[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 2903 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 2903

  To address foreign threats to higher education in the United States.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                              May 22, 2018

   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 Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Stop Higher Education Espionage and 
Theft Act of 2018''.

SEC. 2. DESIGNATION OF FOREIGN INTELLIGENCE THREATS TO HIGHER 
              EDUCATION.

    (a) In General.--Chapter 33 of title 28, United States Code, is 
amended by adding at the end the following:
``Sec. 540D. Designation of foreign intelligence threats to higher 
              education
    ``(a) Definitions.--In this section--
            ``(1) the term `classified information' has the meaning 
        given that term in section 1(a) of the Classified Information 
        Procedures Act (18 U.S.C. App.);
            ``(2) the term `Director' means the Director of the Federal 
        Bureau of Investigation, acting in consultation with the 
        Attorney General, Secretary of Education, and the Director of 
        National Intelligence;
            ``(3) the term `foreign actor' means--
                    ``(A) a foreign government or its auxiliary 
                territories, or any component thereof, whether or not 
                recognized by the United States;
                    ``(B) a foreign-based political organization, not 
                substantially composed of United States persons;
                    ``(C) a faction of a foreign nation or nations, not 
                substantially composed of United States persons;
                    ``(D) an entity that is openly acknowledged by a 
                foreign government or governments to be directed and 
                controlled by such foreign government or governments;
                    ``(E) any partnership, association, corporation, 
                organization, or other combination of persons who acts 
                as an agent, representative, employee, or servant of, 
                or whose activities are directly or indirectly 
                supervised, directed, controlled, financed, or 
                subsidized in whole or in major part by a government, 
                organization, faction, or entity described in 
                subparagraph (A), (B), (C), or (D); or
                    ``(F) any individual who acts as an agent, 
                representative, employee, or servant of, or whose 
                activities are directly or indirectly supervised, 
                directed, controlled, financed, or subsidized in whole 
                or in major part by a government, organization, 
                faction, or entity described in subparagraph (A), (B), 
                (C), or (D), unless such individual is a citizen of and 
                domiciled within the United States;
            ``(4) the term `institution' means any institution of 
        higher education, as defined under section 101 of the Higher 
        Education Act (20 U.S.C. 1001);
            ``(5) the term `national security' means the national 
        defense, foreign relations, or economic interests of the United 
        States;
            ``(6) the term `relevant committees of Congress' means--
                    ``(A) the Committee on the Judiciary, the Select 
                Committee on Intelligence, the Committee on Homeland 
                Security and Government Affairs, and the Committee on 
                Health, Education, Labor, and Pensions of the Senate; 
                and
                    ``(B) the Committee on the Judiciary, the Permanent 
                Select Committee on Intelligence, the Committee on 
                Homeland Security, and the Committee on Education and 
                the Workforce of the House of Representatives; and
            ``(7) the term `United States person' has the meaning given 
        that term in section 101 of the Foreign Intelligence 
        Surveillance Act of 1978 (50 U.S.C. 1801).
    ``(b) Designation.--
            ``(1) In general.--The Director shall designate a foreign 
        actor as a foreign intelligence threat to higher education, in 
        accordance with this subsection, if the Director finds that the 
        foreign actor has committed, attempted to commit, or conspired 
        to commit, in connection with an institution, one or more of 
        the following:
                    ``(A) Espionage, in violation of sections 791 
                through 799 of title 18.
                    ``(B) Kidnapping, in violation of section 1201 of 
                title 18.
                    ``(C) Fraud or misuse of visas, permits, or other 
                documents, in violation of section 1546 of title 18.
                    ``(D) Aggravated identity theft, in violation of 
                section 1028A of title 18.
                    ``(E) Fraud or related activity in connection with 
                access devices, in violation of section 1029 of title 
                18.
                    ``(F) Fraud or related activity in connection with 
                computers, in violation of section 1030 of title 18.
                    ``(G) Economic espionage, in violation of section 
                1831 of title 18.
                    ``(H) Theft of trade secrets, in violation of 
                section 1832 of title 18.
                    ``(I) Terrorism, in violation of sections 2331 
                through 2339D of title 18.
                    ``(J) Interception or disclosure of wire, oral, or 
                electronic communications, in violation of section 2511 
                of title 18.
            ``(2) Procedure.--
                    ``(A) Notice before designation.--
                            ``(i) To congressional leaders.--Not later 
                        than 7 days before making a designation under 
                        this subsection, the Director shall submit to 
                        the Speaker and Minority Leader of the House of 
                        Representatives, the President pro tempore, 
                        Majority Leader, and Minority Leader of the 
                        Senate, and the members of the relevant 
                        committees of Congress--
                                    ``(I) written notice of the intent 
                                of the Director to designate a foreign 
                                actor under this subsection; and
                                    ``(II) the findings made under 
                                paragraph (1) with respect to foreign 
                                actor and the factual basis therefor.
                            ``(ii) To the attorney general.--Not later 
                        than 7 days before making a designation under 
                        this subsection, the Director shall submit to 
                        the Attorney General, for the Attorney General 
