CCP Trade Secrets Act

II 117TH CONGRESS 1ST SESSION S. 1245 To combat the theft of trade secrets by China, and for other purposes. IN THE SENATE OF THE UNITED STATES APRIL 20, 2021 Mr. GRAHAM introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To combat the theft of trade secrets by China, and for other purposes. 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; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Combating Chinese Purloining of Trade Secrets Act’’ or 5 the ‘‘CCP Trade Secrets Act’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 1245 IS Sec. 1. Short title; table of contents. TITLE I—INCREASED PENALTIES FOR VIOLATIONS OF SECTION 2512 OF TITLE 18, UNITED STATES CODE, INVOLVING A FOR- EIGN GOVERNMENT Sec. 101. Manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices prohibited. TITLE II—PROTECTING U.S. BUSINESSES FROM FOREIGN TRADE SECRET THEFT Sec. 201. Short title. Sec. 202. Prohibition on misappropriating U.S. trade secrets. TITLE III—COMBATING CYBERCRIME Sec. 301. Short title. Sec. 302. Predicate offenses. Sec. 303. Forfeiture. Sec. 304. Shutting down botnets. Sec. 305. Aggravated damage to a critical infrastructure computer. Sec. 306. Stopping trafficking in botnets; fraud and related activity in connec- tion with computers. TITLE IV—ESPIONAGE, THEFT OF TRADE SECRETS, AND IMPROPER INTERFERENCE IN UNITED STATES ELECTIONS Sec. 401. Espionage, theft of trade secrets, theft of intellectual property, in- volvement in commercial fraud schemes, and improper inter- ference in United States elections. Sec. 402. Visa and nonimmigrant status restrictions. TITLE V—GOVERNMENT-FUNDED RESEARCH PROJECTS Sec. 501. Findings. Sec. 502. Definitions. Sec. 503. Approval of covered persons in sensitive Government-funded research projects. Sec. 504. Disclosure of research assistance from foreign governments. VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6211 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 1245 IS TITLE I—INCREASED PENALTIES 1 FOR VIOLATIONS OF SECTION 2 2512 OF TITLE 18, UNITED 3 STATES CODE, INVOLVING A 4 FOREIGN GOVERNMENT 5 SEC. 101. MANUFACTURE, DISTRIBUTION, POSSESSION, 6 AND ADVERTISING OF WIRE, ORAL, OR ELEC- 7 TRONIC COMMUNICATION INTERCEPTING 8 DEVICES PROHIBITED. 9 (a) IN GENERAL.—Section 2512 of title 18, United 10 States Code, is amended by adding at the end the fol- 11 lowing: 12 ‘‘(4) Any person who violates this section with the 13 intent to benefit any government of a foreign country (as 14 defined in section 1 of the Foreign Agents Registration 15 Act of 1938, as amended (22 U.S.C. 611)), agency or in- 16 strumentality of a foreign state (as defined in section 17 1603(b) of title 28, United States Code), or agent of a 18 foreign principal (as defined in section 1 of the Foreign 19 Agents Registration Act of 1938, as amended (22 U.S.C. 20 611)) shall be fined under this title, imprisoned for not 21 more than 20 years, or both.’’. 22 (b) SENTENCING ENHANCEMENT FOR FOREIGN IN- 23 VOLVEMENT IN VIOLATIONS OF SECTION 2512 OF TITLE 24 18, UNITED STATES CODE.—Pursuant to its authority 25 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 1245 IS under section 994 of title 28, United States Code, the 1 United States Sentencing Commission shall review and 2 amend the Federal sentencing guidelines to ensure that 3 the guidelines provide an additional penalty increase of not 4 fewer than 4 offense levels if the defendant violated section 5 2512 of title 18, United States Code, with the intent to 6 benefit any government of a foreign country, agency or 7 instrumentality of a foreign state, or agent of a foreign 8 principal. 9 TITLE II—PROTECTING U.S. 10 BUSINESSES FROM FOREIGN 11 TRADE SECRET THEFT 12 SEC. 201. SHORT TITLE. 13 This title may be cited as the ‘‘Protecting U.S. Busi- 14 nesses from Foreign Trade Secrets Theft Act of 2021’’. 15 SEC. 202. PROHIBITION ON MISAPPROPRIATING U.S. TRADE 16 SECRETS. 17 (a) IN GENERAL.—Chapter 90 of title 18, United 18 States Code, is amended by adding at the end the fol- 19 lowing: 20 ‘‘§ 1840. Applicability to foreign persons 21 ‘‘(a) DEFINITIONS.