[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1153 Reported in House (RH)]
<DOC>
Union Calendar No. 43
118th CONGRESS
1st Session
H. R. 1153
[Report No. 118-63]
To provide a clarification of non-applicability for regulation and
prohibition relating to sensitive personal data under the International
Emergency Economic Powers Act, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
February 24, 2023
Mr. McCaul introduced the following bill; which was referred to the
Committee on Foreign Affairs
May 16, 2023
Additional sponsor: Mr. Smith of New Jersey
May 16, 2023
Reported from the Committee on Foreign Affairs; committed to the
Committee of the Whole House on the State of the Union and ordered to
be printed
_______________________________________________________________________
A BILL
To provide a clarification of non-applicability for regulation and
prohibition relating to sensitive personal data under the International
Emergency Economic Powers Act, 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 AND TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Deterring
America's Technological Adversaries Act'' or ``DATA Act''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title and table of contents.
Sec. 2. Findings.
Sec. 3. Authorization of appropriations.
Sec. 4. Severability.
Sec. 5. Definitions.
TITLE I--CLARIFICATION OF NON-APPLICABILITY FOR REGULATION AND
PROHIBITION RELATING TO SENSITIVE PERSONAL DATA UNDER INTERNATIONAL
EMERGENCY ECONOMIC POWERS ACT
Sec. 101. Clarification.
Sec. 102. Directive.
TITLE II--IMPOSITION OF SANCTIONS ON CERTAIN TRANSACTIONS RELATING TO
CONNECTED SOFTWARE APPLICATIONS
Sec. 201. Imposition of sanctions.
Sec. 202. Sanction described.
Sec. 203. Sunset.
TITLE III--SPECIFIC DETERMINATIONS WITH RESPECT TO THE IMPOSITION OF
SANCTIONS
Sec. 301. Determination relating to Bytedance, Ltd., TikTok, and
related entities.
Sec. 302. Requests by appropriate congressional committees.
SEC. 2. FINDINGS.
Congress finds the following:
(1) On December 2, 2022, the Director of the Federal Bureau
of Investigation, Christopher Wray, stated, ``We . . . do have
national security concerns about the app [TikTok]. Its parent
company is controlled by the Chinese government. And it gives
them the potential to leverage the app in ways that I think
should concern us . . . One, it gives them the ability to
control the recommendation algorithm which allows them to
manipulate content and if they want to, to use it for influence
operations which are a lot more worrisome in the hands of the
Chinese Communist Party than whether or not you're steering
somebody as an influencer to one product or another. They also
have the ability to collect data through it on users which can
be used for traditional espionage operations, for example. They
also have the ability on it to get access, they have
essentially access to the software to devices. So you're
talking about millions of devices and that gives them the
ability to engage in different kinds of malicious cyber
activity through that. And so all of these things are in the
hands of a government that doesn't share our values and that
has a mission that's very much at odds with what's in the best
interest of the United States that that should concern us.''.
(2) On December 3, 2022, the Director of National
Intelligence, Avril Haines, ``It is extraordinary the degree to
which China, in particular, but they're not the only ones,
obviously, are developing just frameworks for collecting
foreign data and pulling it in and their capacity to then turn
that around and use it to target audiences for information
campaigns or for other things, but also to have it for the
future so that they can use it for a variety of means that
they're interested in.''.
(3) On December 16, 2022, the Director of Central
Intelligence, Bill Burns, stated, ``I think it's a genuine
concern . . . for the U.S. government, in the sense that,
because the parent company of TikTok is a Chinese company, the
Chinese government is able to insist upon extracting the
private data of a lot of TikTok users in this country, and also
to shape the content of what goes on to TikTok as well to suit
the interests of the Chinese leadership . . . What I would
underscore, though, is that it's genuinely troubling to see
what the Chinese government could do to manipulate TikTok.''.
(4) On December 23, 2022, both chambers of Congress passed
a bipartisan spending bill that included a ban on using TikTok
from government devices.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
No additional amounts are authorized to be made available to carry
out this Act.
SEC. 4. SEVERABILITY.
If any provision of this Act or its application to any person or
circumstance is held invalid, the invalidity does not affect other
provisions or applications of this section that can be given effect
without the invalid provision or application, and to this end the
provisions of this Act are severable.
SEC. 5. DEFINITIONS.
In this Act:
(1) Agency or instrumentality of a foreign state.--The term
``agency or instrumentality of a foreign state'' has the
meaning given such term under section 1603(b) of title 28,
United States Code.
