Preventing Foreign CENSORSHIP in America Act

I 116TH CONGRESS 2D SESSION H. R. 5830 To protect American workers and enterprises from Chinese and other foreign efforts to extraterritorially censor free speech and inhibit lawful advocacy, and for other purposes. IN THE HOUSE OF REPRESENTATIVES FEBRUARY 10, 2020 Ms. CLARKE of New York (for herself, Mr. MALINOWSKI, Mr. SHERMAN, Mr. GALLAGER, and Mr. BANKS) introduced the following bill; which was re- ferred to the Committee on Education and Labor, and in addition to the Committee on Foreign Affairs, for a period to be subsequently deter- mined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To protect American workers and enterprises from Chinese and other foreign efforts to extraterritorially censor free speech and inhibit lawful advocacy, and for other pur- poses. 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 ‘‘Preventing Foreign 4 CENSORSHIP in America Act’’ or the ‘‘Preventing the 5 Foreign Coercive Export of Non-consensual Speech and 6 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 2 •HR 5830 IH Orwellian Restrictions by Superpowers Hoping to Intimi- 1 date People in America Act’’. 2 SEC. 2. FINDINGS. 3 Congress finds the following: 4 (1) Foreign governments have increasingly 5 sought to extraterritorially intimidate American and 6 non-American companies into policing media content 7 and the free speech rights of staff, employees, and 8 other associated persons. 9 (2) Because the extraterritorial advocacy for 10 human rights abroad is a core tenet of American 11 foreign policy and central to American national secu- 12 rity, the growing extraterritorial suppression of 13 speech of persons and companies represents a long- 14 term threat to American interests. 15 (3) Self-censorship by American companies and 16 other nongovernmental entities in accordance with 17 the stated or unstated wishes of foreign geopolitical 18 rivals will only encourage more of the same. 19 (4) While China’s economic weight affords it 20 unique leverage to seek to compel corporate self-cen- 21 sorship or retaliation against staff expressing con- 22 trary views, including the manager of a basketball 23 team expressing support for human rights, other 24 countries such as North Korea have also sought to 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 3 •HR 5830 IH stifle free speech through malign measures, includ- 1 ing conducting cyberattacks against a motion picture 2 studio that distributed comedic content regarding its 3 leadership. 4 (5) The United States Congress not only de- 5 fends, but encourages, American persons and per- 6 sons within the United States to be outspoken de- 7 fenders of the rights of those around the world 8 standing up against repression and persecution. 9 SEC. 3. PROTECTING FREE SPEECH OF AMERICAN WORK- 10 ERS FROM FOREIGN CENSORSHIP. 11 (a) PROHIBITION ON RETALIATION.— 12 (1) IN GENERAL.—Except as provided in para- 13 graph (3), a domestic entity may not discharge, sus- 14 pend, cease contracting with, or fail to pursue future 15 contracts with, any existing employee or contractor, 16 or take any other adverse action against any such 17 employee or contractor with respect to his or her 18 compensation, terms, conditions, or privileges of em- 19 ployment or contract, on the basis of protected activ- 20 ity, in the case that such an adverse action was un- 21 dertaken— 22 (A) because a designated foreign govern- 23 ment or entity explicitly or implicitly requests 24 that the domestic entity take such an adverse 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 4 •HR 5830 IH action, or the domestic entity presumes that a 1 designated foreign authority would prefer such 2 an adverse action; 3 (B) because the protected activity resulted 4 in, or has the potential to result in— 5 (i) financial, reputational, or other 6 damage to the domestic entity’s profit- 7 ability or organizational prospects in a 8 country governed by a designated foreign 9 authority with which the protected activity 10 relates; or 11 (ii) economic retaliation by such coun- 12 try; or 13 (C) in response to a protected activity 14 which constitutes protected inaction. 15 (2) GOOD FAITH CLAIMS.—A domestic entity 16 may not discharge, suspend, cease contracting with, 17 or fail to pursue future contracts with, any existing 18 employee or contractor, or take any other adverse 19 action against any such employee or contractor with 20 respect to his or her compensation, terms, condi- 21 tions, or privileges of employment or contract, on the 22 basis of such employee or contractor’s actual or con- 23 templated assertion of any protection under this Act, 24 provided such protection was asserted in good faith. 