1.This Act may be cited as
the The Espionage Statutes
Modernization Act of 2011
.
2.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.
3.
(a)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:
800.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 amendmentThe 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.
.
4.Violation of
classified information nondisclosure agreement
(a)Chapter 93 of title
18, United States Code, is amended by adding at the end the following:
1925.Violation of
classified information nondisclosure agreement
(a)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)
(1)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)A
covered individual who violates paragraph (1) shall be fined under this title,
imprisoned for not more than 5 years, or both.
(c)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)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 classificationThe 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
jurisdictionThere is extraterritorial jurisdiction over an
offense under this
section.
.
(b)Technical and
conforming amendmentThe 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.
.
5.Directive to
Sentencing Commission
(a)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)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.