DATA Act

Subjects: Foreign Trade and International Finance, Asia, China, Computer security and identity theft, Congressional oversight, Congressional-executive branch relations, Europe, India, Internet, web applications, social media, Israel, Middle East, Presidents and presidential powers, Vice Presidents, Sanctions, Subversive activities, Sweden, Switzerland, Taiwan

Summary:  <p><b>Deterring America&rsquo;s Technological Adversaries Act or DATA Act</b></p> <p>This bill requires federal actions to protect the sensitive personal data of U.S. persons, with a particular focus on prohibiting the transfer of such data to foreign persons influenced by China.</p> <p>The International Emergency Economic Powers Act (IEEPA) authorizes the President to regulate various commercial transactions and to block foreign-owned property and assets subject to U.S. jurisdiction. An exemption to IEEPA (i.e., the Berman Amendment) blocks the President from regulating information and informational materials. This bill specifies that sensitive personal data is not information or informational materials exempt from regulation under IEEPA.</p> <p>The bill requires the Department of the Treasury to issue a directive prohibiting U.S. persons from engaging in any transaction with any person who knowingly provides or may transfer sensitive personal data subject to U.S. jurisdiction to any foreign person subject to Chinese influence.</p> <p>The bill also establishes new sanctions on certain transactions related to connected software applications. For example, the President must impose a sanction on any foreign person that knowingly operates, directs, or deals in a connected software application that is subject to the jurisdiction of China and is reasonably believed to have been or may be used to facilitate or contribute to China's military, intelligence, censorship, surveillance, cyber, or information campaigns. </p> <p>The President must determine whether reasonable grounds exist for concluding that specified entities (e.g., TikTok) meet the criteria under the bill for purposes of applying a directive by Treasury or for imposing sanctions.</p>

<html><body><pre>[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 1153 Introduced in House (IH)]

&lt;DOC&gt;






118th CONGRESS
  1st Session
                                H. R. 1153

  To provide a clarification of non-applicability for regulation and 
prohibition relating to sensitive personal data under the International 
         Emergency Economic Powers Act, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 24, 2023

  Mr. McCaul introduced the following bill; which was referred to the 
                      Committee on Foreign Affairs

_______________________________________________________________________

                                 A BILL


 
  To provide a clarification of non-applicability for regulation and 
prohibition relating to sensitive personal data under the International 
         Emergency Economic Powers Act, and for other purposes.

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

SECTION 1. SHORT TITLE AND TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Deterring 
America's Technological Adversaries Act'' or ``DATA Act''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title and table of contents.
Sec. 2. Findings.
Sec. 3. Authorization of appropriations.
Sec. 4. Severability.
Sec. 5. Definitions.
    TITLE I--CLARIFICATION OF NON-APPLICABILITY FOR REGULATION AND 
  PROHIBITION RELATING TO SENSITIVE PERSONAL DATA UNDER INTERNATIONAL 
                     EMERGENCY ECONOMIC POWERS ACT

Sec. 101. Clarification.
Sec. 102. Directive.
 TITLE II--IMPOSITION OF SANCTIONS ON CERTAIN TRANSACTIONS RELATING TO 
                    CONNECTED SOFTWARE APPLICATIONS

Sec. 201. Imposition of sanctions.
Sec. 202. Sanction described.
Sec. 203. Sunset.
 TITLE III--SPECIFIC DETERMINATIONS WITH RESPECT TO THE IMPOSITION OF 
                               SANCTIONS

Sec. 301. Determination relating to Bytedance, Ltd., TikTok, and 
                            related entities.
Sec. 302. Requests by appropriate congressional committees.

SEC. 2. FINDINGS.

