Sec. 5. Definitions

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In this Act: The term protected activity means protected action, protected inaction, or enhanced China-related protected activity, except that such term does not include any activity that— in the case of an activity that takes place in the United States, violates a Federal law or regulation (or advocates for any such activity which constitutes a Federal felony offense); in the case of an activity that takes place outside of the United States, would violate such a Federal law or regulation had the activity been conducted in the United States (or advocates for any such activity that constitutes a Federal felony offense); or in the case of an activity that takes place in a State, territory, or unit of local government and involves an act that constitutes a felony offense, violates a State law, territorial law, or local ordinance that prohibits such an act or advocates for such activity; undermines or inherently conflicts with an outcome or objective that such employee or contractor ordinarily aims to achieve in their official employment or contractual capacity, and achieving such an outcome or objective is a reasonably central component of such employee or contractor’s typical responsibilities; is undertaken by an employee or contractor who routinely conducts work on behalf of a domestic entity whose principal and overriding purpose is advocating for or otherwise furthering outcomes or objectives of a designated foreign government or entity (including a domestic entity registered under the Foreign Agents Registration Act of 1938), which are fundamentally opposed to a principal desired outcome or objective of the activity; is undertaken with the intent to, or the reasonably foreseeable effect of, denigrating a person or class of persons on the basis of any protected characteristic which is subject to any employment protections enforceable by the Equal Employment Opportunity Commission or an analogous state or territorial agency of any state or territory in the United States; or the average person applying contemporary community standards of the United States would determine to be, taken as a whole, patently obscene and lacking in serious political, literary, artistic, or scientific value.

The term protected action means— any speech, conduct, or other advocacy related to a designated foreign government or entity’s actual, historic, or potential current or future gross violation of internationally recognized human rights (as such term is defined in section 502B(d) of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2304(d) )), or such government or entity’s facilitation or support of, or activities related to, such a violation; any speech, conduct, or other advocacy related to political, social, or similarly sensitive matters, provided such matters generally relate to conditions or practices within a country governed by a designated foreign authority, or domestic or international policies of a designated foreign government or entity, on which such designated foreign authority censors or imposes official or unofficial publishing or advocacy restrictions (including but not limited to religious activities, cultural activities, territorial claims, sovereignty status, political leaders, internal party dynamics, alleged abuses of power, and corruption), if such censorship or restriction would be unconstitutional or otherwise unlawful if implemented in the United States by the United States Government; any speech, conduct, or other advocacy related to the international activities of a designated foreign authority, or any designated foreign authority-affiliated entity or designated agent of influence acting on its behalf, which may result in imprisonment or other official or unofficial sanction if undertaken in such country (including but not limited to licit or illicit transfers of technology, overt, covert, or clandestine action, or overseas influence or disinformation campaigns); any speech, conduct, or other advocacy contesting, purposefully or incidentally, a preferred governmental narrative of a designated foreign authority with respect to historical or current events (including but not limited to the creation or use of maps or other geographic identifiers which depict disputed territories or describe disputed territorial classifications); any speech, conduct, or other advocacy regarding senior officials of a designated foreign authority on the basis of decisions or actions undertaken in such official’s official or personal capacity; or the provision by an employee or contractor of financial or in-kind support, using exclusively resources other than resources of an employing or contracting domestic entity which has not provided consent for such use, to any person engaging in an activity which would constitute protected activity if the employee or contractor personally engaged in such activity.

The term protected inaction means refraining from or refusing to undertake activity, including nonexcepted activity conducted in an employee or contractor’s official capacity, on the basis of sincerely held philosophical, ethical, or patriotic objections, that— counters or otherwise inhibits protected action or enhanced China-related protected activity, even if such activity occurs abroad; facilitates or supports a human rights violation of a designated foreign government or entity; or facilitates or supports an overseas propaganda or disinformation effort of a designated foreign authority or designated agent of influence, provided that the activity which the employee or contractor refrained from or refused to undertake has the direct and foreseeable impact of meaningfully, or the intent of reasonably directly, contributing to a matter described in subparagraph (A), (B), or (C).

The term enhanced China-related protected activity means any speech, conduct, or other advocacy, which is not protected action or protected inaction, and which relates to— actions of the government or ruling party of the People’s Republic of China, or any special administrative region or equivalent region, to restrict, limit, or otherwise inhibit freedom of speech or assembly, freedom of religion, or other fundamental human rights or freedoms, including through arbitrary detention, pervasive surveillance, or censorship; any aspect of a public policy debate within the United States which can reasonably be understood to predominantly pertain to China, or the relationship between the United States and any country or countries in the Indo-Pacific region, with respect to which the government or ruling party of the People’s Republic of China has lobbied or otherwise sought to encourage or discourage elected or appointed officials of the United States from pursuing or implementing a particular policy; or revealing or otherwise discussing malign international activities (including cyberattacks, unfair trade practices, intellectual property violations, influence or disinformation campaigns, illicit data collection efforts, and global surveillance or censorship efforts) of the government, ruling party, or any affiliated commercial enterprise of the People’s Republic of China.

