HR 4806 IH
110th CONGRESS 1st Session 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. IN THE HOUSE OF REPRESENTATIVES
December 18, 2007
Ms. HARMAN (for herself, Mrs. LOWEY, Mr. LANGEVIN, Mr. MARKEY, Mrs. CHRISTENSEN, Mr. PERLMUTTER, Ms. LORETTA SANCHEZ of California, Ms. ZOE LOFGREN of California, Ms. NORTON, Mr. DICKS, Mr. CARNEY, Ms. CLARKE, Ms. JACKSON-LEE of Texas, and Mr. ETHERIDGE) introduced the following bill; which was referred to the Committee on Homeland Security
A BILL 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.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Reducing Over-Classification Act of 2007'.
SEC. 2. DEPARTMENT OF HOMELAND SECURITY STRATEGY ON OVER-CLASSIFICATION.
(a) In General- 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. DEPARTMENT OF HOMELAND SECURITY STRATEGY ON OVER-CLASSIFICATION.
`(a) In General- The Secretary of Homeland Security or the Secretary's designee shall develop and implement a Department-wide strategy to prevent the over-classification of 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), including homeland security information, terrorism information, and weapons of mass destruction information, that includes a sensitive and shared information program for the creation and sharing of unclassified information of a sensitive nature.
`(b) Strategy- The strategy developed under subsection (a) shall--
`(1) foster sharing of homeland security information, terrorism information, and weapons of mass destruction information at the Department;
`(2) require that--
`(A) all intelligence documents and other information created by the Department be initially prepared in unclassified form before any version of those documents is created that is in classified form;
`(B) if there is significant doubt about the need to classify information, the information not be classified;
`(C) if there is significant doubt about the appropriate level of classification of information, the information be classified at the lower level;
`(D) documents only be classified for the limited purpose of protecting sensitive intelligence sources or methods; and
`(E) classified intelligence documents and other information be declassified as soon as they no longer meet the criteria for classification;
`(3) include a sensitive and shared information program that--
`(A) ensures that sensitive and unclassified information can be shared across the Department and with State, local, and tribal governments and the private sector as needed;
`(B) ensures that the Department can protect sensitive information and the information privacy rights and other legal rights of United States persons;
`(C) ensures that there are a minimal number of categories and corresponding markings and that such markings are--
`(i) defined by the Secretary for use in all Department components;
`(ii) designed to allow wide information sharing to appropriate audiences as defined by the Secretary;
`(iii) used only upon an affirmative showing, applying standards clearly defined and explained by the Secretary, that the security need for a marking outweighs the public interest in disclosure; and
`(iv) of limited duration not to exceed 90 days unless an affirmative showing as described in subparagraph (iii) is made that an extension, of similar limited duration, is warranted;
`(D) includes processes by which--
`(i) Department personnel, personnel of other Departments and agencies of the Federal Government, or the public may challenge the appropriateness of a marking on a document and seek the removal of the marking; and
`(ii) documents with expired markings that have not been extended are systematically generated in an unclassified format without the marking; and
`(E) supercedes any existing policies and procedures relating to the creation, control, and sharing of unclassified information of a sensitive nature;
`(4) include a system of financial and other incentives and disincentives to encourage Department personnel to use classified and sensitive and shared information program markings properly, including incentives and disincentives that impact the career advancement potential and bonus eligibility of an employee;
`(5) include a training program for each Department employee and contractor who analyzes, disseminates, prepares, produces, receives, publishes, or otherwise communicates information within the scope of the information sharing environment that educates personnel about--
`(A) the Department's format for intelligence and other information products, including the requirements under paragraph (2);
`(B) the proper use of classification markings, including portion markings, and sensitive and shared information program markings;
`(C) the consequences of improperly using classification markings and of failing to use the Department's format for intelligence and other information products, including the negative consequences for homeland security, information sharing, and the overall success of the Department's missions;
`(D) the incentives and disincentives referred to in paragraph (4); and
`(E) procedures for making classification challenges and requests for declassification;
`(6) include policies and procedures designed to encourage Departments and agencies that provide intelligence and other information to the Department to provide such intelligence or other information--
