The United States takes seriously its duty to protect the identities of individuals who act as "covert agents" for the government (including intelligence officers, agents, informants, and sources).

For this reason, being accused of revealing the identity of covert agents under federal law is a serious matter with significant legal consequences.

Title 50 U.S.C. 3121 makes unauthorized disclosure of certain covert identities a federal offense.

Title 50 U.S. Code 3121 (formally section 421) aims to safeguard the lives and effectiveness of individuals involved in national security intelligence efforts by imposing serious penalties on those who willfully reveal their identities.

The United States Department of Justice (DOJ) prioritizes protecting national security, which includes national defense, foreign intelligence and counterintelligence, international and internal security, and foreign relations.

This includes countering terrorism, combating espionage, and economic espionage conducted for the benefit of any foreign government. It also includes enforcing export controls and sanctions and disrupting cyber threats perpetrated by nation-states, terrorists, or their proxies.

When national security issues arise during a criminal prosecution, the DOJ must carefully coordinate with high-level officials from the intelligence, military, and foreign affairs communities to resolve them.

Additionally, the Attorney General has statutory authority and obligations related to national security prosecutions. National security matters other than counterterrorism matters are covered primarily by USAM 9-2.136 et seq.

If you're convicted of this crime, depending on your prior access to classified information, you could face as many as 15 years in federal prison.

What Does the Law Say?

The full text of 50 U.S. Code 3121, Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources, says-

"(a) Disclosure of information by people having or having had access to classified information that identifies covert agents-

Whoever, having or having had authorized access to classified information that identifies a covert agent, intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than 15 years, or both.

(b) Disclosure of information by people who learn the identity of covert agents as a result of having access to classified information-

Whoever, as a result of having authorized access to classified information, learns the identity of a covert agent and intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States, shall be fined under title 18 or imprisoned not more than 10 years, or both.

(c) Disclosure of information by people in the course of a 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."

Definitions of Key Terms

According to 50 U.S. Code 3126, the protection of undercover intelligence officers, informants, and agents three are some definitions of key terms, including the following:

• The term "classified information" means information or material designated and clearly marked or clearly represented, pursuant to the provisions of a statute or Executive order, as requiring a specific degree of protection against unauthorized disclosure for reasons of national security.
• The term "authorized," when used with respect to access to classified information, means having authority, right, or permission pursuant to the provisions of a statute, Executive order, or directive of the head of any department engaged in foreign intelligence or counterintelligence activities.
• The term "disclose" means to communicate, provide, impart, transmit, transfer, convey, publish, or otherwise make available.
• The term "intelligence" includes foreign intelligence and counterintelligence.
• The term "foreign intelligence" means information relating to the capabilities, intentions, or activities of foreign governments or foreign organizations, foreign persons, or international terrorist activities.
• The term "intelligence agency" means the elements of the intelligence community, as that term is defined in section 3003(4) of this title.
• The term "covert agent" means a present or retired officer or employee of any intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency whose identity as such an officer, employee, or member has classified information, or a U.S. citizen whose intelligence relationship to the United States is classified information.

Overview of the Law

Enacted as part of the Intelligence Identities Protection Act of 1982, 50 U.S.C. 3121 seeks to protect U.S. intelligence operations by criminalizing the unauthorized disclosure of certain covert identities.

Individuals actively serving as undercover officers, agents, informants, or sources for U.S. intelligence agencies operate with a high degree of secrecy and are often at great risk.

Exposing these identities can compromise the security of intelligence operatives, putting lives and sensitive operations in jeopardy.

This statute makes it a federal crime to make specific unauthorized disclosures regarding covert agents, with the goal of striking a balance between freedom of speech and national security interests.

50 U.S.C. 3121 specifically prohibits the following conduct:

• Disclosure by Authorized Individuals: It is unlawful for people who have or had authorized access to classified information that identifies a covert agent to disclose the agent's identity intentionally. This includes individuals who are or were in positions of trust, such as government officials, contractors, or agents who were granted security clearance. The key requirement here is that the disclosure must be intentional and done with the knowledge that the information is classified.
• Disclosure by Unauthorized Individuals with Special Knowledge: Even if someone does not have authorized access to classified information, they could still violate the statute if they learn a covert agent's identity through certain means (such as from leaks) and willfully disclose it. For this prohibition to apply, the accused must know that the disclosure could harm U.S. intelligence operations.
• Pattern of Activities Resulting in Identification: The law criminalizes actions that involve a pattern of activities intended to identify and expose covert agents to disrupt intelligence operations. This provision focuses on those who systematically gather and disclose information designed to undermine national security, regardless of whether they have formal clearance.

What are the Elements of the Crime?

To convict you of a crime under any of the three provisions of the law, federal prosecutors must establish the following beyond a reasonable doubt:

• You knowingly and willfully disclosed someone's identity unlawfully to someone unauthorized to know that information.
• The identity disclosed belongs to a covert agent, and
• The revelation could harm U.S. intelligence operations.

These elements mean that simple speculation or accidental remarks are unlikely to meet the threshold for criminal liability under this statute.

What are Related Federal Laws?

50 U.S. Code Subchapter IV, Protection of certain national security information, has several related federal laws, including the following:

• 50 U.S.C. 3121 - Protection of identities of certain United States undercover intelligence officers, agents, informants, and sources.
• 50 U.S.C. 3122 - Defenses and exceptions.
• 50 U.S.C. 3124 - Extraterritorial jurisdiction.
• 50 U.S.C. 3125 - Providing information to Congress.
• 50 U.S.C. 3126 - Definitions.

Penalties for Violating the Statute

If convicted of violating 50 U.S.C. 3121, you could face severe penalties. The actual sentencing guidelines depend largely on how much access you had to classified information about the protected individuals' identities (meaning the more access you had, the higher the penalty if you broke that trust).

Specifically, the penalties are as follows:

• If you discovered and revealed the identity due to authorized access to classified information, you have up to 15 years in prison.
• If you discover and reveal your identity through unauthorized access to classified information, you can be sentenced to up to 10 years in prison.
• If you did not have access to classified information but discovered and revealed the identity of the person through a pattern of actively attempting to do so, you have up to three years in prison.

Common Defenses

If you are accused of violating this statute, a qualified federal criminal defense attorney may employ several defenses to combat the charges. Common defenses include, but are not limited to:

• Lack of Knowledge: One of the cornerstones of the statute is that the disclosure must be made knowingly and willfully. If you were unaware that the individual in question was a covert agent, or if you did not know the information was classified, your attorney may argue that you lacked the requisite intent.
• Accidental Disclosure: Intentionality is a key element of the crime. If you inadvertently revealed a covert identity without realizing what you were sharing, this could serve as a defense.
• Freedom of Speech Protections: While the statute aims to protect national security, your constitutional rights to free speech remain relevant. If the disclosure was made in a manner that can be defended as journalistic, public interest, or otherwise protected speech, this could be a part of your defense strategy.

For more information, contact Eisner Gorin LLP, a federal criminal defense law firm based in Los Angeles, California.

Related Content:

• Federal Espionage Crimes
• Title 50 U.S. Code 3121
• 50 U.S. Code Subchapter IV
• Common Federal Dark Web Offenses
• Intelligence Identities Protection Act of 1982