II 

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. 

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 ‘‘Stop Higher Education 

5 Espionage and Theft Act of 2018’’. 

6 SEC. 2. DESIGNATION OF FOREIGN INTELLIGENCE 

7 THREATS TO HIGHER EDUCATION. 

8 (a) IN GENERAL.—Chapter 33 of title 28, United 

9 States Code, is amended by adding at the end the fol10 lowing: 


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1 ‘‘§ 540D. Designation of foreign intelligence threats to 

2 higher education 

3 ‘‘(a) DEFINITIONS.—In this section— 

4 ‘‘(1) the term ‘classified information’ has the 

5 meaning given that term in section 1(a) of the Clas6 sified Information Procedures Act (18 U.S.C. App.); 

7 ‘‘(2) the term ‘Director’ means the Director of 

8 the Federal Bureau of Investigation, acting in con9 sultation with the Attorney General, Secretary of 

10 Education, and the Director of National Intelligence; 

11 ‘‘(3) the term ‘foreign actor’ means— 

12 ‘‘(A) a foreign government or its auxiliary 

13 territories, or any component thereof, whether 

14 or not recognized by the United States; 

15 ‘‘(B) a foreign-based political organization, 

16 not substantially composed of United States 

17 persons; 

18 ‘‘(C) a faction of a foreign nation or na19 tions, not substantially composed of United 

20 States persons; 

21 ‘‘(D) an entity that is openly acknowledged 

22 by a foreign government or governments to be 

23 directed and controlled by such foreign govern24 ment or governments; 

25 ‘‘(E) any partnership, association, corpora26 tion, organization, or other combination of perVerDate Sep 11 2014 02:45 May 30, 2018 Jkt 079200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2903.IS S2903

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1 sons who acts as an agent, representative, em2 ployee, or servant of, or whose activities are di3 rectly or indirectly supervised, directed, con4 trolled, financed, or subsidized in whole or in 

5 major part by a government, organization, fac6 tion, or entity described in subparagraph (A), 

7 (B), (C), or (D); or 

8 ‘‘(F) any individual who acts as an agent, 

9 representative, employee, or servant of, or 

10 whose activities are directly or indirectly super11 vised, directed, controlled, financed, or sub12 sidized in whole or in major part by a govern13 ment, organization, faction, or entity described 

14 in subparagraph (A), (B), (C), or (D), unless 

15 such individual is a citizen of and domiciled 

16 within the United States; 

17 ‘‘(4) the term ‘institution’ means any institu18 tion of higher education, as defined under section 

19 101 of the Higher Education Act (20 U.S.C. 1001); 

20 ‘‘(5) the term ‘national security’ means the na21 tional defense, foreign relations, or economic inter22 ests of the United States; 

23 ‘‘(6) the term ‘relevant committees of Congress’ 

24 means— 


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1 ‘‘(A) the Committee on the Judiciary, the 

2 Select Committee on Intelligence, the Com3 mittee on Homeland Security and Government 

4 Affairs, and the Committee on Health, Edu5 cation, Labor, and Pensions of the Senate; and 

6 ‘‘(B) the Committee on the Judiciary, the 

7 Permanent Select Committee on Intelligence, 

8 the Committee on Homeland Security, and the 

9 Committee on Education and the Workforce of 

10 the House of Representatives; and 

11 ‘‘(7) the term ‘United States person’ has the 

12 meaning given that term in section 101 of the For13 eign Intelligence Surveillance Act of 1978 (50 

14 U.S.C. 1801). 

15 ‘‘(b) DESIGNATION.— 

16 ‘‘(1) IN GENERAL.—The Director shall des17 ignate a foreign actor as a foreign intelligence threat 

18 to higher education, in accordance with this sub19 section, if the Director finds that the foreign actor 

20 has committed, attempted to commit, or conspired to 

21 commit, in connection with an institution, one or 

22 more of the following: 

23 ‘‘(A) Espionage, in violation of sections 

24 791 through 799 of title 18. 


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1 ‘‘(B) Kidnapping, in violation of section 

2 1201 of title 18. 

3 ‘‘(C) Fraud or misuse of visas, permits, or 

4 other documents, in violation of section 1546 of 

5 title 18. 

6 ‘‘(D) Aggravated identity theft, in violation 

7 of section 1028A of title 18. 