                        to determine whether further investigation or 
                        prosecution is warranted--
                                    ``(I) written notice of the intent 
                                of the Director to designate a foreign 
                                actor under this subsection; and
                                    ``(II) the findings made under 
                                paragraph (1) with respect to the 
                                foreign actor and the factual basis 
                                therefor.
                            ``(iii) Protection of classified 
                        information.--The notice and findings submitted 
                        under clauses (i) and (ii) may be in classified 
                        form.
                    ``(B) Publication in federal register.--If the 
                Director makes a designation under this subsection, the 
                Director shall publish the designation in the Federal 
                Register on the date of the designation.
                    ``(C) Effect of designation.--For purposes of 
                section 117 of the Higher Education Act of 1965 (20 
                U.S.C. 1011f), a designation under this subsection 
                shall take effect upon publication under subparagraph 
                (B).
            ``(3) Record.--
                    ``(A) In general.--In making a designation under 
                this subsection, the Director shall create an 
                administrative record.
                    ``(B) Classified information.--The Director may 
                consider classified information in making a designation 
                under this subsection. Classified information shall not 
                be subject to disclosure for such time as it remains 
                classified, except that such information may be 
                disclosed to a court ex parte and in camera for 
                purposes of judicial review under subsection (d).
            ``(4) Period of designation.--
                    ``(A) In general.--A designation under this 
                subsection shall be effective for all purposes until 
                revoked under paragraph (5) or (6) or set aside under 
                subsection (d).
                    ``(B) Review of designation upon petition.--
                            ``(i) In general.--The Director shall 
                        review the designation of a foreign 
                        intelligence threat to higher education under 
                        the procedures set forth in clauses (iii) and 
                        (iv) if the designated foreign actor files a 
                        petition for revocation within the petition 
                        period described in clause (ii).
                            ``(ii) Petition period.--For purposes of 
                        clause (i)--
                                    ``(I) if the designated foreign 
                                actor has not previously filed a 
                                petition for revocation under this 
                                subparagraph, the petition period 
                                begins 2 years after the date on which 
                                the designation was made; or
                                    ``(II) if the designated foreign 
                                actor has previously filed a petition 
                                for revocation under this subparagraph, 
                                the petition period begins 2 years 
                                after the date of the determination 
                                made under clause (iv) with respect to 
                                that petition.
                            ``(iii) Procedures.--Any foreign actor 
                        designated as a foreign intelligence threat to 
                        higher education that submits a petition for 
                        revocation under this subparagraph shall 
                        provide evidence in the petition that the 
                        relevant circumstances described in paragraph 
                        (1) are sufficiently different from the 
                        circumstances that were the basis for the 
                        designation such that a revocation with respect 
                        to the foreign actor is warranted.
                            ``(iv) Determination.--
                                    ``(I) In general.--Not later than 
                                180 days after receiving a petition for 
                                revocation submitted under this 
                                subparagraph, the Director shall make a 
                                determination as to such revocation.
                                    ``(II) Classified information.--The 
                                Director may consider classified 
                                information in making a determination 
                                in response to a petition for 
                                revocation. Classified information 
                                shall not be subject to disclosure for 
                                such time as it remains classified, 
                                except that such information may be 
                                disclosed to a court ex parte and in 
                                camera for purposes of judicial review 
                                under subsection (d).
                                    ``(III) Publication of 
                                determination.--A determination made by 
                                the Director under this clause shall be 
                                published in the Federal Register.
                                    ``(IV) Procedures.--Any revocation 
                                of a designation by the Director shall 
                                be made in accordance with paragraph 
                                (6).
                    ``(C) Other review of designation.--
                            ``(i) In general.--If no review has taken 
                        place under subparagraph (B) during any 5-year 
                        period, the Director shall review the 
                        designation of a foreign actor as a foreign 
                        intelligence threat to higher education in 
                        order to determine whether such designation 
                        should be revoked pursuant to paragraph (6).
                            ``(ii) Procedures.--If a review does not 
                        take place pursuant to subparagraph (B) in 
                        response to a petition for revocation that is 
                        filed in accordance with that subparagraph, the 
                        review shall be conducted pursuant to 
                        procedures established by the Director. The 
