HEN20125 S.L.C. 116TH CONGRESS 2D SESSION S. ll 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 Mr. WYDEN llllllllll introduced the following bill; which was read twice and referred to the Committee on llllllllll 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. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE. This Act may be cited as the ‘‘Espionage Act Reform 5 Act of 2020’’. VY5 44 2K9 HEN20125 S.L.C. 2 1 SEC. 2. DISCLOSURE OF CLASSIFIED INFORMATION RE- 2 3 LATED TO SIGNALS INTELLIGENCE. (a) AUTHORITY TO DISCLOSE INFORMATION.—Sec- 4 tion 798(c) of title 18, United States Code, is amended 5 by striking ‘‘furnishing,’’ and all that follows and inserting 6 the following: ‘‘furnishing of information to— 7 8 9 10 ‘‘(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; 11 ‘‘(3) the inspector general of an element of the 12 intelligence community (as defined in section 3 of 13 the National Security Act of 1947 (50 U.S.C. 14 3003)), including the Inspector General of the Intel- 15 ligence Community; 16 ‘‘(4) the Chairman or a member of the Privacy 17 and Civil Liberties Oversight Board or any employee 18 of the Board designated by the Board, in accordance 19 with such procedures as the Board may establish; 20 ‘‘(5) the Chairman or a commissioner of the 21 Federal Trade Commission or any employee of the 22 Commission designated by the Commission, in ac- 23 cordance with such procedures as the Commission 24 may establish; 25 ‘‘(6) the Chairman or a commissioner of the 26 Federal Communications Commission or any emVY5 44 2K9 HEN20125 S.L.C. 3 1 ployee of the Commission designated by the Com- 2 mission, in accordance with such procedures as the 3 Commission may establish; or 4 ‘‘(7) any other person or entity authorized to 5 receive disclosures containing classified information 6 pursuant to any applicable law, regulation, or execu- 7 tive order regarding the protection of whistle- 8 blowers.’’. 9 (b) AUTHORIZED PERSONS.—Section 798(b) of title 10 18, United States Code, is amended— 11 (1) in the matter preceding the first undesig- 12 nated paragraph, by striking ‘‘this section—’’ and 13 inserting ‘‘this section:’’ 14 (2) by striking ‘‘The term ‘classified informa- 15 tion’ means information which, at the time of a vio- 16 lation of this section, is,’’ and inserting the fol- 17 lowing: 18 ‘‘(1) The term ‘classified information’— 19 ‘‘(A) means information which, at the time 20 of a violation of this section, is known to the 21 person violating this section to be,’’; 22 (3) in paragraph (1), as so designated— 23 24 (A) by inserting ‘‘and’’ after ‘‘distribution;’’; and 25 (B) by adding at the end the following: VY5 44 2K9 HEN20125 S.L.C. 4 1 ‘‘(B) does not include any information that 2 is specifically designated as ‘Unclassified’ under 3 any Executive Order, Act of Congress, or action 4 by a committee of Congress in accordance with 5 the rules of its House of Congress.’’; 6 (4) by striking ‘‘The terms ‘code,’ ‘cipher,’ and 7 ‘cryptographic system’ include’’ and inserting the 8 following: 9 10 ‘‘(2) The terms ‘code’, ‘cipher’, and ‘cryptographic system’ include’’; 11 (5) in paragraph (2), as so designated, by strik- 12 ing ‘‘communications;’’ and inserting ‘‘communica- 13 tions.’’; 14 15 (6) by striking ‘‘The term ‘foreign’’ and inserting the following: 16 ‘‘(5) The term ‘foreign’’; 17 (7) in paragraph (5), as so designated, by strik- 18 ing ‘‘United States;’’ and inserting ‘‘United States.’’; 19 (8) by striking ‘‘The term ‘communication’’ and 20 inserting the following: 21 ‘‘(3) The term ‘communication’’; 22 (9) in paragraph (3), as so designated, by strik- 23 ing ‘‘recipients;’’ and inserting ‘‘recipients.’’; VY5 44 2K9 HEN20125 S.L.C. 5 1 (10) by transferring paragraph (3), as so des- 2 ignated, to appear after paragraph (2), as so des- 3 ignated; and 4 (11) by striking ‘‘The term ‘unauthorized’’ and 5 all that follows through ‘‘for the United States.’’ and 6 inserting the following: 7 ‘‘(6) The term ‘unauthorized person’ means any 8 person who, or agency which, is not authorized to re- 9 ceive information of the categories set forth in sub- 10 section (a) of this section by— 11 ‘‘(A) the President; 12 ‘‘(B) the head of a department or agency 13 of the United States Government which is ex- 14 pressly designated by the President to engage 15 in communication intelligence activities for the 16 United States; or 17 18 ‘‘(C) an Act of Congress.’’. (c) SCOPE OF PROHIBITION.—Section 798 of title 18, 19 United States Code, is amended— 20 21 (1) in subsection (a), in the matter preceding paragraph (1)— 22 23 (A) by striking ‘‘Whoever’’ and inserting ‘‘Any individual who’’; and 24 (B) by inserting ‘‘obtained by the indi- 25 vidual while the individual was a covered person VY5 44 2K9 HEN20125 S.L.C. 6 1 and acting within the scope of his or her activi- 2 ties as a covered person’’ after ‘‘any classified 3 information’’; and 4 (2) in subsection (b), by inserting after para- 5 graph (3), as so designated and transferred by sub- 6 section (b) of this section, the following: 7 8 ‘‘(4) The term ‘covered person’ means an individual who— 9 ‘‘(A) receives official access to classified in- 10 formation granted by the United States Govern- 11 ment; 12 13 ‘‘(B) signs a nondisclosure agreement with regard to such classified information; and 14 ‘‘(C) is authorized to receive information of 15 the categories set forth in subsection (a) of this 16 section— 17 ‘‘(i) by the President; or 18 ‘‘(ii) the head of a department or 19 agency of the United States Government 20 which is expressly designated by the Presi- 21 dent to engage in communication intel- 22 ligence activities for the United States.’’. 23 (d) LIMITATION ON SCOPE.—Section 798 of title 18, 24 United States Code, is amended— VY5 44 2K9 HEN20125 S.L.C. 7 1 2 3 (1) by redesignating subsection (d) as subsection (e); and (2) by inserting after subsection (c) the fol- 4 lowing: 5 ‘‘(d)(1) In this subsection, the term ‘foreign agent’— 6 ‘‘(A) has the meaning given the term ‘agent of 7 a foreign power’ under section 101 of the Foreign 8 Intelligence Surveillance Act of 1978 (50 U.S.C. 9 1801); and 10 ‘‘(B) does not include a person who is an agent 11 of a foreign power (as so defined) with respect to a 12 foreign power described in section 101(a)(5) of the 13 Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1801(a)(5)). 15 ‘‘(2) A foreign agent who— 16 ‘‘(A) aids, abets, counsels, commands, induces, 17 or procures the commission of an offense under this 18 section shall be subject to prosecution under this 19 section by virtue of section 2 of this title; 20 ‘‘(B) knowing that an offense under this section 21 has been committed by another person, receives, re- 22 lieves, comforts, or assists such other person in 23 order to hinder or prevent the apprehension, trial, or 24 punishment of such other person shall be subject to 25 prosecution under section 3 of this title; VY5 44 2K9 HEN20125 S.L.C. 8 1 ‘‘(C) having knowledge of the actual commis- 2 sion of an offense under this section, conceals and 3 does not as soon as possible make known the same 4 to some judge or other person in civil or military au- 5 thority under the United States shall be subject to 6 prosecution under section 4 of this title; or 7 ‘‘(D) conspires to commit an offense under this 8 section shall be subject to prosecution under section 9 371 of this title. 