S 355 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

S. 355CommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

February 15, 2011CommentsClose CommentsPermalink

Mr. CARDIN introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

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

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘The Espionage Statutes Modernization Act of 2011’.CommentsClose CommentsPermalink

SEC. 2. FINDINGS.

Congress finds the following:CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink





(7) Congress can deter unauthorized disclosures of classified information and thereby protect the national security by--CommentsClose CommentsPermalink





(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;CommentsClose CommentsPermalink





(B) promoting Federal whistleblower protection statutes and regulations to enable Government officers, employees, contractors, or consultants to report unlawful and improper conduct; andCommentsClose CommentsPermalink





(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.CommentsClose CommentsPermalink

SEC. 3. CRIMES.

(a) In General- Chapter 37 of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(1) in section 793--CommentsClose CommentsPermalink





(A) in the section heading, by striking ‘or losing defense information’ and inserting ‘or, losing national security information’;CommentsClose CommentsPermalink





(B) by striking ‘the national defense’ each place it appears and inserting ‘national security’;CommentsClose CommentsPermalink





(C) by striking ‘foreign nation’ each place it appears and inserting ‘foreign power’;CommentsClose CommentsPermalink





(D) in subsection (b), by inserting ‘classified information, or other’ before ‘sketch’;CommentsClose CommentsPermalink





(E) in subsection (c), by inserting ‘classified information, or other’ before ‘document’;CommentsClose CommentsPermalink





(F) in subsection (d), by inserting ‘classified information, or other’ before ‘document’;CommentsClose CommentsPermalink





(G) in subsection (e), by inserting ‘classified information, or other’ before ‘document’;CommentsClose CommentsPermalink





(H) in subsection (f), by inserting ‘classified information,’ before ‘document’; andCommentsClose CommentsPermalink





(I) in subsection (h)(1), by striking ‘foreign government’ and inserting ‘foreign power’;CommentsClose CommentsPermalink





(2) in section 794--CommentsClose CommentsPermalink





(A) in the section heading, by striking ‘Gathering’ and all that follows and inserting ‘Gathering or delivering national security information to aid foreign powers’; andCommentsClose CommentsPermalink





(B) in subsection (a)--CommentsClose CommentsPermalink





(i) by striking ‘foreign nation’ and inserting ‘foreign power’;CommentsClose CommentsPermalink





(ii) by striking ‘foreign government’ and inserting ‘foreign power’;CommentsClose CommentsPermalink





(iii) by inserting ‘classified information,’ before ‘document’;CommentsClose CommentsPermalink





(iv) by striking ‘the national defense’ and inserting ‘national security’; andCommentsClose CommentsPermalink





(v) by striking ‘(as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978)’;CommentsClose CommentsPermalink





(3) in section 795(a), by striking ‘national defense’ and inserting ‘national security’;CommentsClose CommentsPermalink





(4) in section 798--CommentsClose CommentsPermalink





(A) in subsection (a), by striking ‘foreign government’ each place it appears and inserting ‘foreign power’; andCommentsClose CommentsPermalink





(B) in subsection (b)--CommentsClose CommentsPermalink





(i) by striking the first undesignated paragraph (relating to the term ‘classified information’); andCommentsClose CommentsPermalink





(ii) by striking the third undesignated paragraph (relating to the term ‘foreign government’); andCommentsClose CommentsPermalink





(5) by adding at the end the following:CommentsClose CommentsPermalink

‘Sec. 800. Definitions

‘In this chapter--CommentsClose CommentsPermalink





‘(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.);CommentsClose CommentsPermalink





‘(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); andCommentsClose CommentsPermalink





‘(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.).’.CommentsClose CommentsPermalink





(b) Technical and Conforming Amendment- The table of section for chapter 37 of title 18, United States Code, is amended--CommentsClose CommentsPermalink





(1) by striking the item relating to section 793 and inserting the following:CommentsClose CommentsPermalink





‘793. Gathering, transmitting, or losing national security information.’;CommentsClose CommentsPermalink





(2) by striking the item relating to section 794 and inserting the following:CommentsClose CommentsPermalink





‘794. Gathering or delivering national security information to aid foreign powers.’;CommentsClose CommentsPermalink





andCommentsClose CommentsPermalink





(3) by adding at the end the following:CommentsClose CommentsPermalink





‘800. Definitions.’.CommentsClose CommentsPermalink

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:CommentsClose CommentsPermalink

‘Sec. 1925. Violation of classified information nondisclosure agreement

‘(a) Definitions- In this section--CommentsClose CommentsPermalink





‘(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.); andCommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(b) Offense-CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(2) PENALTY- A covered individual who violates paragraph (1) shall be fined under this title, imprisoned for not more than 5 years, or both.CommentsClose CommentsPermalink





‘(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).CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(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.CommentsClose CommentsPermalink





‘(f) Extraterritorial Jurisdiction- There is extraterritorial jurisdiction over an offense under this section.’.CommentsClose CommentsPermalink





(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:CommentsClose CommentsPermalink





‘1925. Violation of classified information nondisclosure agreement.’.CommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink





(b) Considerations- In carrying out this section, the Sentencing Commission shall ensure that the sentencing guidelines account for all relevant conduct, including--CommentsClose CommentsPermalink





(1) multiple instances of unauthorized disclosure, delivery, communication, or transmission of the classified information;CommentsClose CommentsPermalink





(2) the volume of the classified information that was disclosed, delivered, communicated, or transmitted;CommentsClose CommentsPermalink





(3) the classification level of the classified information;CommentsClose CommentsPermalink





(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; andCommentsClose CommentsPermalink





(5) the nature and manner in which the classified information was disclosed, delivered, communicated, or transmitted.CommentsClose CommentsPermalink