[Congressional Record Volume 169, Number 120 (Thursday, July 13, 2023)]
[Senate]
[Pages S2690-S2693]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

  SA 561. Mr. WYDEN (for himself and Ms. Lummis) submitted an amendment 
intended to be proposed by him to the bill S. 2226, to authorize 
appropriations for fiscal year 2024 for military activities of the 
Department of Defense, for military construction, and for defense 
activities of the Department of Energy, to prescribe military personnel 
strengths for such fiscal year, and for other purposes; which was 
ordered to lie on the table; as follows:

       At the end of division A, add the following:

 TITLE XVIII--EXPORT CONTROLS WITH RESPECT TO PERSONAL DATA OF UNITED 
                            STATES NATIONALS

     SEC. 1801. SHORT TITLE.

       This title may be cited as the ``Protecting Americans' Data 
     From Foreign Surveillance Act of 2023''.

     SEC. 1802. SENSE OF CONGRESS.

       It is the sense of Congress that--
       (1) accelerating technological trends have made sensitive 
     personal data an especially valuable input to activities that 
     foreign adversaries of the United States undertake to 
     threaten both the national security of the United States and 
     the privacy that the people of the United States cherish;
       (2) it is therefore essential to the safety of the United 
     States and the people of the United States to ensure that the 
     United States Government makes every effort to prevent 
     sensitive personal data from falling into the hands of malign 
     foreign actors; and
       (3) because allies of the United States face similar 
     challenges, in implementing this Act, the United States 
     Government should explore the establishment of a shared zone 
     of mutual trust with respect to sensitive personal data.

     SEC. 1803. REQUIREMENT TO CONTROL THE EXPORT OF CERTAIN 
                   PERSONAL DATA OF UNITED STATES NATIONALS AND 
                   INDIVIDUALS IN THE UNITED STATES.

       (a) In General.--Part I of the Export Control Reform Act of 
     2018 (50 U.S.C. 4811 et seq.) is amended by inserting after 
     section 1758 the following:

     ``SEC. 1758A. REQUIREMENT TO CONTROL THE EXPORT OF CERTAIN 
                   PERSONAL DATA OF UNITED STATES NATIONALS AND 
                   INDIVIDUALS IN THE UNITED STATES.

       ``(a) Identification of Categories of Personal Data.--
       ``(1) In general.--The Secretary shall, in coordination 
     with the heads of the appropriate Federal agencies, identify 
     categories of personal data of covered individuals that 
     could--
       ``(A) be exploited by foreign governments or foreign 
     adversaries; and
       ``(B) if exported, reexported, or in-country transferred in 
     a quantity that exceeds the threshold established under 
     paragraph (3), harm the national security of the United 
     States.
       ``(2) List required.--In identifying categories of personal 
     data of covered individuals under paragraph (1), the 
     Secretary, in coordination with the heads of the appropriate 
     Federal agencies, shall--
       ``(A) identify an initial list of such categories not later 
     than one year after the date of the enactment of the 
     Protecting Americans' Data From Foreign Surveillance Act of 
     2023; and
       ``(B) as appropriate thereafter and not less frequently 
     than every 5 years, add categories to, remove categories 
     from, or modify categories on, that list.
       ``(3) Establishment of threshold.--
       ``(A) Establishment.--Not later than one year after the 
     date of the enactment of the Protecting Americans' Data From 
     Foreign Surveillance Act of 2023, the Secretary, in 
     coordination with the heads of the appropriate Federal 
     agencies, shall establish a threshold for determining when 
     the export, reexport, or in-country transfer (in the 
     aggregate) of the personal data of covered individuals by one 
     person to or in a restricted country could harm the national 
     security of the United States.
       ``(B) Number of covered individuals affected.--
       ``(i) In general.--Except as provided by clause (ii), the 
     Secretary shall establish the threshold under subparagraph 
     (A) so that the threshold is--

       ``(I) not lower than the export, reexport, or in-country 
     transfer (in the aggregate) by one person to or in a 
     restricted country during a calendar year of the personal 
     data of 10,000 covered individuals; and
       ``(II) not higher than the export, reexport, or in-country 
     transfer (in the aggregate) by one person to or in a 
     restricted country during a calendar year of the personal 
     data of 1,000,000 covered individuals.

