[House Report 110-776]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-776
======================================================================
REDUCING OVER-CLASSIFICATION ACT OF 2008
_______
July 24, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Thompson of Mississippi, from the Committee on Homeland Security,
submitted the following
R E P O R T
[To accompany H.R. 4806]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security, to whom was referred
the bill (H.R. 4806) to require the Secretary of Homeland
Security to develop a strategy to prevent the over-
classification of homeland security and other information and
to promote the sharing of unclassified homeland security and
other information, and for other purposes, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 4
Background and Need for Legislation.............................. 5
Hearings......................................................... 6
Committee Consideration.......................................... 6
Committee Votes.................................................. 7
Committee Oversight Findings..................................... 7
New Budget Authority, Entitlement Authority, and Tax Expenditures 7
Congressional Budget Office Estimate............................. 7
Statement of General Performance Goals and Objectives............ 9
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 9
Federal Mandates Statement....................................... 10
Advisory Committee Statement..................................... 10
Constitutional Authority Statement............................... 10
Applicability to Legislative Branch.............................. 10
Section-by-Section Analysis of the Legislation................... 10
Changes in Existing Law Made by the Bill, as Reported............ 12
Committee Correspondence......................................... 17
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Reducing Over-Classification Act of
2008''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) A key conclusion in the Final Report of the National
Commission on Terrorist Attacks Upon the United States
(commonly known as the ``9/11 Commission'') was the need to
prevent over-classification by the Federal Government.
(2) The 9/11 Commission and others have observed that the
over-classification of homeland security information interferes
with accurate, actionable, and timely homeland security
information sharing, increases the cost of information
security, and needlessly limits public access to information.
(3) The over-classification problem, which has worsened since
the 9/11 attacks, causes considerable confusion about what
information can be shared with whom both internally at the
Department of Homeland Security and with its external partners.
This problem negatively impacts the dissemination of homeland
security information to the Department's State, local, tribal,
and territorial homeland security and law enforcement partners,
private sector customers, and the public.
(4) Excessive government secrecy stands in the way of a safer
and more secure homeland. This trend is antithetical to the
creation and operation of the information sharing environment
established under section 1016 of the Intelligence Reform and
Terrorism Prevention Act of 2004 (6 U.S.C. 485), and must be
halted and reversed.
(5) To do so, the Department should start with the
understanding that all departmental information that is not
properly classified, or marked as controlled unclassified
information and otherwise exempt from disclosure, should be
made available to members of the public pursuant to section 552
of title 5, United States Code (commonly referred to as the
``Freedom of Information Act'').
(6) The Department should also develop and administer
policies, procedures, and programs that promote compliance with
applicable laws, executive orders, and other authorities
pertaining to the proper use of classification markings and the
United States National Archives and Records Administration
policies implementing them.
SEC. 3. OVER-CLASSIFICATION PREVENTION WITHIN THE DEPARTMENT OF
HOMELAND SECURITY.
Subtitle A of title II of the Homeland Security Act of 2002 (6 U.S.C.
121 et seq.) is amended by adding at the end the following new section:
``SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.
``(a) In General.--The Secretary shall develop and administer
policies, procedures, and programs within the Department to prevent the
over-classification of homeland security information, terrorism
information, weapons of mass destruction information, and other
information within the scope of the information sharing environment
established under section 1016 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (6 U.S.C. 485) that must be disseminated to
prevent and to collectively respond to acts of terrorism. The Secretary
shall coordinate with the Archivist of the United States and consult
with representatives of State, local, tribal, and territorial
government and law enforcement, organizations with expertise in civil
rights, civil liberties, and government oversight, and the private
sector, as appropriate, to develop such policies, procedures, and
programs.
