Espionage Statutes Modernization Act of 2011

(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.

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:

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.).

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:

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

(3) by adding at the end the following:

Chapter 93 of title 18, United States Code, is amended by adding at the end the following:

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.

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.

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

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).

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.

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.

There is extraterritorial jurisdiction over an offense under this section.

The table of sections for chapter 93 of title 18, United States Code, is amended by adding at the end the following:

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.

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.