       ``(ii) Exports by certain foreign persons.--In the case of 
     a person that possesses the data of more than 1,000,000 
     covered individuals, the threshold established under 
     subparagraph (A) shall be one export, reexport, or in-country 
     transfer of personal data to or in a restricted country by 
     that person during a calendar year if the export, reexport, 
     or in-country transfer is to--

       ``(I) the government of a restricted country;
       ``(II) a foreign person that owns or controls the person 
     conducting the export, reexport, or in-country transfer and 
     that person knows, or should know, that the export, reexport, 
     or in-country transfer of the personal data was requested by 
     the foreign person to comply with a request from the 
     government of a restricted country; or
       ``(III) an entity on the Entity List maintained by the 
     Bureau of Industry and Security of the Department of Commerce 
     and set forth in Supplement No. 4 to part 744 of the Export 
     Administration Regulations.

       ``(C) Category thresholds.--The Secretary, in coordination 
     with the heads of the appropriate Federal agencies, may 
     establish a threshold under subparagraph (A) for each 
     category (or combination of categories) of personal data 
     identified under paragraph (1).
       ``(D) Updates.--The Secretary, in coordination with the 
     heads of the appropriate Federal agencies--
       ``(i) may update a threshold established under subparagraph 
     (A) as appropriate; and
       ``(ii) shall reevaluate the threshold not less frequently 
     than every 5 years.
       ``(E) Treatment of persons under common ownership as one 
     person.--For purposes of determining whether a threshold 
     established under subparagraph (A) has been met--
       ``(i) all exports, reexports, or in-country transfers 
     involving personal data conducted by persons under the 
     ownership or control of the same person shall be aggregated 
     to that person; and
       ``(ii) that person shall be liable for any export, 
     reexport, or in-country transfer in violation of this 
     section.
       ``(F) Considerations.--In establishing a threshold under 
     subparagraph (A), the Secretary, in coordination with the 
     heads of the appropriate Federal agencies, shall seek to 
     balance the need to protect personal data from exploitation 
     by foreign governments and foreign adversaries against the 
     likelihood of--
       ``(i) impacting legitimate business activities, research 
     activities, and other activities that do not harm the 
     national security of the United States; or
       ``(ii) chilling speech protected by the First Amendment to 
     the Constitution of the United States.
       ``(4) Determination of period for protection.--The 
     Secretary, in coordination with the heads of the appropriate 
     Federal agencies, shall determine, for each category (or 
     combination of categories) of personal data identified under 
     paragraph (1), the period of time for which encryption 
     technology described in subsection (b)(4)(A)(iii) is required 
     to be able to protect that category (or combination of 
     categories) of data from decryption to prevent the 
     exploitation of the data by a foreign government or foreign 
     adversary from harming the national security of the United 
     States.
       ``(5) Use of information; considerations.--In carrying out 
     this subsection (including with respect to the list required 
     under paragraph (2)), the Secretary, in coordination with the 
     heads of the appropriate Federal agencies, shall--
       ``(A) use multiple sources of information, including--
       ``(i) publicly available information;
       ``(ii) classified information, including relevant 
     information provided by the Director of National 
     Intelligence;
       ``(iii) information relating to reviews and investigations 
     of transactions by the Committee on Foreign Investment in the 
     United States under section 721 of the Defense Production Act 
     of 1950 (50 U.S.C. 4565);
       ``(iv) the categories of sensitive personal data described 
     in paragraphs (1)(ii) and (2) of section 800.241(a) of title 
     31, Code of Federal Regulations, as in effect on the day 
     before the date of the enactment of the Protecting Americans' 
     Data From Foreign Surveillance Act of 2023, and any 
     categories of sensitive personal data added to such section 
     after such date of enactment;
       ``(v) information provided by the advisory committee 
     established pursuant to paragraph (7); and
       ``(vi) the recommendations (which the Secretary shall 
     request) of--

       ``(I) experts in privacy, civil rights, and civil 
     liberties, identified by the National Academy of Sciences; 
     and
       ``(II) experts on the First Amendment to the Constitution 
     of the United States identified by the American Bar 
     Association; and

       ``(B) take into account--
       ``(i) the significant quantity of personal data of covered 
     individuals that is publicly available by law or has already 
     been stolen or acquired by foreign governments or foreign 
     adversaries;

[[Page S2691]]