10 ‘‘(3) Any person who is not a foreign agent shall not 11 be subject to prosecution under this section by virtue of 12 section 2 of this title or under section 3, 4, or 371 of this 13 title, unless the person— 14 ‘‘(A) commits a felony under Federal law in the 15 course of committing an offense under this section 16 (by virtue of section 2 of this title) or under section 17 3, 4, or 371 of this title; 18 19 ‘‘(B) was a covered person at the time of the offense; or 20 ‘‘(C) subject to paragraph (4), directly and ma- 21 terially aids, or procures in exchange for anything of 22 monetary value, the commission of an offense under 23 this section with the specific intent to— 24 25 ‘‘(i) harm the national security of the United States; or VY5 44 2K9 HEN20125 S.L.C. 9 1 ‘‘(ii) benefit any foreign government to the 2 3 detriment of the United States. ‘‘(4) Paragraph (3)(C) shall not apply to direct and 4 material aid that consists of— 5 6 ‘‘(A) counseling, education, or other speech activity; or 7 ‘‘(B) providing an electronic communication 8 service to the public or a remote computing service 9 (as such terms are defined in section 2510 and 10 11 2711, respectively).’’. SEC. 3. GATHERING, TRANSMITTING OR LOSING DEFENSE 12 13 INFORMATION. (a) DEFINITIONS.—Section 793 of title 18, United 14 States Code, is amended by adding at the end the fol15 lowing: 16 17 18 ‘‘(i) In this section— ‘‘(1) the term ‘covered person’ means an individual who— 19 ‘‘(A) receives official access to classified in- 20 formation granted by the United States Govern- 21 ment; 22 23 ‘‘(B) signs a nondisclosure agreement with regard to such classified information; and 24 ‘‘(C) is authorized to receive documents, 25 writings, code books, signal books, sketches, VY5 44 2K9 HEN20125 S.L.C. 10 1 photographs, 2 prints, plans, maps, models, instruments, appli- 3 ances, or notes of anything connected with the 4 national defense by— photographic negatives, blue- 5 ‘‘(i) by the President; or 6 ‘‘(ii) the head of a department or 7 agency of the United States Government 8 which is expressly designated by the Presi- 9 dent to engage in activities relating to the 10 national defense; and 11 ‘‘(2) the term ‘foreign agent’— 12 ‘‘(A) has the meaning given the term 13 ‘agent of a foreign power’ under section 101 of 14 the Foreign Intelligence Surveillance Act of 15 1978 (50 U.S.C. 1801); and 16 ‘‘(B) does not include a person who is an 17 agent of a foreign power (as so defined) with 18 respect to a foreign power described in section 19 101(a)(5) of the Foreign Intelligence Surveil- 20 lance Act of 1978 (50 U.S.C. 1801(a)(5)).’’. 21 22 (b) OBTAINING TION.—Section OR RECEIVING DEFENSE INFORMA- 793(c) of title 18, United States Code, is 23 amended— 24 25 (1) by striking ‘‘Whoever’’ and inserting ‘‘A foreign agent who’’; VY5 44 2K9 HEN20125 S.L.C. 11 1 2 (2) by inserting ‘‘and with like intent or reason to believe,’’ after ‘‘aforesaid,’’; and 3 (3) by striking ‘‘he’’ and inserting ‘‘the foreign 4 agent’’. 5 (c) TRANSMISSION 6 FENSE INFORMATION LAWFULLY POSSESSED DE- OF TO UNAUTHORIZED PERSONS.— 7 Section 793(d) of title 18, United States Code, is amended 8 by striking ‘‘or note relating to the national defense, or 9 information relating to the national defense which infor10 mation’’ and inserting ‘‘note, or information relating to 11 the national defense, which document, writing, code book, 12 signal book, sketch, photograph, photographic negative, 13 blueprint, plan, map, model, instrument, appliance, note, 14 or information’’. 15 (d) TRANSMISSION 16 DEFENSE INFORMATION OF TO UNLAWFULLY POSSESSED UNAUTHORIZED PERSONS.