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Business and Human Rights:

Legislation Survey

By Alexandra Wong

The Business and Human Rights Legislation Survey presents pending and current legislation
impacting business and human rights issues in the United States. The Survey considers
various pieces of legislation detailing the relevant obligations created by them and their
impact on business and human rights.

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Dodd–Frank Wall Street Reform and Consumer Protection Act (12 USC
5301)

• Became U.S. Law on July 21, 2010. Was originally House Bill H.R.4173
(sponsored by Chris Dodd) and also known as Public Law 111-203

• Relevant obligations created by the law:


i. Title 15, Section 1504 (Disclosure of Payments by Resource Extraction
Issuers): This amends Section 13 of the Securities Exchange Act of 1934.
It requires any company registered with the SEC that is involved in the
commercial development (including exploration, extraction, processing,
etc.) of oil, natural gas or mineral to disclose payments to both foreign
governments and the federal government. The payments are for
acquisition of licenses for exploration, production, and other commercial
development and include taxes, royalties, fees, production entitlements,
bonuses, and other material benefits.

• Links: (Public Law 111-203) http://www.gpo.gov/fdsys/pkg/PLAW-


111publ203/pdf/PLAW-111publ203.pdf
(House Bill H.R. 4173) http://frwebgate.access.gpo.gov/cgi-
bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h4173enr.txt.pdf

• Other Information:
i. http://www.huffingtonpost.com/karin-lissakers/wall-street-reform-
includ_b_643399.html

2. Global Online Freedom Act 2009 (H.R. 2271)

• Sponsor: Rep. Christopher Smith [NJ-4] (introduced 5/6/2009)

• Description of the legislation:


i. Sec. 101: Generally makes it U.S. policy to: promote the freedom to seek,
receive, and impart information and ideas through any media (as
protected by the ICCPR - art. 19 - and the UDHR), use all appropriate
instruments of U.S. influence to support the free flow of information
without interference or discrimination; and to deter U.S. businesses from
cooperating with Internet-restricting countries in effecting online
censorship.

• Relevant obligations created by the Bill:


i. Sec. 103: In the Annual Country Reports on Human Rights Practices,
there must be an assessment of the freedom of electronic information in
each foreign country. This includes the general extent to which the
citizens of that country can access the Internet, an assessment of the
extent to which that country attempts censorship and specific instances
of prosecution as a result of Internet expression of political/religious
beliefs.

ii. Sec. 104: The establishment of an Office of Global Internet Freedom at


the U.S. Department of State which will serve as the focal point for
interagency efforts to protect and promote abroad freedom of electronic
information related to expression of political, religious, or ideological
opinion or belief.

iii. Sec. 201: U.S. businesses that provide a search engine service or other
online communication services is not allowed to locate any personally

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identifiable information that was used to establish an account in
countries that have been designated Internet-restricting. However, in
subsection (b), the Secretary of State has the power to waive the
application of this section if events such as national interest come up.

iv. Sec. 202: U.S. businesses that do collect personally identifiable


information must first report the requests for that information from
Internet-restricting countries to the Office of Global Internet Freedom.
The report must document and make records of the information
requested, the exact words of such a request, how the U.S. company
responded to the request, and communications with officials from the
Internet-restricting country. It also authorizes the Attorney General to
prohibit a business from complying with the request, except for
legitimate foreign law enforcement purposes. This section also gives
people a private right of action at the appropriate U.S. district court for
violations of this section.

v. Sec. 203 & 204: U.S. businesses that runs a search engine or a website
will have to notify the Office of Global Internet Freedom of the content
that they have blocked, restricted, or removed upon the request of the
Internet-restricting country or to comply with the policies of the
Internet-restricting country.

vi. Sec. 206: Lists the penalties that U.S. business can face for violations of
this act.

vii. Sec. 207: The president is allowed to waive the application of this act if a
country ceases restrictive activity, to further the purposes of this Act or
if it is in the national interest of the United States.

• Latest Actions
• 5/6/2009: Referred to the Committee on Foreign Affairs, and in addition to
the Committee on Energy and Commerce, for a period to be subsequently
determined by the Speaker, in each case for consideration of such provisions
as fall within the jurisdiction of the committee concerned.
• 5/6/2009: Referred to House Foreign Affairs
• 5/6/2009: Referred to House Energy and Commerce

• Link: (Bill Summary) http://thomas.loc.gov/cgi-bin/bdquery/z?d111:H.R.2271:


(Full Text) http://www.govtrack.us/congress/billtext.xpd?bill=h111-2271

• Other information:
http://durbin.senate.gov/showRelease.cfm?releaseId=322701

3. Military Extraterritorial Jurisdictional Act (18 USC 3261)

• Became U.S. Law in 2000

• Description of the law:


i. Sec. 3261(a): This act allowed persons who are "employed by or
accompanying the Armed Forces outside of the United States" to be
prosecuted under the Military Extraterritorial Jurisdiction Act of 2000
for any offense that would be punishable by imprisonment for more than
one year if committed within the jurisdiction of the United States.

• Relevant obligations created by the law:

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i. Note that according to Sec. 3267(a), the definition of persons who can be
prosecuted under this Act covers those military contractors and
subcontractors who were previously not included as part of the armed
forces.
ii. Sec. 3261(c): Those who can be prosecuted are still subject to military
tribunals.
iii. Sec. 3262 and 3263: This part allows for the foreign arrest of those
described in Sec. 3261(a) as well as for their removal to appropriate
foreign authorities.
iv. Sec. 3261(b)(1): Those employed by or accompanying the Armed Forces
outside of the United States" can include non-U.S. nationals who are still
potentially subject to criminal prosecution.

• Links: (Full Text) http://uscode.house.gov/download/pls/18C212.txt Or


(Full Text) http://www.pubklaw.com/hi/pl106-523.pdf

4. SEC Issues Interpretive Guidance on Disclosure Related to Business or


Legal Developments Regarding Climate Change

• Issued on January 27, 2010.

• Relevant information from guidelines:


i. Under SEC regulations, companies must disclose information that is
pertinent to investment decisions. This new interpretive guideline is not
law but rather provides what is considered binding guidance on certain
existing disclosure rules that may require a company to disclose the
impact that business or legal developments related to climate change may
have on their corporation.

ii. This requires companies to weigh the impact of climate-change laws and
regulations when assessing what information to include in corporate
filings. For instance, they have to consider whether: 1. international
accords and treaties, 2. indirect effects such as lower demand for goods
that produce greenhouse gases, and 3. physical impacts such as rising sea
levels affecting their business models would trigger disclosure
requirements.

• Links: (Press Release) http://sec.gov/news/press/2010/2010-15.htm


(Interpretive Guidelines) http://www.sec.gov/rules/interp/2010/33-9106.pdf

• Other information:
i. http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aj7R1g1QkI
iQ
ii. http://www.nytimes.com/cwire/2010/01/28/28climatewire-sec-issues-
climate-risk-guidance-despite-tou-27171.html
iii. http://www.corporatecomplianceinsights.com/2010/sec-issues-guidance-
regarding-potential-climate-change-legislation/

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