``(b) Requirements.--Not later than one year after the date of the
enactment of the Reducing Over-Classification Act of 2008, the
Secretary, in administering the policies, procedures, and programs
required under subsection (a), shall--
``(1) create, in consultation with the Archivist of the
United States, standard classified and unclassified formats for
finished intelligence products created by the Department,
consistent with any government-wide standards, practices or
procedures for similar products;
``(2) require that all finished intelligence products created
by the Department be simultaneously prepared in the standard
unclassified format, provided that such an unclassified product
would reasonably be expected to be of any benefit to a State,
local, tribal or territorial government, law enforcement agency
or other emergency response provider, or the private sector,
based on input provided by the Interagency Threat Assessment
and Coordination Group Detail established under section 210D;
``(3) ensure that such policies, procedures, and programs
protect the national security as well as the information
privacy rights and legal rights of United States persons
pursuant to all applicable law and policy, including the
privacy guidelines for the information sharing environment
established pursuant to section 1016 of the Intelligence Reform
and Terrorism Prevention Act of 2004 (6 U.S.C. 485), as
appropriate;
``(4) establish an ongoing auditing mechanism administered by
the Inspector General of the Department or other appropriate
senior Department official that randomly selects, on a periodic
basis, classified information from each component of the
Department that generates finished intelligence products to--
``(A) assess, on an individualized basis, whether
applicable classification policies, procedures, rules,
and regulations have been followed;
``(B) describe any problems with the administration
of the applicable classification policies, procedures,
rules, and regulations, including specific non-
compliance issues;
``(C) recommend improvements in awareness and
training to address them; and
``(D) report at least annually to the Committee on
Homeland Security of the House of Representatives, the
Committee on Homeland Security and Governmental Affairs
of the Senate, and the public, in an appropriate
format, on the findings of the Inspector General's
audits under this section;
``(5) establish a process whereby employees may challenge
original classification decisions made by Department employees
or contractors and be rewarded with specific incentives for
successful challenges resulting in the removal of
classification markings or the downgrading of them;
``(6) inform employees and contractors that failure to comply
with the policies, procedures, and programs established under
this section could subject them to a series of penalties; and
``(7) institute a series of penalties for employees and
contractors who repeatedly fail to comply with the policies,
procedures, and programs established under this section after
having received both notice of their noncompliance and
appropriate training or re-training to address such
noncompliance.
``(c) Finished Intelligence Product Defined.--The term `finished
intelligence product' means a document in which an intelligence analyst
has evaluated, interpreted, integrated, or placed into context raw
intelligence or information.''.
SEC. 4. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION WITHIN THE
DEPARTMENT OF HOMELAND SECURITY.
Subtitle A of title II of the Homeland Security Act of 2002 (6 U.S.C.
121 et seq.) is further amended by adding at the end the following new
section:
``SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION PROGRAMS.
``(a) Personal Identifiers.--The Secretary shall--
``(1) assess the technologies available or in use at the
Department by which an electronic personal identification
number or other electronic identifying marker can be assigned
to each Department employee and contractor with original
classification authority in order to--
``(A) track which documents have been classified by a
particular employee or contractor;
``(B) determine the circumstances when such documents
have been shared;
``(C) identify and address over-classification
problems, including the misapplication of
classification markings to documents that do not merit
such markings; and
``(D) assess the information sharing impact of any
such problems or misuse;
``(2) develop an implementation plan for a Department
standard for such technology with appropriate benchmarks, a
timetable for its completion, and cost estimate for the
creation and implementation of a system of electronic personal
identification numbers or other electronic identifying markers
for all relevant Department employees and contractors; and
``(3) upon completion of the implementation plan described in
paragraph (2), or not later than 180 days after the date of the
enactment of the Reducing Over-Classification Act of 2008,
whichever is earlier, the Secretary shall provide a copy of the
plan to the Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security and
Governmental Affairs of the Senate.
``(b) Training.--The Secretary, in coordination with the Archivist of
the United States, shall--
``(1) require annual training for each Department employee
and contractor with classification authority and who are
responsible for analysis, dissemination, preparation,
production, receiving, publishing, or otherwise communicating
written classified information, including training to--
``(A) educate each employee and contractor about--
``(i) the Department's requirement that all
classified finished intelligence products that
they create be simultaneously prepared in
unclassified form in a standard format
prescribed by the Department, provided that the
unclassified product would reasonably be
expected to be of any benefit to a State,
local, tribal, or territorial government, law
enforcement agency, or other emergency response
provider, or the private sector, based on input
provided by the Interagency Threat Assessment
and Coordination Group Detail established under
section 210D;
``(ii) the proper use of classification
markings, including portion markings; and
``(iii) the consequences of over-
classification and other improper uses of
classification markings, including the
misapplication of classification markings to
documents that do not merit such markings, and
of failing to comply with the Department's
policies and procedures established under or
pursuant to this section, including the
negative consequences for the individual's
personnel evaluation, homeland security,
information sharing, and the overall success of
the Department's missions;
``(B) serve as a prerequisite, once completed
successfully, as evidenced by an appropriate
certificate, for--
``(i) obtaining classification authority; and
``(ii) renewing such authority annually; and
``(C) count as a positive factor, once completed
successfully, in the Department's employment,
evaluation, and promotion decisions; and
``(2) ensure that such program is conducted efficiently, in
conjunction with any other security, intelligence, or other
training programs required by the Department to reduce the
costs and administrative burdens associated with the additional
training required by this section.
