I 112th CONGRESS 1st Session H. R. 3605 IN THE HOUSE OF REPRESENTATIVES December 8, 2011 Mr. Smith of New Jersey (for himself, Mr. Wolf, and Mr. McCotter) introduced the following bill; which was referred to the Committee on Foreign Affairs, and in addition to the Committees on Ways and Means and Financial Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To prevent United States businesses from cooperating with repressive governments in transforming the Internet into a tool of censorship and surveillance, to fulfill the responsibility of the United States Government to promote freedom of expression on the Internet, to restore public confidence in the integrity of United States businesses, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Global Online Freedom Act of 2011. (b)

Table of contents

The table of contents for this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Findings. Sec. 3. Definitions. Sec. 4. Severability. Title I—Promotion of global Internet freedom Sec. 101. Statement of policy. Sec. 102. Sense of Congress. Sec. 103. Annual Country Reports on Human Rights Practices. Sec. 104. Annual designation of Internet-restricting countries; report. Sec. 105. Report on trade-related issues or disputes due to government censorship or disruption of the Internet. Title II—Corporate transparency and accountability to protect online freedom Sec. 201. Disclosure of blocking and surveillance by Internet communications services companies. Title III—Export controls on certain telecommunications equipment Sec. 301. Export controls on certain telecommunications equipment.

2.

Findings

Congress makes the following findings: (1)The political and economic benefits of the Internet are important to advancing democracy and freedom throughout the world, but the potential benefits of this transformative technology are under attack by authoritarian governments; (2)A number of repressive foreign governments block, restrict, otherwise control, and monitor the Internet, effectively transforming the Internet into a tool of censorship and surveillance. (3)A number of United States businesses have enabled repressive regimes to compromise the security of Internet users engaged in peaceful discussion of political, social, and religious issues and severely limit their access to information and communication channels by selling these governments or their agents technology or training. (4)A number of United States businesses have provided repressive governments with information about Internet users who were the company’s clients or were using the companies’ products, that has led to the arrest and imprisonment of the Internet users. (5)The actions of a number of United States businesses in cooperating with the efforts of repressive governments to transform the Internet into a tool of censorship and surveillance have caused Internet users in the United States and in foreign countries to lose confidence in the integrity of United States businesses. (6)Information and communication technology companies are to be commended for cooperating with civil society organizations, academics, and investors in founding the Global Network Initiative, in order to provide direction and guidance to the Information and Communications Technology companies and others in protecting the free expression and privacy of Internet users. Human rights due diligence by companies makes a difference. (7)The United States Government has a responsibility to protect freedom of expression on the Internet, to prevent United States businesses from directly and materially cooperating in human rights abuses perpetrated by repressive foreign governments, and to restore public confidence in the integrity of United States business.

3.

Definitions

In this Act: (1)

Appropriate congressional committees

The term appropriate congressional committees means— (A)the Committee on Foreign Affairs and the Committee on Financial Services of the House of Representatives; and (B)the Committee on Foreign Relations and the Committee on Finance of the Senate. (2)

Electronic communication and other title 18 definitions

The terms electronic communication, electronic communications system, electronic storage, and contents have the meanings given such terms in section 2510 of title 18, United States Code. (3)

Foreign official

(A)

In general

The term foreign official means— (i)any officer or employee of a foreign government or of any department; and (ii)any person acting in an official capacity for or on behalf of, or acting under color of law with the knowledge of, any such government or such department, agency, state-owned enterprise, or instrumentality. (B)

State-owned enterprise

For purposes of subparagraph (A), the term state-owned enterprise means a commercial entity in which a foreign government owns or controls, directly or indirectly, more than 50 percent of the outstanding capital stock or other beneficial interest in such commercial entity. (4)

Internet

The term Internet has the meaning given the term in section 231(f) of the Communications Act of 1934 (47 U.S.C. 231(f)). (5)

Internet-restricting country

The term Internet-restricting country means a country designated by the Secretary of State pursuant to section 104(a) of this Act. (6)