—In this section— 22 ‘‘(1) the term ‘critical technology’ has the 23 meaning given the term ‘critical technologies’ in sec- 24 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 1245 IS tion 721 of the Defense Production Act of 1950 (50 1 U.S.C. 4565); 2 ‘‘(2) the term ‘designated Federal agency’ 3 means— 4 ‘‘(A) the Department of Homeland Secu- 5 rity; 6 ‘‘(B) U.S. Customs and Border Protection; 7 ‘‘(C) the Department of Commerce; 8 ‘‘(D) the Securities and Exchange Com- 9 mission; 10 ‘‘(E) the Export-Import Bank of the 11 United States; 12 ‘‘(F) the Department of State; and 13 ‘‘(G) the United States Patent and Trade- 14 mark Office; 15 ‘‘(3) the term ‘foreign person’ means a person 16 that is not a United States person; 17 ‘‘(4) the term ‘International Trade Commission’ 18 means the United States International Trade Com- 19 mission; 20 ‘‘(5) the term ‘offending foreign person’ means 21 a foreign person— 22 ‘‘(A) who misappropriates a trade secret; 23 and 24 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 1245 IS ‘‘(B) with respect to whom a petition sub- 1 mitted under subsection (b)(1) satisfies the re- 2 quirements under that subsection, as deter- 3 mined by the Attorney General; 4 ‘‘(6) the term ‘person’ means— 5 ‘‘(A) an individual; and 6 ‘‘(B) a corporation, business association, 7 partnership, society, or trust, any other non- 8 governmental entity, organization, or group, 9 and any governmental entity operating as a 10 business enterprise; and 11 ‘‘(7) the term ‘United States person’ means— 12 ‘‘(A) a United States citizen or an alien 13 lawfully admitted for permanent residence to 14 the United States; 15 ‘‘(B) a corporation or other legal entity 16 that is organized under the laws of the United 17 States, any State or territory thereof, or the 18 District of Columbia; and 19 ‘‘(C) a corporation or other legal entity— 20 ‘‘(i) organized under the laws of a ju- 21 risdiction outside of the United States; and 22 ‘‘(ii) with respect to which a United 23 States person described in subparagraph 24 (A) or (B)— 25 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 1245 IS ‘‘(I) holds more than 50 percent 1 of the equity interest by vote or value; 2 ‘‘(II) holds a majority of seats on 3 the board of directors; or 4 ‘‘(III) otherwise controls the ac- 5 tions, policies, or personnel decisions. 6 ‘‘(b) PETITION FOR RELIEF.— 7 ‘‘(1) DEMONSTRATION OF MISAPPROPRIA- 8 TION.—If an owner of a trade secret, who is a 9 United States person, wishes to have the Attorney 10 General or the head of the applicable designated 11 Federal agency apply a penalty under subsection (c) 12 to a foreign person who has misappropriated the 13 trade secret, the owner shall submit to the Attorney 14 General a petition demonstrating that— 15 ‘‘(A)(i) a court has entered a temporary 16 restraining order, preliminary injunction, or 17 final judgment under section 1836 of this title 18 against the foreign person for misappropriating 19 a trade secret of the owner; 20 ‘‘(ii) the International Trade Commission 21 has issued a temporary exclusion order or final 22 exclusion order under section 337 of the Tariff 23 Act of 1930 (19 U.S.C. 1337) against the for- 24 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 1245 IS eign person for misappropriating a trade secret 1 of the owner; or 2 ‘‘(iii) an indictment has been issued under 3 section 1831 or 1832 of this title against the 4 foreign person for misappropriating a trade se- 5 cret of the owner; 6 ‘‘(B) the trade secret described in the ap- 7 plicable clause of subparagraph (A) involves or 8 is a component of critical technology; and 9 ‘‘(C) the remedies available to the owner 10 under section 1836 of this title or section 337 11 of the Tariff Act of 1930 (19 U.S.C. 1337), as 12 applicable, are unlikely to provide complete re- 13 lief to the owner because the foreign person has 14 used or is reasonably likely to use the misappro- 15 priated trade secret in the home country of the 16 foreign person or a third country, such that ac- 17 tivities of the foreign person relevant to the de- 18 terminations under subparagraph (A) take 19 place outside the United States. 20 ‘‘(2) REVIEW.—Not later than 60 days after 21 the date on which an owner who is a United States 22 person submits a petition to the Attorney General 23 under paragraph (1), the Attorney General shall de- 24 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 1245 IS termine whether the petition satisfies the require- 1 ments under that paragraph. 2 ‘‘(3) NOTIFICATION.—If the Attorney General 3 determines under paragraph (2) that a petition sat- 4 isfies the requirements under paragraph (1), the At- 5 torney General shall so notify the head of each des- 6 ignated Federal agency not later than 30 days after 7 the date of the determination. 8 ‘‘(4) SENSE OF CONGRESS.