    Congress finds the following:
            (1) On December 2, 2022, the Director of the Federal Bureau 
        of Investigation, Christopher Wray, stated, ``We . . . do have 
        national security concerns about the app [TikTok]. Its parent 
        company is controlled by the Chinese government. And it gives 
        them the potential to leverage the app in ways that I think 
        should concern us . . . One, it gives them the ability to 
        control the recommendation algorithm which allows them to 
        manipulate content and if they want to, to use it for influence 
        operations which are a lot more worrisome in the hands of the 
        Chinese Communist Party than whether or not you're steering 
        somebody as an influencer to one product or another. They also 
        have the ability to collect data through it on users which can 
        be used for traditional espionage operations, for example. They 
        also have the ability on it to get access, they have 
        essentially access to the software to devices. So you're 
        talking about millions of devices and that gives them the 
        ability to engage in different kinds of malicious cyber 
        activity through that. And so all of these things are in the 
        hands of a government that doesn't share our values and that 
        has a mission that's very much at odds with what's in the best 
        interest of the United States that that should concern us.''.
            (2) On December 3, 2022, the Director of National 
        Intelligence, Avril Haines, ``It is extraordinary the degree to 
        which China, in particular, but they're not the only ones, 
        obviously, are developing just frameworks for collecting 
        foreign data and pulling it in and their capacity to then turn 
        that around and use it to target audiences for information 
        campaigns or for other things, but also to have it for the 
        future so that they can use it for a variety of means that 
        they're interested in.''.
            (3) On December 16, 2022, the Director of Central 
        Intelligence, Bill Burns, stated, ``I think it's a genuine 
        concern . . . for the U.S. government, in the sense that, 
        because the parent company of TikTok is a Chinese company, the 
        Chinese government is able to insist upon extracting the 
        private data of a lot of TikTok users in this country, and also 
        to shape the content of what goes on to TikTok as well to suit 
        the interests of the Chinese leadership . . . What I would 
        underscore, though, is that it's genuinely troubling to see 
        what the Chinese government could do to manipulate TikTok.''.
            (4) On December 23, 2022, both chambers of Congress passed 
        a bipartisan spending bill that included a ban on using TikTok 
        from government devices.

SEC. 3. AUTHORIZATION OF APPROPRIATIONS.

    No additional amounts are authorized to be made available to carry 
out this Act.

SEC. 4. SEVERABILITY.

    If any provision of this Act or its application to any person or 
circumstance is held invalid, the invalidity does not affect other 
provisions or applications of this section that can be given effect 
without the invalid provision or application, and to this end the 
provisions of this Act are severable.

SEC. 5. DEFINITIONS.

    In this Act:
            (1) Agency or instrumentality of a foreign state.--The term 
        ``agency or instrumentality of a foreign state'' has the 
        meaning given such term under section 1603(b) of title 28, 
        United States Code.
            (2) Appropriate congressional committees.--The term 
        ``appropriate congressional committees'' means--
                    (A) the Committee on Foreign Affairs, Committee on 
                Ways and Means, and the Committee on Financial Services 
                of the House of Representatives; and
                    (B) the Committee on Foreign Relations and the 
                Committee on Banking, Housing, and Urban Affairs of the 
                Senate.
            (3) China.--The term ``China'' means--
                    (A) when used in the geographic sense, the country 
                of the People's Republic of China; and
                    (B) otherwise, the Government of the country of the 
                People's Republic of China, including any entity acting 
                on behalf of, or the benefit of--
                            (i) the country of the People's Republic of 
                        China; or
                            (ii) the Government of the country of the 
                        People's Republic of China.
            (4) Connected software application.--The term ``connected 
        software application'' has the meaning given such term in 
        Executive Order 14034 (86 Fed. Reg. 31423; relating to 
        protecting Americans' sensitive data from foreign adversaries).
            (5) Election interference in or against a foreign country 
        that is a treaty ally of the united states or a democratic or 
        emerging democratic partner of the united states.--The term 
        ``election interference in or against a foreign country that is 
        a treaty ally of the United States or a democratic or emerging 
        democratic partner of the United States'' means actions to 
        engage in, directly or indirectly, activities originating from, 
        or directed by, persons located, in whole or in substantial 
        part, outside the territory of a treaty ally of the United 
        States or a democratic or emerging democratic partner of the 
        United States that have the purpose or effect of tampering 
        with, altering, unlawfully accessing, or causing a 
        misappropriation of information with the purpose or effect of 
        interfering with or undermining election processes or 
        institutions.
            (6) Election interference in or against the united 
        states.--The term ``election interference in or against the 
        United States'' includes actions to engage in, directly or 
        indirectly, activities originating from, or directed by persons 
        located, in whole or in substantial part, outside the United 
        States that--
                    (A) have the purpose or effect of tampering with, 
                altering, unlawfully accessing, or causing a 
                misappropriation of information with the purpose or 
                effect of undermining election processes or 
                institutions;
                    (B) deny access, block, degrade, or alter election 
                and campaign infrastructure, or related systems or data 
                related to political parties, candidates in elections 
                for public office, the administration of elections for 
                public office, or any public election activity; or
                    (C) consist of the making of contributions or 
                donations, or any other activity prohibited under 
                section 319 of the Federal Election Campaign Act of 
                1971 (52 U.S.C. 30121), with the purpose or effect of 
                undermining election processes or institutions.
            (7) Foreign person.--The term ``foreign person''--
                    (A) means a person that is not a United States 
                person; and
                    (B) includes a nonresident alien individual, 
                foreign corporation, foreign partnership, foreign 
                trust, foreign estate.
            (8) Knowingly.--The term ``knowingly'', with respect to 
        conduct, a circumstance, or a result, means that a person has 
        actual knowledge, or should have known, of the conduct, the 
        circumstance, or the result.
            (9) Sensitive personal data.--The term ``sensitive personal 
        data'' has the meaning given such term in section 7.2 of title 
        15, Code of Federal Regulations (or any successor regulation).
            (10) Treaty ally of the united states.--The term ``treaty 
        ally of the United States'' means a foreign country that is a 
        party to any of the following:
                    (A) The North Atlantic Treaty, signed at 
                Washington, April 4, 1949.
                    (B) The Security Treaty Between Australia, New 
                Zealand, and the United States of America, signed at 
                San Francisco, September 1, 1951.
                    (C) The Mutual Defense Treaty Between the United 
                States of America and the Republic of the Philippines, 
                signed at Washington, August 30, 1951.
                    (D) The Southeast Asia Collective Defense Treaty, 
                signed at Manilla, September 8, 1954.
                    (E) The Treaty of Mutual Cooperation and Security 
                Between the United States of America and Japan, signed 
                at Washington, January 19, 1960.
                    (F) The Mutual Defense Treaty Between the United 
                States of America and the Republic of Korea, signed at 
                Washington, October 1, 1953.
            (11) United states person.--The term ``United States 
        person'' means--
                    (A) a United States citizen;
                    (B) a permanent resident alien;
                    (C) an entity organized under the laws of the 
                United States (including foreign branches); or
                    (D) any person in the United States.

