Title: Espionage Act Reform Act of 2020
Policy area: Armed Forces and National Security

Summary:
Espionage Act Reform Act of 2020
This bill limits the scope of certain criminal offenses relating to classified information.
Under the bill, the offense of disclosing classified information to an unauthorized person may be committed only by an individual who is authorized to receive the classified information and has signed a nondisclosure agreement regarding such classified information (i.e., a covered person), whereas under current law any individual may be charged with this offense. Under the bill, this offense shall not apply to disclosures of information to any Member of Congress, a federal court, an inspector general in the intelligence community, or certain bodies such as the Federal Trade Commission.
Similarly, under the bill, certain offenses related to gathering, transmitting, or losing defense information may be committed only by a covered person or a foreign agent, whereas currently such offenses may be committed by any person. Under the bill, an individual who is not a foreign agent may not be criminally charged for such offenses unless the individual meets certain requirements, such as having committed a felony under federal law in the course of committing the offense.
An offense related to obtaining and copying a document connected with the national defense shall apply only to an unlawfully obtained nonpublic document, whereas the current statute does not limit the scope of this offense to such documents.
An offense related to dispensing certain public property of value shall apply only to tangible things, whereas the current statute does not limit the scope of this offense to tangible things.

[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3402 Introduced in Senate (IS)]

<DOC>






116th CONGRESS
  2d Session
                                S. 3402

   To amend chapter 37 of title 18, United States Code, to authorize 
  appropriate disclosure of classified information, to appropriately 
 limit the scope of the offense of disclosing classified information, 
                        and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             March 5, 2020

   Mr. Wyden introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
   To amend chapter 37 of title 18, United States Code, to authorize 
  appropriate disclosure of classified information, to appropriately 
 limit the scope of the offense of disclosing classified information, 
                        and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Espionage Act Reform Act of 2020''.

SEC. 2. DISCLOSURE OF CLASSIFIED INFORMATION RELATED TO SIGNALS 
              INTELLIGENCE.

