An Ordinary Day, an Extraordinary Accusation

It is ten o’clock at night. From the window of your apartment, you hear chants. You pick up your phone, record a few seconds of video, and send it to a news channel outside the country. The next day, you face a summons whose title is not “publishing an image” or “disturbing public order,” but “cooperation with hostile media” or “espionage.”

This scenario is no longer purely hypothetical. With the passage of the Law Intensifying Punishment for Espionage and Cooperation with the Zionist Regime and Hostile Countries Against National Security and Interests, the boundary between sending a street video and “espionage” has become extremely blurred. This article explains how this change occurred, which principles it conflicts with, and what consequences it will have.

What Was Espionage? Its Classical Definition and Boundaries

A. Irreducible Elements in Traditional Criminal Law

In the tradition of criminal law, the crime of espionage has always been based on three specific and cumulative elements: 1) the existence of confidential or classified information; 2) its knowing transfer to an enemy or unauthorized persons; and 3) a specific intent to harm national security. The absence of any one of these elements would seriously call the realization of the crime into question.

Article 501 of the Ta’zirat Law (approved in 1996), which was the standard before this new law, was based on this same logic: criminalization concerned the acquisition and transfer of information deemed confidential by competent authorities, with the aim of placing it at the disposal of unauthorized persons or a foreign state. (1) This definition drew a clear boundary between journalism, political analysis, citizen journalism, and real espionage.

B. The Principle of Legality of Crime: The Cornerstone of Criminal Law

This definitional limitation is rooted in a fundamental principle. Article 2 of the Islamic Penal Code (approved in 2013) states: “Any conduct, whether an act or omission, for which the law has prescribed punishment, is considered a crime.” (2) The philosophy of this principle is clear: citizens must be able to distinguish in advance the boundary between permitted and prohibited conduct. Whenever the definition of a crime is ambiguous, this principle is violated.

C. Narrow Interpretation: A Legal Shield Against Penal Expansionism

One of the established principles of modern criminal law is the necessity of narrow interpretation of penal laws. This principle requires that in cases of ambiguity, interpretation be made in favor of the accused. The more ambiguous and elastic the concept of espionage becomes, the greater the possibility of using criminal law instrumentally to control the flow of information and restrict civil freedoms.

The Transformation in the New Law: Where Did the Boundaries Go?

A. Expansion of the Material Element of the Crime

The new law has disrupted the traditional equation. Concepts such as “cooperation,” “contact,” “media assistance,” and “providing a platform for information dissemination” have entered the security domain; without precise definition, without enumeration of cases, and without a clear boundary with entirely lawful conduct. Comparison with former Article 501 is illuminating: under that article, two conditions were necessary: the confidentiality of the information and the intent to transfer it to unauthorized persons. In the new law, neither of these conditions is explicitly required. Now, not only the transfer of confidential information, but the mere sending of an image, narrative, or public data can, in a security reading, become the subject of criminal intervention.

One of the most worrying aspects of this transformation is its movement toward “preemptive criminalization.” Unlike former Article 501, which concerned a specific committed act, in some security readings of the new law, the context of contact, the possibility of cooperation, or even the potential capacity for action can also become a subject of attention.

This is while modern criminal law should, in principle, be the state’s last tool of intervention, not a tool for the preemptive control of conduct and social relations.

Comparative Experience: Lessons from Other Legal Systems

A. The U.S. Espionage Act and the Danger of Expanding the Definition

The U.S. Espionage Act of 1917 is an important historical example of this challenge. This law initially concerned the transfer of military information to the enemy, but in recent decades it has been interpreted in a way that even covers unclassified information. (3)

The important point is that no journalist in the United States has so far been convicted under this law, but the case of Julian Assange showed how delicate this boundary is. It is precisely this definitional ambiguity that American critics also criticize: a law that can threaten a journalist, even if it is never used, has a deterrent effect.

B. Russia and China: When Ambiguity Becomes a Tool

In Russia, Evan Gershkovich, a Wall Street Journal reporter, was arrested in March 2023 on espionage charges and sentenced in July 2024 to 16 years in prison. This arrest was solely because of conducting interviews and journalistic research. The international press community considered this conviction political. (4)

In China, the Counter-Espionage Law (approved in 2023) expanded the scope of this crime to any data the state determines to be related to national security. Australian journalist Cheng Lei was arrested in 2020 on charges of “distributing state secrets” and was released three years later after diplomatic pressure. (5)

The common feature of these cases is clear: whenever the definition of espionage is drafted in an ambiguous and elastic way, journalists and civil activists become its first victims, not professional spies.

