What This Bill Does
This bill creates a new system allowing the FBI Director to officially identify foreign actors (governments, organizations, or individuals) who threaten American higher education through illegal activities like spying, theft, or fraud. Once designated, these foreign actors face serious consequences including visa revocation, deportation, and restrictions on conducting business with U.S. colleges and universities.
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Who It Affects
- Foreign governments and their agents
- Foreign organizations and political groups
- Foreign individuals working with foreign governments
- College and university administrators and employees
- The FBI, Attorney General, Secretary of Education, and Director of National Intelligence
- The Department of State and Department of Homeland Security
- Congress members on relevant committees
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Key Provisions
- The FBI Director can designate a foreign actor as a threat to higher education if they committed crimes like espionage, economic theft, computer fraud, terrorism, or illegal weapons transfers connected to a college or university. (Sec. 2, subsection b(1))
- Before making a designation, the Director must notify congressional leaders and the Attorney General at least 7 days in advance. The designation is then published in the Federal Register, making it official. (Sec. 2, subsection b(2))
- Once designated, the Secretary of State must revoke the foreign actor's visa, and the Secretary of Homeland Security must remove them from the United States. Designated foreign actors cannot receive new visas or enter the U.S. (Sec. 2, subsection b(2)(D))
- The President can ban all property transactions involving designated foreign actors in the U.S. and prohibit colleges from signing contracts with them or sharing research information with them. (Sec. 2, subsection e(1))
- Colleges must report to the government any gifts or contracts worth $250,000 or more from foreign sources, and must specifically report all gifts and contracts from designated foreign actors. (Sec. 3)
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What Changes
If this bill becomes law, U.S. colleges and universities will be required to stop doing business with any foreign actor officially designated as a threat to higher education. The FBI gains new authority to formally identify and publicly list these threats. Foreign individuals and agents of hostile foreign governments will face automatic visa revocation and expedited removal from the country. Colleges must disclose their foreign partnerships to the government and the public. The designation process includes a review every 2 years if the foreign actor requests one, and Congress can block or revoke any designation.
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Important Definitions
- **Foreign actor**: A foreign government, foreign organization not composed mostly of U.S. citizens, or any person/group controlled, financed, or supervised by a foreign government (Sec. 2, subsection a(3))
- **Institution**: Any college or university as defined under the Higher Education Act of 1965 (Sec. 2, subsection a(4))
- **National security**: The U.S. national defense, foreign relations, or economic interests (Sec. 2, subsection a(5))
- **Transfer** (regarding research information): Shipping information out of the U.S., sharing it with a foreign person in the U.S., allowing a foreign person to see sensitive information, or discussing it with a foreign person (Sec. 2, subsection e(2))
- **United States person**: As defined in the Foreign Intelligence Surveillance Act of 1978 (Sec. 2, subsection a(7))
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Effective Date
Not specified in bill text
II
118TH CONGRESS
1ST SESSION
S. 360
To address foreign threats to higher education in the United States.
IN THE SENATE OF THE UNITED STATES
FEBRUARY 9, 2023
Mr. CRUZ 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.
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Stop Higher Education
4
Espionage and Theft Act of 2023’’.
5
SEC.
2.
DESIGNATION
OF
FOREIGN
INTELLIGENCE
6
THREATS TO HIGHER EDUCATION.