    (a) Authority To Disclose Information.--Section 798(c) of title 18, 
United States Code, is amended by striking ``furnishing,'' and all that 
follows and inserting the following: ``furnishing of information to--
            ``(1) any Member of the Senate or the House of 
        Representatives;
            ``(2) a Federal court, in accordance with such procedures 
        as the court may establish;
            ``(3) the inspector general of an element of the 
        intelligence community (as defined in section 3 of the National 
        Security Act of 1947 (50 U.S.C. 3003)), including the Inspector 
        General of the Intelligence Community;
            ``(4) the Chairman or a member of the Privacy and Civil 
        Liberties Oversight Board or any employee of the Board 
        designated by the Board, in accordance with such procedures as 
        the Board may establish;
            ``(5) the Chairman or a commissioner of the Federal Trade 
        Commission or any employee of the Commission designated by the 
        Commission, in accordance with such procedures as the 
        Commission may establish;
            ``(6) the Chairman or a commissioner of the Federal 
        Communications Commission or any employee of the Commission 
        designated by the Commission, in accordance with such 
        procedures as the Commission may establish; or
            ``(7) any other person or entity authorized to receive 
        disclosures containing classified information pursuant to any 
        applicable law, regulation, or executive order regarding the 
        protection of whistleblowers.''.
    (b) Authorized Persons.--Section 798(b) of title 18, United States 
Code, is amended--
            (1) in the matter preceding the first undesignated 
        paragraph, by striking ``this section--'' and inserting ``this 
        section:''
            (2) by striking ``The term `classified information' means 
        information which, at the time of a violation of this section, 
        is,'' and inserting the following:
            ``(1) The term `classified information'--
                    ``(A) means information which, at the time of a 
                violation of this section, is known to the person 
                violating this section to be,'';
            (3) in paragraph (1), as so designated--
                    (A) by inserting ``and'' after ``distribution;''; 
                and
                    (B) by adding at the end the following:
                    ``(B) does not include any information that is 
                specifically designated as `Unclassified' under any 
                Executive Order, Act of Congress, or action by a 
                committee of Congress in accordance with the rules of 
                its House of Congress.'';
            (4) by striking ``The terms `code,' `cipher,' and 
        `cryptographic system' include'' and inserting the following:
            ``(2) The terms `code', `cipher', and `cryptographic 
        system' include'';
            (5) in paragraph (2), as so designated, by striking 
        ``communications;'' and inserting ``communications.'';
            (6) by striking ``The term `foreign'' and inserting the 
        following:
            ``(5) The term `foreign'';
            (7) in paragraph (5), as so designated, by striking 
        ``United States;'' and inserting ``United States.'';
            (8) by striking ``The term `communication'' and inserting 
        the following:
            ``(3) The term `communication'';
            (9) in paragraph (3), as so designated, by striking 
        ``recipients;'' and inserting ``recipients.'';
            (10) by transferring paragraph (3), as so designated, to 
        appear after paragraph (2), as so designated; and
            (11) by striking ``The term `unauthorized'' and all that 
        follows through ``for the United States.'' and inserting the 
        following:
            ``(6) The term `unauthorized person' means any person who, 
        or agency which, is not authorized to receive information of 
        the categories set forth in subsection (a) of this section by--
                    ``(A) the President;
                    ``(B) the head of a department or agency of the 
                United States Government which is expressly designated 
                by the President to engage in communication 
                intelligence activities for the United States; or
                    ``(C) an Act of Congress.''.
    (c) Scope of Prohibition.--Section 798 of title 18, United States 
Code, is amended--
            (1) in subsection (a), in the matter preceding paragraph 
        (1)--
                    (A) by striking ``Whoever'' and inserting ``Any 
                individual who''; and
                    (B) by inserting ``obtained by the individual while 
                the individual was a covered person and acting within 
                the scope of his or her activities as a covered 
                person'' after ``any classified information''; and
            (2) in subsection (b), by inserting after paragraph (3), as 
        so designated and transferred by subsection (b) of this 
        section, the following:
            ``(4) The term `covered person' means an individual who--
                    ``(A) receives official access to classified 
                information granted by the United States Government;
                    ``(B) signs a nondisclosure agreement with regard 
                to such classified information; and
                    ``(C) is authorized to receive information of the 
                categories set forth in subsection (a) of this 
                section--
                            ``(i) by the President; or
                            ``(ii) the head of a department or agency 
                        of the United States Government which is 
                        expressly designated by the President to engage 
                        in communication intelligence activities for 
                        the United States.''.
    (d) Limitation on Scope.--Section 798 of title 18, United States 
Code, is amended--
            (1) by redesignating subsection (d) as subsection (e); and
            (2) by inserting after subsection (c) the following:
    ``(d)(1) In this subsection, the term `foreign agent'--
            ``(A) has the meaning given the term `agent of a foreign 
        power' under section 101 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801); and
            ``(B) does not include a person who is an agent of a 
        foreign power (as so defined) with respect to a foreign power 
        described in section 101(a)(5) of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801(a)(5)).
    ``(2) A foreign agent who--
            ``(A) aids, abets, counsels, commands, induces, or procures 
        the commission of an offense under this section shall be 
        subject to prosecution under this section by virtue of section 
        2 of this title;
            ``(B) knowing that an offense under this section has been 
        committed by another person, receives, relieves, comforts, or 
        assists such other person in order to hinder or prevent the 
        apprehension, trial, or punishment of such other person shall 
        be subject to prosecution under section 3 of this title;
            ``(C) having knowledge of the actual commission of an 
        offense under this section, conceals and does not as soon as 
        possible make known the same to some judge or other person in 
        civil or military authority under the United States shall be 
        subject to prosecution under section 4 of this title; or
            ``(D) conspires to commit an offense under this section 
        shall be subject to prosecution under section 371 of this 
        title.
    ``(3) Any person who is not a foreign agent shall not be subject to 
prosecution under this section by virtue of section 2 of this title or 
under section 3, 4, or 371 of this title, unless the person--
            ``(A) commits a felony under Federal law in the course of 
        committing an offense under this section (by virtue of section 
        2 of this title) or under section 3, 4, or 371 of this title;
            ``(B) was a covered person at the time of the offense; or
            ``(C) subject to paragraph (4), directly and materially 
        aids, or procures in exchange for anything of monetary value, 
        the commission of an offense under this section with the 
        specific intent to--
                    ``(i) harm the national security of the United 
                States; or
                    ``(ii) benefit any foreign government to the 
                detriment of the United States.
    ``(4) Paragraph (3)(C) shall not apply to direct and material aid 
that consists of--
            ``(A) counseling, education, or other speech activity; or
            ``(B) providing an electronic communication service to the 
        public or a remote computing service (as such terms are defined 
        in section 2510 and 2711, respectively).''.

SEC. 3. GATHERING, TRANSMITTING, OR LOSING DEFENSE INFORMATION.

