[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5830 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 5830
To protect American workers and enterprises from Chinese and other
foreign efforts to extraterritorially censor free speech and inhibit
lawful advocacy, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 10, 2020
Ms. Clarke of New York (for herself, Mr. Malinowski, Mr. Sherman, Mr.
Gallager, and Mr. Banks) introduced the following bill; which was
referred to the Committee on Education and Labor, and in addition to
the Committee on 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 protect American workers and enterprises from Chinese and other
foreign efforts to extraterritorially censor free speech and inhibit
lawful advocacy, and for other purposes.
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 ``Preventing Foreign CENSORSHIP in
America Act'' or the ``Preventing the Foreign Coercive Export of Non-
consensual Speech and Orwellian Restrictions by Superpowers Hoping to
Intimidate People in America Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) Foreign governments have increasingly sought to
extraterritorially intimidate American and non-American
companies into policing media content and the free speech
rights of staff, employees, and other associated persons.
(2) Because the extraterritorial advocacy for human rights
abroad is a core tenet of American foreign policy and central
to American national security, the growing extraterritorial
suppression of speech of persons and companies represents a
long-term threat to American interests.
(3) Self-censorship by American companies and other
nongovernmental entities in accordance with the stated or
unstated wishes of foreign geopolitical rivals will only
encourage more of the same.
(4) While China's economic weight affords it unique
leverage to seek to compel corporate self-censorship or
retaliation against staff expressing contrary views, including
the manager of a basketball team expressing support for human
rights, other countries such as North Korea have also sought to
stifle free speech through malign measures, including
conducting cyberattacks against a motion picture studio that
distributed comedic content regarding its leadership.
(5) The United States Congress not only defends, but
encourages, American persons and persons within the United
States to be outspoken defenders of the rights of those around
the world standing up against repression and persecution.
SEC. 3. PROTECTING FREE SPEECH OF AMERICAN WORKERS FROM FOREIGN
CENSORSHIP.
(a) Prohibition on Retaliation.--
(1) In general.--Except as provided in paragraph (3), a
domestic entity may not discharge, suspend, cease contracting
with, or fail to pursue future contracts with, any existing
employee or contractor, or take any other adverse action
against any such employee or contractor with respect to his or
her compensation, terms, conditions, or privileges of
employment or contract, on the basis of protected activity, in
the case that such an adverse action was undertaken--
(A) because a designated foreign government or
entity explicitly or implicitly requests that the
domestic entity take such an adverse action, or the
domestic entity presumes that a designated foreign
authority would prefer such an adverse action;
(B) because the protected activity resulted in, or
has the potential to result in--
(i) financial, reputational, or other
damage to the domestic entity's profitability
or organizational prospects in a country
governed by a designated foreign authority with
which the protected activity relates; or
(ii) economic retaliation by such country;
or
(C) in response to a protected activity which
constitutes protected inaction.
(2) Good faith claims.--A domestic entity may not
discharge, suspend, cease contracting with, or fail to pursue
future contracts with, any existing employee or contractor, or
take any other adverse action against any such employee or
contractor with respect to his or her compensation, terms,
conditions, or privileges of employment or contract, on the
basis of such employee or contractor's actual or contemplated
assertion of any protection under this Act, provided such
protection was asserted in good faith.
(3) Exceptions.--The prohibition under paragraph (1) does
not apply if--
(A) the protected activity of the employee or
contractor was conducted in such employee or
contractor's official employment or contractual
capacity;
(B) a reasonable person, considering the context or
content of the protected activity, would believe such
activity was conducted in such employee or contractor's
official employment or contractual capacity, and such
activity, if conducted in an official capacity, would
have been contrary to an official policy or the
financial or organizational interests of the domestic
entity; or
(C) the protected activity occurred--
(i) in the territory of a country governed
by a designated foreign authority which seeks
to restrict such activity; and
(ii) during an overseas trip or assignment
such employee or contractor undertook on behalf
of the domestic entity.