7
(a) IN GENERAL.—Chapter 33 of title 28, United
8
States Code, is amended by adding at the end the fol-
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lowing:
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‘‘§ 540D. Designation of foreign intelligence threats to
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higher education
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‘‘(a) DEFINITIONS.—In this section—
3
‘‘(1) the term ‘classified information’ has the
4
meaning given that term in section 1(a) of the Clas-
5
sified Information Procedures Act (18 U.S.C. App.);
6
‘‘(2) the term ‘Director’ means the Director of
7
the Federal Bureau of Investigation, acting in con-
8
sultation with the Attorney General, the Secretary of
9
Education, and the Director of National Intelligence;
10
‘‘(3) the term ‘foreign actor’ means—
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‘‘(A) a foreign government or its auxiliary
12
territories, or any component thereof, whether
13
or not recognized by the United States;
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‘‘(B) a foreign-based political organization,
15
not substantially composed of United States
16
persons;
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‘‘(C) a faction of a foreign nation or for-
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eign nations, not substantially composed of
19
United States persons;
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‘‘(D) an entity that is openly acknowledged
21
by a foreign government or foreign governments
22
to be directed and controlled by such foreign
23
government or foreign governments;
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‘‘(E) any partnership, association, corpora-
25
tion, organization, or other combination of per-
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•S 360 IS
sons who acts as an agent, representative, em-
1
ployee, or servant of, or whose activities are di-
2
rectly or indirectly supervised, directed, con-
3
trolled, financed, or subsidized in whole or in
4
major part by a government, organization, fac-
5
tion, or entity described in subparagraph (A),
6
(B), (C), or (D); or
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‘‘(F) any individual who acts as an agent,
8
representative, employee, or servant of, or
9
whose activities are directly or indirectly super-
10
vised, directed, controlled, financed, or sub-
11
sidized in whole or in major part by a govern-
12
ment, organization, faction, or entity described
13
in subparagraph (A), (B), (C), or (D), unless
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such individual is a citizen of and domiciled
15
within the United States;
16
‘‘(4) the term ‘institution’ means any institu-
17
tion of higher education, as defined under section
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101 of the Higher Education Act of 1965 (20
19
U.S.C. 1001);
20
‘‘(5) the term ‘national security’ means the na-
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tional defense, foreign relations, or economic inter-
22
ests of the United States;
23
‘‘(6) the term ‘relevant committees of Congress’
24
means—
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‘‘(A) the Committee on the Judiciary, the
1
Select Committee on Intelligence, the Com-
2
mittee on Homeland Security and Government
3
Affairs, and the Committee on Health, Edu-
4
cation, Labor, and Pensions of the Senate; and
5
‘‘(B) the Committee on the Judiciary, the
6
Permanent Select Committee on Intelligence,
7
the Committee on Homeland Security, and the
8
Committee on Education and the Workforce of
9
the House of Representatives; and
10
‘‘(7) the term ‘United States person’ has the
11
meaning given that term in section 101 of the For-
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eign Intelligence Surveillance Act of 1978 (50
13
U.S.C. 1801).
14
‘‘(b) DESIGNATION.—
15
‘‘(1) IN
GENERAL.—The Director shall des-
16
ignate a foreign actor as a foreign intelligence threat
17
to higher education, in accordance with this sub-
18
section, if the Director finds that the foreign actor
19
has committed, attempted to commit, or conspired to
20
commit, in connection with an institution, one or
21
more of the following:
22
‘‘(A) Smuggling goods from the United
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States, in violation of section 554 of title 18.
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‘‘(B) Espionage, in violation of sections
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791 through 799 of title 18.
2
‘‘(C) Kidnapping, in violation of section
3
1201 of title 18.
4
‘‘(D) Fraud or misuse of visas, permits, or
5
other documents, in violation of section 1546 of
6
title 18.
7
‘‘(E) Aggravated identity theft, in violation
8
of section 1028A of title 18.
9
‘‘(F) Fraud or related activity in connec-
10
tion with access devices, in violation of section
11
1029 of title 18.
12
‘‘(G) Fraud or related activity in connec-
13
tion with computers, in violation of section
14
1030 of title 18.
15
‘‘(H) Economic espionage, in violation of
16
section 1831 of title 18.
17
‘‘(I) Theft of trade secrets, in violation of
18
section 1832 of title 18.
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‘‘(J) Terrorism, in violation of sections
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2331 through 2339D of title 18.
21
‘‘(K) Interception or disclosure of wire,
22
oral, or electronic communications, in violation
23
of section 2511 of title 18.
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‘‘(L) A violation of any control on the im-
1
port or export of defense articles or defense
2
services imposed under section 38 of the Arms
3
Export Control Act (22 U.S.C. 2778).