``(c) Detailee Program.--The Secretary shall--
``(1) implement a Departmental detailee program to detail
Departmental personnel to the National Archives and Records
Administration for one year, for the purpose of--
``(A) training and educational benefit for the
Department personnel assigned so that they may better
understand the policies, procedures and laws governing
original classification authorities;
``(B) bolstering the ability of the National Archives
and Records Administration to conduct its oversight
authorities over the Department and other Departments
and agencies; and
``(C) ensuring that the policies and procedures
established by the Secretary remain consistent with
those established by the Archivist of the United
States;
``(2) ensure that the program established under paragraph (1)
includes at least one individual for each Department office
with delegated original classification authority; and
``(3) in coordination with the Archivist of the United
States, report to Congress not later than 90 days after the
conclusion of the first year of the program established under
paragraph (1), on--
``(A) the advisability of expanding the program on a
government-wide basis, whereby other departments and
agencies would send detailees to the National Archives
and Records Administration; and
``(B) the administrative and monetary costs of full
compliance with this section.
``(d) Sunset of Detailee Program.--Except as otherwise provided by
law, subsection (c) shall cease to have effect on December 31, 2012.
``(e) Finished Intelligence Product Defined.--The term `finished
intelligence product' has the meaning given the term in section
210F(c).''.
SEC. 5. TECHNICAL AMENDMENT.
The table of contents in section 1(b) of the Homeland Security Act of
2002 (6 U.S.C. 101(b)) is amended by adding after the item relating to
section 210E the following new items:
``Sec. 210F. Over-classification prevention program.
``Sec. 210G. Enforcement of over-classification prevention programs.''.
Purpose and Summary
The purpose of H.R. 4806 is to require the Secretary of
Homeland Security to develop a strategy to prevent the over-
classification of homeland security and other information and
to promote the sharing of unclassified homeland security and
other information, and for other purposes.
Background and Need for Legislation
The Final Report of the National Commission on Terrorist
Attacks Upon the United States, commonly known as the ``9/11
Commission Report'', found that the Federal Intelligence
Community's information security policies and practices impeded
the kinds of robust information sharing required to prevent and
otherwise prepare for terrorist attacks. Specifically, it found
that security requirements nurtured over-classification and
excessive compartmentation of information among agencies in
several respects: (1) each agency's incentive structure opposed
sharing, with clear risks but few rewards for sharing
information; (2) no one had to pay the long term costs of over-
classifying information, though this cost is substantial; (3)
there were no punishments for not sharing information; and (4)
agencies upheld a ``need-to-know'' culture of information
protection rather than promoting a ``need-to-share'' culture of
integration. While some progress has been made, more work needs
to be done within Federal agencies to ensure that over-
classification truly becomes a thing of the past.
Over-classification can be defined as the automatic
decision to classify government information rather than the
informed, deliberative process outlined under Executive Order
12958, as amended by E.O. 13292. Since 1940, classification of
official secrets has been governed by policies and procedures
flowing from this Executive Order. In the years since the
attacks of September 11, 2001, the tension between the need to
protect certain types of highly sensitive information and the
need to share such information with people or entities with a
need to know has grown considerably. Security concerns after
the attacks prompted some agencies and departments to increase
the categories and volume of information shielded from public
view by using Confidential, Secret, or Top Secret security
classification markings.
The Information Security Oversight Office (ISOO) within the
National Archives and Records Administration (NARA) is
responsible for Executive Branch oversight of security
classification matters. The 2005 ISOO Report to the President
noted that there were eight million new classification actions
in 2001, which jumped to over 14 million new actions in 2005,
while the quantity of declassified pages dropped from 100
million in 2001 to 29 million in 2005. The ISOO also identified
the cost of over-classification as a problem: while $4.5
billion was spent on classification in 2001, this figure
increased to $7.1 billion in 2004. Declassification costs, by
contrast, fell from $232 million in 2001 to $48.3 million in
2004.