(4) Rule of construction on social media.--For the purpose
of determining whether protected activity was conducted in an
employee or contractor's official capacity, protected activity
on a social media account or other analogous medium of
communication which is used both in an official and unofficial
capacity, shall be presumed to be used in an unofficial
capacity, absent clear and convincing evidence to the contrary.
(b) Prohibition on Contractual Limitations.--A domestic entity may
not require, as a condition of employment, contract, or any
compensation, benefit, or privilege related to such employment or
contract, a prospective, existing, or former employee or contractor
to--
(1) limit a protected activity conducted in an unofficial
capacity, provided such protected activity would reasonably be
expected to trigger the prohibition on retaliation described in
subsection (a); or
(2) waive or abridge any right or cause of action under
this Act, including requiring an employee or contractor to
pursue any claims under this Act in a nonpublic or otherwise
confidential manner.
(c) Nonpreemption.--Nothing in this section shall preempt any
Federal or State law (including any local law or ordinance), contract,
agreement, policy, plan, or practice that establishes a right or
benefit that is more beneficial to, or is in addition to, a right or
benefit provided to employees or contractors under this Act.
SEC. 4. ENFORCEMENT.
(a) Private Right of Action.--
(1) In general.--A person who is injured by an actual or
threatened violation of section 3 may bring an action for
injunctive relief and monetary damages, including compensatory
and punitive damages.
(2) Costs.--The court shall award a prevailing plaintiff
costs and fees, including reasonable attorney's fees and expert
witness fees.
(3) Limitation on monetary damages.--An employee or
contractor bringing an action under this subsection to recover
monetary damages pursuant to a profit-sharing, revenue-sharing,
or analogous arrangement with a domestic entity may not recover
the portion of the proceeds of such arrangement which would
likely have been derived from activities or sales within the
country governed by the designated foreign authority with which
such employee or contractor's protected activity relates.
(4) Statute of limitations.--
(A) In general.--No action may be commenced
pursuant to this subsection more than the later of--
(i) 5 years after the date on which the
violation occurs; or
(ii) 3 years after the date on which the
violation is discovered or should have been
discovered through exercise of reasonable
diligence.
(B) Tolling.--If an employee or contractor, or
immediate family member thereof, of a domestic entity
is detained or otherwise subject to coercion by a
designated foreign authority prior to the expiration of
the statute of limitations, such statute of limitation
may be tolled at the discretion of the court, until the
date that is one year after such detention or coercion
concluded.
(5) Summary judgment.--In an action under this subsection,
a court may not grant a motion for summary judgment made by a
domestic entity solely based on a document or other evidence
produced solely by the domestic entity that describes the
entity's alleged reason for taking adverse action against an
employee or contractor.
(6) Rule of construction.--The private right of action
under this subsection is in addition to any other right or
remedy under Federal or State law.
(b) Federal and State Enforcement.--
(1) Federal enforcement.--
(A) Judicial enforcement.--The Secretary of Labor
or the Equal Employment Opportunity Commission may
petition any appropriate district court of the United
States for temporary or permanent injunctive relief if
the Secretary or Commission determines that subsection
(a) or (b) of section 3 of this Act has been violated.
(B) Civil penalty.--
(i) In general.--Any domestic entity who
commits a violation of this Act may be assessed
a civil money penalty by either the Secretary
of Labor or the Equal Employment Opportunity
Commission, but not both, of not more than the
greater of--
(I) $100,000 for each violation
constituting other adverse action
against any employee or contractor with
respect to his or her compensation,
terms, conditions, or privileges of
employment or contract;
(II) $250,000 for each violation
involving the discharge, suspension,
cessation of contract with, or failure
to pursue future contracts with any
employee or contractor; or
(III) $1,000,000 for each willful
violation involving the discharge or
termination of a United States person
who is an employee or contractor,
undertaken--
(aa) at the explicit
direction of a political,
diplomatic, or intelligence
official or element of a
designated foreign authority;
(bb) with actual knowledge
of the prohibitions under this
Act; and
(cc) in connection with
peaceful protected activity
which could be reasonably
understood to align with the
foreign policy or national
security interests of the
United States.
