Stop Higher Education Espionage and Theft Act of 2019
This bill establishes a process for designating foreign actors as foreign intelligence threats to higher education.
Specifically, the Federal Bureau of Investigation (FBI) must designate a foreign actor as a foreign intelligence threat to higher education if the foreign actor has committed, attempted to commit, or conspired to commit certain actions in connection with an institution of higher education (IHE), such as espionage, misuse of visas, or theft of trade secrets. Prior to making such a designation, FBI must submit notice to congressional leaders and the Department of Justice.
Upon the designation of a foreign actor as such a threat, the Department of State must revoke the nonimmigrant visa issued to such foreign actor present in the United States, and the Department of Homeland Security must initiate removal proceedings against the foreign actor.
The bill provides for judicial review and a process for revoking a foreign actor's designation as such a threat.
It also requires an IHE to disclose to the Department of Education any gift or contract with a foreign intelligence threat, including the fair market value of the gift or contract.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3071 Introduced in House (IH)]
<DOC>
116th CONGRESS
1st Session
H. R. 3071
To address foreign threats to higher education in the United States.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
June 3, 2019
Mr. Rooney of Florida (for himself, Mr. Gaetz, Mr. Webster of Florida,
Mr. Wright, Mrs. Hartzler, and Ms. Stefanik) introduced the following
bill; which was referred to the Committee on the Judiciary, and in
addition to the Committees on Education and Labor, and Foreign Affairs,
for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of
the committee concerned
_______________________________________________________________________
A BILL
To address foreign threats to higher education in the United States.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stop Higher Education Espionage and
Theft Act of 2019''.
SEC. 2. DESIGNATION OF FOREIGN INTELLIGENCE THREATS TO HIGHER
EDUCATION.
(a) In General.--Chapter 33 of title 28, United States Code, is
amended by adding at the end the following:
``Sec. 540D. Designation of foreign intelligence threats to higher
education
``(a) Definitions.--In this section--
``(1) the term `classified information' has the meaning
given that term in section 1(a) of the Classified Information
Procedures Act (18 U.S.C. App.);
``(2) the term `Director' means the Director of the Federal
Bureau of Investigation, acting in consultation with the
Attorney General, the Secretary of Education, and the Director
of National Intelligence;
``(3) the term `foreign actor' means--
``(A) a foreign government or its auxiliary
territories, or any component thereof, whether or not
recognized by the United States;
``(B) a foreign-based political organization, not
substantially composed of United States persons;
``(C) a faction of a foreign nation or nations, not
substantially composed of United States persons;
``(D) an entity that is openly acknowledged by a
foreign government or governments to be directed and
controlled by such foreign government or governments;
``(E) any partnership, association, corporation,
organization, or other combination of persons who acts
as an agent, representative, employee, or servant of,
or whose activities are directly or indirectly
supervised, directed, controlled, financed, or
subsidized in whole or in major part by a government,
organization, faction, or entity described in
subparagraph (A) (B), (C), or (D); or
``(F) any individual who acts as an agent,
representative, employee, or servant of, or whose
activities are directly or indirectly supervised,
directed, controlled, financed, or subsidized in whole
or in major part by a government, organization,
faction, or entity described in subparagraph (A), (B),
(C), or (D), unless such individual is a citizen of and
domiciled within the United States;
``(4) the term `institution' means any institution of
higher education, as defined under section 101 of the Higher
Education Act (20 U.S.C. 1001);
``(5) the term `national security' means the national
defense, foreign relations, or economic interests of the United
States;
``(6) the term `relevant committees of Congress' means--
``(A) the Committee on the Judiciary, the Select
Committee on Intelligence, the Committee on Homeland
Security and Government Affairs, and the Committee on
Health, Education, Labor, and Pensions of the Senate;
and
``(B) the Committee on the Judiciary, the Permanent
Select Committee on Intelligence, the Committee on
Homeland Security, and the Committee on Education and
Labor of the House of Representatives; and
``(7) the term `United States person' has the meaning given
that term in section 101 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801).
