[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 4051 Introduced in Senate (IS)]

111th CONGRESS
  2d Session
                                S. 4051

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

                           December 21, 2010

  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 2010''.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) As of 2010, the statutory framework with respect to the 
        espionage statutes is a compilation of statutes that began with 
        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 jurisdiction over an 
offense under this section if--
            ``(1) the offense occurs in whole or in part within the 
        United States;
            ``(2) regardless of where the offense is committed, the 
        alleged offender is--
                    ``(A) a national of the United States (as defined 
                in section 101(a) of the Immigration and Nationality 
                Act (8 U.S.C. 1101(a)));
                    ``(B) an alien lawfully admitted for permanent 
                residence in the United States (as defined in section 
                101(a) of the Immigration and Nationality Act (8 U.S.C. 
                1101(a))); or
                    ``(C) a stateless person whose habitual residence 
                is in the United States;
            ``(3) after the offense occurs, the offender is brought 
        into or found in the United States, even if the conduct 
        required for the offense occurs outside the United States; or
            ``(4) an offender aids or abets or conspires with any 
        person over whom jurisdiction exists under this paragraph in 
        committing an offense under subsection (b)(1).''.
    (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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