    TITLE I--CLARIFICATION OF NON-APPLICABILITY FOR REGULATION AND 
  PROHIBITION RELATING TO SENSITIVE PERSONAL DATA UNDER INTERNATIONAL 
                     EMERGENCY ECONOMIC POWERS ACT

SEC. 101. CLARIFICATION.

    (a) In General.--The importation to a country, or the exportation 
from a country, of sensitive personal data shall not constitute the 
importation from a country, or the exportation to a country, of 
information or informational materials for purposes of paragraph (1) or 
(3) of section 203(b) of the International Emergency Economic Powers 
Act (50 U.S.C. 1702(b)).
    (b) Rule of Construction.--Nothing in subsection (a), and nothing 
in the International Emergency Economic Powers Act, may be construed to 
provide for the application of paragraph (1) or (3) of section 203(b) 
of the International Emergency Economic Powers Act (50 U.S.C. 1702(b)) 
to the importation to China, or the exportation from China, directly or 
indirectly, of sensitive personal data.

SEC. 102. DIRECTIVE.

    Not later than 180 days after the date of the enactment of this 
Act, the Secretary of the Treasury shall issue a directive prohibiting 
United States persons from engaging in any transaction with a person 
that the Secretary of the Treasury determines knowingly provides or may 
transfer sensitive personal data of persons subject to United States 
jurisdiction to any foreign person that--
            (1) is subject to the jurisdiction or direction of, or 
        directly or indirectly operating on behalf of, China; or
            (2) is owned by, directly or indirectly controlled by, or 
        is otherwise subject to the influence of China.

 TITLE II--IMPOSITION OF SANCTIONS ON CERTAIN TRANSACTIONS RELATING TO 
                    CONNECTED SOFTWARE APPLICATIONS

SEC. 201. IMPOSITION OF SANCTIONS.