(ii) Factors to consider.--In determining
the amount of any penalty to be assessed, the
Secretary or Commission shall take into
account--
(I) the previous record of the
domestic entity in terms of compliance
with this Act, or any other Federal,
State, or local statutes or regulations
which seek to combat foreign influence
over domestic activities;
(II) whether the violation was
willful;
(III) the gravity of the violation;
(IV) the size of the domestic
entity, and any secondary implications
of a large penalty on its workforce;
and
(V) the nature of the protected
activity, including the diplomatic
relationship between the United States
and the country governed by a
designated foreign authority with which
the protected activity relates.
(iii) Hearing, appeal, and additional
matters.--
(I) Agency or commission hearing.--
The domestic entity assessed shall be
afforded an opportunity for agency or
commission hearing, upon request made
within thirty days after the date of
issuance of the notice of assessment.
If a hearing is requested, the initial
decision shall be made by an
administrative law judge, and such
decision shall become the final order
unless the Secretary or Commission
modifies or vacates the decision.
Notice of intent to modify or vacate
the decision of the administrative law
judge shall be issued to the parties
within thirty days after the decision
of the administrative law judge.
(II) Appeal.--Any domestic entity
against whom an order imposing a civil
money penalty has been entered after a
hearing under this section may obtain
review by the United States district
court for any district in which it is
located or the United States district
court for the District of Columbia by
filing a notice of appeal in such court
within 30 days from the date of such
order, and simultaneously sending a
copy of such notice by registered mail
to the Secretary or Commission. The
Secretary or Commission shall promptly
certify and file in such court the
record upon which the penalty was
imposed. If any domestic entity fails
to pay an assessment after it has
become a final and unappealable order,
or after the court has entered final
judgment in favor of the agency or
commission, the Secretary or Commission
shall refer the matter to the Attorney
General, who shall recover the amount
assessed by action in the appropriate
United States district court.
(III) Payment of penalty.--All
penalties collected under authority of
this section shall be paid into the
Treasury of the United States.
(2) Federal enforcement accountability.--On an annual
basis, the President shall make publicly available a report,
which may contain a classified annex, containing a list of all
Federal enforcement actions undertaken pursuant to this Act in
the prior year by--
(A) the Department of Labor;
(B) the Equal Employment Opportunity Commission;
and
(C) such other bodies which the President
determines appropriate for enforcing the provisions of
this Act.
(3) State enforcement.--If the attorney general of a State
has reason to believe that an interest of the residents of the
State has been or is being threatened or adversely affected by
a practice or action that violates section 3, the attorney
general of the State may, as parens patriae, bring a civil
action on behalf of the residents of the State in an
appropriate district court of the United States to obtain
appropriate relief.
(c) Venue.--An action under this section may be brought in--
(1) the district court of the United States that meets
applicable requirements relating to venue under section 1391 of
title 28, United States Code; or
(2) another court of competent jurisdiction.
SEC. 5. DEFINITIONS.