C. The European Court of Human Rights: The Proportionality Test

In the case of Stoll v. Switzerland in 2007, the European Court of Human Rights declared that any restriction on journalists’ freedom of expression must pass the proportionality test: proven necessity, a legitimate aim, and a direct causal link to real security harm. (6)

The Parliamentary Assembly of the Council of Europe also explicitly warned in Resolution 1551 (2007) that ambiguous state secrets laws can “endanger a wide range of legitimate activities by journalists, scientists, and human rights defenders.” (7)

D. International Standards

The Johannesburg Principles of 1995 state that security restrictions are not legitimate when their real purpose is “to protect interests unrelated to national security”; including concealing corruption or preventing criticism of the performance of public institutions. (8)

Article 19 of the International Covenant on Civil and Political Rights (ICCPR), to which Iran has acceded, makes any restriction on freedom of expression conditional on three requirements: legality, legitimate aim, and necessity in a democratic society. (9)

Consequences: From Individual Silence to the Collapse of the Public Sphere

In the literature of human rights and constitutional law, the “chilling effect” refers to a situation in which legal ambiguity, by itself, suppresses legitimate conduct. Frederick Schauer showed that whenever a law is so ambiguous that people cannot determine the boundary between permitted and prohibited conduct, self-censorship occurs. This happens not because of the commission of a crime, but because of fear of the possibility of criminalization. (10)

If someone knows that sending a street video can be considered “espionage,” they probably will not record that video. If a journalist knows that reporting on a gathering can be interpreted as “security cooperation,” they probably will not write that report. This is exactly what this type of legislation produces: engineering collective behavior through fear.

Here, fear is not merely a consequence of the enforcement of the law; fear itself is part of the mechanism of penal regulation.

B. The Gradual Collapse of the Public Sphere

When the boundaries of espionage are expanded to this extent, the entire public sphere is affected:

The media are no longer merely an institution for information dissemination; they potentially become the subject of security intervention. The citizen-journalist is no longer in the position of a transmitter of information; they are placed in the position of a security defendant. The political analyst is no longer an interpreter of events; they may be considered someone who “provides a platform for information dissemination.” The eyewitness is no longer a witness; they may be a “transmitter of information.”

C. Weakening Fair Trial

In cases labeled as security-related, the possibility of free access to a lawyer, transparency of evidence, public oversight, and defense guarantees usually decreases. The more broadly the title of “espionage” is defined, the wider the range of cases transferred from the domain of ordinary crimes with conventional trial guarantees into the security domain; a domain in which the balance between security and the rights of the accused is often shifted in favor of security institutions.

D. The Displacement of the Citizen’s Position

The final structural consequence is the gradual transformation of the citizen’s position from “rights-holder” to “security subject.” In such a system, the citizen can no longer know with certainty which conduct falls within the realm of freedom of expression and which may be reinterpreted under “security cooperation.” (11)

Epilogue: Criminal Law in Whose Service?

What has occurred in this law goes beyond the intensification of punishment. Comparison with former Article 501 shows that a deep gap has been created in the definition of the material element of the crime; a gap that fundamental principles of criminal law, including Article 2 of the Islamic Penal Code, the principle of narrow interpretation, and international standards of freedom of expression, cannot tolerate.

Comparative experience from Russia, China, and the criticisms directed at the U.S. Espionage Act shows that the main consequence of this model is the ambiguous expansion of the definition of espionage into the media sphere; not greater security, but greater silence.

The broader and more ambiguous the boundaries of the crime of espionage become, the more restricted the free circulation of information becomes, and the deeper the distance between society and the ruling establishment. The very uncertainty produced for the citizen is part of the main purpose of this legislation.

For this reason, today’s issue is not only defending the principle of legality of crime and punishment. The issue is confronting a process that turns criminal law from a shield protecting the citizen into a blade threatening them.

Footnotes:

1. Article 501 of the Islamic Penal Code (Ta’zirat, approved in 1996): “Anyone who gives maps, secrets, documents, or decisions related to the country’s domestic or foreign policy to persons who are not authorized to access them, or informs them of such matters, in a manner deemed confidential by competent authorities, shall be sentenced to imprisonment from one to ten years.”
2. Article 2 of the Islamic Penal Code (approved in 2013): “Any conduct, whether an act or omission, for which the law has prescribed punishment, is considered a crime.”
3. U.S. Espionage Act (approved in 1917), Sections 792 to 798 of the U.S. Federal Criminal Code; for a critical discussion, see: “The Instrumental Use of the Espionage Act,” Just Security website, December 2025.
4. The case of Evan Gershkovich: arrested in March 2023 and sentenced in July 2024 to 16 years in prison. The Wall Street Journal and international press freedom organizations considered these charges politically motivated.
5. China’s Counter-Espionage Law (approved in 2023); Reporters Without Borders report titled “China’s Counter-Espionage Law Threatens Journalists,” June 2023.
6. Stoll v. Switzerland, European Court of Human Rights, Grand Chamber, Application no. 69698/01, judgment of December 10, 2007.
7. Parliamentary Assembly of the Council of Europe, Resolution 1551 (2007): “Fair Trial Issues in Criminal Cases Concerning Espionage or Divulging State Secrets.”
8. Johannesburg Principles on National Security, Freedom of Expression and Access to Information, UN Doc. E/CN.4/1996/39 (1995), Principle 2(b).
9. International Covenant on Civil and Political Rights, Article 19(3); UN Human Rights Committee, General Comment No. 34, September 2011.
10. Frederick Schauer, “Fear, Risk and the First Amendment: Unraveling the Chilling Effect,” Boston University Law Review, Vol. 58, 1978.
11. Human Rights Watch report “No Room for Dissent” (2023); Reporters Without Borders Press Freedom Index.