AMENDMENT 842
Amendment: The Commentary to §2C1.1 captioned “Statutory Provisions” is amended by striking “18 U.S.C. §§ 201(b)(1), (2), 226, 227, 371 (if conspiracy to defraud by interference with governmental functions), 872, 1341 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1342 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1343 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1951” and inserting “18 U.S.C. §§ 201(b)(1), (2), 226, 227, 371 (if conspiracy to defraud by interference with governmental functions), 872, 1341 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1342 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1343 (if the scheme or artifice to defraud was to deprive another of the intangible right of honest services of a public official), 1352, 1951”.
The Commentary to §2H3.1 captioned “Statutory Provisions” is amended by striking “8 U.S.C. § 1375a(d)(5)(B)(i), (ii);” and inserting “8 U.S.C. § 1375a(d)(5)(B)(i), (ii); 15 U.S.C. § 9901;”.
Appendix A (Statutory Index) is amended—
by inserting before the line referenced to 16 U.S.C. § 114 the following new line reference:
“15 U.S.C. § 9901 2H3.1”;
and by inserting before the line referenced to 18 U.S.C. § 1361 the following new line reference:
“18 U.S.C. § 1352 2C1.1”.
Reason for Amendment: This amendment responds to recently enacted legislation.
Protecting Americans’ Data from Foreign Adversaries Act
First, the amendment amends Appendix A (Statutory Index) to reference a new offense at 15 U.S.C. § 9901 (Prohibition on transfer of personally identifiable sensitive data of United States individuals to foreign adversaries) to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information) in response to the Protecting Americans’ Data from Foreign Adversaries Act, Pub. L. 118–50 (2024).
Section 9901 prohibits data brokers from selling, licensing, trading, disclosing, or providing access to personally identifiable sensitive data of an individual of the United States to any foreign adversary country or any entity controlled by a foreign adversary. “Personally identifiable sensitive data” under section 9901 includes any sensitive data that identifies or is reasonably linkable to an individual, including Social Security numbers, financial account numbers, and phone or text logs and emails. Section 9901(b)(2) provides that the penalties are the same as provided in the Federal Trade Commission Act (15 U.S.C. §§ 41–58). Section 50 (Offenses and penalties) of title 15 provides, in turn, a statutory maximum term of imprisonment of one year, for anyone who refuses to attend, testify, or answer any lawful inquiry or produce documentary evidence “in obedience to an order of a district court . . . directing compliance with the subpoena or lawful requirement” of the Federal Trade Commission, and for officers or employees of the Commission who make any information obtained by the Commission public without authority. Section 50 also provides a statutory maximum term of imprisonment of three years, for willfully making any false entry or statement of fact in certain reports, accounts or records of any person, partnership, or corporation subject to the Act, or removing from the jurisdiction or mutilating, altering, or otherwise falsifying any documentary evidence.
The Commission determined that §2H3.1 is the most appropriate guideline to which to reference section 9901. The statutory elements of section 9901 are most analogous to the elements of other statutes criminalizing the unauthorized disclosure of certain personal information, including 18 U.S.C. § 119 (Protection of individuals performing certain official duties), prohibiting making publicly available restricted personal information such as Social Security numbers, telephone numbers, and personal email, which is referenced to §2H3.1.
Foreign Extortion Prevention Technical Corrections Act
Next, the amendment amends Appendix A to reference a new offense at 18 U.S.C. § 1352 (Demands by foreign officials for bribes) to §2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions) in response to the Foreign Extortion Prevention Technical Corrections Act, Pub. L. 118–78 (2024).
Section 1352 prohibits foreign officials (or those selected to be foreign officials) from corruptly demanding, seeking, receiving, accepting, or agreeing to receive or accept, anything of value personally or for any person or nongovernmental entity, from any “person” while located in the United States, or from a “domestic concern” (as those terms are defined in sections 78dd-2 and 78dd-3 of the Foreign Corrupt Practices Act), or from an issuer, in return for being influenced or induced, or conferring any improper advantage in connection with obtaining or retaining business for or with any person, with a statutory maximum term of imprisonment of 15 years.
The Commission determined that §2C1.1 is the most appropriate guideline to which to reference this offense because the statutory elements of the offense are most analogous to the elements in other statutes criminalizing bribery referenced to §2C1.1. Specifically, sections 78dd-2 (Prohibited foreign trade practices by domestic concerns) and 78dd-3 (Prohibiting foreign trade practices by persons other than issuers or domestic concerns) of the Foreign Corrupt Practices Act, which are referenced to §2C1.1, prohibit the paying of bribes to foreign officials, foreign political parties, or candidates for foreign political office.
Effective Date: The effective date of this amendment is November 1, 2026.