       ``(ii) the harm to United States national security caused 
     by the theft or acquisition of that personal data;
       ``(iii) the potential for further harm to United States 
     national security if that personal data were combined with 
     additional sources of personal data;
       ``(iv) the fact that non-sensitive personal data, when 
     analyzed in the aggregate, can reveal sensitive personal 
     data;
       ``(v) the commercial availability of inferred and derived 
     data; and
       ``(vi) the potential for especially significant harm from 
     data and inferences related to sensitive domains, such as 
     health, work, education, criminal justice, and finance.
       ``(6) Notice and comment period.--The Secretary shall 
     provide for a public notice and comment period after the 
     publication in the Federal Register of a proposed rule, and 
     before the publication of a final rule--
       ``(A) identifying the initial list of categories of 
     personal data under subparagraph (A) of paragraph (2);
       ``(B) adding categories to, removing categories from, or 
     modifying categories on, that list under subparagraph (B) of 
     that paragraph;
       ``(C) establishing or updating the threshold under 
     paragraph (3); or
       ``(D) setting forth the period of time for which encryption 
     technology described in subsection (b)(4)(A)(iii) is required 
     under paragraph (4) to be able to protect such a category of 
     data from decryption.
       ``(7) Advisory committee.--
       ``(A) In general.--The Secretary shall establish an 
     advisory committee to advise the Secretary with respect to 
     privacy and sensitive personal data.
       ``(B) Membership.--The committee established pursuant to 
     subparagraph (A) shall include the following members selected 
     by the Secretary:
       ``(i) Experts on privacy and cybersecurity.
       ``(ii) Representatives of United States private sector 
     companies, industry associations, and scholarly societies.
       ``(iii) Representatives of civil society groups, including 
     such groups focused on protecting civil rights and civil 
     liberties.
       ``(C) Applicability of federal advisory committee act.--
     Subsections (a)(1), (a)(3), and (b) of section 10 and 
     sections 11, 13, and 14 of the Federal Advisory Committee Act 
     (5 U.S.C. App.) shall not apply to the advisory committee 
     established pursuant to subparagraph (A).
       ``(8) Treatment of anonymized personal data.--
       ``(A) In general.--In carrying out this subsection, the 
     Secretary may not treat anonymized personal data differently 
     than identifiable personal data unless the Secretary is 
     confident, based on the method of anonymization used and the 
     period of time determined under paragraph (4) for protection 
     of the category of personal data involved, it will not be 
     possible for well-resourced adversaries, including foreign 
     governments, to re-identify the individuals to which the 
     anonymized personal data relates, such as by using other 
     sources of data, including non-public data obtained through 
     hacking and espionage, and reasonably anticipated advances in 
     technology.
       ``(B) Guidance.--The Under Secretary of Commerce for 
     Standards and Technology shall issue guidance to the public 
     with respect to methods for anonymizing data and how to 
     determine if individuals to which the anonymized personal 
     data relates can be, or are likely in the future to be, 
     reasonably identified, such as by using other sources of 
     data.
       ``(9) Sense of congress on identification of categories of 
     personal data.--It is the sense of Congress that, in 
     identifying categories of personal data of covered 
     individuals under paragraph (1), the Secretary should, to the 
     extent reasonably possible and in coordination with the 
     Secretary of the Treasury and the Director of the Office of 
     Management and Budget, harmonize those categories with the 
     categories of sensitive personal data described in paragraph 
     (5)(A)(iv).
       ``(b) Commerce Controls.--
       ``(1) Controls required.--Beginning 18 months after the 
     date of the enactment of the Protecting Americans' Data From 
     Foreign Surveillance Act of 2023, the Secretary shall impose 
     appropriate controls under the Export Administration 
     Regulations on the export or reexport to, or in-country 
     transfer in, all countries (other than countries on the list 
     required by paragraph (2)(D)) of covered personal data in a 
     manner that exceeds the applicable threshold established 
     under subsection (a)(3), including through interim controls 
     (such as by informing a person that a license is required for 
     export, reexport, or in-country transfer of covered personal 
     data), as appropriate, or by publishing additional 
     regulations.
       ``(2) Levels of control.--
       ``(A) In general.--Except as provided in subparagraph (C) 
     or (D), the Secretary shall--
       ``(i) require a license or other authorization for the 
     export, reexport, or in-country transfer of covered personal 
     data in a manner that exceeds the applicable threshold 
     established under subsection (a)(3);
       ``(ii) determine whether that export, reexport, or in-
     country transfer is likely to harm the national security of 
     the United States--

       ``(I) after consideration of the matters described in 
     subparagraph (B); and
       ``(II) in coordination with the heads of the appropriate 
     Federal agencies; and