    (a) In General.--The President shall impose the sanction described 
in section 202 with respect to any foreign person that, on or after the 
date of the enactment of this Act, knowingly--
            (1) operates, directs, or otherwise deals in a connected 
        software application that--
                    (A) is subject to the jurisdiction or direction of, 
                or directly or indirectly operating on behalf of China, 
                or is owned by, directly or indirectly controlled by, 
                or otherwise subject to the influence of China; and
                    (B) is reasonable believed to have facilitated or 
                may be facilitating or contributing to China's--
                            (i) military, intelligence, espionage, or 
                        weapons proliferation activities;
                            (ii) censorship activities;
                            (iii) surveillance activities;
                            (iv) control or use of recommendation 
                        algorithms that are capable of manipulating 
                        content;
                            (v) malicious cyber activities; or
                            (vi) use of data to target audiences for 
                        information campaigns;
            (2) directly or indirectly orders, controls, directs, 
        engages in, or otherwise facilitates an act of election 
        interference against the United States;
            (3) directly or indirectly orders, controls, directs, 
        engages in, or otherwise facilitates an act of election 
        interference in or against a foreign country that is--
                    (A) a treaty ally of the United States; or
                    (B) a democratic or emerging democratic partner of 
                the United States;
            (4) directly or indirectly orders, controls, directs, 
        engages in, or otherwise facilitates an act of steering United 
        States policy and regulatory decisions in favor of China's 
        strategic objectives, to the detriment of the economic or 
        national security of the United States;
            (5) knowingly facilitates a transaction or transactions for 
        or on behalf of a person described, or a person that has 
        engaged in the activity described, as the case may be, in 
        paragraph (1), (2), (3), or (4);
            (6) knowingly assists, sponsors, or provides financial, 
        material, or technological support for a person described, or a 
        person that has engaged in the activity described, as the case 
        may be, in paragraph (1), (2), (3), or (4); or
            (7) is owned or controlled by, or has acted for or on 
        behalf of, directly or indirectly, a person described, or a 
        person that has engaged in the activity described, as the case 
        may be, in paragraph (1), (2), (3), or (4).
    (b) List of Foreign Countries That Are Democratic or Emerging 
Democratic Partners of the United States.--
            (1) In general.--Not later than 90 days after the date of 
        the enactment of this Act, the President shall submit to the 
        appropriate congressional committees--
                    (A) a definition of the term ``democratic or 
                emerging democratic partner of the United States''; and
                    (B) a list of foreign countries that are designated 
                as a democratic or emerging democratic partner of the 
                United States for purposes of subsection (a)(3) that 
                includes the countries listed in paragraph (2).
            (2) Initial designations.--Sweden, Switzerland, Israel, 
        India, and Taiwan shall be deemed to have been so designated as 
        a democratic or emerging democratic partner of the United 
        States for purposes of subsection (a)(3).
            (3) Updates.--The President shall submit to the appropriate 
        congressional committees an updated list under subparagraph (A) 
        on a periodic basis.

SEC. 202. SANCTION DESCRIBED.

    (a) In General.--The sanction described in this section is the 
exercise of all powers granted to the President by the International 
Emergency Economic Powers Act (50 U.S.C. 1701 et seq.) (except that the 
requirements of section 202 of such Act (50 U.S.C. 1701) shall not 
apply) to the extent necessary to block and prohibit all transactions 
in all property and interests in property of any foreign person or an 
agency or instrumentality of a foreign state, as the case may be, if 
such property and interests in property are in the United States, come 
within the United States, or are or come within the possession or 
control of a United States person.
    (b) Implementation.--The President may exercise all authorities 
provided under sections 203 and 205 of the International Emergency 
Economic Powers Act (50 U.S.C. 1702 and 1704) to carry out this title.
    (c) Regulations.--
            (1) In general.--The President shall prescribe such 
        regulations as may be necessary for the implementation of this 
        title.
            (2) Prior briefing required.--Not later than 10 days before 
        the prescription of regulations under paragraph (1), the 
        President shall brief the appropriate congressional committees 
        regarding the proposed regulations and the provisions of this 
        title that such regulations are implementing.
    (d) Penalties.--A person that violates, attempts to violate, or 
causes a violation of any sanction authorized by this title, or any 
regulation, license, or order issued to carry out such sanctions, shall 
be subject to the penalties set forth in subsections (b) and (c) of 
section 206 of the International Emergency Economic Powers Act (50 
U.S.C. 1705) to the same extent as a person that commits an unlawful 
act described in subsection (a) of that section.
    (e) Exceptions.--The following activities shall not be subject to 
the imposition of sanctions under this title:
            (1) Any authorized intelligence, law enforcement, or 
        national security activities of the United States.
            (2) Any transaction necessary to comply with United States 
        obligations under the Agreement between the United Nations and 
        the United States of America regarding the Headquarters of the 
        United States, signed at Lake Success June 26, 1947, and 
        entered into force November 21, 1947, or the Convention on 
        Consular Relations, done at Vienna April 24, 1963, and entered 
        into force March 19, 1967, or any other United States 
        international agreement.
    (f) Waiver.--The President may, on a case-by-case basis and for 
periods not to exceed 180 days each, waive the application of sanctions 
imposed with respect to a foreign person under this title if the 
President certifies to the appropriate congressional committees, not 
later than 15 days before such waiver is to take effect, that the 
waiver is vital to the national security interests of the United 
States.