8 ‘‘(E) Fraud or related activity in connec9 tion with access devices, in violation of section 

10 1029 of title 18. 

11 ‘‘(F) Fraud or related activity in connec12 tion with computers, in violation of section 

13 1030 of title 18. 

14 ‘‘(G) Economic espionage, in violation of 

15 section 1831 of title 18. 

16 ‘‘(H) Theft of trade secrets, in violation of 

17 section 1832 of title 18. 

18 ‘‘(I) Terrorism, in violation of sections 

19 2331 through 2339D of title 18. 

20 ‘‘(J) Interception or disclosure of wire, 

21 oral, or electronic communications, in violation 

22 of section 2511 of title 18. 

23 ‘‘(2) PROCEDURE.— 

24 ‘‘(A) NOTICE BEFORE DESIGNATION.— 


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1 ‘‘(i) TO CONGRESSIONAL LEADERS.— 

2 Not later than 7 days before making a des3 ignation under this subsection, the Direc4 tor shall submit to the Speaker and Minor5 ity Leader of the House of Representa6 tives, the President pro tempore, Majority 

7 Leader, and Minority Leader of the Sen8 ate, and the members of the relevant com9 mittees of Congress— 

10 ‘‘(I) written notice of the intent 

11 of the Director to designate a foreign 

12 actor under this subsection; and 

13 ‘‘(II) the findings made under 

14 paragraph (1) with respect to foreign 

15 actor and the factual basis therefor. 

16 ‘‘(ii) TO THE ATTORNEY GENERAL.— 

17 Not later than 7 days before making a des18 ignation under this subsection, the Direc19 tor shall submit to the Attorney General, 

20 for the Attorney General to determine 

21 whether further investigation or prosecu22 tion is warranted— 

23 ‘‘(I) written notice of the intent 

24 of the Director to designate a foreign 

25 actor under this subsection; and 


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1 ‘‘(II) the findings made under 

2 paragraph (1) with respect to the for3 eign actor and the factual basis there4 for. 

5 ‘‘(iii) PROTECTION OF CLASSIFIED IN6 FORMATION.—The notice and findings sub7 mitted under clauses (i) and (ii) may be in 

8 classified form. 

9 ‘‘(B) PUBLICATION IN FEDERAL REG10 ISTER.—If the Director makes a designation 

11 under this subsection, the Director shall publish 

12 the designation in the Federal Register on the 

13 date of the designation. 

14 ‘‘(C) EFFECT OF DESIGNATION.—For pur15 poses of section 117 of the Higher Education 

16 Act of 1965 (20 U.S.C. 1011f), a designation 

17 under this subsection shall take effect upon 

18 publication under subparagraph (B). 

19 ‘‘(3) RECORD.— 

20 ‘‘(A) IN GENERAL.—In making a designa21 tion under this subsection, the Director shall 

22 create an administrative record. 

23 ‘‘(B) CLASSIFIED INFORMATION.—The Di24 rector may consider classified information in 

25 making a designation under this subsection. 


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1 Classified information shall not be subject to 

2 disclosure for such time as it remains classified, 

3 except that such information may be disclosed 

4 to a court ex parte and in camera for purposes 

5 of judicial review under subsection (d). 

6 ‘‘(4) PERIOD OF DESIGNATION.— 

7 ‘‘(A) IN GENERAL.—A designation under 

8 this subsection shall be effective for all purposes 

9 until revoked under paragraph (5) or (6) or set 

10 aside under subsection (d). 

11 ‘‘(B) REVIEW OF DESIGNATION UPON PE12 TITION.— 

13 ‘‘(i) IN GENERAL.—The Director shall 

14 review the designation of a foreign intel15 ligence threat to higher education under 

16 the procedures set forth in clauses (iii) and 

17 (iv) if the designated foreign actor files a 

18 petition for revocation within the petition 

19 period described in clause (ii). 

20 ‘‘(ii) PETITION PERIOD.—For pur21 poses of clause (i)— 

22 ‘‘(I) if the designated foreign 

23 actor has not previously filed a peti24 tion for revocation under this sub25 paragraph, the petition period begins 


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1 2 years after the date on which the 

2 designation was made; or 

3 ‘‘(II) if the designated foreign 

4 actor has previously filed a petition 

5 for revocation under this subpara6 graph, the petition period begins 2 

7 years after the date of the determina8 tion made under clause (iv) with re9 spect to that petition. 