`(A) in an unclassified form that meets the Department's intelligence and information requirements while indicating the level of confidence that the Department or agency sharing the information has in the unclassified product;
`(B) if necessary, in a form with unclassified information contained at the beginning of the document and the classified portion of the document at the end of the document; and
`(C) if necessary, with a sensitive and shared information marking that complies with the program referred to in paragraph (3);
`(7) include an ongoing auditing mechanism administered by a designee of the Secretary or the Secretary's designee referred to in subsection (a) that randomly selects classified and sensitive and shared information program materials from all relevant components of the Department to--
`(A) assess whether applicable classification and sensitive and shared information program policies, procedures, rules, and regulations have been followed;
`(B) describe for managers and other supervisory personnel any problem trends with over-classification and abuse of sensitive and shared information program markings and recommend improvements in awareness and training to address such trends; and
`(C) identify individual employees who require re-training, notify such employees and the managers and other supervisors of such employees of the need for such re-training, and record subsequent re-training by such employees in the personnel file of such employees;
`(8) include the creation of an independent Department classification review board to--
`(A) ensure that intelligence and other information is declassified as soon as it no longer meets classification criteria;
`(B) facilitate and review requests for declassification and classification challenges;
`(C) review Department policies, procedures, and practices that foster the goals of the strategy; and
`(D) make recommendations for improvements to such policies, procedures, and practices;
`(9) include an assessment of 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 with classification authority or authority to use sensitive and shared information program markings--
`(A) to track which, when, and how many documents have been classified or marked as sensitive and shared information by a particular employee;
`(B) to determine with whom and how often any such documents have been shared;
`(C) to address any over-classification problems or abuse of the sensitive and shared information program;
`(D) to assess the information sharing impact of any such problems or abuse; and
`(E) including a cost estimate for implementing any such technologies on a Department-wide basis and an implementation plan for adopting such technologies; and
`(10) apply to all personnel and contractors of the Department.
`(c) Initial Report; Implementation- Not later than 90 days after the date of the enactment of this section, the Secretary shall--
`(1) submit to Congress a report that includes--
`(A) the strategy developed under subsection (a);
`(B) an indication of which parts of the strategy can be accomplished without the enactment of legislation and which cannot; and
`(C) recommendations for the enactment of legislation to accomplish the parts of the strategy that the Secretary indicates require the enactment of legislation; and
`(2) begin implementation of the parts of the strategy that the Secretary indicates in accordance with paragraph (1) can be accomplished without the enactment of legislation.
`(d) Subsequent Reports- The Secretary shall annually submit to Congress an update on the implementation of the strategy developed under subsection (a) with the President's budget submission for each fiscal year pursuant to section 1105 of title 31, United States Code.
`(e) Annual Audit by Inspector General-
`(1) IN GENERAL- The Inspector General of the Department shall conduct an annual audit of the strategy developed and implemented under subsection (a) to--
`(A) determine whether policies, procedures, rules, and regulations pertaining to classified and sensitive and shared information have been followed; and
`(B) track the progress of the Department in implementing the strategy over time on a component by component basis.
`(2) REPORT- Not later than 60 days after the completion of an audit under paragraph (1), the Inspector General of the Department shall submit to Congress a report on the audit and recommendations for improvement of the strategy and the implementation of the strategy.
`(f) Definitions- In this section:
`(1) INFORMATION SHARING ENVIRONMENT- The term `information sharing environment' means the information sharing environment established pursuant to section 1016(b) of the Intelligence Reform and Terrorism Prevention Act of 2004 (6 U.S.C. 485(b)).
`(2) SENSITIVE AND SHARED INFORMATION- The term `sensitive and shared information' means unclassified information that does not meet the standards for classification under Executive Order 12958 (or any succeeding executive order) but is pertinent to the national interests of the United States or to the important interests of entities outside the Federal Government and requires protection from unauthorized disclosure, special handling safeguards, or prescribed limits on exchange or dissemination.'.
(b) Conforming Amendment- The table of contents in section 1(b) of such Act (6 U.S.C. 101(b)) is amended by inserting after the item relating to section 210E the following new item:
`Sec. 210F. Department of Homeland Security strategy on over-classification.'.