Stop Higher Education Espionage and Theft Act of 2019

II 116TH CONGRESS 1ST SESSION S. 1701 To address foreign threats to higher education in the United States. IN THE SENATE OF THE UNITED STATES JUNE 3, 2019 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 2019’’. 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- 9 lowing: 10 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 2 •S 1701 IS ‘‘§ 540D. Designation of foreign intelligence threats to 1 higher education 2 ‘‘(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— 11 ‘‘(A) a foreign government or its auxiliary 12 territories, or any component thereof, whether 13 or not recognized by the United States; 14 ‘‘(B) a foreign-based political organization, 15 not substantially composed of United States 16 persons; 17 ‘‘(C) a faction of a foreign nation or na- 18 tions, not substantially composed of United 19 States persons; 20 ‘‘(D) an entity that is openly acknowledged 21 by a foreign government or governments to be 22 directed and controlled by such foreign govern- 23 ment or governments; 24 ‘‘(E) any partnership, association, corpora- 25 tion, organization, or other combination of per- 26 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 3 •S 1701 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 7 ‘‘(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 14 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 18 101 of the Higher Education Act (20 U.S.C. 1001); 19 ‘‘(5) the term ‘national security’ means the na- 20 tional defense, foreign relations, or economic inter- 21 ests of the United States; 22 ‘‘(6) the term ‘relevant committees of Congress’ 23 means— 24 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 4 •S 1701 IS ‘‘(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 Labor of the 9 House of Representatives; and 10 ‘‘(7) the term ‘United States person’ has the 11 meaning given that term in section 101 of the For- 12 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 23 States, in violation of section 554 of title 18. 24 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 5 •S 1701 IS ‘‘(B) Espionage, in violation of sections 1 791 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. 19 ‘‘(J) Terrorism, in violation of sections 20 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. 24 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 6 •S 1701 IS ‘‘(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 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 7 •S 1701 IS ‘‘(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 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 8 •S 1701 IS 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 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 9 •S 1701 IS 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 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 10 •S 1701 IS ‘‘(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 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 11 •S 1701 IS ‘‘(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 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 12 •S 1701 IS 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 VerDate Sep 11 2014 23:32 Jun 06, 2019 Jkt 089200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S1701.IS S1701 kjohnson on DSK79L0C42 with BILLS 13 •S 1701 IS 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 22 such a manner as to warrant revocation; or [Text truncated for display. Full text available on Congress.gov.]