SEC. 203. SUNSET.

    This title, and the authorities provided by this title, shall 
terminate on the date that is 5 years after the date of the enactment 
of this Act.

 TITLE III--SPECIFIC DETERMINATIONS WITH RESPECT TO THE IMPOSITION OF 
                               SANCTIONS

SEC. 301. DETERMINATION RELATING TO BYTEDANCE, LTD., TIKTOK, AND 
              RELATED ENTITIES.

    (a) In General.--Not later than 90 days after the date of the 
enactment of this Act, and every 180 days thereafter for 3 years, the 
President shall transmit to the appropriate congressional committees a 
determination of whether reasonable grounds exist for concluding that 
any of the entities described in subsection (b)--
            (1) meets the criteria described in paragraph (1) or (2) of 
        section 102 for purposes of applying a directive described in 
        such section with respect to the entity; or
            (2) have engaged in any conduct described in section 201.
    (b) Entities Described.--The entities described in this subsection 
are--
            (1) Bytedance, Ltd.;
            (2) TikTok;
            (3) any subsidiary of or a successor to an entity described 
        in paragraph (1) or (2); and
            (4) any entity owned or controlled directly or indirectly 
        by an entity described in paragraph (1), (2), or (3).
    (c) Form.--The determination described in subsection (a) shall be 
transmitted in unclassified form, and any supporting documentation may 
be transmitted in a classified annex.
    (d) Application of Sanctions.--If the President makes an 
affirmative decision under subsection (a) with respect to any entity 
described in subsection (b), the President shall impose the sanction 
described in section 202 with respect to the entity, as appropriate.

SEC. 302. REQUESTS BY APPROPRIATE CONGRESSIONAL COMMITTEES.

    (a) In General.--Not later than 120 days after receiving a request 
from the chairperson or ranking member of one or more of the 
appropriate congressional committees with respect to whether a foreign 
person meets the criteria described in paragraph (1) or (2) of section 
102 for purposes of applying a directive described in such section with 
respect to the person, or have engaged in any conduct described in 
section 201 for the imposition of the sanction described in section 
202, the President shall--
            (1) determine if that person meets the requirements 
        described in the applicable section; and
            (2) submit to the chairperson and ranking member of the 
        committee or committees a report that includes--
                    (A) a statement of whether or not the President 
                imposed or intends to impose such sanction with respect 
                to the person; and
                    (B) if applicable, a description of the sanction so 
                imposed or intended to be imposed.
    (b) Availability of Information.--
            (1) In general.--Any information obtained at any time with 
        respect to the President making a determination with respect to 
        a foreign person under subsection (a), or under any review of 
        the foreign person through other United States Government 
        national security review processes, shall be made available to 
        a committee or subcommittee of Congress of appropriate 
        jurisdiction, upon the request of the chairman or ranking 
        minority member of such committee or subcommittee.
            (2) Prohibition on disclosure.--No such committee or 
        subcommittee, or member thereof, may disclose any information 
        made available under clause (i), that is submitted on a 
        confidential basis unless the full committee determines that 
        the withholding of that information is contrary to the national 
        interest.
    (c) Form.--Each determination described in subsection (a)(1), and 
each report under subsection (a)(2), may be submitted in classified or 
unclassified form, and any supporting documentation to such 
determination or report may contain a classified annex.
                                 &lt;all&gt;
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