DATA Act

IB 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 Com- mittee of the Whole House on the State of the Union and ordered to be printed VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 2 •HR 1153 RH A BILL To provide a clarification of non-applicability for regulation and prohibition relating to sensitive personal data under the International Emergency Economic Powers Act, and for other purposes. VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 3 •HR 1153 RH 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 AND TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Deterring America’s Technological Adversaries Act’’ or 5 ‘‘DATA Act’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 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 REGULA- TION AND PROHIBITION RELATING TO SENSITIVE PERSONAL DATA UNDER INTERNATIONAL EMERGENCY ECONOMIC POW- ERS ACT Sec. 101. Clarification. Sec. 102. Directive. TITLE II—IMPOSITION OF SANCTIONS ON CERTAIN TRANS- ACTIONS 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 enti- ties. Sec. 302. Requests by appropriate congressional committees. SEC. 2. FINDINGS. 9 Congress finds the following: 10 (1) On December 2, 2022, the Director of the 11 Federal Bureau of Investigation, Christopher Wray, 12 stated, ‘‘We . . . do have national security concerns 13 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 4 •HR 1153 RH about the app [TikTok]. Its parent company is con- 1 trolled by the Chinese government. And it gives 2 them the potential to leverage the app in ways that 3 I think should concern us . . . One, it gives them 4 the ability to control the recommendation algorithm 5 which allows them to manipulate content and if they 6 want to, to use it for influence operations which are 7 a lot more worrisome in the hands of the Chinese 8 Communist Party than whether or not you’re steer- 9 ing somebody as an influencer to one product or an- 10 other. They also have the ability to collect data 11 through it on users which can be used for traditional 12 espionage operations, for example. They also have 13 the ability on it to get access, they have essentially 14 access to the software to devices. So you’re talking 15 about millions of devices and that gives them the 16 ability to engage in different kinds of malicious 17 cyber activity through that. And so all of these 18 things are in the hands of a government that doesn’t 19 share our values and that has a mission that’s very 20 much at odds with what’s in the best interest of the 21 United States that that should concern us.’’. 22 (2) On December 3, 2022, the Director of Na- 23 tional Intelligence, Avril Haines, ‘‘It is extraordinary 24 the degree to which China, in particular, but they’re 25 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 5 •HR 1153 RH not the only ones, obviously, are developing just 1 frameworks for collecting foreign data and pulling it 2 in and their capacity to then turn that around and 3 use it to target audiences for information campaigns 4 or for other things, but also to have it for the future 5 so that they can use it for a variety of means that 6 they’re interested in.’’. 7 (3) On December 16, 2022, the Director of 8 Central Intelligence, Bill Burns, stated, ‘‘I think it’s 9 a genuine concern . . . for the U.S. government, in 10 the sense that, because the parent company of 11 TikTok is a Chinese company, the Chinese govern- 12 ment is able to insist upon extracting the private 13 data of a lot of TikTok users in this country, and 14 also to shape the content of what goes on to TikTok 15 as well to suit the interests of the Chinese leadership 16 . . . What I would underscore, though, is that it’s 17 genuinely troubling to see what the Chinese govern- 18 ment could do to manipulate TikTok.’’. 19 (4) On December 23, 2022, both chambers of 20 Congress passed a bipartisan spending bill that in- 21 cluded a ban on using TikTok from government de- 22 vices. 23 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 6 •HR 1153 RH SEC. 3. AUTHORIZATION OF APPROPRIATIONS. 1 No additional amounts are authorized to be made 2 available to carry out this Act. 3 SEC. 4. SEVERABILITY. 