Enhancing Protections for Whistleblower Anonymity Act

I 116TH CONGRESS 2D SESSION H. R. 7185 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 JUNE 11, 2020 Mr. SWALWELL of California 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 01:13 Jun 29, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H7185.IH H7185 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 7185 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 01:13 Jun 29, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H7185.IH H7185 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 7185 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 01:13 Jun 29, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H7185.IH H7185 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 7185 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 that— 18 ‘‘(i) complains of or discloses informa- 19 tion; and 20 ‘‘(ii) is protected against retaliation 21 for such actions under section 1034 of title 22 10. 23 ‘‘(F) An employee (as the term ‘employee’ 24 is used in section 103H of the National Secu- 25 VerDate Sep 11 2014 01:13 Jun 29, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H7185.IH H7185 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 7185 IH rity Act of 1947 (50 U.S.C. 3033)) who the In- 1 spector General of the Intelligence Community 2 may not disclose the identity of pursuant to the 3 requirements of section 103H(g)(3)(A) of such 4 Act (50 U.S.C. 3033(g)(3)(A)). 5 ‘‘(G) An employee (as the term ‘employee’ 6 is used in section 4712(a)(3)(A) of title 41) 7 who is deemed to have made a disclosure under 8 such section. 9 ‘‘(H) A individual not otherwise covered by 10 subparagraphs (A) through (F) who— 11 ‘‘(i) is protected by law to make a dis- 12 closure of— 13 ‘‘(I) a violation of law or regula- 14 tion; or 15 ‘‘(II) gross mismanagement, 16 gross waste of funds, abuse of author- 17 ity, or a substantial and specific dan- 18 ger to public health or the safety of a 19 Federal entity; 20 ‘‘(ii) makes such a disclosure; 21 ‘‘(iii) is not prohibited by law to make 22 such a disclosure; and 23 ‘‘(iv) is not disclosing information 24 that is determined pursuant to Executive 25 VerDate Sep 11 2014 01:13 Jun 29, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H7185.IH H7185 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 7185 IH Order No. 13526 (75 Fed. Reg. 707; relat- 1 ing to classified national security informa- 2 tion), or a successor order, or the Atomic 3 Energy Act of 1954 (42 U.S.C. 2011 et 4 seq.) to require protection against unau- 5 thorized disclosure.’’. 6 (b) CLERICAL AMENDMENT.—The table of sections 7 for chapter 88 of title 18, United States Code, is amended 8 by adding at the end the following new item: 9 ‘‘1802. Disclosure of whistleblower identity.’’. SEC. 3. CIVIL RIGHT OF ACTION AGAINST DISCLOSURE OF 10 WHISTLEBLOWER IDENTITY. 11 (a) PROHIBITED DISCLOSURE.—A whistleblower may 12 bring a civil action before the appropriate district court— 13 (1) for appropriate relief, including injunctive 14 relief, compensatory damages, and punitive damages, 15 against any employee of the Federal Government or 16 contractor of the Federal Government who makes a 17 prohibited disclosure, with respect to such whistle- 18 blower; or 19 (2) for injunctive relief against any employee of 20 the Federal Government or contractor of the Federal 21 Government who threatens to make a prohibited dis- 22 closure, with respect to such whistleblower. 23 (b) JURY TRIAL.—A party to an action brought 24 under subsection (a) shall be entitled to trial by jury. 25 VerDate Sep 11 2014 01:13 Jun 29, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H7185.IH H7185 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 7185 IH (c) DEFINITIONS.—In this section, the terms ‘‘em- 1 ployee of the Federal Government’’, ‘‘prohibited disclo- 2 sure’’, and ‘‘whistleblower’’ have the meanings given such 3 terms in section 1802(d) of title 18, United States Code, 4 as added by this Act. 5 Æ VerDate Sep 11 2014 01:13 Jun 29, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6301 E:\BILLS\H7185.IH H7185 pbinns on DSKJLVW7X2PROD with BILLS