In this Act:
(1) Protected activity generally.--The term ``protected
activity'' means protected action, protected inaction, or
enhanced China-related protected activity, except that such
term does not include any activity that--
(A)(i) in the case of an activity that takes place
in the United States, violates a Federal law or
regulation (or advocates for any such activity which
constitutes a Federal felony offense);
(ii) in the case of an activity that takes place
outside of the United States, would violate such a
Federal law or regulation had the activity been
conducted in the United States (or advocates for any
such activity that constitutes a Federal felony
offense); or
(iii) in the case of an activity that takes place
in a State, territory, or unit of local government and
involves an act that constitutes a felony offense,
violates a State law, territorial law, or local
ordinance that prohibits such an act or advocates for
such activity;
(B) undermines or inherently conflicts with an
outcome or objective that such employee or contractor
ordinarily aims to achieve in their official employment
or contractual capacity, and achieving such an outcome
or objective is a reasonably central component of such
employee or contractor's typical responsibilities;
(C) is undertaken by an employee or contractor who
routinely conducts work on behalf of a domestic entity
whose principal and overriding purpose is advocating
for or otherwise furthering outcomes or objectives of a
designated foreign government or entity (including a
domestic entity registered under the Foreign Agents
Registration Act of 1938), which are fundamentally
opposed to a principal desired outcome or objective of
the activity;
(D) is undertaken with the intent to, or the
reasonably foreseeable effect of, denigrating a person
or class of persons on the basis of any protected
characteristic which is subject to any employment
protections enforceable by the Equal Employment
Opportunity Commission or an analogous state or
territorial agency of any state or territory in the
United States; or
(E) the average person applying contemporary
community standards of the United States would
determine to be, taken as a whole, patently obscene and
lacking in serious political, literary, artistic, or
scientific value.
(2) Protected action.--The term ``protected action''
means--
(A) any speech, conduct, or other advocacy related
to a designated foreign government or entity's actual,
historic, or potential current or future gross
violation of internationally recognized human rights
(as such term is defined in section 502B(d) of the
Foreign Assistance Act of 1961 (22 U.S.C. 2304(d))), or
such government or entity's facilitation or support of,
or activities related to, such a violation;
(B) any speech, conduct, or other advocacy related
to political, social, or similarly sensitive matters,
provided such matters generally relate to conditions or
practices within a country governed by a designated
foreign authority, or domestic or international
policies of a designated foreign government or entity,
on which such designated foreign authority censors or
imposes official or unofficial publishing or advocacy
restrictions (including but not limited to religious
activities, cultural activities, territorial claims,
sovereignty status, political leaders, internal party
dynamics, alleged abuses of power, and corruption), if
such censorship or restriction would be
unconstitutional or otherwise unlawful if implemented
in the United States by the United States Government;
(C) any speech, conduct, or other advocacy related
to the international activities of a designated foreign
authority, or any designated foreign authority-
affiliated entity or designated agent of influence
acting on its behalf, which may result in imprisonment
or other official or unofficial sanction if undertaken
in such country (including but not limited to licit or
illicit transfers of technology, overt, covert, or
clandestine action, or overseas influence or
disinformation campaigns);
(D) any speech, conduct, or other advocacy
contesting, purposefully or incidentally, a preferred
governmental narrative of a designated foreign
authority with respect to historical or current events
(including but not limited to the creation or use of
maps or other geographic identifiers which depict
disputed territories or describe disputed territorial
classifications);
(E) any speech, conduct, or other advocacy
regarding senior officials of a designated foreign
authority on the basis of decisions or actions
undertaken in such official's official or personal
capacity; or
(F) the provision by an employee or contractor of
financial or in-kind support, using exclusively
resources other than resources of an employing or
contracting domestic entity which has not provided
consent for such use, to any person engaging in an
activity which would constitute protected activity if
the employee or contractor personally engaged in such
activity.
(3) Protected inaction.--The term ``protected inaction''
means refraining from or refusing to undertake activity,
including nonexcepted activity conducted in an employee or
contractor's official capacity, on the basis of sincerely held
philosophical, ethical, or patriotic objections, that--
(A) counters or otherwise inhibits protected action
or enhanced China-related protected activity, even if
such activity occurs abroad;
(B) facilitates or supports a human rights
violation of a designated foreign government or entity;
or
(C) facilitates or supports an overseas propaganda
or disinformation effort of a designated foreign
authority or designated agent of influence, provided
that the activity which the employee or contractor
refrained from or refused to undertake has the direct
and foreseeable impact of meaningfully, or the intent
of reasonably directly, contributing to a matter
described in subparagraph (A), (B), or (C).
