I 117TH CONGRESS 1ST SESSION H. R. 1265 To amend title 18, United States Code, to make the disclosure of the identity of a whistleblower a criminal offense, to provide a civil right of action for the disclosure of the identity of a whistleblower, and for other pur- poses. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 23, 2021 Mr. SWALWELL (for himself, Mr. COHEN, Mrs. DEMINGS, and Ms. NORTON) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to make the disclo- sure of the identity of a whistleblower a criminal offense, to provide a civil right of action for the disclosure of the identity of a whistleblower, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Enhancing Protections 4 for Whistleblower Anonymity Act’’. 5 VerDate Sep 11 2014 21:19 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H1265.IH H1265 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 1265 IH SEC. 2. CRIMINAL PENALTY FOR THE DISCLOSURE OF THE 1 IDENTITY OF A WHISTLEBLOWER. 2 (a) IN GENERAL.—Chapter 88 of title 18, United 3 States Code, is amended by adding at the end the fol- 4 lowing new section: 5 ‘‘§ 1802. Disclosure of whistleblower identity 6 ‘‘(a) IN GENERAL.—Except under the circumstances 7 described in subsection (b), whoever, being an employee 8 of the Federal Government or contractor of the Federal 9 Government, knowingly makes a prohibited disclosure 10 shall be fined under this title, imprisoned not more than 11 1 year, or both. 12 ‘‘(b) EXCEPTIONS.—The circumstances described in 13 this subsection are the following: 14 ‘‘(1) The prohibited disclosure— 15 ‘‘(A) is made to— 16 ‘‘(i) an employee of the Federal Gov- 17 ernment; 18 ‘‘(ii) an employee of a State govern- 19 ment; or 20 ‘‘(iii) an employee of a local govern- 21 ment; and 22 ‘‘(B) is expressly permitted by any other 23 law. 24 ‘‘(2) The whistleblower provides written consent 25 before the prohibited disclosure is made. 26 VerDate Sep 11 2014 21:19 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H1265.IH H1265 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 1265 IH ‘‘(c) APPLICABILITY.—Subsection (a) shall only apply 1 to a prohibited disclosure that is made after the date of 2 enactment of this section. 3 ‘‘(d) DEFINITIONS.—In this section: 4 ‘‘(1) EMPLOYEE OF THE FEDERAL GOVERN- 5 MENT.—The term ‘employee of the Federal Govern- 6 ment’ means an officer or employee of the United 7 States Government, including— 8 ‘‘(A) a member of the uniformed service; 9 ‘‘(B) a Member of Congress; and 10 ‘‘(C) the President of the United States. 11 ‘‘(2) MEMBER OF CONGRESS.—The term ‘Mem- 12 ber of Congress’ has the meaning given such term 13 in section 2106 of title 5. 14 ‘‘(3) PROHIBITED DISCLOSURE.—The term 15 ‘prohibited disclosure’ means a formal or informal 16 communication or transmission of— 17 ‘‘(A) the identity of a whistleblower; or 18 ‘‘(B) identifying information relating to a 19 whistleblower. 20 ‘‘(4) WHISTLEBLOWER.—The term ‘whistle- 21 blower’ means each of the following: 22 ‘‘(A) An employee, former employee, or ap- 23 plicant for employment (as such terms are used 24 in section 1213(a) of title 5) who makes a dis- 25 VerDate Sep 11 2014 21:19 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1265.IH H1265 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 1265 IH closure that is described in paragraph (1) or (2) 1 of such section. 2 ‘‘(B) An employee of an agency or appli- 3 cant for employment at an agency (as such 4 terms are used in section 2302(b)(8)(C) of title 5 5) who makes a disclosure as described in such 6 section. 7 ‘‘(C) A former employee of the Federal 8 Government who makes a disclosure to Con- 9 gress of information described in section 10 2302(b)(8)(C) of title 5. 11 ‘‘(D) An employee that makes a complaint 12 or otherwise provides information to the Inspec- 13 tor General (as the terms ‘employee’ and ‘In- 14 spector General’ are used in the Inspector Gen- 15 eral Act of 1978 (5 U.S.C. App.)) pursuant to 16 the requirements of section 7 of such Act. 17 ‘‘(E) A member of the Armed Forces 18 that— 19 ‘‘(i) complains of or discloses informa- 20 tion; and 21 ‘‘(ii) is protected against retaliation 22 for such actions under section 1034 of title 23 10. 24 VerDate Sep 11 2014 21:19 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1265.IH H1265 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 1265 IH ‘‘(F) An employee (as the term ‘employee’ 1 is used in section 103H of the National Secu- 2 rity Act of 1947 (50 U.S.C. 3033)) who the In- 3 spector General of the Intelligence Community 4 may not disclose the identity of pursuant to the 5 requirements of section 103H(g)(3)(A) of such 6 Act (50 U.S.C. 3033(g)(3)(A)). 7 ‘‘(G) An employee (as the term ‘employee’ 8 is used in section 4712(a)(3)(A) of title 41) 9 who is deemed to have made a disclosure under 10 such section. 11 ‘‘(H) A individual not otherwise covered by 12 subparagraphs (A) through (G) who— 13 ‘‘(i) is protected by law to make a dis- 14 closure of— 15 ‘‘(I) a violation of law or regula- 16 tion; or 17 ‘‘(II) gross mismanagement, 18 gross waste of funds, abuse of author- 19 ity, or a substantial and specific dan- 20 ger to public health or the safety of a 21 Federal entity; 22 ‘‘(ii) makes such a disclosure; 23 ‘‘(iii) is not prohibited by law to make 24 such a disclosure; and 25 VerDate Sep 11 2014 21:19 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1265.IH H1265 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 1265 IH ‘‘(iv) is not disclosing information 1 that is determined pursuant to Executive 2 Order No. 13526 (75 Fed. Reg. 707; relat- 3 ing to classified national security informa- 4 tion), or a successor order, or the Atomic 5 Energy Act of 1954 (42 U.S.C. 2011 et 6 seq.) to require protection against unau- 7 thorized disclosure.’’. 8 (b) CLERICAL AMENDMENT.—The table of sections 9 for chapter 88 of title 18, United States Code, is amended 10 by adding at the end the following new item: 11 ‘‘1802. Disclosure of whistleblower identity.’’. SEC. 3. CIVIL RIGHT OF ACTION AGAINST DISCLOSURE OF 12 WHISTLEBLOWER IDENTITY. 13 (a) PROHIBITED DISCLOSURE.—A whistleblower may 14 bring a civil action before the appropriate district court— 15 (1) for appropriate relief, including injunctive 16 relief, compensatory damages, and punitive damages, 17 against any employee of the Federal Government or 18 contractor of the Federal Government who makes a 19 prohibited disclosure, with respect to such whistle- 20 blower; or 21 (2) for injunctive relief against any employee of 22 the Federal Government or contractor of the Federal 23 Government who threatens to make a prohibited dis- 24 closure, with respect to such whistleblower. 25 VerDate Sep 11 2014 21:19 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1265.IH H1265 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 1265 IH (b) JURY TRIAL.—A party to an action brought 1 under subsection (a) shall be entitled to trial by jury. 2 (c) DEFINITIONS.—In this section, the terms ‘‘em- 3 ployee of the Federal Government’’, ‘‘prohibited disclo- 4 sure’’, and ‘‘whistleblower’’ have the meanings given such 5 terms in section 1802(d) of title 18, United States Code, 6 as added by this Act. 7 Æ VerDate Sep 11 2014 21:19 Mar 20, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\H1265.IH H1265 pbinns on DSKJLVW7X2PROD with BILLS