II 

112TH CONGRESS 

1ST SESSION S. 355 

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 

FEBRUARY 15, 2011 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘The Espionage Stat5 utes Modernization Act of 2011’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 


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1 (1) As of 2011, the statutory framework with 

2 respect to the espionage statutes is a compilation of 

3 statutes that began with the Act of June 15, 1917 

4 (40 Stat. 217, chapter 30) (commonly known as the 

5 ‘‘Espionage Act of 1917’’), which targeted classic es6 pionage cases involving persons working on behalf of 

7 foreign nations. 

8 (2) The statutory framework was formed at a 

9 time when intelligence and national security infor10 mation existed primarily in a tangible form, such as 

11 blueprints, photographs, maps, and other docu12 ments. 

13 (3) Since 1917, the United States has wit14 nessed dramatic changes in intelligence and national 

15 security information, including technological ad16 vances that have revolutionized information gath17 ering abilities as well as the mediums used to com18 municate such information. 

19 (4) Some of the terms used in the espionage 

20 statutes are obsolete and the statutes do not fully 

21 take into account the classification levels that apply 

22 to national security information in the 21st century. 

23 (5) In addition, the statutory framework was 

24 originally designed to address classic espionage cases 

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1 tions. However, the national security of the United 

2 States could be harmed, and lives may be put at 

3 risk, when a Government officer, employee, con4 tractor, or consultant with access to classified infor5 mation makes an unauthorized disclosure of the 

6 classified information, irrespective of whether the 

7 Government officer, employee, contractor, or consult8 ant intended to aid a foreign nation or harm the 

9 United States. 

10 (6) Federal whistleblower protection statutes 

11 and regulations that enable Government officers, 

12 employees, contractors, and consultants to report 

13 unlawful and improper conduct are appropriate 

14 mechanisms for reporting such conduct. 

15 (7) Congress can deter unauthorized disclosures 

16 of classified information and thereby protect the na17 tional security by— 

18 (A) enacting laws that improve, modernize, 

19 and clarify the espionage statutes and make the 

20 espionage statutes more relevant and effective 

21 in the 21st century in the prosecution of per22 sons working on behalf of foreign powers; 

23 (B) promoting Federal whistleblower pro24 tection statutes and regulations to enable Gov25 ernment officers, employees, contractors, or 


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1 consultants to report unlawful and improper 

2 conduct; and 

3 (C) enacting laws that separately punish 

4 the unauthorized disclosure of classified infor5 mation by Government officers, employees, con6 tractors, or consultants who knowingly and in7 tentionally violate a classified information non8 disclosure agreement, irrespective of whether 

9 the officers, employees, contractors, or consult10 ants intend to aid a foreign power or harm the 

11 United States. 

12 SEC. 3. CRIMES. 

13 (a) IN GENERAL.—Chapter 37 of title 18, United 

14 States Code, is amended— 

15 (1) in section 793— 

16 (A) in the section heading, by striking ‘‘or 

17 losing defense information’’ and insert18 ing ‘‘or, losing national security infor19 mation’’; 

20 (B) by striking ‘‘the national defense’’ 

21 each place it appears and inserting ‘‘national 

22 security’’; 

23 (C) by striking ‘‘foreign nation’’ each place 

24 it appears and inserting ‘‘foreign power’’; 


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1 (D) in subsection (b), by inserting ‘‘classi2 fied information, or other’’ before ‘‘sketch’’; 

3 (E) in subsection (c), by inserting ‘‘classi4 fied information, or other’’ before ‘‘document’’; 

5 (F) in subsection (d), by inserting ‘‘classi6 fied information, or other’’ before ‘‘document’’; 

7 (G) in subsection (e), by inserting ‘‘classi8 fied information, or other’’ before ‘‘document’’; 

9 (H) in subsection (f), by inserting ‘‘classi10 fied information,’’ before ‘‘document’’; and 

11 (I) in subsection (h)(1), by striking ‘‘for12 eign government’’ and inserting ‘‘foreign 

13 power’’; 

14 (2) in section 794— 

15 (A) in the section heading, by striking 

16 ‘‘Gathering’’ and all that follows and insert17 ing ‘‘Gathering or delivering national 

18 security information to aid foreign 

19 powers’’; and 

20 (B) in subsection (a)— 

21 (i) by striking ‘‘foreign nation’’ and 

22 inserting ‘‘foreign power’’; 

23 (ii) by striking ‘‘foreign government’’ 

24 and inserting ‘‘foreign power’’; 


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1 (iii) by inserting ‘‘classified informa2 tion,’’ before ‘‘document’’; 

3 (iv) by striking ‘‘the national defense’’ 

4 and inserting ‘‘national security’’; and 

5 (v) by striking ‘‘(as defined in section 

6 101(a) of the Foreign Intelligence Surveil7 lance Act of 1978)’’; 

8 (3) in section 795(a), by striking ‘‘national de9 fense’’ and inserting ‘‘national security’’; 

10 (4) in section 798— 

11 (A) in subsection (a), by striking ‘‘foreign 

12 government’’ each place it appears and insert13 ing ‘‘foreign power’’; and 

14 (B) in subsection (b)— 

15 (i) by striking the first undesignated 

16 paragraph (relating to the term ‘‘classified 

17 information’’); and 

18 (ii) by striking the third undesignated 

19 paragraph (relating to the term ‘‘foreign 

20 government’’); and 

21 (5) by adding at the end the following: 

22 ‘‘§ 800. Definitions 

23 ‘‘In this chapter— 


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1 ‘‘(1) the term ‘classified information’ has the 

2 meaning given the term in section 1 of the Classified 

3 Information Procedures Act (18 U.S.C. App.); 

4 ‘‘(2) the term ‘foreign power’ has the meaning 

5 given the term in section 101 of the Foreign Intel6 ligence Surveillance Act of 1978 (50 U.S.C. 1801); 

7 and 

8 ‘‘(3) the term ‘national security’ has the mean9 ing given the term in section 1 of the Classified In10 formation Procedures Act (18 U.S.C. App.).’’. 