This continuing trend is an obstacle to accurate,
actionable, and timely information sharing across the Federal
Government and with its State, local, and tribal partners--
including with the Department of Homeland Security's partners
in the law enforcement and wider first responder communities.
Unless and until the Nation has a robust intelligence and
information sharing system in place, with a clear and
understandable system of classification, it will be unable to
prevent a terrorist attack on the scale of 9/11 or greater. The
Subcommittee on Intelligence, Information Sharing and Terrorism
Risk Assessment accordingly focused its efforts during the
110th Congress on addressing the over-classification problem
and improving the Department's information sharing with the
Nation's ``first preventers''--the police and sheriffs'
officers that bring homeland security to America's hometowns.
H.R. 4806 is the culmination of that oversight work and
promises to make the Department the ``gold standard'' within
the Federal Intelligence Community when it comes to compliance
with applicable classification law, executive orders, and other
relevant authorities--promoting more and better information
sharing in the process.
Hearings
No hearings were held on H.R. 4806, however, the Committee
held oversight hearings on over-classification.
On March 22, 2007, the Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment held a
hearing entitled ``Over-classification and Pseudo-
classification: The Impact on Information Sharing.'' The
Subcommittee received testimony from Mr. J. William Leonard,
Director, Information Security Oversight Office, National
Archives and Records Administration, Mr. Scott Armstrong,
Founder, Information Trust, Ms. Meredith Fuchs, General
Counsel, The National Security Archive, George Washington
University, Chief Cathy L. Lanier, Metropolitan Police
Department, Washington, D.C., and Mr. Michael P. Downing,
Assistant Commanding Officer, Counter-Terrorism/Criminal
Intelligence Bureau, Los Angeles Police Department.
On April 26, 2007, the Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment held a
hearing entitled ``The Over-Classification and Pseudo-
Classification of Government Information: The Response of the
Program Manager of the Information Sharing Environment.'' The
Subcommittee received testimony from Ambassador Thomas E.
McNamara, Program Manager, Information Sharing Environment,
Office of the Director of National Intelligence; Carter Morris,
Ph.D., Director, Informational Sharing and Knowledge
Management, Office of Intelligence and Analysis, Department of
Homeland Security; Mr. Wayne M. Murphy, Assistant Director,
Directorate of Intelligence, Federal Bureau of Investigation,
Department of Justice, Colonel Bart R. Johnson, New York State
Police; and Mr. Mark Zadra, Assistant Commissioner, Florida
Department of Law Enforcement.
On June 28, 2007, the Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment held a
hearing entitled ``Over-Classification and Pseudo-
Classification: Making DHS the Gold Standard for Designating
Classified and Sensitive Homeland Security Information.'' The
Subcommittee received testimony from Mr. J. William Leonard,
Director, Information Security Oversight Office, National
Archives and Record Administration; Mr. Scott Armstrong,
Founder, Information Trust; Ms. Suzanne E. Spaulding,
Principal, Bingham Consulting Group, LLC; and Mr. Mark Agrast,
Senior Fellow, Center for American Progress.
Committee Consideration
H.R. 4806 was introduced in the House on December 18, 2007,
by Ms. Harman and 13 original co-sponsors and referred solely
to the Committee on Homeland Security. Within the Committee,
H.R. 4806 was referred to the Subcommittee on Intelligence,
Information Sharing, and Terrorism Risk Assessment.
The Subcommittee on Intelligence, Information Sharing, and
Terrorism Risk Assessment considered H.R. 4806 on June 11,
2008, and ordered the measure favorably forwarded to the Full
Committee for consideration, amended, by unanimous consent.
The Subcommittee adopted the bill, as amended, by unanimous
consent.
The following amendment was offered:
An Amendment in the Nature of a Substitute offered by
Ms. Harman (#1), was AGREED TO by unanimous consent.
The Committee considered H.R. 4806 on June 26, 2008 and
ordered the measure to be reported to the House favorably, as
amended, by voice vote.