10 ‘‘(iii) PROCEDURES.—Any foreign 

11 actor designated as a foreign intelligence 

12 threat to higher education that submits a 

13 petition for revocation under this subpara14 graph shall provide evidence in the petition 

15 that the relevant circumstances described 

16 in paragraph (1) are sufficiently different 

17 from the circumstances that were the basis 

18 for the designation such that a revocation 

19 with respect to the foreign actor is war20 ranted. 

21 ‘‘(iv) DETERMINATION.— 

22 ‘‘(I) IN GENERAL.—Not later 

23 than 180 days after receiving a peti24 tion for revocation submitted under 

25 this subparagraph, the Director shall 


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1 make a determination as to such rev2 ocation. 

3 ‘‘(II) CLASSIFIED INFORMA4 TION.—The Director may consider 

5 classified information in making a de6 termination in response to a petition 

7 for revocation. Classified information 

8 shall not be subject to disclosure for 

9 such time as it remains classified, ex10 cept that such information may be 

11 disclosed to a court ex parte and in 

12 camera for purposes of judicial review 

13 under subsection (d). 

14 ‘‘(III) PUBLICATION OF DETER15 MINATION.—A determination made by 

16 the Director under this clause shall be 

17 published in the Federal Register. 

18 ‘‘(IV) PROCEDURES.—Any rev19 ocation of a designation by the Direc20 tor shall be made in accordance with 

21 paragraph (6). 

22 ‘‘(C) OTHER REVIEW OF DESIGNATION.— 

23 ‘‘(i) IN GENERAL.—If no review has 

24 taken place under subparagraph (B) dur25 ing any 5-year period, the Director shall 


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1 review the designation of a foreign actor as 

2 a foreign intelligence threat to higher edu3 cation in order to determine whether such 

4 designation should be revoked pursuant to 

5 paragraph (6). 

6 ‘‘(ii) PROCEDURES.—If a review does 

7 not take place pursuant to subparagraph 

8 (B) in response to a petition for revocation 

9 that is filed in accordance with that sub10 paragraph, the review shall be conducted 

11 pursuant to procedures established by the 

12 Director. The results of such review and 

13 the applicable procedures shall not be re14 viewable in any court. 

15 ‘‘(iii) PUBLICATION OF RESULTS OF

16 REVIEW.—The Director shall publish any 

17 determination made under this subpara18 graph in the Federal Register. 

19 ‘‘(5) REVOCATION BY ACT OF CONGRESS.—Con20 gress, by an Act of Congress, may block or revoke 

21 a designation made under paragraph (1). 

22 ‘‘(6) REVOCATION BASED ON CHANGE IN CIR23 CUMSTANCES.— 

24 ‘‘(A) IN GENERAL.—The Director may re25 voke a designation made under paragraph (1) 


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1 at any time, and shall revoke a designation 

2 upon completion of a review conducted pursu3 ant to subparagraphs (B) and (C) of paragraph 

4 (4) if the Director finds that— 

5 ‘‘(i) the circumstances that were the 

6 basis for the designation have changed in 

7 such a manner as to warrant revocation; or 

8 ‘‘(ii) the national security of the 

9 United States warrants a revocation. 

10 ‘‘(B) PROCEDURE.—The procedural re11 quirements of paragraphs (2) and (3) shall 

12 apply to a revocation under this paragraph. Any 

13 revocation shall take effect on the date specified 

14 in the revocation or upon publication in the 

15 Federal Register if no effective date is specified. 

16 ‘‘(7) EFFECT OF REVOCATION.—The revocation 

17 of a designation under paragraph (5) or (6) shall 

18 not affect any action or proceeding based on conduct 

19 committed prior to the effective date of such revoca20 tion. 

21 ‘‘(c) AMENDMENTS TO A DESIGNATION.— 

22 ‘‘(1) IN GENERAL.—The Director may amend a 

23 designation under subsection (b) if the Director 

24 finds that the foreign actor has changed its name, 

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1 tuted itself under a different name or names, or 

2 merged with another foreign actor. 

3 ‘‘(2) PROCEDURE.—Amendments made to a 

4 designation in accordance with paragraph (1) shall 

5 be effective upon publication in the Federal Register. 

6 Subparagraphs (B) and (C) of subsection (b)(2) 

7 shall apply to an amended designation upon such 

8 publication. Paragraphs (2)(A)(i), (4), (5), (6), (7), 

9 and (8) of subsection (b) shall also apply to an 

10 amended designation. 