       ``(iii) if the Secretary determines under clause (ii) that 
     the export, reexport, or in-country transfer is likely to 
     harm the national security of the United States, deny the 
     application for the license or other authorization for the 
     export, reexport, or in-country transfer.
       ``(B) Considerations.--In determining under clause (ii) of 
     subparagraph (A) whether an export, reexport, or in-country 
     transfer of covered personal data described in clause (i) of 
     that subparagraph is likely to harm the national security of 
     the United States, the Secretary, in coordination with the 
     heads of the appropriate Federal agencies, shall take into 
     account--
       ``(i) the adequacy and enforcement of data protection, 
     surveillance, and export control laws in the foreign country 
     to which the covered personal data would be exported or 
     reexported, or in which the covered personal data would be 
     transferred, in order to determine whether such laws, and the 
     enforcement of such laws, are sufficient to--

       ``(I) protect the covered personal data from accidental 
     loss, theft, and unauthorized or unlawful processing;
       ``(II) ensure that the covered personal data is not 
     exploited for intelligence purposes by foreign governments to 
     the detriment of the national security of the United States; 
     and
       ``(III) prevent the reexport of the covered personal data 
     to a third country for which a license would be required for 
     such data to be exported directly from the United States;

       ``(ii) the circumstances under which the government of the 
     foreign country can compel, coerce, or pay a person in or 
     national of that country to disclose the covered personal 
     data; and
       ``(iii) whether that government has conducted hostile 
     foreign intelligence operations, including information 
     operations, against the United States.
       ``(C) License requirement and presumption of denial for 
     certain countries.--
       ``(i) In general.--The Secretary shall--

       ``(I) require a license or other authorization for the 
     export or reexport to, or in-country transfer in, a country 
     on the list required by clause (ii) of covered personal data 
     in a manner that exceeds the threshold established under 
     subsection (a)(3); and
       ``(II) deny an application for such a license or other 
     authorization unless the person seeking the license or 
     authorization demonstrates to the satisfaction of the 
     Secretary that the export, reexport, or in-country transfer 
     will not harm the national security of the United States.

       ``(ii) List required.--

       ``(I) In general.--Not later than one year after the date 
     of the enactment of the Protecting Americans' Data From 
     Foreign Surveillance Act of 2023, the Secretary shall 
     (subject to subclause (III)) establish a list of each country 
     with respect to which the Secretary determines that the 
     export or reexport to, or in-country transfer in, the country 
     of covered personal data in a manner that exceeds the 
     applicable threshold established under subsection (a)(3) will 
     be likely to harm the national security of the United States.
       ``(II) Modifications to list.--The Secretary (subject to 
     subclause (III)) --

       ``(aa) may add a country to or remove a country from the 
     list required by subclause (I) at any time; and
       ``(bb) shall review that list not less frequently than 
     every 5 years.

       ``(III) Concurrence; consultations; considerations.--The 
     Secretary shall establish the list required by subclause (I) 
     and add a country to or remove a country from that list under 
     subclause (II)--

       ``(aa) with the concurrence of the Secretary of State;
       ``(bb) in consultation with the heads of the appropriate 
     Federal agencies; and
       ``(cc) based on the considerations described in 
     subparagraph (B).
       ``(D) No license requirement for certain countries.--
       ``(i) In general.--The Secretary may not require a license 
     or other authorization for the export or reexport to, or in-
     country transfer in, a country on the list required by clause 
     (ii) of covered personal data, without regard to the 
     applicable threshold established under subsection (a)(3).
       ``(ii) List required.--

       ``(I) In general.--Not later than one year after the date 
     of the enactment of the Protecting Americans' Data From 
     Foreign Surveillance Act of 2023, the Secretary shall 
     (subject to clause (iii) and subclause (III)), establish a 
     list of each country with respect to which the Secretary 
     determines that the export or reexport to, or in-country 
     transfer in, the country of covered personal data (without 
     regard to any threshold established under subsection (a)(3)) 
     will not harm the national security of the United States.
       ``(II) Modifications to list.--The Secretary (subject to 
     clause (iii) and subclause (III))--

       ``(aa) may add a country to or remove a country from the 
     list required by subclause (I) at any time; and
       ``(bb) shall review that list not less frequently than 
     every 5 years.

