Text: H.R.3605 — 112th Congress (2011-2012)All Information (Except Text)

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Introduced in House (12/08/2011)


112th CONGRESS
1st Session
H. R. 3605


To prevent United States businesses from cooperating with repressive governments in transforming the Internet into a tool of censorship and surveillance, to fulfill the responsibility of the United States Government to promote freedom of expression on the Internet, to restore public confidence in the integrity of United States businesses, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

December 8, 2011

Mr. Smith of New Jersey (for himself, Mr. Wolf, and Mr. McCotter) introduced the following bill; which was referred to the Committee on Foreign Affairs, and in addition to the Committees on Ways and Means and Financial Services, 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 prevent United States businesses from cooperating with repressive governments in transforming the Internet into a tool of censorship and surveillance, to fulfill the responsibility of the United States Government to promote freedom of expression on the Internet, to restore public confidence in the integrity of United States businesses, 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; table of contents.

(a) Short title.—This Act may be cited as the “Global Online Freedom Act of 2011”.

(b) Table of contents.—The table of contents for this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 2. Findings.

Sec. 3. Definitions.

Sec. 4. Severability.

Sec. 101. Statement of policy.

Sec. 102. Sense of Congress.

Sec. 103. Annual Country Reports on Human Rights Practices.

Sec. 104. Annual designation of Internet-restricting countries; report.

Sec. 105. Report on trade-related issues or disputes due to government censorship or disruption of the Internet.

Sec. 201. Disclosure of blocking and surveillance by Internet communications services companies.

Sec. 301. Export controls on certain telecommunications equipment.

SEC. 2. Findings.

Congress makes the following findings:

(1) The political and economic benefits of the Internet are important to advancing democracy and freedom throughout the world, but the potential benefits of this transformative technology are under attack by authoritarian governments;

(2) A number of repressive foreign governments block, restrict, otherwise control, and monitor the Internet, effectively transforming the Internet into a tool of censorship and surveillance.

(3) A number of United States businesses have enabled repressive regimes to compromise the security of Internet users engaged in peaceful discussion of political, social, and religious issues and severely limit their access to information and communication channels by selling these governments or their agents technology or training.

(4) A number of United States businesses have provided repressive governments with information about Internet users who were the company’s clients or were using the companies’ products, that has led to the arrest and imprisonment of the Internet users.

(5) The actions of a number of United States businesses in cooperating with the efforts of repressive governments to transform the Internet into a tool of censorship and surveillance have caused Internet users in the United States and in foreign countries to lose confidence in the integrity of United States businesses.

(6) Information and communication technology companies are to be commended for cooperating with civil society organizations, academics, and investors in founding the Global Network Initiative, in order to provide direction and guidance to the Information and Communications Technology companies and others in protecting the free expression and privacy of Internet users. Human rights due diligence by companies makes a difference.

(7) The United States Government has a responsibility to protect freedom of expression on the Internet, to prevent United States businesses from directly and materially cooperating in human rights abuses perpetrated by repressive foreign governments, and to restore public confidence in the integrity of United States business.

SEC. 3. Definitions.

In this Act:

(1) APPROPRIATE CONGRESSIONAL COMMITTEES.—The term “appropriate congressional committees” means—

(A) the Committee on Foreign Affairs and the Committee on Financial Services of the House of Representatives; and

(B) the Committee on Foreign Relations and the Committee on Finance of the Senate.

(2) ELECTRONIC COMMUNICATION AND OTHER TITLE 18 DEFINITIONS.—The terms “electronic communication”, “electronic communications system”, “electronic storage”, and “contents” have the meanings given such terms in section 2510 of title 18, United States Code.

(3) FOREIGN OFFICIAL.—

(A) IN GENERAL.—The term “foreign official” means—

(i) any officer or employee of a foreign government or of any department; and

(ii) any person acting in an official capacity for or on behalf of, or acting under color of law with the knowledge of, any such government or such department, agency, state-owned enterprise, or instrumentality.

(B) STATE-OWNED ENTERPRISE.—For purposes of subparagraph (A), the term “state-owned enterprise” means a commercial entity in which a foreign government owns or controls, directly or indirectly, more than 50 percent of the outstanding capital stock or other beneficial interest in such commercial entity.

(4) INTERNET.—The term “Internet” has the meaning given the term in section 231(f) of the Communications Act of 1934 (47 U.S.C. 231(f)).

