text: SECTION 1. SHORT TITLE.
  
      This Act may be cited as the ``The Espionage Statutes Modernization 
  Act of 2010''.
  
  SEC. 2. FINDINGS.
  
      Congress finds the following:
              (1) As of 2010, the statutory framework with respect to the 
          espionage statutes is a compilation of statutes that began with 
          Act of June 15, 1917 (40 Stat. 217, chapter 30) (commonly known 
          as the ``Espionage Act of 1917''), which targeted classic 
          espionage cases involving persons working on behalf of foreign 
          nations.
              (2) The statutory framework was formed at a time when 
          intelligence and national security information existed 
          primarily in a tangible form, such as blueprints, photographs, 
          maps, and other documents.
              (3) Since 1917, the United States has witnessed dramatic 
          changes in intelligence and national security information, 
          including technological advances that have revolutionized 
          information gathering abilities as well as the mediums used to 
          communicate such information.
              (4) Some of the terms used in the espionage statutes are 
          obsolete and the statutes do not fully take into account the 
          classification levels that apply to national security 
          information in the 21st century.
              (5) In addition, the statutory framework was originally 
          designed to address classic espionage cases involving persons 
          working on behalf of foreign nations. However, the national 
          security of the United States could be harmed, and lives may be 
          put at risk, when a Government officer, employee, contractor, 
          or consultant with access to classified information makes an 
          unauthorized disclosure of the classified information, 
          irrespective of whether the Government officer, employee, 
          contractor, or consultant intended to aid a foreign nation or 
          harm the United States.
              (6) Federal whistleblower protection statutes and 
          regulations that enable Government officers, employees, 
          contractors, and consultants to report unlawful and improper 
          conduct are appropriate mechanisms for reporting such conduct.
              (7) Congress can deter unauthorized disclosures of 
          classified information and thereby protect the national 
          security by--
                      (A) enacting laws that improve, modernize, and 
                  clarify the espionage statutes and make the espionage 
                  statutes more relevant and effective in the 21st 
                  century in the prosecution of persons working on behalf 
                  of foreign powers;
                      (B) promoting Federal whistleblower protection 
                  statutes and regulations to enable Government officers, 
                  employees, contractors, or consultants to report 
                  unlawful and improper conduct; and
                      (C) enacting laws that separately punish the 
                  unauthorized disclosure of classified information by 
                  Government officers, employees, contractors, or 
                  consultants who knowingly and intentionally violate a 
                  classified information nondisclosure agreement, 
                  irrespective of whether the officers, employees, 
                  contractors, or consultants intend to aid a foreign 
                  power or harm the United States.
  
  SEC. 3. CRIMES.
  
      (a) In General.--Chapter 37 of title 18, United States Code, is 
  amended--
              (1) in section 793--
                      (A) in the section heading, by striking ``or losing 
                  defense information'' and inserting ``or, losing 
                  national security information'';
                      (B) by striking ``the national defense'' each place 
                  it appears and inserting ``national security'';
                      (C) by striking ``foreign nation'' each place it 
                  appears and inserting ``foreign power'';
                      (D) in subsection (b), by inserting ``classified 
                  information, or other'' before ``sketch'';
                      (E) in subsection (c), by inserting ``classified 
                  information, or other'' before ``document'';
                      (F) in subsection (d), by inserting ``classified 
                  information, or other'' before ``document'';
                      (G) in subsection (e), by inserting ``classified 
                  information, or other'' before ``document'';
                      (H) in subsection (f), by inserting ``classified 
                  information,'' before ``document''; and
                      (I) in subsection (h)(1), by striking ``foreign 
                  government'' and inserting ``foreign power'';
              (2) in section 794--
                      (A) in the section heading, by striking 
                  ``Gathering'' and all that follows and inserting 
                  ``Gathering or delivering national security information 
                  to aid foreign powers''; and
                      (B) in subsection (a)--
                              (i) by striking ``foreign nation'' and 
                          inserting ``foreign power'';
                              (ii) by striking ``foreign government'' and 
                          inserting ``foreign power'';
                              (iii) by inserting ``classified 
                          information,'' before ``document'';
                              (iv) by striking ``the national defense'' 
                          and inserting ``national security''; and
                              (v) by striking ``(as defined in section 
                          101(a) of the Foreign Intelligence Surveillance 
                          Act of 1978)'';
              (3) in section 795(a), by striking ``national defense'' and 
          inserting ``national security'';
              (4) in section 798--
                      (A) in subsection (a), by striking ``foreign 
                  government'' each place it appears and inserting 
                  ``foreign power''; and
                      (B) in subsection (b)--
                              (i) by striking the first undesignated 
                          paragraph (relating to the term ``classified 
                          information''); and
                              (ii) by striking the third undesignated 
                          paragraph (relating to the term ``foreign 
                          government''); and
              (5) by adding at the end the following:
  ``Sec. 800. Definitions
      ``In this chapter--
              ``(1) the term `classified information' has the meaning 
          given the term in section 1 of the Classified Information 
          Procedures Act (18 U.S.C. App.);
              ``(2) the term `foreign power' has the meaning given the 
          term in section 101 of the Foreign Intelligence Surveillance 
          Act of 1978 (50 U.S.C. 1801); and
              ``(3) the term `national security' has the meaning given 
          the term in section 1 of the Classified Information Procedures 
          Act (18 U.S.C. App.).''.
      (b) Technical and Conforming Amendment.--The table of section for 
  chapter 37 of title 18, United States Code, is amended--
              (1) by striking the item relating to section 793 and 
          inserting the following:
  
  ``793. Gathering, transmitting, or losing national security 
                              information.'';
              (2) by striking the item relating to section 794 and 
          inserting the following:
  
  ``794. Gathering or delivering national security information to aid 
                              foreign powers.'';
          and
              (3) by adding at the end the following:
  
  ``800. Definitions.''.
  
