Section 1030(a)(1) proscribes that “[w]hoever having knowingly accessed a computer without authorization or exceeding authorized access, and by means of such conduct having obtained information  that has been determined by the United States Government pursuant to an Executive order or statute to require protection against unauthorized disclosure for reasons of national defense or foreign relations . . . with reason to believe that such information could be used to the injury of the United States, or to the advantage of any foreign nation willfully communicates, transmits, or causes to be communicated, delivered, or transmitted . . . to an person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it” shall be sentenced to a term of imprisonment of no more than 10 years ( or 20 years if it is a defendant’s second conviction pursuant to the CFAA).

In the Espionage Act, 18 U.S.C. 794(a), “[w]hoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life.”

The two statutes have some very interesting similarities and differences.  Clearly, a defendant being charged under section 794(a) faces much greater maximum penalties than someone charged under section 1030(a)(1), especially for first time offenders.  While section 1030(a)(1) is capped at 10 years of imprisonment (or 20 for a second conviction), a defendant convicted under section 794(a) can be imprisoned for life or can be executed if the offense resulted in the death of an agent of the United States or involved any major element of defense strategy, nuclear weapons, or major weapons systems.  Also, a violation of 1030(a)(1) requires the defendant to have accessed a computer to obtain the “national defense or foreign relations” information.  As such, the Espionage Act more harshly penalizes a much broader array of treasonous activity.

The Espionage Act’s broader application means that a defendant prosecuted pursuant to section 1030(a)(1) could most likely be prosecuted pursuant to section 794(a) as well.  This is because the factual scenarios making up a violation of section 1030(a)(1) would almost always require one to also violate section 794(a).  This overlap coupled with a federal prosecutor’s discretionary charging authority gives the government an obvious advantage in plea negotiations.  But it also presents defense counsel with an opportunity to negotiate down a section 794(a) charge to a section 1030(a)(1) if the conduct involved accessing a computer, thereby reducing the applicable maximum penalties.

Analysis of the two statutes also reveals that section 1030(a)(1) seems to apply to a broader range of classified information than  section 794(a).  Whereas the CFAA protects information related to the  “national defense or foreign relations,” the Espionage Act only protects information related to the “national defense.”  Whether information pertains to the national defense is a factual matter to be determined by the jury, not a legal matter determined by the court.   As such, juries are instructed that “national defense”  includes all matters directly and reasonably connected with the defense of the United States against its enemies.  Although broad, it is inconceivable that every piece of information related to foreign relations is also considered national defense information.  In circumstances where the defendant unlawfully accessed a computer containing information that is sensitive, but arguably not related to the national defense (e.g., foreign economic development), prosecution pursuant to section 1030(a)(1) would be more appropriate.

This post is authored by Ferrari & Associates, P.C., a law firm specializing in federal criminal defense matters. Feel free to contact us at (202) 280-6370 or info@ferrariassociatespc.com.