The Committee adopted the measure, as amended, by unanimous
consent.
The following amendment was offered:
An Amendment in the Nature of a Substitute offered by
Ms. Harman (#1); was AGREED TO by unanimous consent.
Committee Votes
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires the Committee to list the recorded
votes on the motion to report legislation and amendments
thereto.
No recorded votes were requested during Committee
consideration.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee has held oversight
hearings and made findings that are reflected in this report.
New Budget Authority, Entitlement Authority, and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the
Rules of the House of Representatives, the Committee finds that
H.R. 4806, the Reducing Over-Classification Act of 2007, would
result in no new or increased budget authority, entitlement
authority, or tax expenditures or revenues.
Congressional Budget Office Estimate
The Committee adopts as its own the cost estimate prepared
by the Director of the Congressional Budget Office pursuant to
section 402 of the Congressional Budget Act of 1974.
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 10, 2008.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 4806, the Reducing
Over-Classification Act of 2008.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jason
Wheelock.
Sincerely,
Robert A. Sunshine
(For Peter R. Orszag, Director).
Enclosure.
H.R. 4806--Reducing Over-Classification Act of 2008
H.R. 4806 would make several amendments to the Homeland
Security Act of 2002 designed to expand the amount of homeland
security and intelligence information that the Department of
Homeland Security (DHS) shares with state and local
governments, law enforcement agencies, emergency response
providers, and private-sector organizations. This information
sharing would be accomplished by minimizing the number of
documents DHS determines to be classified, and providing
classified intelligence products in an unclassified format when
such intelligence products would benefit those entities. The
bill also would require periodic auditing of classified
information to assess compliance with classification policies
and training for DHS employees on those new requirements.
H.R. 4806 also would require DHS to assess technologies
that would allow the department to track the classification and
sharing of classified documents, and develop a plan for
implementing such technologies. Since the bill would not
require DHS to deploy such technologies, this estimate does not
include implementation costs. However, based on information
from DHS and the Office of the Director of National
Intelligence, CBO anticipates that such costs could be
significant.
DHS would incur small incremental costs related to the
periodic auditing of classified documents and the additional
training that would be required by the bill. Since DHS already
conducts compliance reviews to determine whether documents are
properly classified and has an annual training program for its
employees, CBO anticipates that the cost of implementing H.R.
4806 would be less than $500,000 a year, assuming the
availability of appropriated funds. Enacting the legislation
would not affect direct spending or revenues.
H.R. 4806 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Jason Wheelock.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Statement of General Performance Goals and Objectives
Pursuant to clause 3(c)(4) of rule XIII of the Rules of the
House of Representatives, H.R. 4806, contains the following
general performance goals, and objectives, including outcome
related goals and objectives authorized.
The only way to ensure that accurate, actionable, and
timely classified homeland security information is shared
between the Federal Government and its State, local, tribal,
and private sector partners is to create a classification
system that is enforceable, understandable, and applicable to
everyone. Almost seven years after the attacks of September 11,
2001, the Nation should be treating far less information as
classified and instead should be making fixing the problem of
over-classification a top priority. A recurrent theme
throughout the Final Report of the National Commission on
Terrorist Attacks Upon the United States (9/11 Commission
Report) was the need to address the persistent problem of over-
classification in order to remove a major stumbling block to
preventing, preparing for, and responding to terrorist attacks.
While a Government-wide solution would be beneficial, the
Department of Homeland Security is an excellent place to start
making changes. Through the policies, procedures, and programs
established in H.R. 4806, the Department will become a ``best
practices'' center for fixing the problems of the past and a
test bed for the rest of the Federal Government.
The goals of this measure are to ensure that Department
employees and contractors apply the existing classification
regime in strict accordance with applicable law, executive
orders, and other authorities. This approach will help prevent
over-classification and maximize the disclosure of homeland
security and other information within the scope of the
Information Sharing Environment that must be disseminated to
prevent and to collectively respond to acts of terrorism. To
facilitate this change, this measure will accomplish several
key objectives: (1) promote a common understanding among
Department employees and contractors that classified markings
are not to be used to protect political turf or to hide
embarrassing facts from public view; (2) develop best practices
that ensure that Department classification practice adheres to
applicable laws, executive orders, and other relevant
authorities; (3) promote a variety of accountability measures
that identifies over-classification problems and their sources
and recommend and implement strategies to address them; and (4)
bolster public confidence in the Department's information
sharing mission through these and other measures that promote
accountability, integrity, and transparency across the
Department.