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 5 •HR 5830 IH (3) EXCEPTIONS.—The prohibition under para- 1 graph (1) does not apply if— 2 (A) the protected activity of the employee 3 or contractor was conducted in such employee 4 or contractor’s official employment or contrac- 5 tual capacity; 6 (B) a reasonable person, considering the 7 context or content of the protected activity, 8 would believe such activity was conducted in 9 such employee or contractor’s official employ- 10 ment or contractual capacity, and such activity, 11 if conducted in an official capacity, would have 12 been contrary to an official policy or the finan- 13 cial or organizational interests of the domestic 14 entity; or 15 (C) the protected activity occurred— 16 (i) in the territory of a country gov- 17 erned by a designated foreign authority 18 which seeks to restrict such activity; and 19 (ii) during an overseas trip or assign- 20 ment such employee or contractor under- 21 took on behalf of the domestic entity. 22 (4) RULE OF CONSTRUCTION ON SOCIAL 23 MEDIA.—For the purpose of determining whether 24 protected activity was conducted in an employee or 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 6 •HR 5830 IH contractor’s official capacity, protected activity on a 1 social media account or other analogous medium of 2 communication which is used both in an official and 3 unofficial capacity, shall be presumed to be used in 4 an unofficial capacity, absent clear and convincing 5 evidence to the contrary. 6 (b) PROHIBITION ON CONTRACTUAL LIMITATIONS.— 7 A domestic entity may not require, as a condition of em- 8 ployment, contract, or any compensation, benefit, or privi- 9 lege related to such employment or contract, a prospective, 10 existing, or former employee or contractor to— 11 (1) limit a protected activity conducted in an 12 unofficial capacity, provided such protected activity 13 would reasonably be expected to trigger the prohibi- 14 tion on retaliation described in subsection (a); or 15 (2) waive or abridge any right or cause of ac- 16 tion under this Act, including requiring an employee 17 or contractor to pursue any claims under this Act in 18 a nonpublic or otherwise confidential manner. 19 (c) NONPREEMPTION.—Nothing in this section shall 20 preempt any Federal or State law (including any local law 21 or ordinance), contract, agreement, policy, plan, or prac- 22 tice that establishes a right or benefit that is more bene- 23 ficial to, or is in addition to, a right or benefit provided 24 to employees or contractors under this Act. 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 7 •HR 5830 IH SEC. 4. ENFORCEMENT. 1 (a) PRIVATE RIGHT OF ACTION.— 2 (1) IN GENERAL.—A person who is injured by 3 an actual or threatened violation of section 3 may 4 bring an action for injunctive relief and monetary 5 damages, including compensatory and punitive dam- 6 ages. 7 (2) COSTS.—The court shall award a prevailing 8 plaintiff costs and fees, including reasonable attor- 9 ney’s fees and expert witness fees. 10 (3) LIMITATION ON MONETARY DAMAGES.—An 11 employee or contractor bringing an action under this 12 subsection to recover monetary damages pursuant to 13 a profit-sharing, revenue-sharing, or analogous ar- 14 rangement with a domestic entity may not recover 15 the portion of the proceeds of such arrangement 16 which would likely have been derived from activities 17 or sales within the country governed by the des- 18 ignated foreign authority with which such employee 19 or contractor’s protected activity relates. 20 (4) STATUTE OF LIMITATIONS.— 21 (A) IN GENERAL.—No action may be com- 22 menced pursuant to this subsection more than 23 the later of— 24 (i) 5 years after the date on which the 25 violation occurs; or 26 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 8 •HR 5830 IH (ii) 3 years after the date on which 1 the violation is discovered or should have 2 been discovered through exercise of reason- 3 able diligence. 4 (B) TOLLING.—If an employee or con- 5 tractor, or immediate family member thereof, of 6 a domestic entity is detained or otherwise sub- 7 ject to coercion by a designated foreign author- 8 ity prior to the expiration of the statute of limi- 9 tations, such statute of limitation may be tolled 10 at the discretion of the court, until the date 11 that is one year after such detention or coercion 12 concluded. 