Espionage Statutes Modernization Act of 2011

[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 355 Introduced in Senate (IS)]

112th CONGRESS
  1st Session
                                 S. 355

To improve, modernize, and clarify the espionage statutes contained in
    chapter 37 of title 18, United States Code, to promote Federal
      whistleblower protection statutes and regulations, to deter
   unauthorized disclosures of classified information, and for other
                               purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                           February 15, 2011

  Mr. Cardin introduced the following bill; which was read twice and
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL

To improve, modernize, and clarify the espionage statutes contained in
    chapter 37 of title 18, United States Code, to promote Federal
      whistleblower protection statutes and regulations, to deter
   unauthorized disclosures of classified information, and for other
                               purposes.

    Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``The Espionage Statutes Modernization
Act of 2011''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) As of 2011, the statutory framework with respect to the
        espionage statutes is a compilation of statutes that began with
        the Act of June 15, 1917 (40 Stat. 217, chapter 30) (commonly
        known as the ``Espionage Act of 1917''), which targeted classic
        espionage cases involving persons working on behalf of foreign
        nations.
            (2) The statutory framework was formed at a time when
        intelligence and national security information existed
        primarily in a tangible form, such as blueprints, photographs,
        maps, and other documents.
            (3) Since 1917, the United States has witnessed dramatic
        changes in intelligence and national security information,
        including technological advances that have revolutionized
        information gathering abilities as well as the mediums used to
        communicate such information.
            (4) Some of the terms used in the espionage statutes are
        obsolete and the statutes do not fully take into account the
        classification levels that apply to national security
        information in the 21st century.
            (5) In addition, the statutory framework was originally
        designed to address classic espionage cases involving persons
        working on behalf of foreign nations. However, the national
        security of the United States could be harmed, and lives may be
        put at risk, when a Government officer, employee, contractor,
        or consultant with access to classified information makes an
        unauthorized disclosure of the classified information,
        irrespective of whether the Government officer, employee,
        contractor, or consultant intended to aid a foreign nation or
        harm the United States.
            (6) Federal whistleblower protection statutes and
        regulations that enable Government officers, employees,
        contractors, and consultants to report unlawful and improper
        conduct are appropriate mechanisms for reporting such conduct.
            (7) Congress can deter unauthorized disclosures of
        classified information and thereby protect the national
        security by--
                    (A) enacting laws that improve, modernize, and
                clarify the espionage statutes and make the espionage
                statutes more relevant and effective in the 21st
                century in the prosecution of persons working on behalf
                of foreign powers;
                    (B) promoting Federal whistleblower protection
                statutes and regulations to enable Government officers,
                employees, contractors, or consultants to report
                unlawful and improper conduct; and
                    (C) enacting laws that separately punish the
                unauthorized disclosure of classified information by
                Government officers, employees, contractors, or
                consultants who knowingly and intentionally violate a
                classified information nondisclosure agreement,
                irrespective of whether the officers, employees,
                contractors, or consultants intend to aid a foreign
                power or harm the United States.

SEC. 3. CRIMES.

    (a) In General.--Chapter 37 of title 18, United States Code, is
amended--
            (1) in section 793--
                    (A) in the section heading, by striking ``or losing
                defense information'' and inserting ``or, losing
                national security information'';
                    (B) by striking ``the national defense'' each place
                it appears and inserting ``national security'';
                    (C) by striking ``foreign nation'' each place it
                appears and inserting ``foreign power'';
                    (D) in subsection (b), by inserting ``classified
                information, or other'' before ``sketch'';
                    (E) in subsection (c), by inserting ``classified
                information, or other'' before ``document'';
                    (F) in subsection (d), by inserting ``classified
                information, or other'' before ``document'';
                    (G) in subsection (e), by inserting ``classified
                information, or other'' before ``document'';
                    (H) in subsection (f), by inserting ``classified
                information,'' before ``document''; and
                    (I) in subsection (h)(1), by striking ``foreign
                government'' and inserting ``foreign power'';
            (2) in section 794--
                    (A) in the section heading, by striking
                ``Gathering'' and all that follows and inserting
                ``Gathering or delivering national security information
                to aid foreign powers''; and
                    (B) in subsection (a)--
                            (i) by striking ``foreign nation'' and
                        inserting ``foreign power'';
                            (ii) by striking ``foreign government'' and
                        inserting ``foreign power'';
                            (iii) by inserting ``classified
                        information,'' before ``document'';
                            (iv) by striking ``the national defense''
                        and inserting ``national security''; and
                            (v) by striking ``(as defined in section
                        101(a) of the Foreign Intelligence Surveillance
                        Act of 1978)'';
            (3) in section 795(a), by striking ``national defense'' and
        inserting ``national security'';
            (4) in section 798--
                    (A) in subsection (a), by striking ``foreign
                government'' each place it appears and inserting
                ``foreign power''; and
                    (B) in subsection (b)--
                            (i) by striking the first undesignated
                        paragraph (relating to the term ``classified
                        information''); and
                            (ii) by striking the third undesignated
                        paragraph (relating to the term ``foreign
                        government''); and
            (5) by adding at the end the following:
``Sec. 800. Definitions
    ``In this chapter--
            ``(1) the term `classified information' has the meaning
        given the term in section 1 of the Classified Information
        Procedures Act (18 U.S.C. App.);
            ``(2) the term `foreign power' has the meaning given the
        term in section 101 of the Foreign Intelligence Surveillance
        Act of 1978 (50 U.S.C. 1801); and
            ``(3) the term `national security' has the meaning given
        the term in section 1 of the Classified Information Procedures
        Act (18 U.S.C. App.).''.
    (b) Technical and Conforming Amendment.--The table of section for
chapter 37 of title 18, United States Code, is amended--
            (1) by striking the item relating to section 793 and
        inserting the following:

``793. Gathering, transmitting, or losing national security
                            information.'';
            (2) by striking the item relating to section 794 and
        inserting the following:

``794. Gathering or delivering national security information to aid
                            foreign powers.'';
        and
            (3) by adding at the end the following:

``800. Definitions.''.

SEC. 4. VIOLATION OF CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT.

    (a) In General.--Chapter 93 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 1925. Violation of classified information nondisclosure
              agreement
    ``(a) Definitions.--In this section--
            ``(1) the term `classified information' has the meaning
        given the term in section 1 of the Classified Information
        Procedures Act (18 U.S.C. App.); and
            ``(2) the term `covered individual' means an officer,
        employee, contractor, or consultant of an agency of the Federal
        Government who, by virtue of the office, employment, position,
        or contract held by the individual, knowingly and intentionally
        agrees to be legally bound by the terms of a classified
        information nondisclosure agreement.
    ``(b) Offense.--
            ``(1) In general.--Except as otherwise provided in this
        section, it shall be unlawful for a covered individual to
        intentionally disclose, deliver, communicate, or transmit
        classified information, without the authorization of the head
        of the Federal agency, or an authorized designee, knowing or
        having reason to know that the disclosure, delivery,
        communication, or transmission of the classified information is
        a violation of the terms of the classified information
        nondisclosure agreement entered by the covered individual.
            ``(2) Penalty.--A covered individual who violates paragraph
        (1) shall be fined under this title, imprisoned for not more
        than 5 years, or both.
    ``(c) Whistleblower Protection.--The disclosure, delivery,
communication, or transmission of classified information by a covered
individual in accordance with a Federal whistleblower protection
statute or regulation applicable to the Federal agency of which the
covered individual is an officer, employee, contractor, or consultant
shall not be a violation of subsection (b)(1).
    ``(d) Rebuttable Presumption.--For purposes of this section, there
shall be a rebuttable presumption that information has been properly
classified if the information has been marked as classified information
in accordance with Executive Order 12958 (60 Fed. Reg. 19825) or a
successor or predecessor to the order.
    ``(e) Defense of Improper Classification.--The disclosure,
delivery, communication, or transmission of classified information by a
covered individual shall not violate subsection (b)(1) if the covered
individual proves by clear and convincing evidence that at the time the
information was originally classified, no reasonable person with
original classification authority under Executive Order 13292 (68 Fed.
Reg. 15315), or any successor order, could have identified or described
any damage to national security that reasonably could be expected to be
caused by the unauthorized disclosure of the information.
    ``(f) Extraterritorial Jurisdiction.--There is extraterritorial
jurisdiction over an offense under this section.''.
    (b) Technical and Conforming Amendment.--The table of sections for
chapter 93 of title 18, United States Code, is amended by adding at the
end the following:

``1925. Violation of classified information nondisclosure agreement.''.

SEC. 5. DIRECTIVE TO SENTENCING COMMISSION.

    (a) In General.--Pursuant to its authority under section 994 of
title 28, United States Code, and in accordance with this section, the
United States Sentencing Commission, shall review and, if appropriate,
amend the Federal Sentencing Guidelines and policy statements
applicable to a person convicted of an offense under section 1925 of
title 18, United States Code, as added by this Act.
    (b) Considerations.--In carrying out this section, the Sentencing
Commission shall ensure that the sentencing guidelines account for all
relevant conduct, including--
            (1) multiple instances of unauthorized disclosure,
        delivery, communication, or transmission of the classified
        information;
            (2) the volume of the classified information that was
        disclosed, delivered, communicated, or transmitted;
            (3) the classification level of the classified information;
            (4) the harm to the national security of the United States
        that reasonably could be expected to be caused by the
        disclosure, delivery, communication, or transmission of the
        classified information; and
            (5) the nature and manner in which the classified
        information was disclosed, delivered, communicated, or
        transmitted.
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