DATA Act

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. 1. Short title and table of contents (a) Short title This Act may be cited as the Deterring America’s Technological Adversaries Act 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. 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. 3. Authorization of appropriations No additional amounts are authorized to be made available to carry out this Act. 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. 5. Definitions In this Act: (1) Agency or instrumentality of a foreign state The term agency or instrumentality of a foreign state (2) Appropriate congressional committees The term appropriate congressional committees (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 (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 (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 (6) Election interference in or against the United States The term election interference in or against the United States (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 (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 (9) Sensitive personal data The term sensitive personal data (10) Treaty ally of the United States The term treaty ally of the United States (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 (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. I Clarification of non-applicability for regulation and prohibition relating to sensitive personal data under International Emergency Economic Powers Act 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) 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. II Imposition of sanctions on certain transactions relating to connected software applications 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 (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. 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. 50 U.S.C. 1701 (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 (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. 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. III Specific determinations with respect to the imposition of sanctions 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. 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. May 16, 2023 Committed to the Committee of the Whole House on the State of the Union and ordered to be printed

Summary: Deterring America’s Technological Adversaries Act or DATA Act 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. 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. 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. 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. 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.