       ``(III) Concurrence; consultations; considerations.--The 
     Secretary shall establish the list required by subclause (I) 
     and add a country to or remove a country from that list under 
     subclause (II)--

       ``(aa) with the concurrence of the Secretary of State;
       ``(bb) in consultation with the heads of the appropriate 
     Federal agencies; and

[[Page S2692]]

       ``(cc) based on the considerations described in 
     subparagraph (B).
       ``(iii) Congressional review.--

       ``(I) In general.--The list required by clause (ii) and any 
     updates to that list adding or removing countries shall take 
     effect, for purposes of clause (i), on the date that is 180 
     days after the Secretary submits to the appropriate 
     congressional committees a proposal for the list or update 
     unless there is enacted into law, before that date, a joint 
     resolution of disapproval pursuant to subclause (II).
       ``(II) Joint resolution of disapproval.--

       ``(aa) Joint resolution of disapproval defined.--In this 
     clause, the term `joint resolution of disapproval' means a 
     joint resolution the matter after the resolving clause of 
     which is as follows: `That Congress does not approve of the 
     proposal of the Secretary with respect to the list required 
     by section 1758A(b)(2)(D)(ii) submitted to Congress on ___.', 
     with the blank space being filled with the appropriate date.
       ``(bb) Procedures.--The procedures set forth in paragraphs 
     (4)(C), (5), (6), and (7) of section 2523(d) of title 18, 
     United States Code, apply with respect to a joint resolution 
     of disapproval under this clause to the same extent and in 
     the same manner as such procedures apply to a joint 
     resolution of disapproval under such section 2523(d), except 
     that paragraph (6) of such section shall be applied and 
     administered by substituting `the Committee on Banking, 
     Housing, and Urban Affairs' for `the Committee on the 
     Judiciary' each place it appears.

       ``(III) Rules of house of representatives and senate.--This 
     clause is enacted by Congress--

       ``(aa) as an exercise of the rulemaking power of the Senate 
     and the House of Representatives, respectively, and as such 
     is deemed a part of the rules of each House, respectively, 
     and supersedes other rules only to the extent that it is 
     inconsistent with such rules; and
       ``(bb) with full recognition of the constitutional right of 
     either House to change the rules (so far as relating to the 
     procedure of that House) at any time, in the same manner, and 
     to the same extent as in the case of any other rule of that 
     House.
       ``(3) Review of license applications.--
       ``(A) In general.--The Secretary shall, consistent with the 
     provisions of section 1756 and in coordination with the heads 
     of the appropriate Federal agencies--
       ``(i) review applications for a license or other 
     authorization for the export or reexport to, or in-country 
     transfer in, a restricted country of covered personal data in 
     a manner that exceeds the applicable threshold established 
     under subsection (a)(3); and
       ``(ii) establish procedures for conducting the review of 
     such applications.
       ``(B) Disclosures relating to collaborative arrangements.--
     In the case of an application for a license or other 
     authorization for an export, reexport, or in-country transfer 
     described in subparagraph (A)(i) submitted by or on behalf of 
     a joint venture, joint development agreement, or similar 
     collaborative arrangement, the Secretary may require the 
     applicant to identify, in addition to any foreign person 
     participating in the arrangement, any foreign person with 
     significant ownership interest in a foreign person 
     participating in the arrangement.
       ``(4) Exceptions.--
       ``(A) In general.--The Secretary shall not impose under 
     paragraph (1) a requirement for a license or other 
     authorization with respect to the export, reexport, or in-
     country transfer of covered personal data pursuant to any of 
     the following transactions:
       ``(i) The export, reexport, or in-country transfer by an 
     individual of covered personal data that specifically 
     pertains to that individual.
       ``(ii) The export, reexport, or in-country transfer of the 
     personal data of one or more individuals by a person 
     performing a service for those individuals if the service 
     could not possibly be performed (as defined by the Secretary 
     in regulations) without the export, reexport, or in-country 
     transfer of that personal data.
       ``(iii) The export, reexport, or in-country transfer of 
     personal data that is encrypted if--

       ``(I) the encryption key or other information necessary to 
     decrypt the data is not, at the time of the export, reexport, 
     or in-country transfer of the personal data or any other 
     time, exported, reexported, or transferred to a restricted 
     country or (except as provided in subparagraph (B)) a 
     national of a restricted country; and
       ``(II) the encryption technology used to protect the data 
     against decryption is certified by the National Institute of 
     Standards and Technology as capable of protecting data for 
     the period of time determined under subsection (a)(4) to be 
     sufficient to prevent the exploitation of the data by a 
     foreign government or foreign adversary from harming the 
     national security of the United States.

