II 

Calendar No. 255 

112TH CONGRESS 

1ST SESSION S. 678 

To increase the penalties for economic espionage. 

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 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 ‘‘Economic Espionage 

5 Penalty Enhancement Act’’. 


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1 SEC. 2. AMENDMENT TO TITLE 18. 

2 Section 1831(a) of title 18, United States Code, is 

3 amended by striking ‘‘15 years’’ and inserting ‘‘20 years’’. 

4 SEC. 3. DIRECTIVE TO SENTENCING COMMISSION. 

5 Pursuant to its authority under section 994(p) of title 

6 28, United States Code, the United States Sentencing 

7 Commission shall— 

8 (1) review its guidelines and policy relating to 

9 a two-level enhancement for economic espionage; and 

10 (2) as a part of such review consider amending 

11 such guidelines to— 

12 (A) apply the two-level enhancement to the 

13 simple misappropriation of a trade secret; 

14 (B) apply an additional two-level enhance15 ment if the defendant transmits or attempts to 

16 transmit the stolen trade secret outside of the 

17 United States and an additional three-level en18 hancement if the defendant instead commits 

19 economic espionage (i.e., he/she knew or in20 tended that the offense would benefit a foreign 

21 government, foreign instrumentality, or foreign 

22 agent); and 

23 (C) provide when a defendant transmits 

24 trade secrets outside of the United States or 

25 commits economic espionage, that the defend26 ant should face a minimum offense level. 


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1 SEC. 3. DIRECTIVE TO THE UNITED STATES SENTENCING 

2 COMMISSION. 

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

4 section 994(p) of title 28, United States Code, the United 

5 States Sentencing Commission shall review and, if appro6 priate, amend the Federal sentencing guidelines and policy 

7 statements applicable to persons convicted of offenses relat8 ing to the transmission or attempted transmission of a sto9 len trade secret outside of the United States or economic 

10 espionage, in order to reflect the intent of Congress that pen11 alties for such offenses under the Federal sentencing guide12 lines and policy statements appropriately, reflect the seri13 ousness of these offenses, account for the potential and ac14 tual harm caused by these offenses, and provide adequate 

15 deterrence against such offenses. 

16 (b) REQUIREMENTS.—In carrying out this section, the 

17 United States Sentencing Commission shalll 

18 (1) consider the extent to which the Federal sen19 tencing guidelines and policy statements appro20 priately account for the simple misappropriation of a 

21 trade secret, including the sufficiency of the existing 

22 enhancement for these offenses to address the serious23 ness of this conduct; 

24 (2) consider additional enhancements in the Fed25 eral sentencing guidelines and policy statements to 

26 account for— 


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1 (A) the transmission or attempted trans2 mission of a stolen trade secret outside of the 

3 United States; and 

4 (B) the transmission or attempted trans5 mission of a stolen trade secret outside of the 

6 United States that is committed or attempted to 

7 be committed for the benefit of a foreign govern8 ment, foreign instrumentality, or foreign agent; 

9 (3) consider establishing a minimum offense level 

10 under the Federal sentencing guidelines and policy 

11 statements for offenses relating to the transmission or 

12 attempted transmission of a stolen trade secret outside 

13 of the United States; 

14 (4) ensure the Federal sentencing guidelines and 

15 policy statements reflect the seriousness nature of 

16 these offenses and the need to deter such conduct; 

17 (5) ensure reasonable consistency with other rel18 evant directives, Federal sentencing guidelines and 

19 policy statements, and any Federal statutes; 

20 (6) make any necessary conforming changes to 

21 the Federal sentencing guidelines and policy state22 ments; and 

23 (7) ensure that the Federal sentencing guidelines 

24 adequately meet the purposes of sentencing as set 


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1 forth in section 3553(a)(2) of title 18, United States 

2 Code. 

3 (c) CONSULTATION.—In carrying out the review re4 quired under this section, the Commission shall consult 

5 with individuals or groups representing owners of trade se6 crets, law enforcement, victims of economic espionage of7 fenses, the United States Department of State, the United 

8 States Department of Homeland Security, and the United 

9 States Trade Representative. 

10 (d) REVIEW.—Not later than 180 days after the date 

11 of enactment of this Act, the Commission shall— 

12 (1) complete its consideration and review under 

13 this section; and 

14 (2) if it chooses not to adopt any of the specific 

15 recommendations made under this section, issue a re16 port explaining why it has not adopted the rec17 ommendations. 


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Calendar No. 255 

112TH CONGRESS 

1ST SESSION S. 678 

A BILL 

To increase the penalties for economic espionage. 

DECEMBER 8, 2011 

Reported with an amendment 


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