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits
In compliance with rule XXI of the Rules of the House of
Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule
XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act.
Advisory Committee Statement
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of rule XIII of the Rules of the
House of Representatives, the Committee finds that the
Constitutional authority for this legislation is provided in
Article I, section 8, clause 1, which grants Congress the power
to provide for the common Defense of the United States.
Applicability to Legislative Branch
The Committee finds that the legislation does not relate
to the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act.
Section-by-Section Analysis of the Legislation
Section 1. Short title
This section states that that this measure may be cited as
the ``Reducing Over-Classification Act of 2008''.
Section 2. Findings
This section outlines a series of Congressional findings,
including: (1) over-classification of homeland security
information interferes with information sharing; increases the
cost of information security; and needlessly limits public
access to information; (2) this trend stands in the way of a
safer homeland and must be halted and reversed; (3)
accordingly, the Department of Homeland Security should start
with the understanding that information that is not properly
classified--or otherwise exempt from disclosure--should be made
publicly available pursuant to an appropriate Freedom of
Information Act (FOIA) request; and (4) the Department should
develop and administer policies, procedures and programs that
promote compliance with applicable laws, executive orders, and
other authorities pertaining to the proper use of
classification markings.
Section 3. Over-classification prevention within the Department of
Homeland Security
This section modifies title II of the Homeland Security Act
of 2002 (P.L. 107-296) to require the Secretary of Homeland
Security to develop and administer policies, procedures and
programs to prevent the over-classification of homeland
security information and other information that must be
disseminated to prevent and to collectively respond to acts of
terrorism. This section requires the Secretary to coordinate
this work with the Archivist of the United States and to
consult with organizations with expertise in civil rights,
civil liberties, and governmental oversight.
This section further modifies title II of the Homeland
Security Act of 2002 to require the Secretary, in administering
the policies, procedures, and programs required under this
section, to (1) create standard classified and unclassified
formats for Finished Intelligence Products; (2) require the use
of the standard unclassified format when an unclassified
version of classified information would be helpful to America's
first preventers; (3) ensure that not only the national
security but also the privacy and other legal rights of United
States persons are protected as part of the enforcement of the
aforementioned policies, procedures, and programs; (4)
establish, within one year of enactment, an ongoing auditing
mechanism administered by the Department of Homeland Security's
Inspector General to ensure that, among other things, over-
classification prevention policies, procedures, rules and
regulations are being followed by all Department employees and
contractors; and (5) report to the Committee on Homeland
Security of the House of Representatives, the Committee on
Homeland Security and Governmental Affairs of the Senate, and
the public, in an appropriate format, on the findings of the
Department's Inspector General about whether these policies,
procedures, rules, and regulations are being followed,
identifying any problems in this regard, and recommending
improvements to address any such problems.
This section further modifies title II of the Homeland
Security Act of 2002 to require the Secretary to establish a
process to reward Department personnel for successful
challenges to classification decisions resulting in the removal
of classification markings or the downgrading of them. This
section requires the Secretary to institute a series of
penalties for Department personnel who repeatedly fail to
comply with applicable over-classification prevention policies,
procedures, rules, and regulations after having received notice
of their non-compliance and appropriate training or re-training
to address such noncompliance.
Section 4. Enforcement of over-classification prevention within the
Department of Homeland Security
This section modifies title II of the Homeland Security Act
of 2002 (P.L. 107-296) to require the Secretary of Homeland
Security to assess technologies available or already in use at
the Department of Homeland Security by which an electronic
personal identification number or other electronic identifying
marker can be assigned to each Department employee or
contractor with classification authority in order to track
which documents have been classified by a particular employee;
identify and address over-classification problems; and assess
the information sharing impact of any such problems or misuse.
This section requires the Secretary to develop an
implementation plan for such technology at the Department and
to establish a deadline for it.