``(b) Designation.--
``(1) In general.--The Director shall designate a foreign
actor as a foreign intelligence threat to higher education, in
accordance with this subsection, if the Director finds that the
foreign actor has committed, attempted to commit, or conspired
to commit, in connection with an institution, one or more of
the following:
``(A) Smuggling goods from the United States, in
violation of section 554 of title 18.
``(B) Espionage, in violation of sections 791
through 799 of title 18.
``(C) Kidnapping, in violation of section 1201 of
title 18.
``(D) Fraud or misuse of visas, permits, or other
documents, in violation of section 1546 of title 18.
``(E) Aggravated identity theft, in violation of
section 1028A of title 18.
``(F) Fraud or related activity in connection with
access devices, in violation of section 1029 of title
18.
``(G) Fraud or related activity in connection with
computers, in violation of section 1030 of title 18.
``(H) Economic espionage, in violation of section
1831 of title 18.
``(I) Theft of trade secrets, in violation of
section 1832 of title 18.
``(J) Terrorism, in violation of sections 2331
through 2339D of title 18.
``(K) Interception or disclosure of wire, oral, or
electronic communications, in violation of section 2511
of title 18.
``(L) A violation of any control on the import or
export of defense articles or defense services imposed
under section 38 of the Arms Export Control Act (22
U.S.C. 2778).
``(M) A violation of any control on the export,
reexport, and in-country transfer of an item imposed
under section 1753 of the Export Control Reform Act of
2018 (50 U.S.C. 4812).
``(N) An unlawful act described in section 206(a)
of the International Emergency Economic Powers Act (50
U.S.C. 1705(a)).
``(2) Procedure.--
``(A) Notice before designation.--
``(i) To congressional leaders.--Not later
than 7 days before making a designation under
paragraph (1), the Director shall submit to the
Speaker and minority leader of the House of
Representatives, the President pro tempore,
majority leader, and minority leader of the
Senate, and the members of the relevant
committees of Congress--
``(I) written notice of the intent
of the Director to designate a foreign
actor under paragraph (1); and
``(II) the findings made under
paragraph (1) with respect to foreign
actor and the factual basis therefor.
``(ii) To the attorney general.--Not later
than 7 days before making a designation under
paragraph (1), the Director shall submit to the
Attorney General, for the Attorney General to
determine whether further investigation or
prosecution is warranted--
``(I) written notice of the intent
of the Director to designate a foreign
actor under paragraph (1); and
``(II) the findings made under
paragraph (1) with respect to the
foreign actor and the factual basis
therefor.
``(iii) Protection of classified
information.--The notice and findings submitted
under clauses (i) and (ii) may be in classified
form.
``(B) Publication in federal register.--If the
Director makes a designation under paragraph (1), the
Director shall publish the designation in the Federal
Register on the date of the designation.
``(C) Effect of designation.--For purposes of
section 117 of the Higher Education Act of 1965 (20
U.S.C. 1011f), a designation under paragraph (1) shall
take effect upon publication under subparagraph (B) of
this paragraph.
``(D) Effect of designation on lawful status.--
``(i) Revocation of nonimmigrant visa.--The
Secretary of State shall revoke the
nonimmigrant visa issued to any foreign actor
present in the United States immediately after
such foreign actor has been designated under
paragraph (1).
``(ii) Removal.--The Secretary of Homeland
Security shall initiate removal proceedings
against any foreign actor described in clause
(i) and expeditiously remove such foreign actor
from the United States.
``(iii) Ineligibility.--Any foreign actor
who has been designated under paragraph (1)
shall be inadmissible to the United States and
ineligible to receive a United States visa or
be admitted to the United States.
``(iv) Appeal.--If a foreign actor appeals
a designation under paragraph (1), the
consequences described in clauses (i) through
(iii) shall be stayed until such appeal has
been fully adjudicated.