4 If any provision of this Act or its application to any 5 person or circumstance is held invalid, the invalidity does 6 not affect other provisions or applications of this section 7 that can be given effect without the invalid provision or 8 application, and to this end the provisions of this Act are 9 severable. 10 SEC. 5. DEFINITIONS. 11 In this Act: 12 (1) AGENCY OR INSTRUMENTALITY OF A FOR- 13 EIGN STATE.—The term ‘‘agency or instrumentality 14 of a foreign state’’ has the meaning given such term 15 under section 1603(b) of title 28, United States 16 Code. 17 (2) APPROPRIATE CONGRESSIONAL COMMIT- 18 TEES.—The term ‘‘appropriate congressional com- 19 mittees’’ means— 20 (A) the Committee on Foreign Affairs, 21 Committee on Ways and Means, and the Com- 22 mittee on Financial Services of the House of 23 Representatives; and 24 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 7 •HR 1153 RH (B) the Committee on Foreign Relations 1 and the Committee on Banking, Housing, and 2 Urban Affairs of the Senate. 3 (3) CHINA.—The term ‘‘China’’ means— 4 (A) when used in the geographic sense, the 5 country of the People’s Republic of China; and 6 (B) otherwise, the Government of the 7 country of the People’s Republic of China, in- 8 cluding any entity acting on behalf of, or the 9 benefit of— 10 (i) the country of the People’s Repub- 11 lic of China; or 12 (ii) the Government of the country of 13 the People’s Republic of China. 14 (4) CONNECTED SOFTWARE APPLICATION.— 15 The term ‘‘connected software application’’ has the 16 meaning given such term in Executive Order 14034 17 (86 Fed. Reg. 31423; relating to protecting Ameri- 18 cans’ sensitive data from foreign adversaries). 19 (5) ELECTION INTERFERENCE IN OR AGAINST A 20 FOREIGN COUNTRY THAT IS A TREATY ALLY OF THE 21 UNITED STATES OR A DEMOCRATIC OR EMERGING 22 DEMOCRATIC PARTNER OF THE UNITED STATES.— 23 The term ‘‘election interference in or against a for- 24 eign country that is a treaty ally of the United 25 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 8 •HR 1153 RH States or a democratic or emerging democratic part- 1 ner of the United States’’ means actions to engage 2 in, directly or indirectly, activities originating from, 3 or directed by, persons located, in whole or in sub- 4 stantial part, outside the territory of a treaty ally of 5 the United States or a democratic or emerging 6 democratic partner of the United States that have 7 the purpose or effect of tampering with, altering, un- 8 lawfully accessing, or causing a misappropriation of 9 information with the purpose or effect of interfering 10 with or undermining election processes or institu- 11 tions. 12 (6) ELECTION INTERFERENCE IN OR AGAINST 13 THE UNITED STATES.—The term ‘‘election inter- 14 ference in or against the United States’’ includes ac- 15 tions to engage in, directly or indirectly, activities 16 originating from, or directed by persons located, in 17 whole or in substantial part, outside the United 18 States that— 19 (A) have the purpose or effect of tam- 20 pering with, altering, unlawfully accessing, or 21 causing a misappropriation of information with 22 the purpose or effect of undermining election 23 processes or institutions; 24 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 9 •HR 1153 RH (B) deny access, block, degrade, or alter 1 election and campaign infrastructure, or related 2 systems or data related to political parties, can- 3 didates in elections for public office, the admin- 4 istration of elections for public office, or any 5 public election activity; or 6 (C) consist of the making of contributions 7 or donations, or any other activity prohibited 8 under section 319 of the Federal Election Cam- 9 paign Act of 1971 (52 U.S.C. 30121), with the 10 purpose or effect of undermining election proc- 11 esses or institutions. 12 (7) FOREIGN PERSON.—The term ‘‘foreign per- 13 son’’— 14 (A) means a person that is not a United 15 States person; and 16 (B) includes a nonresident alien individual, 17 foreign corporation, foreign partnership, foreign 18 trust, foreign estate. 19 (8) KNOWINGLY.—The term ‘‘knowingly’’, with 20 respect to conduct, a circumstance, or a result, 21 means that a person has actual knowledge, or should 22 have known, of the conduct, the circumstance, or the 23 result. 