4
‘‘(M) A violation of any control on the ex-
5
port, reexport, and in-country transfer of an
6
item imposed under section 1753 of the Export
7
Control Reform Act of 2018 (50 U.S.C. 4812).
8
‘‘(N) An unlawful act described in section
9
206(a) of the International Emergency Eco-
10
nomic Powers Act (50 U.S.C. 1705(a)).
11
‘‘(2) PROCEDURE.—
12
‘‘(A) NOTICE BEFORE DESIGNATION.—
13
‘‘(i) TO CONGRESSIONAL LEADERS.—
14
Not later than 7 days before making a des-
15
ignation under paragraph (1), the Director
16
shall submit to the Speaker and minority
17
leader of the House of Representatives, the
18
President pro tempore, majority leader,
19
and minority leader of the Senate, and the
20
members of the relevant committees of
21
Congress—
22
‘‘(I) written notice of the intent
23
of the Director to designate a foreign
24
actor under paragraph (1); and
25
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‘‘(II) the findings made under
1
paragraph (1) with respect to foreign
2
actor and the factual basis therefor.
3
‘‘(ii) TO THE ATTORNEY GENERAL.—
4
Not later than 7 days before making a des-
5
ignation under paragraph (1), the Director
6
shall submit to the Attorney General, for
7
the Attorney General to determine whether
8
further investigation or prosecution is war-
9
ranted—
10
‘‘(I) written notice of the intent
11
of the Director to designate a foreign
12
actor under paragraph (1); and
13
‘‘(II) the findings made under
14
paragraph (1) with respect to the for-
15
eign actor and the factual basis there-
16
for.
17
‘‘(iii) PROTECTION OF CLASSIFIED IN-
18
FORMATION.—The notice and findings sub-
19
mitted under clauses (i) and (ii) may be in
20
classified form.
21
‘‘(B) PUBLICATION
IN
FEDERAL
REG-
22
ISTER.—If the Director makes a designation
23
under paragraph (1), the Director shall publish
24
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the designation in the Federal Register on the
1
date of the designation.
2
‘‘(C) EFFECT OF DESIGNATION.—For pur-
3
poses of section 117 of the Higher Education
4
Act of 1965 (20 U.S.C. 1011f), a designation
5
under paragraph (1) shall take effect upon pub-
6
lication under subparagraph (B) of this para-
7
graph.
8
‘‘(D) EFFECT OF DESIGNATION ON LAW-
9
FUL STATUS.—
10
‘‘(i) REVOCATION OF NONIMMIGRANT
11
VISA.—The Secretary of State shall revoke
12
the nonimmigrant visa issued to any for-
13
eign actor present in the United States im-
14
mediately after such foreign actor has been
15
designated under paragraph (1).
16
‘‘(ii) REMOVAL.—The Secretary of
17
Homeland Security shall initiate removal
18
proceedings against any foreign actor de-
19
scribed in clause (i) and expeditiously re-
20
move such foreign actor from the United
21
States.
22
‘‘(iii)
INELIGIBILITY.—Any
foreign
23
actor who has been designated under para-
24
graph (1) shall be inadmissible to the
25
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United States and ineligible to receive a
1
United States visa or be admitted to the
2
United States.
3
‘‘(iv) APPEAL.—If a foreign actor ap-
4
peals a designation under paragraph (1),
5
the consequences described in clauses (i)
6
through (iii) shall be stayed until such ap-
7
peal has been fully adjudicated.
8
‘‘(3) RECORD.—
9
‘‘(A) IN GENERAL.—In making a designa-
10
tion under paragraph (1), the Director shall
11
create an administrative record.
12
‘‘(B) CLASSIFIED INFORMATION.—The Di-
13
rector may consider classified information in
14
making a designation under paragraph (1).
15
Classified information shall not be subject to
16
disclosure for such time as it remains classified,
17
except that such information may be disclosed
18
to a court ex parte and in camera for purposes
19
of judicial review under subsection (d).
20
‘‘(4) PERIOD OF DESIGNATION.—
21
‘‘(A) IN GENERAL.—A designation under
22
paragraph (1) shall be effective for all purposes
23
until revoked under paragraph (5) or (6) or set
24
aside under subsection (d).