  SEC. 4. VIOLATION OF CLASSIFIED INFORMATION NONDISCLOSURE AGREEMENT.
  
      (a) In General.--Chapter 93 of title 18, United States Code, is 
  amended by adding at the end the following:
  ``Sec. 1925. Violation of classified information nondisclosure 
                agreement
      ``(a) Definitions.--In this section--
              ``(1) the term `classified information' has the meaning 
          given the term in section 1 of the Classified Information 
          Procedures Act (18 U.S.C. App.); and
              ``(2) the term `covered individual' means an officer, 
          employee, contractor, or consultant of an agency of the Federal 
          Government who, by virtue of the office, employment, position, 
          or contract held by the individual, knowingly and intentionally 
          agrees to be legally bound by the terms of a classified 
          information nondisclosure agreement.
      ``(b) Offense.--
              ``(1) In general.--Except as otherwise provided in this 
          section, it shall be unlawful for a covered individual to 
          intentionally disclose, deliver, communicate, or transmit 
          classified information, without the authorization of the head 
          of the Federal agency, or an authorized designee, knowing or 
          having reason to know that the disclosure, delivery, 
          communication, or transmission of the classified information is 
          a violation of the terms of the classified information 
          nondisclosure agreement entered by the covered individual.
              ``(2) Penalty.--A covered individual who violates paragraph 
          (1) shall be fined under this title, imprisoned for not more 
          than 5 years, or both.
      ``(c) Whistleblower Protection.--The disclosure, delivery, 
  communication, or transmission of classified information by a covered 
  individual in accordance with a Federal whistleblower protection 
  statute or regulation applicable to the Federal agency of which the 
  covered individual is an officer, employee, contractor, or consultant 
  shall not be a violation of subsection (b)(1).
      ``(d) Rebuttable Presumption.--For purposes of this section, there 
  shall be a rebuttable presumption that information has been properly 
  classified if the information has been marked as classified information 
  in accordance with Executive Order 12958 (60 Fed. Reg. 19825) or a 
  successor or predecessor to the order.
      ``(e) Defense of Improper Classification.--The disclosure, 
  delivery, communication, or transmission of classified information by a 
  covered individual shall not violate subsection (b)(1) if the covered 
  individual proves by clear and convincing evidence that at the time the 
  information was originally classified, no reasonable person with 
  original classification authority under Executive Order 13292 (68 Fed. 
  Reg. 15315), or any successor order, could have identified or described 
  any damage to national security that reasonably could be expected to be 
  caused by the unauthorized disclosure of the information.
      ``(f) Extraterritorial Jurisdiction.--There is jurisdiction over an 
  offense under this section if--
              ``(1) the offense occurs in whole or in part within the 
          United States;
              ``(2) regardless of where the offense is committed, the 
          alleged offender is--
                      ``(A) a national of the United States (as defined 
                  in section 101(a) of the Immigration and Nationality 
                  Act (8 U.S.C. 1101(a)));
                      ``(B) an alien lawfully admitted for permanent 
                  residence in the United States (as defined in section 
                  101(a) of the Immigration and Nationality Act (8 U.S.C. 
                  1101(a))); or
                      ``(C) a stateless person whose habitual residence 
                  is in the United States;
              ``(3) after the offense occurs, the offender is brought 
          into or found in the United States, even if the conduct 
          required for the offense occurs outside the United States; or
              ``(4) an offender aids or abets or conspires with any 
          person over whom jurisdiction exists under this paragraph in 
          committing an offense under subsection (b)(1).''.
      (b) Technical and Conforming Amendment.--The table of sections for 
  chapter 93 of title 18, United States Code, is amended by adding at the 
  end the following:
  
  ``1925. Violation of classified information nondisclosure agreement.''.
  
  SEC. 5. DIRECTIVE TO SENTENCING COMMISSION.
  
      (a) In General.--Pursuant to its authority under section 994 of 
  title 28, United States Code, and in accordance with this section, the 
  United States Sentencing Commission, shall review and, if appropriate, 
  amend the Federal Sentencing Guidelines and policy statements 
  applicable to a person convicted of an offense under section 1925 of 
  title 18, United States Code, as added by this Act.
      (b) Considerations.--In carrying out this section, the Sentencing 
  Commission shall ensure that the sentencing guidelines account for all 
  relevant conduct, including--
              (1) multiple instances of unauthorized disclosure, 
          delivery, communication, or transmission of the classified 
          information;
              (2) the volume of the classified information that was 
          disclosed, delivered, communicated, or transmitted;
              (3) the classification level of the classified information;
              (4) the harm to the national security of the United States 
          that reasonably could be expected to be caused by the 
          disclosure, delivery, communication, or transmission of the 
          classified information; and
              (5) the nature and manner in which the classified 
          information was disclosed, delivered, communicated, or 
          transmitted.
target: Espionage Statutes Modernization Act of 2010 - Amends the federal criminal code to impose a fine and/or prison term of up to five years on a covered individual who intentionally discloses, delivers, communicates, or transmits classified information, without authorization, knowing or having reason to know that such action is a violation of the terms of the classified information nondisclosure agreement entered into by such individual.  Defines "covered individual" as an officer, employee, contractor, or consultant of a federal agency who agrees to be legally bound by the terms of a classified information nondisclosure agreement.  Exempts from such prohibition disclosures made in accordance with a federal whistleblower protection statute or regulation.
  
  Directs the United States Sentencing Commission to review and, if appropriate, amend federal sentencing guidelines and policy statements applicable to a person convicted of an offense under this Act.
feat_title: 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.