(2) Appropriate congressional committees.--The term
``appropriate congressional committees'' means--
(A) the Committee on Foreign Affairs, Committee on
Ways and Means, and the Committee on Financial Services
of the House of Representatives; and
(B) the Committee on Foreign Relations and the
Committee on Banking, Housing, and Urban Affairs of the
Senate.
(3) China.--The term ``China'' means--
(A) when used in the geographic sense, the country
of the People's Republic of China; and
(B) otherwise, the Government of the country of the
People's Republic of China, including any entity acting
on behalf of, or the benefit of--
(i) the country of the People's Republic of
China; or
(ii) the Government of the country of the
People's Republic of China.
(4) Connected software application.--The term ``connected
software application'' has the meaning given such term in
Executive Order 14034 (86 Fed. Reg. 31423; relating to
protecting Americans' sensitive data from foreign adversaries).
(5) Election interference in or against a foreign country
that is a treaty ally of the united states or a democratic or
emerging democratic partner of the united states.--The term
``election interference in or against a foreign country that is
a treaty ally of the United States or a democratic or emerging
democratic partner of the United States'' means actions to
engage in, directly or indirectly, activities originating from,
or directed by, persons located, in whole or in substantial
part, outside the territory of a treaty ally of the United
States or a democratic or emerging democratic partner of the
United States that have the purpose or effect of tampering
with, altering, unlawfully accessing, or causing a
misappropriation of information with the purpose or effect of
interfering with or undermining election processes or
institutions.
(6) Election interference in or against the united
states.--The term ``election interference in or against the
United States'' includes actions to engage in, directly or
indirectly, activities originating from, or directed by persons
located, in whole or in substantial part, outside the United
States that--
(A) have the purpose or effect of tampering with,
altering, unlawfully accessing, or causing a
misappropriation of information with the purpose or
effect of undermining election processes or
institutions;
(B) deny access, block, degrade, or alter election
and campaign infrastructure, or related systems or data
related to political parties, candidates in elections
for public office, the administration of elections for
public office, or any public election activity; or
(C) consist of the making of contributions or
donations, or any other activity prohibited under
section 319 of the Federal Election Campaign Act of
1971 (52 U.S.C. 30121), with the purpose or effect of
undermining election processes or institutions.
(7) Foreign person.--The term ``foreign person''--
(A) means a person that is not a United States
person; and
(B) includes a nonresident alien individual,
foreign corporation, foreign partnership, foreign
trust, foreign estate.
(8) Knowingly.--The term ``knowingly'', with respect to
conduct, a circumstance, or a result, means that a person has
actual knowledge, or should have known, of the conduct, the
circumstance, or the result.
(9) Sensitive personal data.--The term ``sensitive personal
data'' has the meaning given such term in section 7.2 of title
15, Code of Federal Regulations (or any successor regulation).
(10) Treaty ally of the united states.--The term ``treaty
ally of the United States'' means a foreign country that is a
party to any of the following:
(A) The North Atlantic Treaty, signed at
Washington, April 4, 1949.
(B) The Security Treaty Between Australia, New
Zealand, and the United States of America, signed at
San Francisco, September 1, 1951.
(C) The Mutual Defense Treaty Between the United
States of America and the Republic of the Philippines,
signed at Washington, August 30, 1951.
(D) The Southeast Asia Collective Defense Treaty,
signed at Manilla, September 8, 1954.
(E) The Treaty of Mutual Cooperation and Security
Between the United States of America and Japan, signed
at Washington, January 19, 1960.
(F) The Mutual Defense Treaty Between the United
States of America and the Republic of Korea, signed at
Washington, October 1, 1953.
(11) United states person.--The term ``United States
person'' means--
(A) a United States citizen;
(B) a permanent resident alien;
(C) an entity organized under the laws of the
United States (including foreign branches); or
(D) any person in the United States.
TITLE I--CLARIFICATION OF NON-APPLICABILITY FOR REGULATION AND
PROHIBITION RELATING TO SENSITIVE PERSONAL DATA UNDER INTERNATIONAL
EMERGENCY ECONOMIC POWERS ACT
SEC. 101. CLARIFICATION.
(a) In General.--The importation to a country, or the exportation
from a country, of sensitive personal data shall not constitute the
importation from a country, or the exportation to a country, of
information or informational materials for purposes of paragraph (1) or
(3) of section 203(b) of the International Emergency Economic Powers
Act (50 U.S.C. 1702(b)).