(4) Enhanced china-related protected activity.--The term
``enhanced China-related protected activity'' means any speech,
conduct, or other advocacy, which is not protected action or
protected inaction, and which relates to--
(A) actions of the government or ruling party of
the People's Republic of China, or any special
administrative region or equivalent region, to
restrict, limit, or otherwise inhibit freedom of speech
or assembly, freedom of religion, or other fundamental
human rights or freedoms, including through arbitrary
detention, pervasive surveillance, or censorship;
(B) any aspect of a public policy debate within the
United States which can reasonably be understood to
predominantly pertain to China, or the relationship
between the United States and any country or countries
in the Indo-Pacific region, with respect to which the
government or ruling party of the People's Republic of
China has lobbied or otherwise sought to encourage or
discourage elected or appointed officials of the United
States from pursuing or implementing a particular
policy; or
(C) revealing or otherwise discussing malign
international activities (including cyberattacks,
unfair trade practices, intellectual property
violations, influence or disinformation campaigns,
illicit data collection efforts, and global
surveillance or censorship efforts) of the government,
ruling party, or any affiliated commercial enterprise
of the People's Republic of China.
(5) Country of concern.--The term ``country of concern''
means--
(A) China, including any special administrative
regions or equivalent regions, but excluding, Taiwan
for so long as such remains governed in a distinct and
separate manner; or
(B) any other country, provided such country is not
a member of the North Atlantic Treaty Organization
(NATO), a major non-NATO ally designated under section
517 of the Foreign Assistance Act of 1961 (22 U.S.C.
2321k), a strategic partner of the United States, or a
member, as of the date of enactment of this Act, of the
Organisation for Economic Co-operation and Development,
which the President publicly certifies to Congress on
an annual basis--
(i) seeks, or consistently sought within
the prior 10 years, to restrict protected
activities of employees or contractors or
otherwise meaningfully inhibit or alter the
domestic speech of domestic entities on topics
subject to the protections of this Act;
(ii) poses a legitimate risk of undermining
official United States foreign policy
objectives, furthering gross violations of
international recognized human rights (as such
term is defined in section 502B(d) of the
Foreign Assistance Act of 1961 (22 U.S.C.
2304(d)), or interfering with the open debate
and discussion of topics related to such
country, by virtue of the actual or attempted
actions described in clause (i); and
(iii) is--
(I) designated as a country of
particular concern for religious
freedom pursuant to section 402(b)(1)
of the International Religious Freedom
Act of 1998 (22 U.S.C. 6442(b)(1));
(II) a country sanctioned under the
Chemical and Biological Weapons Control
and Warfare Elimination Act of 1991 (22
U.S.C. 5601 et seq.), or which was
sanctioned under such Act at any point
of time prior to the date of enactment
of this Act; or
(III) a country the government of
which the Secretary of State determines
has repeatedly provided support for
acts of international terrorism for
purposes of section 1754(c) of the
Export Control Reform Act of 2018 (50
U.S.C. 4813(c)), section 620A of the
Foreign Assistance Act of 1961 (22
U.S.C. 2371), or section 40 of the Arms
Export Control Act (22 U.S.C. 2780).
(6) Designated foreign governments and entities.--The term
``designated foreign government or entity'' means any
designated foreign authority, designated foreign authority-
affiliated entity, or designated agent of influence.
(7) Designated foreign authority.--The term ``designated
foreign authority'' means any government or governmental
element, or political party or party element exercising
substantial control or influence over government functions or
decision making, or government or party official of a country
of concern.
(8) Designated foreign authority-affiliated entity.--The
term ``designated foreign authority-affiliated entity'' means
any state-owned, private, or otherwise non-governmental entity
domiciled within, based within, or having its principal place
of business or operations within a country of concern, unless
such entity is specifically exempted by order of the President
or his or her designee. Such term shall include variable
interest entities and international subsidiaries affiliated
with such designated foreign authority-affiliated entities.