(5) INTERNET-RESTRICTING COUNTRY.—The term “Internet-restricting country” means a country designated by the Secretary of State pursuant to section 104(a) of this Act.

(6) INTERNET COMMUNICATIONS SERVICES.—The term “Internet communications services”—

(A) means a method for providing communications services via the Internet, including electronic mail, Internet telephony, online chat, online text messaging, Internet bulletin boards, or Web pages; and

(B) (i) includes providing Internet access; but

(ii) does not include activities conducted by a financial institution (as such term is defined in section 5312 of title 31, United States Code) that are financial in nature, even if such activities are conducted using the Internet.

(7) INTERNET CONTENT HOSTING SERVICE.—The terms “Internet content hosting service” and “content hosting service” mean a service that—

(A) stores, through electromagnetic or other means, electronic data, such as the content of Web pages, electronic mail, documents, images, audio and video files, online discussion boards, or Web logs; and

(B) makes such data available via the Internet.

(8) INTERNET SEARCH ENGINE.—The term “Internet search engine” or “search engine” means a service made available via the Internet that, on the basis of a query consisting of terms, concepts, questions, or other data input by a user, searches information available on the Internet and returns to the user a means, such as a hyperlinked list of Uniform Resource Identifiers, of locating, viewing, or downloading information or data available on the Internet relating to such query.

(9) LEGITIMATE FOREIGN LAW ENFORCEMENT PURPOSES.—

(A) IN GENERAL.—The term “legitimate foreign law enforcement purpose” means for the purpose of enforcement, investigation, or prosecution by a foreign official based on a publicly promulgated law of reasonable specificity that proximately relates to the protection or promotion of the health, safety, or morals of the citizens of the jurisdiction of such official.

(B) RULE OF CONSTRUCTION.—For purposes of this Act, the control, suppression, or punishment of peaceful expression of political, religious, or ideological opinion or belief shall not be construed to constitute a legitimate foreign law enforcement purpose. Among expression that should be construed to be protected against control, suppression, or punishment when evaluating a foreign government’s claim of a legitimate foreign law enforcement purpose is expression protected by article 19 of the International Covenant on Civil and Political Rights.

(10) PERSONALLY IDENTIFIABLE INFORMATION.—The term “personally identifiable information”—

(A) includes any information described in section 2703(c)(2) of title 18, United States Code; and

(B) does not include—

(i) any traffic data; or

(ii) any record of aggregate data which cannot be used to identify particular persons.

(11) PERSONALLY IDENTIFIABLE INFORMATION USED TO ESTABLISH OR MAINTAIN AN ACCOUNT.—The term “personally identifiable information used to establish or maintain an account” does not include—

(A) information collected in the course of establishing or operating accounts for communications within a company;

(B) information collected in the course of the purchase, sale, shipment, or distribution of goods, including transactions for goods or services utilizing the Internet, other than communication services on which a political, religious, or ideological opinion or belief may be expressed; or

(C) personally identifiable information volunteered in an electronic communication, other than in a communication made in the course of establishing an account for Internet communications services, such as an electronic mail signature line or an electronic mail, on-line video, or Web page in which the author voluntarily provides personally identifiable information.

(12) SUBSTANTIAL RESTRICTIONS ON INTERNET FREEDOM.—The term “substantial restrictions on Internet freedom” means actions that restrict or punish the free availability of information via the Internet for reasons other than legitimate foreign law enforcement purposes, including—

(A) deliberately blocking, filtering, or censoring information available via the Internet based on the expression of political, religious, or ideological opinion or belief, including by electronic mail; or

(B) persecuting, prosecuting, or otherwise punishing an individual or group for posting or transmitting peaceful political, religious, or ideological opinion or belief via the Internet, including by electronic mail.

(13) TRAFFIC DATA.—The term “traffic data” means, with respect to an electronic communication, any information contained in or relating to such communication that is processed for the purpose of the conveyance of the communication by an electronic communications system or for the billing thereof, including any Internet Protocol address or other means of identifying a location within an electronic communications system, but that cannot be used to identify a particular person. Such term cannot be used to include the contents of any electronic communication.

(14) UNITED STATES BUSINESS.—The term “United States business” means—

(A) any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship that—

(i) has its principal place of business in the United States; or

(ii) is organized under the laws of a State of the United States or a territory, possession, or commonwealth of the United States; and

(B) any issuer of a security registered pursuant to section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l).