11 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

12 The table of section for chapter 37 of title 18, United 

13 States Code, is amended— 

14 (1) by striking the item relating to section 793 

15 and inserting the following: 

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

16 (2) by striking the item relating to section 794 

17 and inserting the following: 

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

18 and 

19 (3) by adding at the end the following: 

‘‘800. Definitions.’’. 


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1 SEC. 4. VIOLATION OF CLASSIFIED INFORMATION NON2 DISCLOSURE AGREEMENT. 

3 (a) IN GENERAL.—Chapter 93 of title 18, United 

4 States Code, is amended by adding at the end the fol5 lowing: 

6 ‘‘§ 1925. Violation of classified information nondisclo7 sure agreement 

8 ‘‘(a) DEFINITIONS.—In this section— 

9 ‘‘(1) the term ‘classified information’ has the 

10 meaning given the term in section 1 of the Classified 

11 Information Procedures Act (18 U.S.C. App.); and 

12 ‘‘(2) the term ‘covered individual’ means an of13 ficer, employee, contractor, or consultant of an agen14 cy of the Federal Government who, by virtue of the 

15 office, employment, position, or contract held by the 

16 individual, knowingly and intentionally agrees to be 

17 legally bound by the terms of a classified informa18 tion nondisclosure agreement. 

19 ‘‘(b) OFFENSE.— 

20 ‘‘(1) IN GENERAL.—Except as otherwise pro21 vided in this section, it shall be unlawful for a cov22 ered individual to intentionally disclose, deliver, com23 municate, or transmit classified information, without 

24 the authorization of the head of the Federal agency, 

25 or an authorized designee, knowing or having reason 

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1 tion, or transmission of the classified information is 

2 a violation of the terms of the classified information 

3 nondisclosure agreement entered by the covered indi4 vidual. 

5 ‘‘(2) PENALTY.—A covered individual who vio6 lates paragraph (1) shall be fined under this title, 

7 imprisoned for not more than 5 years, or both. 

8 ‘‘(c) WHISTLEBLOWER PROTECTION.—The disclo9 sure, delivery, communication, or transmission of classi10 fied information by a covered individual in accordance 

11 with a Federal whistleblower protection statute or regula12 tion applicable to the Federal agency of which the covered 

13 individual is an officer, employee, contractor, or consultant 

14 shall not be a violation of subsection (b)(1). 

15 ‘‘(d) REBUTTABLE PRESUMPTION.—For purposes of 

16 this section, there shall be a rebuttable presumption that 

17 information has been properly classified if the information 

18 has been marked as classified information in accordance 

19 with Executive Order 12958 (60 Fed. Reg. 19825) or a 

20 successor or predecessor to the order. 

21 ‘‘(e) DEFENSE OF IMPROPER CLASSIFICATION.—The 

22 disclosure, delivery, communication, or transmission of 

23 classified information by a covered individual shall not vio24 late subsection (b)(1) if the covered individual proves by 

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1 mation was originally classified, no reasonable person with 

2 original classification authority under Executive Order 

3 13292 (68 Fed. Reg. 15315), or any successor order, 

4 could have identified or described any damage to national 

5 security that reasonably could be expected to be caused 

6 by the unauthorized disclosure of the information. 

7 ‘‘(f) EXTRATERRITORIAL JURISDICTION.—There is 

8 extraterritorial jurisdiction over an offense under this sec9 tion.’’. 

10 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

11 The table of sections for chapter 93 of title 18, United 

12 States Code, is amended by adding at the end the fol13 lowing: 

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

14 SEC. 5. DIRECTIVE TO SENTENCING COMMISSION. 

15 (a) IN GENERAL.—Pursuant to its authority under 

16 section 994 of title 28, United States Code, and in accord17 ance with this section, the United States Sentencing Com18 mission, shall review and, if appropriate, amend the Fed19 eral Sentencing Guidelines and policy statements applica20 ble to a person convicted of an offense under section 1925 

21 of title 18, United States Code, as added by this Act. 

22 (b) CONSIDERATIONS.—In carrying out this section, 

23 the Sentencing Commission shall ensure that the sen24 tencing guidelines account for all relevant conduct, includ25 ing— 


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1 (1) multiple instances of unauthorized disclo2 sure, delivery, communication, or transmission of the 

3 classified information; 

4 (2) the volume of the classified information that 

5 was disclosed, delivered, communicated, or trans6 mitted; 

7 (3) the classification level of the classified infor8 mation; 

9 (4) the harm to the national security of the 

10 United States that reasonably could be expected to 

11 be caused by the disclosure, delivery, communication, 

12 or transmission of the classified information; and 

13 (5) the nature and manner in which the classi14 fied information was disclosed, delivered, commu15 nicated, or transmitted. 

Æ 


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