(9) Designated agent of influence.--The term ``designated
agent of influence'' means any domestic or international entity
or person--
(A) registered under the Foreign Agents
Registration Act of 1938 on behalf of a designated
foreign authority or designated foreign authority-
affiliated entity;
(B) the President determines and publicly certifies
is otherwise acting as an overt, covert, or clandestine
agent of a designated foreign authority; or
(C) understood or reasonably suspected by the
domestic entity undertaking an adverse action or
seeking to impose a contractual limitation which is
prohibited under this Act to be an overt, covert, or
clandestine agent of a designated foreign authority.
(10) Domestic entity.--
(A) In general.--For the purposes of the Act, the
term ``domestic entity'' means--
(i) any entity, without regard to the
country where such entity is domiciled or
incorporated, that--
(I) conducts business or
organizational activities in the United
States (or outside of the United States
at a facility that is officially or
unofficially affiliated with the United
States Government); or
(II) pays salary, wages, or other
compensation for work performed in the
United States or that has control over
employment or contracting opportunities
in the United States; and
(ii) the Federal Government.
(B) Limited federal exclusion authority.--The
President may, upon 90 days prior notice to Congress,
exclude a component of a Federal agency or the Armed
Forces, or a corporate contractor thereof, from the
definition under this paragraph, to the extent such
exclusion is in the interests of United States foreign
policy or national security.
(11) Employee.--The term ``employee'' means any person,
including supervisors, employed in a covered context by a
domestic entity.
(12) Contractor.--The term ``contractor'' means an
individual who provides work in a covered context for a
domestic entity under the terms of an independent contract with
such domestic entity or an individual who uses a loan-out
corporation or similar corporate structure to facilitate such
work.
(13) Covered contexts.--The term ``covered context'' means
employment or contractual activities which--
(A) occur within the United States (including any
overseas Federal facilities thereof), regardless of the
nationality, citizenship, domicile, or place of
incorporation of the employee, contractor, or domestic
entity; or
(B) are conducted by an employee or contractor of a
domestic entity who typically performs work within the
United States, regardless of whether such employee or
contractor handles matters of an international nature
or is temporarily assigned to a foreign jurisdiction
for a period of 6 months or less (except to the extent
such activity relates to official overseas travel to a
country of concern exempted from the prohibition on
retaliation pursuant to section 3 of this Act).
SEC. 6. ANNUAL REPORTING ON CENSORSHIP OF FREE SPEECH WITH RESPECT TO
INTERNATIONAL ABUSES OF HUMAN RIGHTS.
Section 116(d) of the Foreign Assistance Act (22 U.S.C. 2151n(d))
is amended--
(1) in paragraph (11)(C), by striking ``and'' at the end;
(2) in paragraph (12)(C)(ii), by striking the period at the
end and inserting a semicolon; and
(3) by adding at the end the following:
``(13) wherever applicable, each instance in which each
country has attempted to extraterritorially intimidate or
pressure a company or entity to censor or self-censor the
speech of its employees, contractors, customers, or associated
staff with regards to the abuse of human rights in such
country, or sought retaliation against such employees or
contractors for the same, including any instance in which the
government of China has sought to extraterritorially censor or
punish speech that is otherwise legal in the United States on
the topics of--
``(A) repression and violation of fundamental
freedoms in Hong Kong;
``(B) repression and persecution of religious and
ethnic minorities in China, including in the Xinjiang
Uyghur Autonomous Region and the Tibet Autonomous
Region;
``(C) efforts to proliferate and use surveillance
technologies to surveil activists, journalists,
opposition politicians, or to profile persons of
different ethnicities; and
``(D) other gross violations of human rights; and
``(14) wherever applicable, each instance in which a
company or entity located in or based in a third country has
censored or self-censored the speech of its employees,
contractors, customers, or associated staff on the topic of
abuse of human rights in each country or sought to retaliate
against such employees for the same, due to intimidation or
pressure from or the fear of intimidation by the foreign
government.''.
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