SEC. 4. Severability.

If any provision of this Act, or the application of such provision to any person or circumstance, is held invalid, the remainder of this Act, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.

SEC. 101. Statement of policy.

It shall be the policy of the United States—

(1) to promote as a fundamental component of United States foreign policy the right of every individual to freedom of opinion and expression, including the right to hold opinions, and to seek, receive, and impart information and ideas through any media and regardless of frontiers, without interference;

(2) to use all appropriate instruments of United States influence, including diplomacy, trade policy, and export controls, to support, promote, and strengthen principles, practices, and values that promote the free flow of information without interference or discrimination, including through the Internet and other electronic media; and

(3) to deter any United States business from cooperating with officials of Internet-restricting countries in effecting the political censorship of online content.

SEC. 102. Sense of Congress.

It is the sense of the Congress that—

(1) the President should, through bilateral, and where appropriate, multilateral activities, seek to obtain the agreement of other countries to promote the goals and objectives of this Act and to protect Internet freedom; and

(2) to the extent that a United States business empowers or assists any foreign government in its efforts—

(A) to restrict online access to the Web sites of the Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia, Al-Hurra, Radio Sawa, Radio Farda, Radio Marti, TV Marti, or other United States-supported Web sites and online access to United States Government reports such as the annual Country Reports on Human Rights Practices, the annual Reports on International Religious Freedom, and the annual Trafficking in Human Persons Reports, or

(B) to compromise the security of Internet users, severely limit their access to information and communication channels through censoring of information or malicious attacks,

such business is working contrary to the foreign policy interests of the United States and is undercutting United States taxpayer-funded efforts to promote freedom of information for all people, including those in undemocratic and repressive societies.

SEC. 103. Annual Country Reports on Human Rights Practices.

(a) Report relating to economic assistance.—Section 116 of the Foreign Assistance Act of 1961 (22 U.S.C. 2151n) is amended by adding at the end the following new subsection:

“(g) (1) The report required by subsection (d) shall include an assessment of the freedom of electronic information in each foreign country. Such assessment shall consist of the following:

“(A) An assessment of the general extent to which Internet access is available to and used by citizens in that country.

“(B) An assessment of the extent to which government authorities in that country attempt to filter, censor, or otherwise block or remove Internet content, as well as a description of the means by which such authorities attempt to block or remove protected speech.

“(C) A description of known instances in which government authorities in that country have persecuted, prosecuted, or otherwise punished an individual or group for the nonviolent expression of political, religious, or ideological opinion or belief via the Internet, including electronic mail.

“(D) A description of known instances in which government authorities in that country have sought to collect, request, obtain, or disclose the personally identifiable information of a person in connection with that person’s nonviolent expression of political, religious, or ideological opinion or belief, including without limitation communication that would be protected by the International Covenant on Civil and Political Rights.

“(2) In compiling data and making assessments for the purposes of paragraph (1), United States diplomatic mission personnel shall consult with human rights organizations, technology and Internet companies, and other appropriate nongovernmental organizations.

“(3) In this subsection, the term ‘Internet’ has the meaning given the term in section 231(f) of the Communications Act of 1934 (47 U.S.C. 231(f)).”.

(b) Report relating to security assistance.—Section 502B of the Foreign Assistance Act of 1961 (22 15 U.S.C. 2304) is amended by adding at the end the following new subsection:

“(j) (1) The report required by subsection (b) shall include an assessment of the freedom of electronic information in each foreign country. Such assessment shall consist of the following:

“(A) An assessment of the general extent to which Internet access is available to and used by citizens in that country.

“(B) An assessment of the extent to which government authorities in that country attempt to filter, censor, or otherwise block or remove Internet content, as well as a description of the means by which such authorities attempt to block or remove protected speech.

“(C) A description of known instances in which government authorities in that country have persecuted, prosecuted, or otherwise punished an individual or group for the peaceful expression of political, religious, or ideological opinion or belief via the Internet, including electronic mail.

“(D) A description of known instances in which government authorities in that country have sought to collect, request, obtain, or disclose the personally identifiable information of a person in connection with that person’s communication of ideas, facts, or views where such communication would be protected by the International Covenant on Civil and Political Rights.

“(2) In compiling data and making assessments for the purposes of paragraph (1), United States diplomatic mission personnel shall consult with human rights organizations, technology and Internet companies, and other appropriate nongovernmental organizations.