This section further modifies title II of the Homeland
Security Act of 2002 to require the Secretary to (1) develop a
training program for the proper use of classification markings
for all employees and contractors who have classification
authority and who are responsible for analysis, dissemination,
preparation, producing, receiving, publishing, or otherwise
communicating written classified information; and (2)
coordinate with the Archivist of the United States in
developing this training program. This section clarifies that
such training (1) must address the proper formats for finished
intelligence products and the consequences of over-
classification and other improper uses of classification
markings; and (2) serves as a prerequisite for obtaining
classification authority and renewing such authority annually.
This section further modifies title II of the Homeland
Security Act of 2002 to require the Secretary to establish a
detailee program with the United States National Archives and
Records Administration (NARA) that will, among other things,
train Department personnel about the policies, procedures, and
laws governing original classification authorities; bolster
NARA's ability to conduct oversight over the Department; and
ensure that Department policies are consistent with those
established by the Archivist of the United States.
Section 5. Definitions
This section defines terms used in this measure.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) * * *
(b) Table of Contents.--The table of contents for this Act is
as follows:
* * * * * * *
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Information and Analysis and Infrastructure Protection;
Access to Information
* * * * * * *
Sec. 210F. Over-classification prevention program.
Sec. 210G. Enforcement of over-classification prevention programs.
* * * * * * *
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Information and Analysis and Infrastructure Protection;
Access to Information
* * * * * * *
SEC. 210F. OVER-CLASSIFICATION PREVENTION PROGRAM.
(a) In General.--The Secretary shall develop and administer
policies, procedures, and programs within the Department to
prevent the over-classification of homeland security
information, terrorism information, weapons of mass destruction
information, and other information within the scope of the
information sharing environment established under section 1016
of the Intelligence Reform and Terrorism Prevention Act of 2004
(6 U.S.C. 485) that must be disseminated to prevent and to
collectively respond to acts of terrorism. The Secretary shall
coordinate with the Archivist of the United States and consult
with representatives of State, local, tribal, and territorial
government and law enforcement, organizations with expertise in
civil rights, civil liberties, and government oversight, and
the private sector, as appropriate, to develop such policies,
procedures, and programs.
(b) Requirements.--Not later than one year after the date of
the enactment of the Reducing Over-Classification Act of 2008,
the Secretary, in administering the policies, procedures, and
programs required under subsection (a), shall--
(1) create, in consultation with the Archivist of the
United States, standard classified and unclassified
formats for finished intelligence products created by
the Department, consistent with any government-wide
standards, practices or procedures for similar
products;
(2) require that all finished intelligence products
created by the Department be simultaneously prepared in
the standard unclassified format, provided that such an
unclassified product would reasonably be expected to be
of any benefit to a State, local, tribal or territorial
government, law enforcement agency or other emergency
response provider, or the private sector, based on
input provided by the Interagency Threat Assessment and
Coordination Group Detail established under section
210D;
(3) ensure that such policies, procedures, and
programs protect the national security as well as the
information privacy rights and legal rights of United
States persons pursuant to all applicable law and
policy, including the privacy guidelines for the
information sharing environment established pursuant to
section 1016 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (6 U.S.C. 485), as appropriate;
(4) establish an ongoing auditing mechanism
administered by the Inspector General of the Department
or other appropriate senior Department official that
randomly selects, on a periodic basis, classified
information from each component of the Department that
generates finished intelligence products to--
(A) assess, on an individualized basis,
whether applicable classification policies,
procedures, rules, and regulations have been
followed;
(B) describe any problems with the
administration of the applicable classification
policies, procedures, rules, and regulations,
including specific non-compliance issues;
(C) recommend improvements in awareness and
training to address them; and
(D) report at least annually to the Committee
on Homeland Security of the House of
Representatives, the Committee on Homeland
Security and Governmental Affairs of the
Senate, and the public, in an appropriate
format, on the findings of the Inspector
General's audits under this section;
(5) establish a process whereby employees may
challenge original classification decisions made by
Department employees or contractors and be rewarded
with specific incentives for successful challenges
resulting in the removal of classification markings or
the downgrading of them;
(6) inform employees and contractors that failure to
comply with the policies, procedures, and programs
established under this section could subject them to a
series of penalties; and
(7) institute a series of penalties for employees and
contractors who repeatedly fail to comply with the
policies, procedures, and programs established under
this section after having received both notice of their
noncompliance and appropriate training or re-training
to address such noncompliance.
