Then, in a case that made international headlines, Edward Snowden, an NSA contractor, was accused in 2013 of providing journalists with electronic copies of tens of thousands of classified documents describing secret NSA programs, including programs that collected information about innocent Americans’ communications. The stories led to a significant court ruling that the NSA had engaged in illegal spying on Americans and several reforms in Congress, the executive branch, and at many of the world’s largest tech companies, yet the Department of Justice quickly charged him with violating the Espionage Act, charges which remain to this day. (Snowden is now the president of the Freedom of the Press Foundation, and Greenwald and Poitras are members of the organization’s board of directors.)

Snowden has said publicly that it would be impossible for him to receive a fair trial in the U.S. because he would not be able to mount a public interest defense. Snowden said that he wants to be able to argue to a jury that he leaked information to journalists because he believed that the American people should know that the NSA was secretly spying on them. If he returned to the U.S. to face trial, however, he would not be permitted to make such an argument.

The Espionage Act criminalizes the mere retention and communication of classified information, regardless of intent. The law, as currently interpreted, makes no distinction between a person who disclosed information to help foreign enemies undermine U.S. national security and a person who disclosed information to help the press expose illegal government programs. Snowden’s defense — that he leaked to inform the American people, not foreign enemies — would be considered irrelevant, which means that the prosecution would be able to exclude it from trial.

If it seems strange that the Espionage Act makes no distinction between working with foreign spies and working with journalists, that could be because the law was not originally intended to apply to the latter.

“Why would the Espionage Act have a public interest defense when it was not drafted in the first place to cover a situation like Snowden?” Jim Goodale, the former general counsel for The New York Times, said in an interview last week. “If it had been drafted in the first place to cover a situation like Snowden, it might have had all sorts of caveats with respect to the Snowden fact pattern.”

The Espionage Act prosecutions of journalists’ sources have continued under the administration of President Donald Trump and only look to get worse. Trump has, on an almost weekly basis, called for leak investigations into news reports about his administration and Attorney General Jeff Sessions has indicated that the Department of Justice wants to increase the prosecution of journalists’ sources.

“We are going to step up our efforts and already are stepping up our efforts on all leaks,” Sessions said in April 2017, adding that he wants to put “some people in jail” for disclosing classified information.

In June 2017 Reality Winner, an NSA contractor, became the first known government employee indicted for leaking to the media. The twenty-five year old was accused of sending a classified document about Russian attempts to hack employees of a voting machine company to the national security news site The Intercept. Hours after The Intercept published a story based on the document, the Department of Justice announced that Winner had been arrested and indicted under the Espionage Act.

In addition to charging journalists’ sources under the Espionage Act, both the Obama administration and the Trump administration have explored the possibility of using the law directly against journalists.

In 2010, as part of its investigation into Stephen Kim in 2010, Obama’s Department of Justice obtained a search warrant for Fox News reporter James Rosen’s private emails. In an affidavit supporting the search warrant, an FBI agent accused Fox News reporter James Rosen of conspiring to violate the Espionage Act.

“There is probable cause to believe that the Reporter has committed a violation of 18 U.S.C. § 793 (Unauthorized Disclosure of National Defense Information), at the very least, either as an aider, abettor and/or co-conspirator of Mr. Kim,” FBI special agent Reginald Reyes wrote in an affidavit that shocked press freedom groups at the time.

Rosen was never charged under the Espionage Act, and Attorney General Eric Holder later said that he regretted naming Rosen as a “co-conspirator,” but it laid bare the danger that reporters continue to face to this day with the Espionage Act still on the books.

“I think about the subpoena to the Fox reporter, Rosen,” Holder said in 2014. “I think that I could have been a little more careful looking at the language that was contained in the filing that we made with the court — that he was labeled as a co-conspirator."

This wasn’t the only dangerous move Obama’s Justice Department made that could directly affect journalists, however. They also opened a grand jury to investigate considered charging Julian Assange, the founder of WikiLeaks — the recipient and publisher of the classified documents leaked by Manning — with violating the Espionage Act.