“(3) In this subsection, the term ‘Internet’ has the meaning given the term in section 231(f) of the Communications Act of 1934 (47 U.S.C. 231(f)).”.

SEC. 104. Annual designation of Internet-restricting countries; report.

(a) Designation.—

(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Secretary of State shall designate Internet-restricting countries for purposes of this Act.

(2) STANDARD.—A foreign country shall be designated as an Internet-restricting country if the Secretary of State, after consultation with the Secretary of Commerce, determines, based on the review of the evidence that the government of the country is directly or indirectly responsible for a systematic pattern of substantial restrictions on Internet freedom during any part of the preceding 1-year period.

(b) Report.—

(1) IN GENERAL.—Not later than 180 days after the date of the enactment of this Act, and annually thereafter, the Secretary of State shall transmit to the appropriate congressional committees a report that contains the following:

(A) The name of each foreign country that at the time of the transmission of the report is designated as an Internet-restricting country under subsection (a).

(B) An identification of each government agency and quasi-government organization responsible for the substantial restrictions on Internet freedom in each foreign country designated as an Internet-restricting country under subsection (a).

(C) A description of efforts by the United States to counter the substantial restrictions on Internet freedom referred to in subparagraph (B).

(D) A description of the evidence used by the Secretary of State to make the determinations under subsection (a)(2) and any ongoing multilateral discussions on freedom of speech and the right to privacy referred to in such subsection.

(2) FORM.—The information required by paragraph (1)(C) of the report may be provided in a classified form if necessary.

(3) PUBLIC AVAILABILITY.—All unclassified portions of the report shall be made publicly available on the Internet Web site of the Department of State.

SEC. 105. Report on trade-related issues or disputes due to government censorship or disruption of the Internet.

(a) Report.—Not later than 90 days after the date of the enactment of this Act, the United States Trade Representative, in consultation with the Secretary of State and the Secretary of Commerce, shall transmit to the appropriate congressional committees a report on—

(1) any trade-related issues or disputes that arise due to government censorship or disruption of the Internet among United States trade partners; and

(2) efforts by the United States Government to address the issues or disputes described in paragraph (1) either bilaterally or multilaterally.

(b) Sense of Congress.—It is the sense of Congress that the United States should pursue trade policies that expand the information economy by—

(1) ensuring the free flow of information across the entire global network;

(2) promoting stronger international transparency rules; and

(3) ensuring fair and equal treatment of online services regardless of country of origin.

SEC. 201. Disclosure of blocking and surveillance by Internet communications services companies.

(a) In general.—Section 13 of the Securities Exchange Act of 1934 (15 U.S.C. 78m) is amended by adding at the end the following:

“(r) Disclosure of blocking and surveillance by Internet communications services companies.—

“(1) DISCLOSURE.—Each Internet communications services company that operates in an Internet-restricting country shall include in the annual report of the company information relating to the company, any subsidiary of the company, and any entity under the control of either of such companies, relating to the following:

“(A) HUMAN RIGHTS DUE DILIGENCE.—Internal company policies that address human rights due diligence through a statement of policy that mirrors the Guidelines for Multinational Enterprises issued by the Organization for Economic Co-operation and Development, and whether such policy—

“(i) is approved at the most senior level of the company;

“(ii) explicitly states the company’s expectations of personnel, business partners, and other parties directly linked to its operations, products, or services;

“(iii) is publicly available and communicated internally and externally to all personnel, business partners, other relevant partners, customers, and users;

“(iv) is reflected in operational policies and procedures necessary to embed it through it throughout the company; and

“(v) is independently assessed by a third party to demonstrate compliance in practice, which should include—

“(I) whether the assessment was conducted under the supervision of any third party organization or multi-stakeholder initiative;

“(II) a description of the assessment process;

“(III) a description of measures taken to ensure the assessor’s independence; and

“(IV) inclusion of the assessor’s public report.

“(B) NON-COMPLIANCE.—If the company’s policy does not comply with any of the requirements of subclauses (I) through (IV) of subparagraph (A)(v), an explanation of why the company’s policy does not meet each such requirement.

