[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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