— 17 Section 793(e) of title 18, United States Code, is amended 18 to read as follows: 19 ‘‘(e) An individual who— 20 ‘‘(1) while a covered person, gains unauthorized 21 possession of, access to, or control over any non- 22 public document, writing, code book, signal book, 23 sketch, photograph, photographic negative, blue- 24 print, plan, map, model, instrument, appliance, or VY5 44 2K9 HEN20125 S.L.C. 12 1 note of anything connected with the national de- 2 fense; and 3 ‘‘(2)(A) with reason to believe such information 4 could be used to the injury of the United States or 5 to the advantage of any foreign nation, willfully com- 6 municates, delivers, transmits, or causes to be com- 7 municated, delivered, or transmitted, or attempts to 8 communicate, deliver, transmit, or cause to be com- 9 municated, delivered, or transmitted, the same to 10 any person not entitled to receive it; or 11 ‘‘(B) willfully— 12 ‘‘(i) retains the same at an unauthorized 13 location; and 14 ‘‘(ii) fails to deliver the same to the officer 15 or employee of the United States entitled to re- 16 ceive it; or’’. 17 18 (e) OBTAINING INFORMATION FROM PLACES CONNECTED WITH THE NATIONAL DEFENSE.—Section 19 793(a) of title 18, United States Code, is amended by 20 striking ‘‘otherwise obtains information concerning’’ and 21 inserting ‘‘otherwise unlawfully obtains nonpublic infor22 mation concerning’’. 23 24 (f) COPYING TION.—Section 25 amended— VY5 44 2K9 AND TAKING DEFENSE INFORMA- 793(b) of title 18, United States Code, is HEN20125 S.L.C. 13 1 2 3 4 (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, 5 United States Code, is amended by striking subsection (g) 6 and inserting the following: 7 ‘‘(g)(1) A foreign agent who— 8 ‘‘(A) aids, abets, counsels, commands, induces, 9 or procures the commission of an offense under this 10 section shall be subject to prosecution under this 11 section by virtue of section 2 of this title; 12 ‘‘(B) knowing that an offense under this section 13 has been committed by another person, receives, re- 14 lieves, comforts, or assists such other person in 15 order to hinder or prevent the apprehension, trial, or 16 punishment of such other person shall be subject to 17 prosecution under section 3 of this title; 18 ‘‘(C) having knowledge of the actual commis- 19 sion of an offense under this section, conceals and 20 does not as soon as possible make known the same 21 to some judge or other person in civil or military au- 22 thority under the United States shall be subject to 23 prosecution under section 4 of this title; or VY5 44 2K9 HEN20125 S.L.C. 14 1 ‘‘(D) conspires to commit an offense under this 2 section shall be subject to prosecution under section 3 371 of this title. 4 ‘‘(2) Any person who is not a foreign agent shall not 5 be subject to prosecution under this section by virtue of 6 section 2 of this title or under section 3, 4, or 371 of this 7 title, unless the person— 8 ‘‘(A) commits a felony under Federal law in the 9 course of committing an offense under this section 10 (by virtue of section 2 of this title) or under section 11 3, 4, or 371 of this title; 12 13 ‘‘(B) was a covered person at the time of the offense; or 14 ‘‘(C) subject to paragraph (3), directly and ma- 15 terially aids, or procures in exchange for anything of 16 monetary value, the commission of an offense under 17 this section with the specific intent to— 18 19 ‘‘(i) harm the national security of the United States; or 20 21 22 ‘‘(ii) benefit any foreign government to the detriment of the United States. ‘‘(3) Paragraph (2)(C) shall not apply to direct and 23 material aid that consists of— 24 25 ‘‘(A) counseling, education, or other speech activity; or VY5 44 2K9 HEN20125 S.L.C. 15 1 ‘‘(B) providing an electronic communication 2 service to the public or a remote computing service 3 (as such terms are defined in section 2510 and 4 2711, respectively).’’. 5 6 SEC. 4. PUBLIC MONEY, PROPERTY OR RECORDS. Section 641 of title 18, United States Code, is 7 amended in the first undesignated paragraph by inserting 8 ‘‘tangible’’ before ‘‘thing of value’’. 9 10 SEC. 5. RULE OF CONSTRUCTION. Nothing in section 793 or 798 of title 18, United 11 States Code, shall be construed to supersede or limit the 12 protections under the speech or debate clause of the Con13 stitution of the United States. VY5 44 2K9