“(C) POLICIES PERTAINING TO THE COLLECTION OF PERSONALLY IDENTIFIABLE INFORMATION.—If the company collects or obtains personally identifiable information, the contents of wire or electronic communications in electronic storage, or the contents of wire or electronic communications in a remote computing service on the Internet, the details of any internal policies or procedures of the company that set out how the company will assess and respond to requests by the governments of Internet-restricting countries for disclosure of such information or communications.

“(D) RESTRICTIONS ON INTERNET SEARCH ENGINES AND INTERNET CONTENT HOSTING SERVICES.—If the company creates, provides, or hosts an Internet search engine or an Internet content hosting service, all steps taken to provide users and customers with clear, prominent, and timely notice when access to specific content has been removed or blocked at the request of an Internet-restricting country.

“(2) AVAILABILITY OF INFORMATION.—The Commission shall make all information reported by an issuer pursuant to this subsection available online to the public.

“(3) DEFINITIONS.—In this subsection:

“(A) INTERNET COMMUNICATIONS SERVICES COMPANY.—The term ‘Internet communications services company’ means an issuer that—

“(i) is required to file an annual report with the Commission; and

“(ii) (I) provides electronic communications services or remote computing services; or

“(II) is a domain name registrar, domain name registry, or other domain name registration authority.

“(B) ELECTRONIC COMMUNICATIONS SERVICES.—The term ‘electronic communications services’ has the meaning given such term under section 2510(15) of title 18, United States Code.

“(C) INTERNET-RESTRICTING COUNTRY.—The term ‘Internet-restricting country’ has the meaning given such term under section 3 of the Global Online Freedom Act of 2011.

“(D) REMOTE COMPUTING SERVICES.—The term ‘remote computing services’ has the meaning given such term under section 1711(2) of title 18, United States Code.”.

(b) Rulemaking.—Not later than the end of the 270-day period beginning on the date of the enactment of this Act, the Securities and Exchange Commission shall issue final rules to carry out section 13(r) of the Securities and Exchange Act of 1934, as added by subsection (a).

SEC. 301. Export controls on certain telecommunications equipment.

(a) In general.—Section 6 of the Export Administration Act of 1979 (50 U.S.C. App. 2405), as continued in effect under the International Emergency Economic Powers Act, is amended by adding at the end the following:

“(t) Certain telecommunications equipment.—

“(1) IN GENERAL.—The Secretary, in consultation with the Secretary of State, the Secretary of Defense, and the heads of other appropriate Federal departments and agencies, shall establish and maintain, as part of the list maintained under this section, a list of goods and technology that would serve the primary purpose of assisting, or be specifically configured to assist, a foreign government in acquiring the capability to carry out censorship, surveillance, or any other similar or related activity through means of telecommunications, including the Internet, the prohibition or licensing of which would be effective in barring acquisition or enhancement of such capability.

“(2) INTERNET-RESTRICTING COUNTRIES.—Notwithstanding any other provision of law, the Secretary shall prohibit the export of goods or technology on the list established under paragraph (1) to a government end user in any Internet-restricting country.

“(3) WAIVER.—The President may waive the application of paragraph (2) with respect to export of goods or technology on the list established under paragraph (1) on a case-by-case basis if the President determines and certifies to Congress that it is in the national interests of the United States to do so.

“(4) DEFINITIONS.—In this subsection—

“(A) the term ‘Internet-restricting country’ means a country designated by the Secretary of State pursuant to section 104(a) of the Global Online Freedom Act of 2011;

“(B) a ‘government end user’ in a country is an end user that is a government of that country, or of a political subdivision of that country, or is an agency or instrumentality of such a government; and

“(C) an ‘agency or instrumentality’ of a government is an ‘agency or instrumentality of a foreign state’, as defined in section 1603 of title 28, United States Code.”.

(b) Regulations.—

(1) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act, the President shall revise the Export Administration Regulations and any other regulations necessary to carry out the amendment made by subsection (a).

(2) EXPORT ADMINISTRATION REGULATIONS.—In this subsection, the term “Export Administration Regulations” means the Export Administration Regulations as maintained and amended under the authority of the International Emergency Economic Powers Act and codified, as of the date of the enactment of this Act, in subchapter C of chapter VII of title 15, Code of Federal Regulations.

(c) Effective date.—Section 6(t) of the Export Administration Act of 1979, as added by subsection (a), shall take effect on the date of the enactment of this Act and shall apply with respect to the export of goods or technology on the list established under paragraph (1) of such section on or after 1 year after the date of the enactment of this Act.


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