       ``(iv) The export, reexport, or in-country transfer of 
     personal data that is ordered by an appropriate court of the 
     United States.
       ``(B) Exception for certain nationals of restricted 
     countries.--Subparagraph (A)(iii)(I) does not apply with 
     respect to an individual who is a national of a restricted 
     country if the individual is also a citizen of the United 
     States or a noncitizen described in subsection (l)(5)(C).
       ``(c) Requirements for Identification of Categories and 
     Determination of Appropriate Controls.--In identifying 
     categories of personal data under subsection (a)(1) and 
     imposing appropriate controls under subsection (b), the 
     Secretary, in coordination with the heads of the appropriate 
     Federal agencies, as appropriate--
       ``(1) may not regulate or restrict the publication or 
     sharing of--
       ``(A) personal data that is a matter of public record, such 
     as a court record or other government record that is 
     generally available to the public, including information 
     about an individual made public by that individual or by the 
     news media;
       ``(B) information about a matter of public interest; or
       ``(C) any other information the publication or sharing of 
     which is protected by the First Amendment to the Constitution 
     of the United States; and
       ``(2) shall consult with the appropriate congressional 
     committees.
       ``(d) Penalties.--
       ``(1) Liable persons.--
       ``(A) In general.--In addition to any person that commits 
     an unlawful act described in subsection (a) of section 1760, 
     an officer or employee of an organization has committed an 
     unlawful act subject to penalties under that section if the 
     officer or employee knew or should have known that another 
     employee of the organization who reports, directly or 
     indirectly, to the officer or employee was directed to 
     export, reexport, or in-country transfer covered personal 
     data in violation of this section and subsequently did 
     export, reexport, or in-country transfer such data.
       ``(B) Exceptions and clarifications.--
       ``(i) Intermediaries not liable.--An intermediate consignee 
     (as defined in section 772.1 of the Export Administration 
     Regulations (or any successor regulation)) or other 
     intermediary is not liable for the export, reexport, or in-
     country transfer of covered personal data in violation of 
     this section when acting as an intermediate consignee or 
     other intermediary for another person.
       ``(ii) Special rule for certain applications.--In a case in 
     which an application installed on an electronic device 
     transmits or causes the transmission of covered personal data 
     without being directed to do so by the owner or user of the 
     device who installed the application, the developer of the 
     application, and not the owner or user of the device, is 
     liable for any violation of this section.
       ``(2) Criminal penalties.--In determining an appropriate 
     term of imprisonment under section 1760(b)(2) with respect to 
     a person for a violation of this section, the court shall 
     consider--
       ``(A) how many covered individuals had their covered 
     personal data exported, reexported, or in-country transferred 
     in violation of this section;
       ``(B) any harm that resulted from the violation; and
       ``(C) the intent of the person in committing the violation.
       ``(e) Report to Congress.--
       ``(1) In general.--Not less frequently than annually, the 
     Secretary, in coordination with the heads of the appropriate 
     Federal agencies, shall submit to the appropriate 
     congressional committees a report on the results of actions 
     taken pursuant to this section.
       ``(2) Inclusions.--Each report required by paragraph (1) 
     shall include a description of the determinations made under 
     subsection (b)(2)(A)(ii) during the preceding year.
       ``(3) Form.--Each report required by paragraph (1) shall be 
     submitted in unclassified form but may include a classified 
     annex.
       ``(f) Disclosure of Certain License Information.--
       ``(1) In general.--Not less frequently than every 90 days, 
     the Secretary shall publish on a publicly accessible website 
     of the Department of Commerce, including in a machine-
     readable format, the information specified in paragraph (2), 
     with respect to each application--
       ``(A) for a license for the export or reexport to, or in-
     country transfer in, a restricted country of covered personal 
     data in a manner that exceeds the applicable threshold 
     established under subsection (a)(3); and
       ``(B) with respect to which the Secretary made a decision 
     in the preceding 90-day period.
       ``(2) Information specified.--The information specified in 
     this paragraph with respect to an application described in 
     paragraph (1) is the following:
       ``(A) The name of the applicant.
       ``(B) The date of the application.
       ``(C) The name of the foreign party to which the applicant 
     sought to export, reexport, or transfer the data.
       ``(D) The categories of covered personal data the applicant 
     sought to export, reexport, or transfer.
       ``(E) The number of covered individuals whose information 
     the applicant sought to export, reexport, or transfer.
       ``(F) Whether the application was approved or denied.
       ``(g) News Media Protections.--A person that is engaged in 
     journalism is not subject to restrictions imposed under this 
     section to the extent that those restrictions directly 
     infringe on the journalism practices of that person.
       ``(h) Citizenship Determinations by Persons Providing 
     Services to End-users Not Required.--This section does not 
     require a person that provides products or services to an 
     individual to determine the citizenship or immigration status 
     of the individual, but once the person becomes aware that the 
     individual is a covered individual, the person