(c) Finished Intelligence Product Defined.--The term
``finished intelligence product'' means a document in which an
intelligence analyst has evaluated, interpreted, integrated, or
placed into context raw intelligence or information.
SEC. 210G. ENFORCEMENT OF OVER-CLASSIFICATION PREVENTION PROGRAMS.
(a) Personal Identifiers.--The Secretary shall--
(1) assess the technologies available or in use at
the Department by which an electronic personal
identification number or other electronic identifying
marker can be assigned to each Department employee and
contractor with original classification authority in
order to--
(A) track which documents have been
classified by a particular employee or
contractor;
(B) determine the circumstances when such
documents have been shared;
(C) identify and address over-classification
problems, including the misapplication of
classification markings to documents that do
not merit such markings; and
(D) assess the information sharing impact of
any such problems or misuse;
(2) develop an implementation plan for a Department
standard for such technology with appropriate
benchmarks, a timetable for its completion, and cost
estimate for the creation and implementation of a
system of electronic personal identification numbers or
other electronic identifying markers for all relevant
Department employees and contractors; and
(3) upon completion of the implementation plan
described in paragraph (2), or not later than 180 days
after the date of the enactment of the Reducing Over-
Classification Act of 2008, whichever is earlier, the
Secretary shall provide a copy of the plan to the
Committee on Homeland Security of the House of
Representatives and the Committee on Homeland Security
and Governmental Affairs of the Senate.
(b) Training.--The Secretary, in coordination with the
Archivist of the United States, shall--
(1) require annual training for each Department
employee and contractor with classification authority
and who are responsible for analysis, dissemination,
preparation, production, receiving, publishing, or
otherwise communicating written classified information,
including training to--
(A) educate each employee and contractor
about--
(i) the Department's requirement that
all classified finished intelligence
products that they create be
simultaneously prepared in unclassified
form in a standard format prescribed by
the Department, provided that the
unclassified product would reasonably
be expected to be of any benefit to a
State, local, tribal, or territorial
government, law enforcement agency, or
other emergency response provider, or
the private sector, based on input
provided by the Interagency Threat
Assessment and Coordination Group
Detail established under section 210D;
(ii) the proper use of classification
markings, including portion markings;
and
(iii) the consequences of over-
classification and other improper uses
of classification markings, including
the misapplication of classification
markings to documents that do not merit
such markings, and of failing to comply
with the Department's policies and
procedures established under or
pursuant to this section, including the
negative consequences for the
individual's personnel evaluation,
homeland security, information sharing,
and the overall success of the
Department's missions;
(B) serve as a prerequisite, once completed
successfully, as evidenced by an appropriate
certificate, for--
(i) obtaining classification
authority; and
(ii) renewing such authority
annually; and
(C) count as a positive factor, once
completed successfully, in the Department's
employment, evaluation, and promotion
decisions; and
(2) ensure that such program is conducted
efficiently, in conjunction with any other security,
intelligence, or other training programs required by
the Department to reduce the costs and administrative
burdens associated with the additional training
required by this section.
(c) Detailee Program.--The Secretary shall--
(1) implement a Departmental detailee program to
detail Departmental personnel to the National Archives
and Records Administration for one year, for the
purpose of--
(A) training and educational benefit for the
Department personnel assigned so that they may
better understand the policies, procedures and
laws governing original classification
authorities;
(B) bolstering the ability of the National
Archives and Records Administration to conduct
its oversight authorities over the Department
and other Departments and agencies; and
(C) ensuring that the policies and procedures
established by the Secretary remain consistent
with those established by the Archivist of the
United States;
(2) ensure that the program established under
paragraph (1) includes at least one individual for each
Department office with delegated original
classification authority; and
(3) in coordination with the Archivist of the United
States, report to Congress not later than 90 days after
the conclusion of the first year of the program
established under paragraph (1), on--
(A) the advisability of expanding the program
on a government-wide basis, whereby other
departments and agencies would send detailees
to the National Archives and Records
Administration; and
(B) the administrative and monetary costs of
full compliance with this section.
(d) Sunset of Detailee Program.--Except as otherwise provided
by law, subsection (c) shall cease to have effect on December
31, 2012.
(e) Finished Intelligence Product Defined.--The term
``finished intelligence product'' has the meaning given the
term in section 210F(c).
* * * * * * *