S. 3402 — Introduced in Senate

II 116th CONGRESS 2d Session S. 3402 IN THE SENATE OF THE UNITED STATES March 5, 2020Mr. 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. 1. Short title This Act may be cited as the Espionage Act Reform Act of 2020. 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). . 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). . 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. 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.