The term country of concern means— China, including any special administrative regions or equivalent regions, but excluding, Taiwan for so long as such remains governed in a distinct and separate manner; or any other country, provided such country is not a member of the North Atlantic Treaty Organization (NATO), a major non-NATO ally designated under section 517 of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2321k ), a strategic partner of the United States, or a member, as of the date of enactment of this Act, of the Organisation for Economic Co-operation and Development, which the President publicly certifies to Congress on an annual basis— seeks, or consistently sought within the prior 10 years, to restrict protected activities of employees or contractors or otherwise meaningfully inhibit or alter the domestic speech of domestic entities on topics subject to the protections of this Act; poses a legitimate risk of undermining official United States foreign policy objectives, furthering gross violations of international recognized human rights (as such term is defined in section 502B(d) of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2304(d) ), or interfering with the open debate and discussion of topics related to such country, by virtue of the actual or attempted actions described in clause (i); and is— designated as a country of particular concern for religious freedom pursuant to section 402(b)(1) of the International Religious Freedom Act of 1998 ( 22 U.S.C. 6442(b)(1) ); a country sanctioned under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 ( 22 U.S.C. 5601 et seq.), or which was sanctioned under such Act at any point of time prior to the date of enactment of this Act; or a country the government of which the Secretary of State determines has repeatedly provided support for acts of international terrorism for purposes of section 1754(c) of the Export Control Reform Act of 2018 ( 50 U.S.C. 4813(c) ), section 620A of the Foreign Assistance Act of 1961 ( 22 U.S.C. 2371 ), or section 40 of the Arms Export Control Act ( 22 U.S.C. 2780 ).

The term designated foreign government or entity means any designated foreign authority, designated foreign authority-affiliated entity, or designated agent of influence. The term designated foreign authority means any government or governmental element, or political party or party element exercising substantial control or influence over government functions or decision making, or government or party official of a country of concern. The term designated foreign authority-affiliated entity means any state-owned, private, or otherwise non-governmental entity domiciled within, based within, or having its principal place of business or operations within a country of concern, unless such entity is specifically exempted by order of the President or his or her designee.

Such term shall include variable interest entities and international subsidiaries affiliated with such designated foreign authority-affiliated entities. The term designated agent of influence means any domestic or international entity or person— registered under the Foreign Agents Registration Act of 1938 on behalf of a designated foreign authority or designated foreign authority-affiliated entity; the President determines and publicly certifies is otherwise acting as an overt, covert, or clandestine agent of a designated foreign authority; or understood or reasonably suspected by the domestic entity undertaking an adverse action or seeking to impose a contractual limitation which is prohibited under this Act to be an overt, covert, or clandestine agent of a designated foreign authority.

For the purposes of the Act, the term domestic entity means— any entity, without regard to the country where such entity is domiciled or incorporated, that— conducts business or organizational activities in the United States (or outside of the United States at a facility that is officially or unofficially affiliated with the United States Government); or pays salary, wages, or other compensation for work performed in the United States or that has control over employment or contracting opportunities in the United States; and the Federal Government.

The President may, upon 90 days prior notice to Congress, exclude a component of a Federal agency or the Armed Forces, or a corporate contractor thereof, from the definition under this paragraph, to the extent such exclusion is in the interests of United States foreign policy or national security. The term employee means any person, including supervisors, employed in a covered context by a domestic entity. The term contractor means an individual who provides work in a covered context for a domestic entity under the terms of an independent contract with such domestic entity or an individual who uses a loan-out corporation or similar corporate structure to facilitate such work.

The term covered context means employment or contractual activities which— occur within the United States (including any overseas Federal facilities thereof), regardless of the nationality, citizenship, domicile, or place of incorporation of the employee, contractor, or domestic entity; or are conducted by an employee or contractor of a domestic entity who typically performs work within the United States, regardless of whether such employee or contractor handles matters of an international nature or is temporarily assigned to a foreign jurisdiction for a period of 6 months or less (except to the extent such activity relates to official overseas travel to a country of concern exempted from the prohibition on retaliation pursuant to section 3 of this Act).

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Sec. 5

Definitions

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