(b) Rule of Construction.--Nothing in subsection (a), and nothing
in the International Emergency Economic Powers Act, may be construed to
provide for the application of paragraph (1) or (3) of section 203(b)
of the International Emergency Economic Powers Act (50 U.S.C. 1702(b))
to the importation to China, or the exportation from China, directly or
indirectly, of sensitive personal data.
SEC. 102. DIRECTIVE.
Not later than 180 days after the date of the enactment of this
Act, the Secretary of the Treasury shall issue a directive prohibiting
United States persons from engaging in any transaction with a person
that the Secretary of the Treasury determines knowingly provides or may
transfer sensitive personal data of persons subject to United States
jurisdiction to any foreign person that--
(1) is subject to the jurisdiction or direction of, or
directly or indirectly operating on behalf of, China; or
(2) is owned by, directly or indirectly controlled by, or
is otherwise subject to the influence of China.
TITLE II--IMPOSITION OF SANCTIONS ON CERTAIN TRANSACTIONS RELATING TO
CONNECTED SOFTWARE APPLICATIONS
SEC. 201. IMPOSITION OF SANCTIONS.
(a) In General.--The President shall impose the sanction described
in section 202 with respect to any foreign person that, on or after the
date of the enactment of this Act, knowingly--
(1) operates, directs, or otherwise deals in a connected
software application that--
(A) is subject to the jurisdiction or direction of,
or directly or indirectly operating on behalf of China,
or is owned by, directly or indirectly controlled by,
or otherwise subject to the influence of China; and
(B) is reasonable believed to have facilitated or
may be facilitating or contributing to China's--
(i) military, intelligence, espionage, or
weapons proliferation activities;
(ii) censorship activities;
(iii) surveillance activities;
(iv) control or use of recommendation
algorithms that are capable of manipulating
content;
(v) malicious cyber activities; or
(vi) use of data to target audiences for
information campaigns;
(2) directly or indirectly orders, controls, directs,
engages in, or otherwise facilitates an act of election
interference against the United States;
(3) directly or indirectly orders, controls, directs,
engages in, or otherwise facilitates an act of election
interference in or against a foreign country that is--
(A) a treaty ally of the United States; or
(B) a democratic or emerging democratic partner of
the United States;
(4) directly or indirectly orders, controls, directs,
engages in, or otherwise facilitates an act of steering United
States policy and regulatory decisions in favor of China's
strategic objectives, to the detriment of the economic or
national security of the United States;
(5) knowingly facilitates a transaction or transactions for
or on behalf of a person described, or a person that has
engaged in the activity described, as the case may be, in
paragraph (1), (2), (3), or (4);
(6) knowingly assists, sponsors, or provides financial,
material, or technological support for a person described, or a
person that has engaged in the activity described, as the case
may be, in paragraph (1), (2), (3), or (4); or
(7) is owned or controlled by, or has acted for or on
behalf of, directly or indirectly, a person described, or a
person that has engaged in the activity described, as the case
may be, in paragraph (1), (2), (3), or (4).
(b) List of Foreign Countries That Are Democratic or Emerging
Democratic Partners of the United States.--
(1) In general.--Not later than 90 days after the date of
the enactment of this Act, the President shall submit to the
appropriate congressional committees--
(A) a definition of the term ``democratic or
emerging democratic partner of the United States''; and
(B) a list of foreign countries that are designated
as a democratic or emerging democratic partner of the
United States for purposes of subsection (a)(3) that
includes the countries listed in paragraph (2).
(2) Initial designations.--Sweden, Switzerland, Israel,
India, and Taiwan shall be deemed to have been so designated as
a democratic or emerging democratic partner of the United
States for purposes of subsection (a)(3).
(3) Updates.--The President shall submit to the appropriate
congressional committees an updated list under subparagraph (A)
on a periodic basis.
SEC. 202. SANCTION DESCRIBED.
(a) In General.--The sanction described in this section is the
exercise of all powers granted to the President by the International
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (except that the
requirements of section 202 of such Act (50 U.S.C. 1701) shall not
apply) to the extent necessary to block and prohibit all transactions
in all property and interests in property of any foreign person or an
agency or instrumentality of a foreign state, as the case may be, 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.
(b) 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 title.
(c) Regulations.--
(1) In general.--The President shall prescribe such
regulations as may be necessary for the implementation of this
title.
(2) Prior briefing required.--Not later than 10 days before
the prescription of regulations under paragraph (1), the
President shall brief the appropriate congressional committees
regarding the proposed regulations and the provisions of this
title that such regulations are implementing.
