WASHINGTON, DC, USA –According to a source familiar with the subject and excerpts seen by Reuters, the Biden administration has crafted an executive order that would grant the Department of Justice broad authority to prevent foreign adversaries like China from accessing Americans’ personal data.
According to the extracts, the plan would also order the Department of Health and Human Services (HHS) to ban federal assistance from being used to promote the transfer of US health data to foreign foes.
After failed attempts by the Trump administration to ban Americans from using popular social media platforms, the draft order reflects an effort by the administration to respond more aggressively to national security threats allegedly posed by Chinese companies that acquire reams of US personal data.
In 2020, former President Donald Trump attempted to prohibit the applications, claiming that the data they collect may be sent to Beijing and used to follow users and censor content. China and the applications have both denied misusing US data.
The bans were later repealed by US President Joe Biden after the courts delayed their application.
The White House, the Department of Justice, and the Department of Commerce all declined to comment. Requests for comment were not returned by HHS.
According to another source familiar with the situation, the paper is an early draft that does not include feedback from government departments and may change.
“What’s clear is the Biden administration is grappling with how to address this new risk frontier in the US-China relationship, which is the Chinese government’s access to Americans’ sensitive data,” said Samm Sacks, a senior fellow at Yale Law School’s Paul Tsai China Center, who examines information and communications policies.
If implemented, the draft order would grant US Attorney General Merrick Garland the authority to review and potentially bar commercial transactions involving the sale of or access to data if they pose an undue risk to national security, one of the people said.
The proposal would also instruct HHS to get started on writing a rule “to ensure that federal assistance, such as grants and awards, is not supporting the transfer of US persons’ health, health-related or biological data… to entities owned by, controlled by, or subject to the jurisdiction or direction of foreign adversaries,” according to an excerpt.
Chinese corporations investing in US enterprises that handle sensitive healthcare information pose a risk to Americans’ personal data, according to US intelligence. The National Counterintelligence and Security Center said in a 2021 information sheet that China’s BGI purchased US genomic sequencing business Complete Genomics in 2013 and Chinese WuXi Pharma Tech acquired US startup NextCODE Health in 2015.
According to three individuals familiar with the process, administration officials have become upset with the Commerce Department over delays in implementing regulations and examining risks under similar authorities handed to the department by Trump in 2019.
These powers allow the Commerce Department to prohibit or restrict transactions between US companies and “foreign adversaries” nations such as Russia and China’s internet, telecom, and tech industries.
But, as previously reported by Reuters, the agency has yet to publish long-awaited guidelines laying out a safe harbor mechanism for businesses or reveal the outcomes of investigations into corporations like Russia’s Kaspersky and China’s Alibaba.
A June executive order urged the Commerce Department to utilize the new powers to secure Americans’ sensitive data from foreign adversaries via transactions using apps, but the little movement has been made on the measure.
The new draft order gives the Department of Justice the express authority to “monitor compliance with and enforce any prohibitions, licenses, or mitigation agreements” issued under the prior executive orders, “thereby supporting the authority given to the Secretary of Commerce.”
It also tasks the Secretary of Commerce with establishing which classes of transactions are outright prohibited and which are exempt, another excerpt shows