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S. 2903 (115th): Stop Higher Education Espionage and Theft Act of 2018


The text of the bill below is as of May 22, 2018 (Introduced).


II

115th CONGRESS

2d Session

S. 2903

IN THE SENATE OF THE UNITED STATES

May 22, 2018

introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To address foreign threats to higher education in the United States.

1.

Short title

This Act may be cited as the Stop Higher Education Espionage and Theft Act of 2018.

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:

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, 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 the Workforce 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)

Espionage, in violation of sections 791 through 799 of title 18.

(B)

Kidnapping, in violation of section 1201 of title 18.

(C)

Fraud or misuse of visas, permits, or other documents, in violation of section 1546 of title 18.

(D)

Aggravated identity theft, in violation of section 1028A of title 18.

(E)

Fraud or related activity in connection with access devices, in violation of section 1029 of title 18.

(F)

Fraud or related activity in connection with computers, in violation of section 1030 of title 18.

(G)

Economic espionage, in violation of section 1831 of title 18.

(H)

Theft of trade secrets, in violation of section 1832 of title 18.

(I)

Terrorism, in violation of sections 2331 through 2339D of title 18.

(J)

Interception or disclosure of wire, oral, or electronic communications, in violation of section 2511 of title 18.

(2)

Procedure

(A)

Notice before designation

(i)

To congressional leaders

Not later than 7 days before making a designation under this subsection, 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 this subsection; 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 this subsection, 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 this subsection; 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 this subsection, 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 this subsection shall take effect upon publication under subparagraph (B).

(3)

Record

(A)

In general

In making a designation under this subsection, the Director shall create an administrative record.

(B)

Classified information

The Director may consider classified information in making a designation under 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).

(4)

Period of designation

(A)

In general

A designation under this subsection 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 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 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) 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)

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)

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.

.

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, the value of which is $50,000 or more, considered alone or in combination with all other gifts from or contracts with that foreign intelligence threat to higher education within a calendar year.

;

(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.