(d) Penalties.--A person that violates, attempts to violate, or
causes a violation of any sanction authorized by this title, or any
regulation, license, or order issued to carry out such sanctions, 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.
(e) Exceptions.--The following activities shall not be subject to
the imposition of sanctions under this title:
(1) Any authorized intelligence, law enforcement, or
national security activities of the United States.
(2) Any transaction necessary to comply with United States
obligations under the Agreement between the United Nations and
the United States of America regarding the Headquarters of the
United States, signed at Lake Success June 26, 1947, and
entered into force November 21, 1947, or the Convention on
Consular Relations, done at Vienna April 24, 1963, and entered
into force March 19, 1967, or any other United States
international agreement.
(f) Waiver.--The President may, on a case-by-case basis and for
periods not to exceed 180 days each, waive the application of sanctions
imposed with respect to a foreign person under this title if the
President certifies to the appropriate congressional committees, not
later than 15 days before such waiver is to take effect, that the
waiver is vital to the national security interests of the United
States.
SEC. 203. SUNSET.
This title, and the authorities provided by this title, shall
terminate on the date that is 5 years after the date of the enactment
of this Act.
TITLE III--SPECIFIC DETERMINATIONS WITH RESPECT TO THE IMPOSITION OF
SANCTIONS
SEC. 301. DETERMINATION RELATING TO BYTEDANCE, LTD., TIKTOK, AND
RELATED ENTITIES.
(a) In General.--Not later than 90 days after the date of the
enactment of this Act, and every 180 days thereafter for 3 years, the
President shall transmit to the appropriate congressional committees a
determination of whether reasonable grounds exist for concluding that
any of the entities described in subsection (b)--
(1) meets the criteria described in paragraph (1) or (2) of
section 102 for purposes of applying a directive described in
such section with respect to the entity; or
(2) have engaged in any conduct described in section 201.
(b) Entities Described.--The entities described in this subsection
are--
(1) Bytedance, Ltd.;
(2) TikTok;
(3) any subsidiary of or a successor to an entity described
in paragraph (1) or (2); and
(4) any entity owned or controlled directly or indirectly
by an entity described in paragraph (1), (2), or (3).
(c) Form.--The determination described in subsection (a) shall be
transmitted in unclassified form, and any supporting documentation may
be transmitted in a classified annex.
(d) Application of Sanctions.--If the President makes an
affirmative decision under subsection (a) with respect to any entity
described in subsection (b), the President shall impose the sanction
described in section 202 with respect to the entity, as appropriate.
SEC. 302. REQUESTS BY APPROPRIATE CONGRESSIONAL COMMITTEES.
(a) In General.--Not later than 120 days after receiving a request
from the chairperson or ranking member of one or more of the
appropriate congressional committees with respect to whether a foreign
person meets the criteria described in paragraph (1) or (2) of section
102 for purposes of applying a directive described in such section with
respect to the person, or have engaged in any conduct described in
section 201 for the imposition of the sanction described in section
202, the President shall--
(1) determine if that person meets the requirements
described in the applicable section; and
(2) submit to the chairperson and ranking member of the
committee or committees a report that includes--
(A) a statement of whether or not the President
imposed or intends to impose such sanction with respect
to the person; and
(B) if applicable, a description of the sanction so
imposed or intended to be imposed.
(b) Availability of Information.--
(1) In general.--Any information obtained at any time with
respect to the President making a determination with respect to
a foreign person under subsection (a), or under any review of
the foreign person through other United States Government
national security review processes, shall be made available to
a committee or subcommittee of Congress of appropriate
jurisdiction, upon the request of the chairman or ranking
minority member of such committee or subcommittee.
(2) Prohibition on disclosure.--No such committee or
subcommittee, or member thereof, may disclose any information
made available under clause (i), that is submitted on a
confidential basis unless the full committee determines that
the withholding of that information is contrary to the national
interest.
(c) Form.--Each determination described in subsection (a)(1), and
each report under subsection (a)(2), may be submitted in classified or
unclassified form, and any supporting documentation to such
determination or report may contain a classified annex.
Union Calendar No. 43
118th CONGRESS
1st Session
H. R. 1153
[Report No. 118-63]
_______________________________________________________________________
A BILL
To provide a clarification of non-applicability for regulation and
prohibition relating to sensitive personal data under the International
Emergency Economic Powers Act, and for other purposes.
_______________________________________________________________________
May 16, 2023
Committed to the Committee of the Whole House on the State of the
Union and ordered to be printed