney Stephen M. Kohn published American Political Prisoners: Prosecutions under the Espionage and Sedition Acts, culminating over ten years of research with access to tens of thousands of pages of never-before-released U.S. Department of Justice records.

In the book, Kohn documents historic abuses of the Espionage Act, which was passed in 1917 and quickly used to suppress political dissidents during World War I.

The Espionage Act is not limited to properly prohibiting the release of classified information nor to protecting legitimate government secrets. Instead, the law broadly prohibits the disclosure of information related to national security which may cause an "injury to the United States.” Under this law, the courts gave the Justice Department broad leeway to indict and prosecute thousands of dissidents speaking out against the United States’ war policies.

The distinguished historian Howard Zinn penned the foreword for the book, writing:

In the pages that follow, the reader will be confronted with enormous crimes against the constitutional principle of free speech in a country that prides itself on its freedom and declares itself a model for democracy all over the world. The result of those crimes, for thousands of Americans, was persecution, imprisonment, sometimes torture and death. For many more, the result was to create an atmosphere of fear, the fear of expressing one’s honest opinions, the kind of fear we usually attribute to totalitarian states.

Back in 1991, well before the current practice of targeting intelligence community whistleblowers with the law, Kohn recognized that the Espionage Act was subject to future abuses and explained that without a historic reckoning as to how this law was abused and a repeal of the act, future dissidents could be similarly targeted.

He wrote that:

Despite the abuses involved in placing persons such as Eugene V. Debs, Emma Goldman, William Haywood and Kate Richards O’Hare in prison solely on the basis of their nonviolent speech and the terrible loss of human life that resulted from incarcerations, the U.S. government has never resolved or properly confronted or corrected the past. Congress has never repealed the laws that placed them in jail, the executive’s police powers have grown significantly since 1917 and the courts have failed to find these statutes unconstitutional.

Kohn’s warning seems prescient now, as multiple administrations have taken up the practice of charging intelligence community whistleblowers, from Pentagon Papers whistleblower Daniel Ellsberg to Reality Winner, under the Espionage Act. Faced with the scope of that law and the lengthy prison sentences it entails, whistleblowers are often forced into plea deals.

As Winner notes, the point is not that the U.S. should decriminalize the leaking of national security information. There are proper channels for intelligence community whistleblowers, and there are laws that can adequately address individuals who illegally leak this information.

But the U.S. must stop weaponizing the Espionage Act against whistleblowers. It carries on a disgraceful legacy within U.S. history.