I 

118TH CONGRESS 

1ST SESSION H. R. 5440 

To amend the Foreign Assistance Act of 1961 to prohibit assistance to 

foreign governments that engage in the use of foreign commercial 

spyware to target United States persons, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

SEPTEMBER 13, 2023 

Mr. HIMES (for himself, Mr. STEWART, Mr. CASTRO of Texas, and Mr. 

CRAWFORD) introduced the following bill; which was referred to the Committee on Foreign Affairs 

A BILL 

To amend the Foreign Assistance Act of 1961 to prohibit 

assistance to foreign governments that engage in the 

use of foreign commercial spyware to target United 

States persons, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Protecting Americans 

5 from Foreign Commercial Spyware Act’’. 


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1 SEC. 2. PROHIBITION ON ASSISTANCE TO FOREIGN GOV2 ERNMENTS THAT ENGAGE IN THE USE OF 

3 FOREIGN COMMERCIAL SPYWARE TO TAR4 GET UNITED STATES PERSONS. 

5 Chapter 1 of part III (22 U.S.C. 2351 et seq.) of 

6 the Foreign Assistance Act of 1961 is amended by adding 

7 at the end the following new section: 

8 ‘‘SEC. 620N. PROHIBITION ON ASSISTANCE TO FOREIGN 

9 GOVERNMENTS THAT ENGAGE IN THE USE 

10 OF FOREIGN COMMERCIAL SPYWARE TO TAR11 GET UNITED STATES PERSONS. 

12 ‘‘(a) IN GENERAL.—Except as otherwise provided in 

13 this section, no assistance may be provided under this Act 

14 to the central government of a country with respect to 

15 which the President makes a determination based on cred16 ible information and in accordance with subsection (c) that 

17 the government engages in the use of foreign commercial 

18 spyware to target United States persons. 

19 ‘‘(b) WAIVER.—If the President certifies in writing 

20 to the appropriate congressional committees that extraor21 dinary circumstances or national security priorities exist 

22 warranting provision to a central government of a country 

23 of assistance otherwise prohibited pursuant to subsection 

24 (a), the United States may provide to such government 

25 such assistance. 


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1 ‘‘(c) DETERMINATION.—In making a determination 

2 under subsection (a) with respect to the central govern3 ment of a country, the President shall give particular con4 sideration to whether the government— 

5 ‘‘(1) has a record of acquiring commercial for6 eign commercial spyware; 

7 ‘‘(2) has used foreign commercial spyware 

8 against its own citizens, particularly journalists, po9 litical opponents, or activists; and 

10 ‘‘(3) has failed to undertake serious and sus11 tained efforts to combat the use of foreign commer12 cial spyware in undemocratic ways. 

13 ‘‘(d) EXCEPTION.—The prohibition under subsection 

14 (a) does not apply to military assistance. 

15 ‘‘(e) TERMINATION.—The prohibition under sub16 section (a) with respect to the central government of a 

17 country shall terminate 1 year after the President makes 

18 a determination that the government no longer engages 

19 in the use of foreign commercial spyware to target United 

20 States persons. 

21 ‘‘(f) REPORT.—The President shall annually submit 

22 to the Committee on Foreign Affairs and the Permanent 

23 Select Committee on Intelligence of the House of Rep24 resentatives and the Committee on Foreign Relations and 

25 the Select Committee on Intelligence of the Senate as part 


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1 of the presentation materials for assistance programs pro2 posed for each fiscal year, a full and complete classified 

3 report, prepared in consultation with the intelligence com4 munity’s classified annex, required under section 1102A 

5 of the National Security Act of 1947 (50 U.S.C. 3232a), 

6 with respect to governmental use of foreign commercial 

7 spyware to target United States persons in each country 

8 proposed as a recipient of assistance under this Act. 

9 ‘‘(g) DEFINITIONS.—In this section: 

10 ‘‘(1) FOREIGN COMMERCIAL SPYWARE.—The 

11 term ‘foreign commercial spyware’ means a tool (or 

12 set of tools) sold, leased, marketed, or otherwise pro13 vided as an end-to-end system originally developed 

14 or owned by a foreign spyware company that pro15 vides a purchaser remote access to information 

16 stored on or transiting through an electronic device 

17 connected to the internet, including end-to-end sys18 tems that— 

19 ‘‘(A) allow malign actors to infect mobile 

20 and internet-connected devices with malware 

21 over both wireless internet and cellular data 

22 connections, including without any action re23 quired by the user of the device; 

24 ‘‘(B) can record telephone calls and other 

25 audio; 


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1 ‘‘(C) track the location of the device; or 

2 ‘‘(D) access and retrieve information on 

3 the device, including text messages, files, e4 mails, transcripts of chats, contacts, photos, 

5 and browsing history. 

6 ‘‘(2) INTELLIGENCE COMMUNITY.—The term 

7 ‘intelligence community’ has the meaning given such 

8 term in section 3(4) of the National Security Act of 

9 1947 (50 U.S.C. 3003(4)). 

10 ‘‘(3) UNITED STATES PERSON.—The term 

11 ‘United States person’ has the meaning given such 

12 term in section 560.314 of title 31, Code of Federal 

13 Regulations.’’. 

Æ 


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