[[Page S2693]]

     shall treat covered personal data of that individual as is 
     required by this section.
       ``(i) Fees.--
       ``(1) In general.--Notwithstanding section 1756(c), the 
     Secretary may, to the extent provided in advance in 
     appropriations Acts, assess and collect a fee, in an amount 
     determined by the Secretary in regulations, with respect to 
     each application for a license submitted under subsection 
     (b).
       ``(2) Deposit and availability of fees.--Notwithstanding 
     section 3302 of title 31, United States Code, fees collected 
     under paragraph (1) shall--
       ``(A) be credited as offsetting collections to the account 
     providing appropriations for activities carried out under 
     this section;
       ``(B) be available, to the extent and in the amounts 
     provided in advance in appropriations Acts, to the Secretary 
     solely for use in carrying out activities under this section; 
     and
       ``(C) remain available until expended.
       ``(j) Regulations.--The Secretary may prescribe such 
     regulations as are necessary to carry out this section.
       ``(k) Authorization of Appropriations.--There are 
     authorized to be appropriated to the Secretary and to the 
     head of each of the appropriate Federal agencies 
     participating in carrying out this section such sums as may 
     be necessary to carry out this section, including to hire 
     additional employees with expertise in privacy.
       ``(l) Definitions.--In this section:
       ``(1) Appropriate congressional committees.--The term 
     `appropriate congressional committees' means--
       ``(A) the Committee on Banking, Housing, and Urban Affairs, 
     the Committee on Foreign Relations, the Committee on Finance, 
     and the Select Committee on Intelligence of the Senate; and
       ``(B) the Committee on Foreign Affairs, the Committee on 
     Ways and Means, and the Permanent Select Committee on 
     Intelligence of the House of Representatives.
       ``(2) Appropriate federal agencies.--The term `appropriate 
     Federal agencies' means the following:
       ``(A) The Department of Defense.
       ``(B) The Department of State.
       ``(C) The Department of Justice.
       ``(D) The Department of the Treasury.
       ``(E) The Office of the Director of National Intelligence.
       ``(F) The Office of Science and Technology Policy.
       ``(G) The Department of Homeland Security.
       ``(H) The Consumer Financial Protection Bureau.
       ``(I) The Federal Trade Commission.
       ``(J) The Federal Communications Commission.
       ``(K) The Department of Health and Human Services.
       ``(L) Such other Federal agencies as the Secretary 
     considers appropriate.
       ``(3) Covered individual.--The term `covered individual', 
     with respect to personal data, means an individual who, at 
     the time the data is acquired--
       ``(A) is located in the United States; or
       ``(B) is--
       ``(i) located outside the United States or whose location 
     cannot be determined; and
       ``(ii) a citizen of the United States or a noncitizen 
     lawfully admitted for permanent residence.
       ``(4) Covered personal data.--The term `covered personal 
     data' means the categories of personal data of covered 
     individuals identified pursuant to subsection (a).
       ``(5) Export.--
       ``(A) In general.--The term `export', with respect to 
     covered personal data, includes--
       ``(i) subject to subparagraph (D), the shipment or 
     transmission of the data out of the United States, including 
     the sending or taking of the data out of the United States, 
     in any manner, if the shipment or transmission is 
     intentional, without regard to whether the shipment or 
     transmission was intended to go out of the United States; or
       ``(ii) the release or transfer of the data to any 
     noncitizen (other than a noncitizen described in subparagraph 
     (C)), if the release or transfer is intentional, without 
     regard to whether the release or transfer was intended to be 
     to a noncitizen.
       ``(B) Exceptions.--The term `export' does not include--
       ``(i) the publication of covered personal data on the 
     internet in a manner that makes the data discoverable by and 
     accessible to any member of the general public; or
       ``(ii) any activity protected by the speech or debate 
     clause of the Constitution of the United States.
       ``(C) Noncitizens described.--A noncitizen described in 
     this subparagraph is a noncitizen who is authorized to be 
     employed in the United States.
       ``(D) Transmissions through restricted countries.--
       ``(i) In general.--On and after the date that is 5 years 
     after the date of the enactment of the Protecting Americans' 
     Data From Foreign Surveillance Act of 2023, and except as 
     provided in clause (iii), the term `export' includes the 
     transmission of data through a restricted country, without 
     regard to whether the person originating the transmission had 
     knowledge of or control over the path of the transmission.
       ``(ii) Exceptions.--Clause (i) does not apply with respect 
     to a transmission of data through a restricted country if--

