I 118th CONGRESS 1st Session H. R. 5440 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. Short title This Act may be cited as the Protecting Americans from Foreign Commercial Spyware Act . 2. Prohibition on assistance to foreign governments that engage in the use of foreign commercial spyware to target United States persons Chapter 1 of part III ( 22 U.S.C. 2351 et seq. ) of the Foreign Assistance Act of 1961 is amended by adding at the end the following new section: 620N. Prohibition on assistance to foreign governments that engage in the use of foreign commercial spyware to target United States persons (a) In general Except as otherwise provided in this section, no assistance may be provided under this Act to the central government of a country with respect to which the President makes a determination based on credible information and in accordance with subsection (c) that the government engages in the use of foreign commercial spyware to target United States persons. (b) Waiver If the President certifies in writing to the appropriate congressional committees that extraordinary circumstances or national security priorities exist warranting provision to a central government of a country of assistance otherwise prohibited pursuant to subsection (a), the United States may provide to such government such assistance. (c) Determination In making a determination under subsection (a) with respect to the central government of a country, the President shall give particular consideration to whether the government— (1) has a record of acquiring commercial foreign commercial spyware; (2) has used foreign commercial spyware against its own citizens, particularly journalists, political opponents, or activists; and (3) has failed to undertake serious and sustained efforts to combat the use of foreign commercial spyware in undemocratic ways. (d) Exception The prohibition under subsection (a) does not apply to military assistance. (e) Termination The prohibition under subsection (a) with respect to the central government of a country shall terminate 1 year after the President makes a determination that the government no longer engages in the use of foreign commercial spyware to target United States persons. (f) Report The President shall annually submit to the Committee on Foreign Affairs and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on Foreign Relations and the Select Committee on Intelligence of the Senate as part of the presentation materials for assistance programs proposed for each fiscal year, a full and complete classified report, prepared in consultation with the intelligence community’s classified annex, required under section 1102A of the National Security Act of 1947 ( 50 U.S.C. 3232a ), with respect to governmental use of foreign commercial spyware to target United States persons in each country proposed as a recipient of assistance under this Act. (g) Definitions In this section: (1) Foreign commercial spyware The term ‘foreign commercial spyware’ means a tool (or set of tools) sold, leased, marketed, or otherwise provided as an end-to-end system originally developed or owned by a foreign spyware company that provides a purchaser remote access to information stored on or transiting through an electronic device connected to the internet, including end-to-end systems that— (A) allow malign actors to infect mobile and internet-connected devices with malware over both wireless internet and cellular data connections, including without any action required by the user of the device; (B) can record telephone calls and other audio; (C) track the location of the device; or (D) access and retrieve information on the device, including text messages, files, e-mails, transcripts of chats, contacts, photos, and browsing history. (2) Intelligence community The term intelligence community has the meaning given such term in section 3(4) of the National Security Act of 1947 ( 50 U.S.C. 3003(4) ). (3) United States person The term United States person has the meaning given such term in section 560.314 of title 31, Code of Federal Regulations. .