11 ‘‘(3) ADMINISTRATIVE RECORD.—The adminis12 trative record shall be corrected to include the 

13 amendments as well as any additional relevant infor14 mation that supports those amendments. 

15 ‘‘(4) CLASSIFIED INFORMATION.—The Director 

16 may consider classified information in amending a 

17 designation in accordance with this subsection. Clas18 sified information shall not be subject to disclosure 

19 for such time as it remains classified, except that 

20 such information may be disclosed to a court ex 

21 parte and in camera for purposes of judicial review 

22 under subsection (d). 

23 ‘‘(d) JUDICIAL REVIEW OF DESIGNATION.— 

24 ‘‘(1) IN GENERAL.—Not later than 30 days 

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1 ignation, an amended designation, or a determina2 tion in response to a petition for revocation, the for3 eign actor designated as a foreign intelligence threat 

4 to higher education may seek judicial review in the 

5 United States Court of Appeals for the District of 

6 Columbia Circuit. 

7 ‘‘(2) BASIS OF REVIEW.—Review under this 

8 subsection shall be based solely upon the administra9 tive record, except that the Government may submit, 

10 for ex parte and in camera review, classified infor11 mation used in making the designation, amended 

12 designation, or determination in response to a peti13 tion for revocation, in a manner consistent with the 

14 Classified Information Procedures Act (18 U.S.C. 

15 App.). 

16 ‘‘(3) SCOPE OF REVIEW.—The Court shall hold 

17 unlawful and set aside a designation, amended des18 ignation, or determination in response to a petition 

19 for revocation the court finds to be— 

20 ‘‘(A) arbitrary, capricious, an abuse of dis21 cretion, or otherwise not in accordance with 

22 law; 

23 ‘‘(B) contrary to constitutional right, 

24 power, privilege, or immunity; 


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1 ‘‘(C) in excess of statutory jurisdiction, au2 thority, or limitation, or short of statutory 

3 right; 

4 ‘‘(D) lacking substantial support in the ad5 ministrative record taken as a whole or in clas6 sified information submitted to the court under 

7 paragraph (2); or 

8 ‘‘(E) not in accord with the procedures re9 quired by law. 

10 ‘‘(4) JUDICIAL REVIEW INVOKED.—The pend11 ency of an action for judicial review of a designation, 

12 amended designation, or determination in response 

13 to a petition for revocation shall not affect the appli14 cation of this section, unless the court issues a final 

15 order setting aside the designation, amended des16 ignation, or determination in response to a petition 

17 for revocation. 

18 ‘‘(e) REPORTS.— 

19 ‘‘(1) IN GENERAL.—Not later than 180 days 

20 after the date of enactment of this section, and every 

21 year thereafter, the Director shall submit to the rel22 evant committees of Congress a detailed report con23 taining the following: 


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1 ‘‘(A) A description and assessment of for2 eign actors who engage in activities listed in 

3 subsection (b)(1). 

4 ‘‘(B) An assessment of the impact of for5 eign actors who engage in activities listed in 

6 subsection (b)(1) on scholarship and research 

7 and development in connection with institu8 tions. 

9 ‘‘(C) An assessment of the implementation 

10 and operation of the designation process for 

11 foreign intelligence threats to higher education 

12 established under this section. 

13 ‘‘(D) An assessment of the likely effects of 

14 the designation of foreign intelligence threats to 

15 higher education on activities listed in sub16 section (b)(1) in connection with institutions. 

17 ‘‘(2) FORM OF REPORTS.—The reports required 

18 under paragraph (1) shall be submitted in an un19 classified form, but may contain a classified annex.’’. 

20 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

21 The table of sections for chapter 33 of title 28, United 

22 States Code, is amended by adding at the end the fol23 lowing: 

‘‘540D. Designation of foreign intelligence threats to higher education.’’. 


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1 SEC. 3. DISCLOSURE OF FOREIGN GIFTS OR CONTRACTS. 

2 Section 117 of the Higher Education Act of 1965 (20 

3 U.S.C. 1011f) is amended— 

4 (1) by striking subsection (a) and inserting the 

5 following: 

6 ‘‘(a) DISCLOSURE REPORT.— 

7 ‘‘(1) IN GENERAL.—An institution described in 

8 paragraph (2) for a calendar year shall file a disclo9 sure report under subsection (b) with the Secretary 

10 by January 31 or July 31, whichever is sooner. 