``(3) Record.--
``(A) In general.--In making a designation under
paragraph (1), the Director shall create an
administrative record.
``(B) Classified information.--The Director may
consider classified information in making a designation
under paragraph (1). Classified information shall not
be subject to disclosure for such time as it remains
classified, except that such information may be
disclosed to a court ex parte and in camera for
purposes of judicial review under subsection (d).
``(4) Period of designation.--
``(A) In general.--A designation under paragraph
(1) shall be effective for all purposes until revoked
under paragraph (5) or (6) or set aside under
subsection (d).
``(B) Review of designation upon petition.--
``(i) In general.--The Director shall
review the designation of a foreign actor as a
foreign intelligence threat to higher education
under the procedures set forth in clauses (iii)
and (iv) if the designated foreign actor files
a petition for revocation within the petition
period described in clause (ii).
``(ii) Petition period.--For purposes of
clause (i)--
``(I) if the designated foreign
actor has not previously filed a
petition for revocation under this
subparagraph, the petition period
begins 2 years after the date on which
the designation was made; or
``(II) if the designated foreign
actor has previously filed a petition
for revocation under this subparagraph,
the petition period begins 2 years
after the date of the determination
made under clause (iv) with respect to
that petition.
``(iii) Procedures.--Any foreign actor
designated as a foreign intelligence threat to
higher education that submits a petition for
revocation under this subparagraph shall
provide evidence in the petition that the
relevant circumstances described in paragraph
(1) are sufficiently different from the
circumstances that were the basis for the
designation such that a revocation with respect
to the foreign actor is warranted.
``(iv) Determination.--
``(I) In general.--Not later than
180 days after receiving a petition for
revocation submitted under this
subparagraph, the Director shall make a
determination as to such revocation.
``(II) Classified information.--The
Director may consider classified
information in making a determination
in response to a petition for
revocation. Classified information
shall not be subject to disclosure for
such time as it remains classified,
except that such information may be
disclosed to a court ex parte and in
camera for purposes of judicial review
under subsection (d).
``(III) Publication of
determination.--A determination made by
the Director under this clause shall be
published in the Federal Register.
``(IV) Procedures.--Any revocation
of a designation by the Director shall
be made in accordance with paragraph
(6).
``(C) Other review of designation.--
``(i) In general.--If no review has taken
place under subparagraph (B) during any 5-year
period, the Director shall review the
designation of a foreign actor as a foreign
intelligence threat to higher education under
paragraph (1) in order to determine whether
such designation should be revoked pursuant to
paragraph (6).
``(ii) Procedures.--If a review does not
take place pursuant to subparagraph (B) in
response to a petition for revocation that is
filed in accordance with that subparagraph, the
review shall be conducted pursuant to
procedures established by the Director. The
results of such review and the applicable
procedures shall not be reviewable in any
court.
``(iii) Publication of results of review.--
The Director shall publish any determination
made under this subparagraph in the Federal
Register.
``(5) Revocation by act of congress.--Congress, by an Act
of Congress, may block or revoke a designation made under
paragraph (1).
``(6) Revocation based on change in circumstances.--
``(A) In general.--The Director may revoke a
designation made under paragraph (1) at any time, and
shall revoke a designation upon completion of a review
conducted pursuant to subparagraphs (B) and (C) of
paragraph (4) if the Director finds that--
``(i) the circumstances that were the basis
for the designation have changed in such a
manner as to warrant revocation; or
``(ii) the national security of the United
States warrants a revocation.
``(B) Procedure.--The procedural requirements of
paragraphs (2) and (3) shall apply to a revocation
under this paragraph. Any revocation shall take effect
on the date specified in the revocation or upon
publication in the Federal Register if no effective
date is specified.
``(7) Effect of revocation.--The revocation of a
designation under paragraph (5) or (6) shall not affect any
action or proceeding based on conduct committed prior to the
effective date of such revocation.