    (a) Definitions.--Section 793 of title 18, United States Code, is 
amended by adding at the end the following:
    ``(i) In this section--
            ``(1) the term `covered person' means an individual who--
                    ``(A) receives official access to classified 
                information granted by the United States Government;
                    ``(B) signs a nondisclosure agreement with regard 
                to such classified information; and
                    ``(C) is authorized to receive documents, writings, 
                code books, signal books, sketches, photographs, 
                photographic negatives, blueprints, plans, maps, 
                models, instruments, appliances, or notes of anything 
                connected with the national defense by--
                            ``(i) the President; or
                            ``(ii) the head of a department or agency 
                        of the United States Government which is 
                        expressly designated by the President to engage 
                        in activities relating to the national defense; 
                        and
            ``(2) the term `foreign agent'--
                    ``(A) has the meaning given the term `agent of a 
                foreign power' under section 101 of the Foreign 
                Intelligence Surveillance Act of 1978 (50 U.S.C. 1801); 
                and
                    ``(B) does not include a person who is an agent of 
                a foreign power (as so defined) with respect to a 
                foreign power described in section 101(a)(5) of the 
                Foreign Intelligence Surveillance Act of 1978 (50 
                U.S.C. 1801(a)(5)).''.
    (b) Obtaining or Receiving Defense Information.--Section 793(c) of 
title 18, United States Code, is amended--
            (1) by striking ``Whoever'' and inserting ``A foreign agent 
        who'';
            (2) by inserting ``and with like intent or reason to 
        believe,'' after ``aforesaid,''; and
            (3) by striking ``he'' and inserting ``the foreign agent''.
    (c) Transmission of Lawfully Possessed Defense Information to 
Unauthorized Persons.--Section 793(d) of title 18, United States Code, 
is amended by striking ``or note relating to the national defense, or 
information relating to the national defense which information'' and 
inserting ``note, or information relating to the national defense, 
which document, writing, code book, signal book, sketch, photograph, 
photographic negative, blueprint, plan, map, model, instrument, 
appliance, note, or information''.
    (d) Transmission of Unlawfully Possessed Defense Information to 
Unauthorized Persons.--Section 793(e) of title 18, United States Code, 
is amended to read as follows:
    ``(e) An individual who--
            ``(1) while a covered person, gains unauthorized possession 
        of, access to, or control over any nonpublic document, writing, 
        code book, signal book, sketch, photograph, photographic 
        negative, blueprint, plan, map, model, instrument, appliance, 
        or note of anything connected with the national defense; and
            ``(2)(A) with reason to believe such information could be 
        used to the injury of the United States or to the advantage of 
        any foreign nation, willfully communicates, delivers, 
        transmits, or causes to be communicated, delivered, or 
        transmitted, or attempts to communicate, deliver, transmit, or 
        cause to be communicated, delivered, or transmitted, the same 
        to any person not entitled to receive it; or
            ``(B) willfully--
                    ``(i) retains the same at an unauthorized location; 
                and
                    ``(ii) fails to deliver the same to the officer or 
                employee of the United States entitled to receive it; 
                or''.
    (e) Obtaining Information From Places Connected With the National 
Defense.--Section 793(a) of title 18, United States Code, is amended by 
striking ``otherwise obtains information concerning'' and inserting 
``otherwise unlawfully obtains nonpublic information concerning''.
    (f) Copying and Taking Defense Information.--Section 793(b) of 
title 18, United States Code, is amended--
            (1) by striking ``Whoever,'' and inserting ``An individual 
        who, while a covered person,''; and
            (2) by inserting ``nonpublic'' before ``sketch,''.
    (g) Limitation on Scope.--Section 793 of title 18, United States 
Code, is amended by striking subsection (g) and inserting the 
following:
    ``(g)(1) A foreign agent who--
            ``(A) aids, abets, counsels, commands, induces, or procures 
        the commission of an offense under this section shall be 
        subject to prosecution under this section by virtue of section 
        2 of this title;
            ``(B) knowing that an offense under this section has been 
        committed by another person, receives, relieves, comforts, or 
        assists such other person in order to hinder or prevent the 
        apprehension, trial, or punishment of such other person shall 
        be subject to prosecution under section 3 of this title;
            ``(C) having knowledge of the actual commission of an 
        offense under this section, conceals and does not as soon as 
        possible make known the same to some judge or other person in 
        civil or military authority under the United States shall be 
        subject to prosecution under section 4 of this title; or
            ``(D) conspires to commit an offense under this section 
        shall be subject to prosecution under section 371 of this 
        title.
    ``(2) Any person who is not a foreign agent shall not be subject to 
prosecution under this section by virtue of section 2 of this title or 
under section 3, 4, or 371 of this title, unless the person--
            ``(A) commits a felony under Federal law in the course of 
        committing an offense under this section (by virtue of section 
        2 of this title) or under section 3, 4, or 371 of this title;
            ``(B) was a covered person at the time of the offense; or
            ``(C) subject to paragraph (3), directly and materially 
        aids, or procures in exchange for anything of monetary value, 
        the commission of an offense under this section with the 
        specific intent to--
                    ``(i) harm the national security of the United 
                States; or
                    ``(ii) benefit any foreign government to the 
                detriment of the United States.
    ``(3) Paragraph (2)(C) shall not apply to direct and material aid 
that consists of--
            ``(A) counseling, education, or other speech activity; or
            ``(B) providing an electronic communication service to the 
        public or a remote computing service (as such terms are defined 
        in section 2510 and 2711, respectively).''.

SEC. 4. PUBLIC MONEY, PROPERTY, OR RECORDS.

    Section 641 of title 18, United States Code, is amended in the 
first undesignated paragraph by inserting ``tangible'' before ``thing 
of value''.

SEC. 5. RULE OF CONSTRUCTION.

    Nothing in section 793 or 798 of title 18, United States Code, 
shall be construed to supersede or limit the protections under the 
speech or debate clause of the Constitution of the United States.
                                 <all>