11 ‘‘(2) TYPES OF INSTITUTIONS.—An institution 

12 described in this paragraph is an institution that— 

13 ‘‘(A) is owned or controlled by a foreign 

14 source; 

15 ‘‘(B) receives a gift from or enters into a 

16 contract with a foreign source, the value of 

17 which is $250,000 or more, considered alone or 

18 in combination with all other gifts from or con19 tracts with that foreign source within a cal20 endar year; or 

21 ‘‘(C) receives a gift from or enters into a 

22 contract with a foreign intelligence threat to 

23 higher education, or any agent thereof, the 

24 value of which is $50,000 or more, considered 

25 alone or in combination with all other gifts 

26 from or contracts with that foreign intelligence 


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1 threat to higher education within a calendar 

2 year.’’; 

3 (2) in subsection (b)— 

4 (A) by redesignating paragraphs (1) 

5 through (3) as subparagraphs (A) through (C), 

6 respectively, and adjusting the margins appro7 priately; 

8 (B) by striking ‘‘REPORT.—Each’’ and in9 serting the following: ‘‘REPORT.— 

10 ‘‘(1) IN GENERAL.—Each’’; 

11 (C) in subparagraph (A) (as so redesig12 nated), by inserting ‘‘, as measured by the fair 

13 market value of such gifts and contracts’’ after 

14 ‘‘particular country’’; 

15 (D) in subparagraph (B), as so redesig16 nated— 

17 (i) by inserting ‘‘the identity of the 

18 foreign government and, if applicable, the 

19 foreign government agency, and’’ after 

20 ‘‘with a foreign government,’’; and 

21 (ii) by inserting ‘‘, as measured by the 

22 fair market value of such gifts and con23 tracts’’ before the period at the end; and 

24 (E) by adding at the end the following: 


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1 ‘‘(2) REQUIREMENTS RELATING TO FOREIGN

2 INTELLIGENCE THREATS.—For any institution de3 scribed in subsection (a)(2)(C), the report required 

4 under this section shall contain, in addition to any 

5 applicable information required under paragraph 

6 (1)— 

7 ‘‘(A) the identity of the foreign intelligence 

8 threat to higher education involved; and 

9 ‘‘(B) the aggregate dollar amount of such 

10 gifts and contracts attributable to the foreign 

11 intelligence threat to higher education, as meas12 ured by the fair market value of such gifts and 

13 contracts.’’; 

14 (3) in subsection (c), by adding at the end the 

15 following: 

16 ‘‘(3) For any such gift received from, or con17 tract entered into with, a foreign intelligence threat 

18 to higher education, the fair market value of the gift 

19 or contract, the date of the gift or contract, and a 

20 description of any such conditions or restrictions on 

21 the gift or contract.’’; 

22 (4) in subsection (e), by inserting ‘‘, and shall 

23 also be accessible to the public through electronic 

24 means’’ before the period at the end; and 

25 (5) in subsection (h)— 


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1 (A) by redesignating paragraphs (2) 

2 through (5) as paragraphs (3) through (6), re3 spectively; 

4 (B) by inserting after paragraph (1) the 

5 following: 

6 ‘‘(2) the term ‘foreign intelligence threat to 

7 higher education’ means any foreign source that is 

8 designated as a foreign intelligence threat to higher 

9 education in accordance with section 540D of title 

10 28, United States Code;’’; 

11 (C) in paragraph (4) (as so redesignated), 

12 by striking ‘‘or property’’ and inserting ‘‘, prop13 erty, services, or payment to the staff of an in14 stitution’’; 

15 (D) by striking paragraph (5) (as so redes16 ignated) and inserting the following: 

17 ‘‘(5) the term ‘institution’ means an institution 

18 of higher education— 

19 ‘‘(A) to which Federal financial assistance 

20 is extended (directly or indirectly through an21 other entity or person); or 

22 ‘‘(B) that receives support from the exten23 sion of Federal financial assistance to any of 

24 the institution’s subunits’’; and 


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1 (E) in paragraph (6)(B) (as so redesig2 nated), by inserting ‘‘institutes, instructional 

3 programs,’’ before ‘‘research or lecture’’. 

Æ 


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