Sec. 2. Designation of foreign intelligence threats to higher education
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Chapter 33 of title 28, United States Code, is amended by adding at the end the following: In this section— the term classified information has the meaning given that term in section 1(a) of the Classified Information Procedures Act (18 U.S.C. App.); the term Director means the Director of the Federal Bureau of Investigation, acting in consultation with the Attorney General, Secretary of Education, and the Director of National Intelligence; the term foreign actor means— a foreign government or its auxiliary territories, or any component thereof, whether or not recognized by the United States; a foreign-based political organization, not substantially composed of United States persons; a faction of a foreign nation or nations, not substantially composed of United States persons; an entity that is openly acknowledged by a foreign government or governments to be directed and controlled by such foreign government or governments; any partnership, association, corporation, organization, or other combination of persons who acts as an agent, representative, employee, or servant of, or whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a government, organization, faction, or entity described in subparagraph (A), (B), (C), or (D); or any individual who acts as an agent, representative, employee, or servant of, or whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a government, organization, faction, or entity described in subparagraph (A), (B), (C), or (D), unless such individual is a citizen of and domiciled within the United States; the term institution means any institution of higher education, as defined under section 101 of the Higher Education Act ( 20 U.S.C. 1001 ); the term national security means the national defense, foreign relations, or economic interests of the United States; the term relevant committees of Congress means— the Committee on the Judiciary, the Select Committee on Intelligence, the Committee on Homeland Security and Government Affairs, and the Committee on Health, Education, Labor, and Pensions of the Senate; and the Committee on the Judiciary, the Permanent Select Committee on Intelligence, the Committee on Homeland Security, and the Committee on Education and the Workforce of the House of Representatives; and the term United States person has the meaning given that term in section 101 of the Foreign Intelligence Surveillance Act of 1978 ( 50 U.S.C. 1801 ).
The Director shall designate a foreign actor as a foreign intelligence threat to higher education, in accordance with this subsection, if the Director finds that the foreign actor has committed, attempted to commit, or conspired to commit, in connection with an institution, one or more of the following: Espionage, in violation of sections 791 through 799 of title 18. Kidnapping, in violation of section 1201 of title 18. Fraud or misuse of visas, permits, or other documents, in violation of section 1546 of title 18.
Aggravated identity theft, in violation of section 1028A of title 18. Fraud or related activity in connection with access devices, in violation of section 1029 of title 18. Fraud or related activity in connection with computers, in violation of section 1030 of title 18. Economic espionage, in violation of section 1831 of title 18. Theft of trade secrets, in violation of section 1832 of title 18. Terrorism, in violation of sections 2331 through 2339D of title 18. Interception or disclosure of wire, oral, or electronic communications, in violation of section 2511 of title 18.
Not later than 7 days before making a designation under this subsection, the Director shall submit to the Speaker and Minority Leader of the House of Representatives, the President pro tempore, Majority Leader, and Minority Leader of the Senate, and the members of the relevant committees of Congress— written notice of the intent of the Director to designate a foreign actor under this subsection; and the findings made under paragraph
(1)with respect to foreign actor and the factual basis therefor. Not later than 7 days before making a designation under this subsection, the Director shall submit to the Attorney General, for the Attorney General to determine whether further investigation or prosecution is warranted— written notice of the intent of the Director to designate a foreign actor under this subsection; and the findings made under paragraph
(1)with respect to the foreign actor and the factual basis therefor. The notice and findings submitted under clauses
(i)and
(ii)may be in classified form. If the Director makes a designation under this subsection, the Director shall publish the designation in the Federal Register on the date of the designation. For purposes of section 117 of the Higher Education Act of 1965 ( 20 U.S.C. 1011f ), a designation under this subsection shall take effect upon publication under subparagraph (B). In making a designation under this subsection, the Director shall create an administrative record. The Director may consider classified information in making a designation under this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (d). A designation under this subsection shall be effective for all purposes until revoked under paragraph
(5)or
(6)or set aside under subsection (d). The Director shall review the designation of a foreign intelligence threat to higher education under the procedures set forth in clauses
(iii)and
(iv)if the designated foreign actor files a petition for revocation within the petition period described in clause (ii). For purposes of clause (i)— if the designated foreign actor has not previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date on which the designation was made; or if the designated foreign actor has previously filed a petition for revocation under this subparagraph, the petition period begins 2 years after the date of the determination made under clause
(iv)with respect to that petition. Any foreign actor designated as a foreign intelligence threat to higher education that submits a petition for revocation under this subparagraph shall provide evidence in the petition that the relevant circumstances described in paragraph
