II Calendar No. 255 112th CONGRESS 1st Session S. 678 IN THE SENATE OF THE UNITED STATES March 30, 2011 Mr. Kohl (for himself, Mr. Whitehouse, Mr. Coons, Mr. Blumenthal, Mr. Graham, Mr. Kyl, Mr. Coburn, Mrs. Feinstein, and Ms. Klobuchar) introduced the following bill; which was read twice and referred to the Committee on the Judiciary December 8, 2011 Reported by Mr. Leahy, with an amendment Omit the part struck through and insert the part printed in italic A BILL To increase the penalties for economic espionage.

1.

Short title

This Act may be cited as the Economic Espionage Penalty Enhancement Act.

2.

Amendment to title 18

Section 1831(a) of title 18, United States Code, is amended by striking 15 years and inserting 20 years.

3.

Directive to Sentencing Commission

Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall— (1)review its guidelines and policy relating to a two-level enhancement for economic espionage; and (2)as a part of such review consider amending such guidelines to— (A)apply the two-level enhancement to the simple misappropriation of a trade secret; (B)apply an additional two-level enhancement if the defendant transmits or attempts to transmit the stolen trade secret outside of the United States and an additional three-level enhancement if the defendant instead commits economic espionage (i.e., he/she knew or intended that the offense would benefit a foreign government, foreign instrumentality, or foreign agent); and (C)provide when a defendant transmits trade secrets outside of the United States or commits economic espionage, that the defendant should face a minimum offense level.

3.

Directive to the United States Sentencing Commission

(a)

In general

Pursuant to its authority under section 994(p) of title 28, United States Code, the United States Sentencing Commission shall review and, if appropriate, amend the Federal sentencing guidelines and policy statements applicable to persons convicted of offenses relating to the transmission or attempted transmission of a stolen trade secret outside of the United States or economic espionage, in order to reflect the intent of Congress that penalties for such offenses under the Federal sentencing guidelines and policy statements appropriately, reflect the seriousness of these offenses, account for the potential and actual harm caused by these offenses, and provide adequate deterrence against such offenses. (b)

Requirements

In carrying out this section, the United States Sentencing Commission shall― (1)consider the extent to which the Federal sentencing guidelines and policy statements appropriately account for the simple misappropriation of a trade secret, including the sufficiency of the existing enhancement for these offenses to address the seriousness of this conduct; (2)consider additional enhancements in the Federal sentencing guidelines and policy statements to account for— (A)the transmission or attempted transmission of a stolen trade secret outside of the United States; and (B)the transmission or attempted transmission of a stolen trade secret outside of the United States that is committed or attempted to be committed for the benefit of a foreign government, foreign instrumentality, or foreign agent; (3)consider establishing a minimum offense level under the Federal sentencing guidelines and policy statements for offenses relating to the transmission or attempted transmission of a stolen trade secret outside of the United States; (4)ensure the Federal sentencing guidelines and policy statements reflect the seriousness nature of these offenses and the need to deter such conduct; (5)ensure reasonable consistency with other relevant directives, Federal sentencing guidelines and policy statements, and any Federal statutes; (6)make any necessary conforming changes to the Federal sentencing guidelines and policy statements; and (7)ensure that the Federal sentencing guidelines adequately meet the purposes of sentencing as set forth in section 3553(a)(2) of title 18, United States Code. (c)

Consultation

In carrying out the review required under this section, the Commission shall consult with individuals or groups representing owners of trade secrets, law enforcement, victims of economic espionage offenses, the United States Department of State, the United States Department of Homeland Security, and the United States Trade Representative. (d)

Review

Not later than 180 days after the date of enactment of this Act, the Commission shall— (1)complete its consideration and review under this section; and (2)if it chooses not to adopt any of the specific recommendations made under this section, issue a report explaining why it has not adopted the recommendations.

December 8, 2011 Reported with an amendment