—It is the sense of 9 Congress that if the Attorney General determines 10 under paragraph (2) that a petition relating to a 11 foreign person satisfies the requirements under 12 paragraph (1), the Attorney General and the head of 13 each designated Federal agency should impose 1 or 14 more penalties on the foreign person under sub- 15 section (c), to the extent that the penalties are appli- 16 cable. 17 ‘‘(c) PENALTIES.— 18 ‘‘(1) IN GENERAL.—Subject to paragraphs (2) 19 and (3), not later than 90 days after the date on 20 which the Attorney General provides notice to the 21 head of each designated Federal agency under sub- 22 section (b)(3) with respect to an offending foreign 23 person, the Attorney General or the head of a des- 24 ignated Federal agency, as applicable, may impose 1 25 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 1245 IS or more of the following penalties on the offending 1 foreign person: 2 ‘‘(A) IMPORT RESTRICTION.—The Com- 3 missioner of U.S. Customs and Border Protec- 4 tion may exclude from entry into the United 5 States any articles produced by the offending 6 foreign person. 7 ‘‘(B) EXPORT LICENSES.— 8 ‘‘(i) DUAL-USE EXPORTS.—The Sec- 9 retary of Commerce may refuse to issue 10 any specific license, or grant any other 11 specific permission or authority, for the ex- 12 port, reexport, or in-country transfer of 13 items to the offending foreign person 14 under the Export Control Reform Act of 15 2018 (50 U.S.C. 4801 et seq.). 16 ‘‘(ii) DEFENSE ARTICLES AND DE- 17 FENSE SERVICES.—The Secretary of State 18 may refuse to issue any license or other 19 approval for the export of defense articles 20 or defense services to the offending foreign 21 person under the Arms Export Control Act 22 (22 U.S.C. 2751 et seq.). 23 ‘‘(C) RESTRICTED PARTIES.— 24 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 1245 IS ‘‘(i) COMMERCE LISTS.—The Sec- 1 retary of Commerce may add the offending 2 foreign person to one of the following lists 3 maintained by the Bureau of Industry and 4 Secretary of the Department of Commerce: 5 ‘‘(I) The Entity List set forth in 6 Supplement No. 4 to part 744 of the 7 Export Administration Regulations 8 under subchapter C of chapter VII of 9 title 15, Code of Federal Regulations. 10 ‘‘(II) The Denied Persons List 11 maintained pursuant to section 764.3 12 of the Export Administration Regula- 13 tions. 14 ‘‘(ii) TREASURY LIST.—The Secretary 15 of the Treasury may add the offending for- 16 eign person to the list of specially des- 17 ignated nationals and blocked persons 18 maintained by the Office of Foreign Assets 19 Control of the Department of the Treas- 20 ury. 21 ‘‘(D) SECURITIES REPORTING.—The Secu- 22 rities and Exchange Commission may determine 23 whether the use by the offending foreign person 24 of the misappropriated trade secret is a report- 25 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 1245 IS able material condition in any filing by the of- 1 fending foreign person required under applica- 2 ble securities laws of the United States. 3 ‘‘(E) PATENT PROTECTION.—The Under 4 Secretary of Commerce for Intellectual Property 5 and Director of the United States Patent and 6 Trademark Office may prohibit the offending 7 foreign person from applying for patent protec- 8 tion, being listed as an inventor on a patent ap- 9 plication, or continuing a patent application 10 under title 35, United States Code. 11 ‘‘(F) EXPORT-IMPORT BANK ASSISTANCE 12 FOR EXPORTS TO FOREIGN PERSON.—The Ex- 13 port-Import Bank of the United States may 14 refuse to approve the issuance of any guar- 15 antee, insurance, extension of credit, or partici- 16 pation in the extension of credit in connection 17 with the export of any goods or services to the 18 offending foreign person. 19 ‘‘(G) EXCLUSION OF CORPORATE OFFI- 20 CERS.—The Secretary of State may deny a visa 21 application, and the Secretary of Homeland Se- 22 curity may deny an application for admission to 23 the United States, of any alien that the applica- 24 ble Secretary determines is a corporate officer 25 VerDate Sep 11 2014 19:27 May 18, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1245.IS S1245 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 1245 IS or principal of, or a shareholder with a control- 1 ling interest in, the offending foreign person. 2 ‘‘(H) OTHER PENALTIES.—The Attorney 3 General or the head of a designated Federal 4 agency— 5 ‘‘ [Text truncated for display. Full text available on Congress.gov.]