Military security is the capability of a nation to impose its policy choices by use of military force.  A crime is committed by doing an act which involves[i]:

• a breach of military authority,
• a breach of military security, or
• a violation of the integrity of military property.

18 USCS § 1382 prohibits going upon any military reservation for any purpose prohibited by law or lawful regulation.  Going upon a military base with knowledge that such entry is unauthorized violates the statute[ii].

The Invention Secrecy Act[iii] provides for nondisclosure of information contained in patent applications when that disclosure is opposed to the national interest[iv].

Pursuant to the Federal Espionage Act (“Act”), gathering, transmitting, or losing defense information is an offence.  The Act provides punishment for:

• obtaining various national defense information with intent or reason to believe that the information is to be used to the injury of the U.S., or to the advantage of any foreign nation[v],
• obtaining other national defense information with like intent or reason to believe[vi], and
• receiving various national defense information knowing or having reason to believe that it has been or will be obtained by any person contrary to the statutory provisions[vii].

Further, the Act forbids anyone having any documents or data relating to the national defense, which information the possessor has reason to believe could be used to the injury of the U.S. or to the advantage of any foreign nation, from willfully communicating the material to any person not entitled to receive it[viii].

The Act in addition punishes a person who commits either of two types of offenses[ix]:

• willfully transmits classified information to any person not entitled to receive it, or
• willfully retains such information and fails to deliver it to a person entitled to receive it.

Such an offence consists of five elements: “a defendant must (1) lack authority to possess, access, or control (2) information relating to the national defense (3) in either tangible or intangible format, and (4) willfully (5) undertake the active conduct (willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted), inchoate conduct (attempts the same), or what might be described as passive conduct (willfully retains the information and fails to deliver it to the officer or employee of the United States entitled to receive it) proscribed by the Act”[x].

In order to prove that the information is related to the national defense, the government must prove[xi]:

• that the information relates to the nation’s military activities, intelligence gathering or foreign policy;
• that the information is closely held by the government, in that it does not exist in the public domain; and
• that the information is such that its disclosure could cause injury to the nation’s security.

[i] Moylan v. Laird, 305 F. Supp. 551, 555 (D.R.I. 1969).

[ii] United States v. Hall, 742 F.2d 1153 (9th Cir. 1984).

[iii] 35 USCS § 181.

[iv] Halpern v. United States, 258 F.2d 36 (2d Cir. N.Y. 1958).

[v] 18 USCS § 793 (a).

[vi] 18 USCS § 793 (b).

[vii] 18 USCS § 793 (c).

[viii] 18 USCS § 793 (d).

[ix] 18 USCS § 793 (e).

[x] United States v. Aquino, 555 F.3d 124 (3d Cir. N.J. 2009).

[xi] United States v. Rosen, 445 F. Supp. 2d 602 (E.D. Va. 2006).