Internet communications services

The term Internet communications services— (A)means a method for providing communications services via the Internet, including electronic mail, Internet telephony, online chat, online text messaging, Internet bulletin boards, or Web pages; and (B)(i)includes providing Internet access; but (ii)does not include activities conducted by a financial institution (as such term is defined in section 5312 of title 31, United States Code) that are financial in nature, even if such activities are conducted using the Internet. (7)

Internet content hosting service

The terms Internet content hosting service and content hosting service mean a service that— (A)stores, through electromagnetic or other means, electronic data, such as the content of Web pages, electronic mail, documents, images, audio and video files, online discussion boards, or Web logs; and (B)makes such data available via the Internet. (8)

Internet search engine

The term Internet search engine or search engine means a service made available via the Internet that, on the basis of a query consisting of terms, concepts, questions, or other data input by a user, searches information available on the Internet and returns to the user a means, such as a hyperlinked list of Uniform Resource Identifiers, of locating, viewing, or downloading information or data available on the Internet relating to such query. (9)

Legitimate foreign law enforcement purposes

(A)

In general

The term legitimate foreign law enforcement purpose means for the purpose of enforcement, investigation, or prosecution by a foreign official based on a publicly promulgated law of reasonable specificity that proximately relates to the protection or promotion of the health, safety, or morals of the citizens of the jurisdiction of such official. (B)

Rule of construction

For purposes of this Act, the control, suppression, or punishment of peaceful expression of political, religious, or ideological opinion or belief shall not be construed to constitute a legitimate foreign law enforcement purpose. Among expression that should be construed to be protected against control, suppression, or punishment when evaluating a foreign government’s claim of a legitimate foreign law enforcement purpose is expression protected by article 19 of the International Covenant on Civil and Political Rights. (10)

Personally identifiable information

The term personally identifiable information— (A)includes any information described in section 2703(c)(2) of title 18, United States Code; and (B)does not include— (i)any traffic data; or (ii)any record of aggregate data which cannot be used to identify particular persons. (11)

Personally identifiable information used to establish or maintain an account

The term personally identifiable information used to establish or maintain an account does not include— (A)information collected in the course of establishing or operating accounts for communications within a company; (B)information collected in the course of the purchase, sale, shipment, or distribution of goods, including transactions for goods or services utilizing the Internet, other than communication services on which a political, religious, or ideological opinion or belief may be expressed; or (C)personally identifiable information volunteered in an electronic communication, other than in a communication made in the course of establishing an account for Internet communications services, such as an electronic mail signature line or an electronic mail, on-line video, or Web page in which the author voluntarily provides personally identifiable information. (12)

Substantial restrictions on internet freedom

The term substantial restrictions on Internet freedom means actions that restrict or punish the free availability of information via the Internet for reasons other than legitimate foreign law enforcement purposes, including— (A)deliberately blocking, filtering, or censoring information available via the Internet based on the expression of political, religious, or ideological opinion or belief, including by electronic mail; or (B)persecuting, prosecuting, or otherwise punishing an individual or group for posting or transmitting peaceful political, religious, or ideological opinion or belief via the Internet, including by electronic mail. (13)

Traffic data

The term traffic data means, with respect to an electronic communication, any information contained in or relating to such communication that is processed for the purpose of the conveyance of the communication by an electronic communications system or for the billing thereof, including any Internet Protocol address or other means of identifying a location within an electronic communications system, but that cannot be used to identify a particular person. Such term cannot be used to include the contents of any electronic communication. (14)

United states business

The term United States business means— (A)any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship that— (i)has its principal place of business in the United States; or (ii)is organized under the laws of a State of the United States or a territory, possession, or commonwealth of the United States; and (B)any issuer of a security registered pursuant to section 12 of the Securities Exchange Act of 1934 (15 U.S.C. 78l).

4.

Severability

If any provision of this Act, or the application of such provision to any person or circumstance, is held invalid, the remainder of this Act, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.