(1)are sufficiently different from the circumstances that were the basis for the designation such that a revocation with respect to the foreign actor is warranted. Not later than 180 days after receiving a petition for revocation submitted under this subparagraph, the Director shall make a determination as to such revocation. The Director may consider classified information in making a determination in response to a petition for revocation. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (d). A determination made by the Director under this clause shall be published in the Federal Register. Any revocation of a designation by the Director shall be made in accordance with paragraph (6). If no review has taken place under subparagraph
(B)during any 5-year period, the Director shall review the designation of a foreign actor as a foreign intelligence threat to higher education in order to determine whether such designation should be revoked pursuant to paragraph (6). If a review does not take place pursuant to subparagraph
(B)in response to a petition for revocation that is filed in accordance with that subparagraph, the review shall be conducted pursuant to procedures established by the Director. The results of such review and the applicable procedures shall not be reviewable in any court. The Director shall publish any determination made under this subparagraph in the Federal Register. Congress, by an Act of Congress, may block or revoke a designation made under paragraph (1). The Director may revoke a designation made under paragraph
(1)at any time, and shall revoke a designation upon completion of a review conducted pursuant to subparagraphs
(B)and
(C)of paragraph
(4)if the Director finds that— the circumstances that were the basis for the designation have changed in such a manner as to warrant revocation; or the national security of the United States warrants a revocation. The procedural requirements of paragraphs
(2)and
(3)shall apply to a revocation under this paragraph. Any revocation shall take effect on the date specified in the revocation or upon publication in the Federal Register if no effective date is specified. The revocation of a designation under paragraph
(5)or
(6)shall not affect any action or proceeding based on conduct committed prior to the effective date of such revocation. The Director may amend a designation under subsection
(b)if the Director finds that the foreign actor has changed its name, adopted a new alias, dissolved and then reconstituted itself under a different name or names, or merged with another foreign actor. Amendments made to a designation in accordance with paragraph
(1)shall be effective upon publication in the Federal Register. Subparagraphs
(B)and
(C)of subsection (b)(2) shall apply to an amended designation upon such publication. Paragraphs (2)(A)(i), (4), (5), (6), (7), and
(8)of subsection
(b)shall also apply to an amended designation. The administrative record shall be corrected to include the amendments as well as any additional relevant information that supports those amendments. The Director may consider classified information in amending a designation in accordance with this subsection. Classified information shall not be subject to disclosure for such time as it remains classified, except that such information may be disclosed to a court ex parte and in camera for purposes of judicial review under subsection (d). Not later than 30 days after publication in the Federal Register of a designation, an amended designation, or a determination in response to a petition for revocation, the foreign actor designated as a foreign intelligence threat to higher education may seek judicial review in the United States Court of Appeals for the District of Columbia Circuit. Review under this subsection shall be based solely upon the administrative record, except that the Government may submit, for ex parte and in camera review, classified information used in making the designation, amended designation, or determination in response to a petition for revocation, in a manner consistent with the Classified Information Procedures Act (18 U.S.C. App.). The Court shall hold unlawful and set aside a designation, amended designation, or determination in response to a petition for revocation the court finds to be— arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; contrary to constitutional right, power, privilege, or immunity; in excess of statutory jurisdiction, authority, or limitation, or short of statutory right; lacking substantial support in the administrative record taken as a whole or in classified information submitted to the court under paragraph (2); or not in accord with the procedures required by law. The pendency of an action for judicial review of a designation, amended designation, or determination in response to a petition for revocation shall not affect the application of this section, unless the court issues a final order setting aside the designation, amended designation, or determination in response to a petition for revocation. Not later than 180 days after the date of enactment of this section, and every year thereafter, the Director shall submit to the relevant committees of Congress a detailed report containing the following: A description and assessment of foreign actors who engage in activities listed in subsection (b)(1). An assessment of the impact of foreign actors who engage in activities listed in subsection (b)(1) on scholarship and research and development in connection with institutions. An assessment of the implementation and operation of the designation process for foreign intelligence threats to higher education established under this section. An assessment of the likely effects of the designation of foreign intelligence threats to higher education on activities listed in subsection (b)(1) in connection with institutions. The reports required under paragraph
(1)shall be submitted in an unclassified form, but may contain a classified annex. . The table of sections for chapter 33 of title 28, United States Code, is amended by adding at the end the following: 540D. Designation of foreign intelligence threats to higher education. .
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Designation of foreign intelligence threats to higher education
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