``(c) Amendments to a Designation.--
``(1) In general.--The Director may amend a designation
under subsection (b)(1) if the Director finds that the foreign
actor has changed its name, adopted a new alias, dissolved and
then reconstituted itself under a different name or names, or
merged with another foreign actor.
``(2) Procedure.--Amendments made to a designation in
accordance with paragraph (1) shall be effective upon
publication in the Federal Register. Subparagraphs (B) and (C)
of subsection (b)(2) shall apply to an amended designation upon
such publication. Paragraphs (2)(A)(i), (4), (5), (6), (7), and
(8) of subsection (b) shall also apply to an amended
designation.
``(3) Administrative record.--The administrative record
shall be corrected to include the amendments as well as any
additional relevant information that supports those amendments.
``(4) Classified information.--The Director may consider
classified information in amending a designation in accordance
with this subsection. Classified information shall not be
subject to disclosure for such time as it remains classified,
except that such information may be disclosed to a court ex
parte and in camera for purposes of judicial review under
subsection (d).
``(d) Judicial Review of Designation.--
``(1) In general.--Not later than 30 days after publication
in the Federal Register of a designation, an amended
designation, or a determination in response to a petition for
revocation, the foreign actor designated as a foreign
intelligence threat to higher education may seek judicial
review in the United States Court of Appeals for the District
of Columbia Circuit.
``(2) Basis of review.--Review under this subsection shall
be based solely upon the administrative record, except that the
Government may submit, for ex parte and in camera review,
classified information used in making the designation, amended
designation, or determination in response to a petition for
revocation, in a manner consistent with the Classified
Information Procedures Act (18 U.S.C. App.).
``(3) Scope of review.--The Court shall hold unlawful and
set aside a designation, amended designation, or determination
in response to a petition for revocation the court finds to
be--
``(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law;
``(B) contrary to constitutional right, power,
privilege, or immunity;
``(C) in excess of statutory jurisdiction,
authority, or limitation, or short of statutory right;
``(D) lacking substantial support in the
administrative record taken as a whole or in classified
information submitted to the court under paragraph (2);
or
``(E) not in accord with the procedures required by
law.
``(4) Judicial review invoked.--The pendency of an action
for judicial review of a designation, amended designation, or
determination in response to a petition for revocation shall
not affect the application of this section, unless the court
issues a final order setting aside the designation, amended
designation, or determination in response to a petition for
revocation.
``(e) Imposition of Sanctions Under International Emergency
Economic Powers Act.--
``(1) In general.--The President may, pursuant to the
International Emergency Economic Powers Act (50 U.S.C. 1701 et
seq.)--
``(A) block and prohibit all transactions in all
property and interests in property of a foreign actor
designated as a foreign intelligence threat to higher
education under subsection (b)(1), if such property and
interests in property are in the United States, come
within the United States, or are or come within the
possession or control of a United States person; or
``(B)(i) prohibit any institution, and all
employees of an institution, from--
``(I) negotiating or entering into a
contract with such a foreign actor; or
``(II) transferring information developed
through research to such a foreign actor; and
``(ii) require any institution that has a contract
with such a foreign actor in effect as of the date on
which the foreign actor is designated as a foreign
intelligence threat to higher education under
subsection (b)(1) to terminate that contract.
``(2) Transfer defined.--For purposes of paragraph
(1)(B)(i)(II), the term `transfer', with respect to
information, means--
``(A) an actual shipment or transmission of the
information out of the United States, including the
sending or taking of information out of the United
States, in any manner;
``(B) releasing or otherwise transferring the
information, including technical data, to a foreign
person in the United States (commonly referred to as a
`deemed export');
``(C) visual or other inspection by a foreign
person of the information that reveals information
directly or indirectly related to critical
technologies; and
``(D) oral or written exchanges with a foreign
person of information, whether or not in the United
States.
``(3) Inapplicability of national emergency requirement.--
The requirements of section 202 of the International Emergency
Economic Powers Act (50 U.S.C. 1701) shall not apply for
purposes of this subsection.