25
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‘‘(B) REVIEW OF DESIGNATION UPON PE-
1
TITION.—
2
‘‘(i) IN GENERAL.—The Director shall
3
review the designation of a foreign actor as
4
a foreign intelligence threat to higher edu-
5
cation under the procedures set forth in
6
clauses (iii) and (iv) if the designated for-
7
eign actor files a petition for revocation
8
within the petition period described in
9
clause (ii).
10
‘‘(ii) PETITION
PERIOD.—For pur-
11
poses of clause (i)—
12
‘‘(I) if the designated foreign
13
actor has not previously filed a peti-
14
tion for revocation under this sub-
15
paragraph, the petition period begins
16
2 years after the date on which the
17
designation was made; or
18
‘‘(II) if the designated foreign
19
actor has previously filed a petition
20
for revocation under this subpara-
21
graph, the petition period begins 2
22
years after the date of the determina-
23
tion made under clause (iv) with re-
24
spect to that petition.
25
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‘‘(iii)
PROCEDURES.—Any
foreign
1
actor designated as a foreign intelligence
2
threat to higher education that submits a
3
petition for revocation under this subpara-
4
graph shall provide evidence in the petition
5
that the relevant circumstances described
6
in paragraph (1) are sufficiently different
7
from the circumstances that were the basis
8
for the designation such that a revocation
9
with respect to the foreign actor is war-
10
ranted.
11
‘‘(iv) DETERMINATION.—
12
‘‘(I) IN
GENERAL.—Not later
13
than 180 days after receiving a peti-
14
tion for revocation submitted under
15
this subparagraph, the Director shall
16
make a determination as to such rev-
17
ocation.
18
‘‘(II)
CLASSIFIED
INFORMA-
19
TION.—The Director may consider
20
classified information in making a de-
21
termination in response to a petition
22
for revocation. Classified information
23
shall not be subject to disclosure for
24
such time as it remains classified, ex-
25
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cept that such information may be
1
disclosed to a court ex parte and in
2
camera for purposes of judicial review
3
under subsection (d).
4
‘‘(III) PUBLICATION OF DETER-
5
MINATION.—A determination made by
6
the Director under this clause shall be
7
published in the Federal Register.
8
‘‘(IV) PROCEDURES.—Any rev-
9
ocation of a designation by the Direc-
10
tor shall be made in accordance with
11
paragraph (6).
12
‘‘(C) OTHER REVIEW OF DESIGNATION.—
13
‘‘(i) IN GENERAL.—If no review has
14
taken place under subparagraph (B) dur-
15
ing any 5-year period, the Director shall
16
review the designation of a foreign actor as
17
a foreign intelligence threat to higher edu-
18
cation under paragraph (1) in order to de-
19
termine whether such designation should
20
be revoked pursuant to paragraph (6).
21
‘‘(ii) PROCEDURES.—If a review does
22
not take place pursuant to subparagraph
23
(B) in response to a petition for revocation
24
that is filed in accordance with that sub-
25
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paragraph, the review shall be conducted
1
pursuant to procedures established by the
2
Director. The results of such review and
3
the applicable procedures shall not be re-
4
viewable in any court.
5
‘‘(iii) PUBLICATION OF RESULTS OF
6
REVIEW.—The Director shall publish any
7
determination made under this subpara-
8
graph in the Federal Register.
9
‘‘(5) REVOCATION BY ACT OF CONGRESS.—Con-
10
gress, by an Act of Congress, may block or revoke
11
a designation made under paragraph (1).
12
‘‘(6) REVOCATION BASED ON CHANGE IN CIR-
13
CUMSTANCES.—
14
‘‘(A) IN GENERAL.—The Director may re-
15
voke a designation made under paragraph (1)
16
at any time, and shall revoke a designation
17
upon completion of a review conducted pursu-
18
ant to subparagraphs (B) and (C) of paragraph
19
(4) if the Director finds that—
20
‘‘(i) the circumstances that were the
21
basis for the designation have changed in
[Text truncated for display. Full text available on Congress.gov.]