       ``(I) the data is encrypted as described in subsection 
     (b)(4)(A)(iii); or
       ``(II) the person that originated the transmission received 
     a representation from the party delivering the data for the 
     person stating that the data will not transit through a 
     restricted country.

       ``(iii) False representations.--If a party delivering 
     covered personal data as described in clause (ii)(II) 
     transmits the data directly or indirectly through a 
     restricted country despite making the representation 
     described in clause (ii)(II), that party shall be liable for 
     violating this section.
       ``(6) Foreign adversary.--The term `foreign adversary' has 
     the meaning given that term in section 8(c)(2) of the Secure 
     and Trusted Communications Networks Act of 2019 (47 U.S.C. 
     1607(c)(2))).
       ``(7) In-country transfer; reexport.--The terms `in-country 
     transfer' and `reexport', with respect to personal data, 
     shall have the meanings given those terms in regulations 
     prescribed by the Secretary.
       ``(8) Lawfully admitted for permanent residence; 
     national.--The terms `lawfully admitted for permanent 
     residence' and `national' have the meanings given those terms 
     in section 101(a) of the Immigration and Nationality Act (8 
     U.S.C. 1101(a)).
       ``(9) Noncitizen.--The term `noncitizen' means an 
     individual who is not a citizen or national of the United 
     States.
       ``(10) Restricted country.--The term `restricted country' 
     means a country for which a license or other authorization is 
     required under subsection (b) for the export or reexport to, 
     or in-country transfer in, that country of covered personal 
     data in a manner that exceeds the applicable threshold 
     established under subsection (a)(3).''.
       (b) Statement of Policy.--Section 1752 of the Export 
     Control Reform Act of 2018 (50 U.S.C. 4811) is amended--
       (1) in paragraph (1)--
       (A) in subparagraph (A), by striking ``; and'' and 
     inserting a semicolon;
       (B) in subparagraph (B), by striking the period at the end 
     and inserting ``; and''; and
       (C) by adding at the end the following:
       ``(C) to restrict, notwithstanding section 203(b) of the 
     International Emergency Economic Powers Act (50 U.S.C. 
     1702(b)), the export of personal data of United States 
     citizens and other covered individuals (as defined in section 
     1758A(l)) in a quantity and a manner that could harm the 
     national security of the United States.''; and
       (2) in paragraph (2), by adding at the end the following:
       ``(H) To prevent the exploitation of personal data of 
     United States citizens and other covered individuals (as 
     defined in section 1758A(l)) in a quantity and a manner that 
     could harm the national security of the United States.''.
       (c) Limitation on Authority to Make Exceptions to Licensing 
     Requirements.--Section 1754 of the Export Control Reform Act 
     of 2018 (50 U.S.C. 4813) is amended--
       (1) in subsection (a)(14), by inserting ``and subject to 
     subsection (g)'' after ``as warranted''; and
       (2) by adding at the end the following:
       ``(g) Limitation on Authority to Make Exceptions to 
     Licensing Requirements.--The Secretary may create under 
     subsection (a)(14) exceptions to licensing requirements under 
     section 1758A only for the export, reexport, or in-country 
     transfer of covered personal data (as defined in subsection 
     (l) of that section) by or for a Federal department or 
     agency.''.
       (d) Relationship to International Emergency Economic Powers 
     Act.--Section 1754(b) of the Export Control Reform Act of 
     2018 (50 U.S.C. 4813(b)) is amended by inserting ``(other 
     than section 1758A)'' after ``this part''.

     SEC. 1804. SEVERABILITY.

       If any provision of or any amendment made by this title, or 
     the application of any such provision or amendment to any 
     person or circumstance, is held to be unconstitutional, the 
     remainder of the provisions of and amendments made by this 
     title, and the application of such provisions and amendments 
     to any other person or circumstance, shall not be affected.
                                 ______