``(4) Implementation.--The President may exercise all
authorities provided under sections 203 and 205 of the
International Emergency Economic Powers Act (50 U.S.C. 1702 and
1704) to carry out this subsection.
``(5) Penalties.--A person that violates, attempts to
violate, conspires to violate, or causes a violation of
paragraph (1) or any regulation, license, or order issued to
carry out that paragraph shall be subject to the penalties set
forth in subsections (b) and (c) of section 206 of the
International Emergency Economic Powers Act (50 U.S.C. 1705) to
the same extent as a person that commits an unlawful act
described in subsection (a) of that section.
``(f) Activities With National Security Implications.--
``(1) In general.--The Director shall provide the Secretary
of Homeland Security with information about any foreign actor
who has not been designated under subsection (b) if the foreign
actor has engaged in any practice with national security
implications, including--
``(A) transferring uncontrolled, but sensitive
technology acquired during the foreign actor's
interactions with academic institutions;
``(B) significantly changing the nature or type of
academic study initially reported by the foreign actor,
such as changing his or her major from a nonsensitive
field of study to a sensitive field of study;
``(C) significantly deviating from the terms of a
nonimmigrant visa related to the study of technology
deemed sensitive in nature; and
``(D) misrepresenting, omitting, or falsifying any
information provided to the Department of State or the
Department of Homeland Security regarding the purpose
of the foreign actor's presence in the United States.
``(2) Effect of revocation of visa.--If the Secretary of
Homeland Security orders the revocation of a visa issued to a
foreign actor described in paragraph (1), the foreign actor--
``(A) shall be permitted to voluntarily depart the
United States within 10 days; and
``(B) may be given the opportunity to reapply for a
visa outside of the United States.
``(3) Effect of failure to voluntarily depart.--If a
foreign actor described in paragraph (2) chooses not to
voluntarily depart the United States, the Secretary of Homeland
Security shall provide for the expedited removal of the foreign
actor from the United States in accordance with section
238(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C.
1228(a)(3)(B)).
``(g) Reports.--
``(1) In general.--Not later than 180 days after the date
of enactment of this section, and every year thereafter, the
Director shall submit to the relevant committees of Congress a
detailed report containing the following:
``(A) A description and assessment of foreign
actors who engage in activities listed in subsection
(b)(1).
``(B) An assessment of the impact of foreign actors
who engage in activities listed in subsection (b)(1) on
scholarship and research and development in connection
with institutions.
``(C) An assessment of the implementation and
operation of the designation process for foreign
intelligence threats to higher education established
under this section.
``(D) An assessment of the likely effects of the
designation of foreign intelligence threats to higher
education on activities listed in subsection (b)(1) in
connection with institutions.
``(2) Form of reports.--The reports required under
paragraph (1) shall be submitted in an unclassified form, but
may contain a classified annex.''.
(b) Deportability; Expedited Removal.--
(1) Deportability.--Section 237(a)(2)(A) of the Immigration
and Nationality Act (8 U.S.C. 1227(a)(2)(A)) is amended--
(A) by redesignating clause (vi) as clause (vii);
and
(B) by inserting after clause (v) the following:
``(vi) Foreign intelligence threat to
higher education.--Any alien who has been
designated as a foreign intelligence threat to
higher education under section 540D(b) of title
28, United States Code, is deportable.''.
(2) Expedited removal.--Section 238(a)(3) of the
Immigration and Nationality Act (8 U.S.C. 1228(a)(3)) is
amended--
(A) by redesignating subparagraph (B) as
subparagraph (C); and
(B) by inserting after subparagraph (A) the
following:
``(B) The Secretary of Homeland Security shall
provide for the expedited removal of aliens who have
been designated as a foreign intelligence threat to
higher education under section 540D(b) of title 28,
United States Code, in the interest of national
security.''.
