. Thus, contrary to Plaintiff’s assertion, seizure pursuant to 18 U.S.C. § 793(d) need not involve espionage or “serious misuse of national security information” and the appropriate forum for seeking compensation is the Court of Federal Claims. Lastly, Plaintiff’s characterization of the taking as a conversion cannot serve to transform the claim into a tort action cognizable under the FTCA.

In sum, to show that the classified intelligence reporting related to the national defense, the government need show only that it falls under the broad definition of “national defense” in Gorin, and that it was closely held. C. Willful Communication, Delivery, or Transmission to a Person Not Entitled To Receive It or Retention Third, the government must prove that the Defendant willfully communicated, delivered, or transmitted the NDI to a person not entitled to receive it, or retained it and failed to deliver it 5 Kim was charged under 18 U.S.C. § 793(d), but the relevant “relating to the national defense” language in subparts (d) and (e) is identical. Case 1:17-cr-00034-JRH-BKE Document 122 Filed 10/13/17 Page 8 of 15 9 to the officer or employee of the United States entitled to receive it.

¶ 21, prohibits a person “lawfully having possession of . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation” from “willfully communicat[ing]” or “deliver[ing]” such information “to any person not entitled to receive it.” 18 U.S.C. § 793(d); see, e.g., United States v. Abu-Jihaad, 630 F.3d 102, 108 (2d Cir. 2010) (affirming the conviction of a defendant under Section 793(d) for transmitting to unauthorized persons certain national defense information). B. Factual Background On January 27, 2014, the Director of National Intelligence (“DNI”) declassified certain aggregate data concerning national security legal process, including FISA-based process as well as National Security Letters (“NSLs”) issued by the FBI, so that recipients of such process could reveal aggregate data, not with specific numbers but in ranges, about the orders and other process they had received.

See, e.g., United States v. Sterling, 724 F.3d 482, 488 (4th Cir. 2013), cert. denied, 134 S. Ct. 2696 (2014); United States v. Kiriakou, 898 F. Supp. 2d 921 (E.D. Va. 2012); United States v. Kim, 808 F. Supp. 2d 44 (D.D.C. 2011); United States v. Abu-Jihaad, 630 F.3d 102, 108 (2d Cir. 2010); United States v. Rosen, 557 F.3d 192, 194 (4th Cir. 2009); see also United States v. Mascheroni, 612 F. App’x 504, 505 (10th Cir. 2015) (prosecution for unlawfully retaining national defense information, in violation of 18 U.S.C. § 793(e)); United States v. Malki, 718 F.3d 178, 180 (2d Cir. 2013) (same); United States v. Aquino, 555 F.3d 124, 125 (3d Cir. Case 4:14-cv-04480-YGR Document 97 Filed 02/05/16 Page 22 of 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -16- PLAINTIFF’S OPPOSITION TO MOTION TO DISMISS 2009) (same). If Twitter were to publish its unredacted transparency report, there is no reason why Twitter would not be at risk of prosecution under the statute.

A person who violates an NSL nondisclosure order may be subject to criminal penalties. 18 U.S.C. §§ 793, 1510(e). Section 2709 does not contain a prohibition on a company’s disclosing that it has not received an NSL.

Case 1:13-cv-01324-JEB Document 19 Filed 02/18/14 Page 23 of 36 24 unauthorized disclosure of the Report by restricting access to a very small group of trusted individuals. 8 18 U.S.C. § 793(f)(1); S. Res. 388 (88th Congress).

FACTUAL BACKGROUND 1. The government's investigation and prosecution of Winner for disclosing information to a news media outlet. From in or about February 2017 through in or about June 2017, Winner was employed as a contractor with a private corporation and was assigned to the National Security Agency ("NSA"), during which time she held a TOP SECRET//Sensitive Compartmented Information ("SCI") security clearance and had access to national defense and classified information. See Plea Agreement 2a, United States v. Winner, No. l:17-cr-34 (JRH) (BKE) (^'"Winnef) (S.D. Ga. Aug. 23, 2018), EOF No. 324; Gov't's Sentencing Mem. at 1, Winner (S.D. Ga. Aug. 14,2018), ECFNo. 320. On June 26,2018, Winner pled guilty in this Court to one count of unlawful retention and transmission of national defense information, in violation of 18 U.S.C. § 793(e)). See Change of Case 1:17-cr-00034-JRH-BKE Document 334 Filed 03/07/19 Page 10 of 32 Guilty Plea, Winner (S.D. Ga. June 26,2018), ECF No. 316; Plea Agreement ̂ 1; Superseding Indictment, Winner (S.D. Ga. Sept. 6,2017), ECF No. 72. The Court accepted Winner's guilty plea and, on August 23,2018, sentenced her to 63 months' imprisonment, followed by three years of supervised release, and ordered her to pay a $100 assessment.

14A Cal.Jur.3d, Conversion § 1. Although the FAC asserts that the antennae were “taken by compulsion”, FAC ¶ 40, the Espionage Act, 18 U.S.C. § 793(d) expressly permits the government to seize instruments or appliances relating to “national defense” pursuant “to an official demand that possession be surrendered.” See Dubin v. United States, 289 F.2d 651, 654-55 (Ct.Cl. 1961) (Dubin I).

It is the state’s actions that must yield to the Constitution and an Act of Congress, not the other way around. Asthe Providers explained in their answer brief on the merits (at pp. 11-13), that principle is well established when the prohibition on disclosure arises from 18 U.S.C. § 793, which prohibits the disclosure of classified information. Tellingly, defendants and amici makelittle effort to address that analogous scenario.

Just as the SCA prohibits l- the Providers from disclosing the content of the communications sought by the defendants in this case, federal statutes also prohibit those with access to classified information from disclosing it without appropriate authorization. (See, e.g., 18 U.S.C. § 793(d).) In this regard, the United States Supreme Court has held that, in a criminal case, “[i]f the | Governmentrefuses to provide state-secret information that the accused reasonablyasserts is necessary to his defense, the prosecution must be dismissed.”