24 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 10 •HR 1153 RH (9) SENSITIVE PERSONAL DATA.—The term 1 ‘‘sensitive personal data’’ has the meaning given 2 such term in section 7.2 of title 15, Code of Federal 3 Regulations (or any successor regulation). 4 (10) TREATY ALLY OF THE UNITED STATES.— 5 The term ‘‘treaty ally of the United States’’ means 6 a foreign country that is a party to any of the fol- 7 lowing: 8 (A) The North Atlantic Treaty, signed at 9 Washington, April 4, 1949. 10 (B) The Security Treaty Between Aus- 11 tralia, New Zealand, and the United States of 12 America, signed at San Francisco, September 13 1, 1951. 14 (C) The Mutual Defense Treaty Between 15 the United States of America and the Republic 16 of the Philippines, signed at Washington, Au- 17 gust 30, 1951. 18 (D) The Southeast Asia Collective Defense 19 Treaty, signed at Manilla, September 8, 1954. 20 (E) The Treaty of Mutual Cooperation and 21 Security Between the United States of America 22 and Japan, signed at Washington, January 19, 23 1960. 24 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 11 •HR 1153 RH (F) The Mutual Defense Treaty Between 1 the United States of America and the Republic 2 of Korea, signed at Washington, October 1, 3 1953. 4 (11) UNITED STATES PERSON.—The term 5 ‘‘United States person’’ means— 6 (A) a United States citizen; 7 (B) a permanent resident alien; 8 (C) an entity organized under the laws of 9 the United States (including foreign branches); 10 or 11 (D) any person in the United States. 12 TITLE I—CLARIFICATION OF 13 NON-APPLICABILITY FOR 14 REGULATION AND PROHIBI- 15 TION RELATING TO SEN- 16 SITIVE PERSONAL DATA 17 UNDER INTERNATIONAL 18 EMERGENCY ECONOMIC POW- 19 ERS ACT 20 SEC. 101. CLARIFICATION. 21 (a) IN GENERAL.—The importation to a country, or 22 the exportation from a country, of sensitive personal data 23 shall not constitute the importation from a country, or the 24 exportation to a country, of information or informational 25 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 12 •HR 1153 RH materials for purposes of paragraph (1) or (3) of section 1 203(b) of the International Emergency Economic Powers 2 Act (50 U.S.C. 1702(b)). 3 (b) RULE OF CONSTRUCTION.—Nothing in sub- 4 section (a), and nothing in the International Emergency 5 Economic Powers Act, may be construed to provide for 6 the application of paragraph (1) or (3) of section 203(b) 7 of the International Emergency Economic Powers Act (50 8 U.S.C. 1702(b)) to the importation to China, or the expor- 9 tation from China, directly or indirectly, of sensitive per- 10 sonal data. 11 SEC. 102. DIRECTIVE. 12 Not later than 180 days after the date of the enact- 13 ment of this Act, the Secretary of the Treasury shall issue 14 a directive prohibiting United States persons from engag- 15 ing in any transaction with a person that the Secretary 16 of the Treasury determines knowingly provides or may 17 transfer sensitive personal data of persons subject to 18 United States jurisdiction to any foreign person that— 19 (1) is subject to the jurisdiction or direction of, 20 or directly or indirectly operating on behalf of, 21 China; or 22 (2) is owned by, directly or indirectly controlled 23 by, or is otherwise subject to the influence of China. 24 VerDate Sep 11 2014 22:41 May 16, 2023 Jkt 039200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H1153.RH H1153 pbinns on DSKJLVW7X2PROD with $$_JOB 13 •HR 1153 RH TITLE II—IMPOSITION OF SANC- 1 TIONS ON CERTAIN TRANS- 2 ACTIONS RELATING TO CON- 3 NECTED SOFTWARE APPLICA- 4 TIONS 5 SEC. 201. IMPOSITION OF SANCTIONS. 6 (a) IN GENERAL.—The President shall impose the 7 sanction described in section 202 with respect to any for- 8 eign person that, on or after the date of the enactment 9 of this Act, knowingly— 10 (1) operates, directs, or otherwise deals in a 11 connected software application that— 12 (A) is subject to the jurisdiction or direc- 13 tion of, or directly or indirectly operating on be- 14 half of China, or is owned by, directly or indi- 15 rectly controlled by, or otherwise subject to the 16 influence of China; and 17 (B) is reasonable believed to have facili- 18 tated or may be facil [Text truncated for display. Full text available on Congress.gov.]