(c) Technical and Conforming Amendment.--The table of sections for
chapter 33 of title 28, United States Code, is amended by adding at the
end the following:
``540D. Designation of foreign intelligence threats to higher
education.''.
SEC. 3. DISCLOSURE OF FOREIGN GIFTS OR CONTRACTS.
Section 117 of the Higher Education Act of 1965 (20 U.S.C. 1011f)
is amended--
(1) by striking subsection (a) and inserting the following:
``(a) Disclosure Report.--
``(1) In general.--An institution described in paragraph
(2) for a calendar year shall file a disclosure report under
subsection (b) with the Secretary by January 31 or July 31,
whichever is sooner.
``(2) Types of institutions.--An institution described in
this paragraph is an institution that--
``(A) is owned or controlled by a foreign source;
``(B) receives a gift from or enters into a
contract with a foreign source, the value of which is
$250,000 or more, considered alone or in combination
with all other gifts from or contracts with that
foreign source within a calendar year; or
``(C) receives a gift from or enters into a
contract with a foreign intelligence threat to higher
education, or any agent thereof.'';
(2) in subsection (b)--
(A) by redesignating paragraphs (1) through (3) as
subparagraphs (A) through (C), respectively, and
adjusting the margins appropriately;
(B) by striking ``Report.--Each'' and inserting the
following: ``Report.--
``(1) In general.--Each'';
(C) in subparagraph (A) (as so redesignated), by
inserting ``, as measured by the fair market value of
such gifts and contracts'' after ``particular
country'';
(D) in subparagraph (B), as so redesignated--
(i) by inserting ``the identity of the
foreign government and, if applicable, the
foreign government agency, and'' after ``with a
foreign government,''; and
(ii) by inserting ``, as measured by the
fair market value of such gifts and contracts''
before the period at the end; and
(E) by adding at the end the following:
``(2) Requirements relating to foreign intelligence
threats.--For any institution described in subsection
(a)(2)(C), the report required under this section shall
contain, in addition to any applicable information required
under paragraph (1)--
``(A) the identity of the foreign intelligence
threat to higher education involved; and
``(B) the aggregate dollar amount of such gifts and
contracts attributable to the foreign intelligence
threat to higher education, as measured by the fair
market value of such gifts and contracts.'';
(3) in subsection (c), by adding at the end the following:
``(3) For any such gift received from, or contract entered
into with, a foreign intelligence threat to higher education,
the fair market value of the gift or contract, the date of the
gift or contract, and a description of any such conditions or
restrictions on the gift or contract.'';
(4) in subsection (e), by inserting ``, and shall also be
accessible to the public through electronic means'' before the
period at the end; and
(5) in subsection (h)--
(A) by redesignating paragraphs (2) through (5) as
paragraphs (3) through (6), respectively;
(B) by inserting after paragraph (1) the following:
``(2) the term `foreign intelligence threat to higher
education' means any foreign source that is designated as a
foreign intelligence threat to higher education in accordance
with section 540D of title 28, United States Code;'';
(C) in paragraph (4) (as so redesignated), by
striking ``or property'' and inserting ``, property,
services, or payment to the staff of an institution'';
(D) by striking paragraph (5) (as so redesignated)
and inserting the following:
``(5) the term `institution' means an institution of higher
education--
``(A) to which Federal financial assistance is
extended (directly or indirectly through another entity
or person); or
``(B) that receives support from the extension of
Federal financial assistance to any of the
institution's subunits''; and
(E) in paragraph (6)(B) (as so redesignated), by
inserting ``institutes, instructional programs,''
before ``research or lecture''.
<all>
Introduced in House
Introduced in House
Referred to the Committee on the Judiciary, and in addition to the Committees on Education and Labor, and Foreign Affairs, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Education and Labor, and Foreign Affairs, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Committee on the Judiciary, and in addition to the Committees on Education and Labor, and Foreign Affairs, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned.
Referred to the Subcommittee on Crime, Terrorism, and Homeland Security.
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