                        results of such review and the applicable 
                        procedures shall not be reviewable in any 
                        court.
                            ``(iii) Publication of results of review.--
                        The Director shall publish any determination 
                        made under this subparagraph in the Federal 
                        Register.
            ``(5) Revocation by act of congress.--Congress, by an Act 
        of Congress, may block or revoke a designation made under 
        paragraph (1).
            ``(6) Revocation based on change in circumstances.--
                    ``(A) In general.--The Director may revoke a 
                designation made under paragraph (1) at any time, and 
                shall revoke a designation upon completion of a review 
                conducted pursuant to subparagraphs (B) and (C) of 
                paragraph (4) if the Director finds that--
                            ``(i) the circumstances that were the basis 
                        for the designation have changed in such a 
                        manner as to warrant revocation; or
                            ``(ii) the national security of the United 
                        States warrants a revocation.
                    ``(B) Procedure.--The procedural requirements of 
                paragraphs (2) and (3) shall apply to a revocation 
                under this paragraph. Any revocation shall take effect 
                on the date specified in the revocation or upon 
                publication in the Federal Register if no effective 
                date is specified.
            ``(7) Effect of revocation.--The revocation of a 
        designation under paragraph (5) or (6) shall not affect any 
        action or proceeding based on conduct committed prior to the 
        effective date of such revocation.
    ``(c) Amendments to a Designation.--
            ``(1) In general.--The Director may amend a designation 
        under subsection (b) if the Director finds that the foreign 
        actor has changed its name, adopted a new alias, dissolved and 
        then reconstituted itself under a different name or names, or 
        merged with another foreign actor.
            ``(2) Procedure.--Amendments made to a designation in 
        accordance with paragraph (1) shall be effective upon 
        publication in the Federal Register. Subparagraphs (B) and (C) 
        of subsection (b)(2) shall apply to an amended designation upon 
        such publication. Paragraphs (2)(A)(i), (4), (5), (6), (7), and 
        (8) of subsection (b) shall also apply to an amended 
        designation.
            ``(3) Administrative record.--The administrative record 
        shall be corrected to include the amendments as well as any 
        additional relevant information that supports those amendments.
            ``(4) Classified information.--The Director may consider 
        classified information in amending a designation in accordance 
        with this subsection. Classified information shall not be 
        subject to disclosure for such time as it remains classified, 
        except that such information may be disclosed to a court ex 
        parte and in camera for purposes of judicial review under 
        subsection (d).
    ``(d) Judicial Review of Designation.--
            ``(1) In general.--Not later than 30 days after publication 
        in the Federal Register of a designation, an amended 
        designation, or a determination in response to a petition for 
        revocation, the foreign actor designated as a foreign 
        intelligence threat to higher education may seek judicial 
        review in the United States Court of Appeals for the District 
        of Columbia Circuit.
            ``(2) Basis of review.--Review under this subsection shall 
        be based solely upon the administrative record, except that the 
        Government may submit, for ex parte and in camera review, 
        classified information used in making the designation, amended 
        designation, or determination in response to a petition for 
        revocation, in a manner consistent with the Classified 
        Information Procedures Act (18 U.S.C. App.).
            ``(3) Scope of review.--The Court shall hold unlawful and 
        set aside a designation, amended designation, or determination 
        in response to a petition for revocation the court finds to 
        be--
                    ``(A) arbitrary, capricious, an abuse of 
                discretion, or otherwise not in accordance with law;
                    ``(B) contrary to constitutional right, power, 
                privilege, or immunity;
                    ``(C) in excess of statutory jurisdiction, 
                authority, or limitation, or short of statutory right;
                    ``(D) lacking substantial support in the 
                administrative record taken as a whole or in classified 
                information submitted to the court under paragraph (2); 
                or
                    ``(E) not in accord with the procedures required by 
                law.
            ``(4) Judicial review invoked.--The pendency of an action 
        for judicial review of a designation, amended designation, or 
        determination in response to a petition for revocation shall 
        not affect the application of this section, unless the court 
        issues a final order setting aside the designation, amended 
        designation, or determination in response to a petition for 
        revocation.
    ``(e) Reports.--
            ``(1) In general.--Not later than 180 days after the date 
        of enactment of this section, and every year thereafter, the 
        Director shall submit to the relevant committees of Congress a 
        detailed report containing the following:
                    ``(A) A description and assessment of foreign 
                actors who engage in activities listed in subsection 
                (b)(1).
                    ``(B) An assessment of the impact of foreign actors 
                who engage in activities listed in subsection (b)(1) on 
                scholarship and research and development in connection 
                with institutions.
                    ``(C) An assessment of the implementation and 
                operation of the designation process for foreign 
                intelligence threats to higher education established 
                under this section.
                    ``(D) An assessment of the likely effects of the 
                designation of foreign intelligence threats to higher 
                education on activities listed in subsection (b)(1) in 
                connection with institutions.
            ``(2) Form of reports.--The reports required under 
        paragraph (1) shall be submitted in an unclassified form, but 
        may contain a classified annex.''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 33 of title 28, United States Code, is amended by adding at the 
end the following:

``540D. Designation of foreign intelligence threats to higher 
                            education.''.

SEC. 3. DISCLOSURE OF FOREIGN GIFTS OR CONTRACTS.

    Section 117 of the Higher Education Act of 1965 (20 U.S.C. 1011f) 
is amended--
            (1) by striking subsection (a) and inserting the following:
    ``(a) Disclosure Report.--
            ``(1) In general.--An institution described in paragraph 
        (2) for a calendar year shall file a disclosure report under 
        subsection (b) with the Secretary by January 31 or July 31, 
        whichever is sooner.
            ``(2) Types of institutions.--An institution described in 
        this paragraph is an institution that--
                    ``(A) is owned or controlled by a foreign source;
                    ``(B) receives a gift from or enters into a 
                contract with a foreign source, the value of which is 
                $250,000 or more, considered alone or in combination 
                with all other gifts from or contracts with that 
                foreign source within a calendar year; or
                    ``(C) receives a gift from or enters into a 
                contract with a foreign intelligence threat to higher 
                education, or any agent thereof, the value of which is 
                $50,000 or more, considered alone or in combination 
                with all other gifts from or contracts with that 
                foreign intelligence threat to higher education within 
                a calendar year.'';
            (2) in subsection (b)--
                    (A) by redesignating paragraphs (1) through (3) as 
                subparagraphs (A) through (C), respectively, and 
                adjusting the margins appropriately;
                    (B) by striking ``Report.--Each'' and inserting the 
                following: ``Report.--
            ``(1) In general.--Each'';
                    (C) in subparagraph (A) (as so redesignated), by 
                inserting ``, as measured by the fair market value of 
                such gifts and contracts'' after ``particular 
                country'';
                    (D) in subparagraph (B), as so redesignated--
                            (i) by inserting ``the identity of the 
                        foreign government and, if applicable, the 
                        foreign government agency, and'' after ``with a 
                        foreign government,''; and
                            (ii) by inserting ``, as measured by the 
                        fair market value of such gifts and contracts'' 
                        before the period at the end; and
                    (E) by adding at the end the following:
            ``(2) Requirements relating to foreign intelligence 
        threats.--For any institution described in subsection 
        (a)(2)(C), the report required under this section shall 
        contain, in addition to any applicable information required 
        under paragraph (1)--
                    ``(A) the identity of the foreign intelligence 
                threat to higher education involved; and
                    ``(B) the aggregate dollar amount of such gifts and 
                contracts attributable to the foreign intelligence 
                threat to higher education, as measured by the fair 
                market value of such gifts and contracts.'';
            (3) in subsection (c), by adding at the end the following:
            ``(3) For any such gift received from, or contract entered 
        into with, a foreign intelligence threat to higher education, 
        the fair market value of the gift or contract, the date of the 
        gift or contract, and a description of any such conditions or 
        restrictions on the gift or contract.'';
            (4) in subsection (e), by inserting ``, and shall also be 
        accessible to the public through electronic means'' before the 
        period at the end; and
            (5) in subsection (h)--
                    (A) by redesignating paragraphs (2) through (5) as 
                paragraphs (3) through (6), respectively;
                    (B) by inserting after paragraph (1) the following:
            ``(2) the term `foreign intelligence threat to higher 
        education' means any foreign source that is designated as a 
        foreign intelligence threat to higher education in accordance 
        with section 540D of title 28, United States Code;'';
                    (C) in paragraph (4) (as so redesignated), by 
                striking ``or property'' and inserting ``, property, 
                services, or payment to the staff of an institution'';
                    (D) by striking paragraph (5) (as so redesignated) 
                and inserting the following:
            ``(5) the term `institution' means an institution of higher 
        education--
                    ``(A) to which Federal financial assistance is 
                extended (directly or indirectly through another entity 
                or person); or
                    ``(B) that receives support from the extension of 
                Federal financial assistance to any of the 
                institution's subunits''; and
                    (E) in paragraph (6)(B) (as so redesignated), by 
                inserting ``institutes, instructional programs,'' 
                before ``research or lecture''.
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