13 (5) SUMMARY JUDGMENT.—In an action under 14 this subsection, a court may not grant a motion for 15 summary judgment made by a domestic entity solely 16 based on a document or other evidence produced 17 solely by the domestic entity that describes the enti- 18 ty’s alleged reason for taking adverse action against 19 an employee or contractor. 20 (6) RULE OF CONSTRUCTION.—The private 21 right of action under this subsection is in addition 22 to any other right or remedy under Federal or State 23 law. 24 (b) FEDERAL AND STATE ENFORCEMENT.— 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 9 •HR 5830 IH (1) FEDERAL ENFORCEMENT.— 1 (A) JUDICIAL ENFORCEMENT.—The Sec- 2 retary of Labor or the Equal Employment Op- 3 portunity Commission may petition any appro- 4 priate district court of the United States for 5 temporary or permanent injunctive relief if the 6 Secretary or Commission determines that sub- 7 section (a) or (b) of section 3 of this Act has 8 been violated. 9 (B) CIVIL PENALTY.— 10 (i) IN GENERAL.—Any domestic entity 11 who commits a violation of this Act may be 12 assessed a civil money penalty by either 13 the Secretary of Labor or the Equal Em- 14 ployment Opportunity Commission, but not 15 both, of not more than the greater of— 16 (I) $100,000 for each violation 17 constituting other adverse action 18 against any employee or contractor 19 with respect to his or her compensa- 20 tion, terms, conditions, or privileges of 21 employment or contract; 22 (II) $250,000 for each violation 23 involving the discharge, suspension, 24 cessation of contract with, or failure 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 10 •HR 5830 IH to pursue future contracts with any 1 employee or contractor; or 2 (III) $1,000,000 for each willful 3 violation involving the discharge or 4 termination of a United States person 5 who is an employee or contractor, un- 6 dertaken— 7 (aa) at the explicit direction 8 of a political, diplomatic, or intel- 9 ligence official or element of a 10 designated foreign authority; 11 (bb) with actual knowledge 12 of the prohibitions under this 13 Act; and 14 (cc) in connection with 15 peaceful protected activity which 16 could be reasonably understood 17 to align with the foreign policy or 18 national security interests of the 19 United States. 20 (ii) FACTORS TO CONSIDER.—In de- 21 termining the amount of any penalty to be 22 assessed, the Secretary or Commission 23 shall take into account— 24 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 11 •HR 5830 IH (I) the previous record of the do- 1 mestic entity in terms of compliance 2 with this Act, or any other Federal, 3 State, or local statutes or regulations 4 which seek to combat foreign influ- 5 ence over domestic activities; 6 (II) whether the violation was 7 willful; 8 (III) the gravity of the violation; 9 (IV) the size of the domestic en- 10 tity, and any secondary implications 11 of a large penalty on its workforce; 12 and 13 (V) the nature of the protected 14 activity, including the diplomatic rela- 15 tionship between the United States 16 and the country governed by a des- 17 ignated foreign authority with which 18 the protected activity relates. 19 (iii) HEARING, APPEAL, AND ADDI- 20 TIONAL MATTERS.— 21 (I) AGENCY OR COMMISSION 22 HEARING.—The domestic entity as- 23 sessed shall be afforded an oppor- 24 tunity for agency or commission hear- 25 VerDate Sep 11 2014 20:31 Feb 14, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H5830.IH H5830 pamtmann on DSKBC07HB2PROD with BILLS 12 •HR 5830 IH ing, upon request made within thirty 1 days after the date of issuance of the 2 notice of assessment. If a hearing is 3 requested, the initial decision shall be 4 made by an administrative law judge, 5 and such decision shall become the 6 final order unless the Secretary or 7 Commission modifies or vacates the 8 decision. Notice of intent to modify or 9 vacate the decision of the administra- 10 tive law judge shall be issued to the 11 parties within thirty days after the de- 12 cision of the administrative law judge. 13 (II) APPEAL.—Any domestic en- 14 tity against whom an order imposing 15 a civil money penalty has been entered 16 after a hearing under this section may 17 obtain review by the United States 18 district court for any district in which 19 it is located or the United States dis- 20 trict court for the District of Colum- 21 bia by filing a notice of appeal in such 22 court within 30 [Text truncated for display. Full text available on Congress.gov.]