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Ref Book - Privacy Act

Privacy Act


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Section 552a of Title 5, United States Code (The “Privacy Act”)

SECTION 552a. RECORDS MAINTAINED ON INDIVIDUALS

(a) DEFINITIONS.—For purposes of this section—

(1) the term “agency” means agency as defined in section 552(e) of this title;
(2) the term “individual” means a citizen of the United States or an alien lawfully admitted for permanent residence;
(3) the term “maintain” includes maintain, collect, use, or disseminate;
(4) the term “record” means any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph;
(5) the term “system of records” means a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual;
(6) the term “statistical record” means a record in a system of records maintained for statistical research or reporting purposes only and not used in whole or in part in making any determination about an identifiable individual, except as provided by section 8 of title 13;
(7) the term “routine use” means, with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected;
(8) the term “matching program”—


(A) means any computerized comparison of—

(i) two or more automated systems of records or a system of records with non-Federal records for the purpose of—
(I) establishing or verifying the eligibility of, or continuing compliance with statutory and regulatory requirements by, applicants for, recipients or beneficiaries of, participants in, or providers of services with respect to, cash or in-kind assistance or payments under Federal benefit programs, or
(II) recouping payments or delinquent debts under such Federal benefit programs, or
(ii) two or more automated Federal personnel or payroll systems of records or a system of Federal personnel or payroll records with non-Federal records,

(B) but does not include—

(i) matches performed to produce aggregate statistical data without any personal identifiers;
(ii) matches performed to support any research or statistical project, the specific data of which may not be used to make decisions concerning the rights, benefits, or privileges of specific individuals;
(iii) matches performed, by an agency (or component thereof) which performs as its principal function any activity pertaining to the enforcement of criminal laws, subsequent to the initiation of a specific criminal or civil law enforcement investigation of a named person or persons for the purpose of gathering evidence against such person or persons;
(iv) matches of tax information
(I) pursuant to section 6103(d) of the Internal Revenue Code of 1986,
(II) for purposes of tax administration as defined in section 6103(b)(4) of such Code,
(III) for the purpose of intercepting a tax refund due an individual under authority granted by section 404(e), 464, or 1137 of the Social Security Act; or
(IV) for the purpose of intercepting a tax refund due an individual under any other tax refund intercept program authorized by statute which has been determined by the Director of the Office of Management and Budget to contain verification, notice, and hearing requirements that are substantially similar to the procedures in section 1137 of the Social Security Act;
(v) matches—

(I) using records predominantly relating to Federal personnel, that are performed for routine administrative purposes (subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection (v)); or
(II) conducted by an agency using only records from systems of records maintained by that agency;
if the purpose of the match is not to take any adverse financial, personnel, disciplinary, or other adverse action against Federal personnel;
(vi) matches performed for foreign counterintelligence purposes or to produce background checks for security clearances of Federal personnel or Federal contractor personnel;
(vii) matches performed incident to a levy described in section 6103(k)(8) of the Internal Revenue Code of 1986;
(viii) matches performed pursuant to section 202(x)(3) or 1611(e)(1) of the Social Security Act (42 U.S.C. §402(x)(3), 1382(e)(1)); or
(ix) matches performed by the Secretary of Health and Human Services or the Inspector General of the Department of Health and Human Services with respect to potential fraud, waste, and abuse, including matches of a system of records with non-Federal records;

(9) the term “recipient agency” means any agency, or contractor thereof, receiving records contained in a system of records from a source agency for use in a matching program;
(10) the term “non-Federal agency” means any State or local government, or agency thereof, which receives records contained in a system of records from a source agency for use in a matching program;
(11) the term “source agency” means any agency which discloses records contained in a system of records to be used in a matching program, or any State or local government, or agency thereof, which discloses records to be used in a matching program;
(12) the term “Federal benefit program” means any program administered or funded by the Federal Government, or by any agent or State on behalf of the Federal Government, providing cash or in-kind assistance in the form of payments, grants, loans, or loan guarantees to individuals; and
(13) the term “Federal personnel” means officers and employees of the Government of the United States, members of the uniformed services (including members of the Reserve Components), individuals entitled to receive immediate or deferred retirement benefits under any retirement program of the Government of the United States (including survivor benefits).

(b) CONDITIONS OF DISCLOSURE.—No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be—

(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;
(2) required under section 552 of this title;
(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;
(4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;
(5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;
(6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;
(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;
(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;
(9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;
(10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the Government Accountability Office;
(11) pursuant to the order of a court of competent jurisdiction; or
(12) to a consumer reporting agency in accordance with section 3711(e) of title 31.

(c) ACCOUNTING OF CERTAIN DISCLOSURES.—Each agency, with respect to each system of records under its control, shall—

(1) except for disclosures made under subsections (b)(1) or (b)(2) of this section, keep an accurate accounting of—

(A) the date, nature, and purpose of each disclosure of a record to any person or to another agency made under subsection (b) of this section; and
(B) the name and address of the person or agency to whom the disclosure is made;

(2) retain the accounting made under paragraph (1) of this subsection for at least five years or the life of the record, whichever is longer, after the disclosure for which the accounting is made;
(3) except for disclosures made under subsection (b)(7) of this section, make the accounting made under paragraph (1) of this subsection available to the individual named in the record at his request; and
(4) inform any person or other agency about any correction or notation of dispute made by the agency in accordance with subsection (d) of this section of any record that has been disclosed to the person or agency if an accounting of the disclosure was made.

(d) ACCESS TO RECORDS.—Each agency that maintains a system of records shall—

(1) upon request by any individual to gain access to his record or to any information pertaining to him which is contained in the system, permit him and upon his request, a person of his own choosing to accompany him, to review the record and have a copy made of all or any portion thereof in a form comprehensible to him, except that the agency may require the individual to furnish a written statement authorizing discussion of that individual’s record in the accompanying person’s presence;
(2) permit the individual to request amendment of a record pertaining to him and—

(A) not later than 10 days (excluding Saturdays, Sundays, and legal public holidays) after the date of receipt of such request, acknowledge in writing such receipt; and
(B) promptly, either—

(i) make any correction of any portion thereof which the individual believes is not accurate, relevant, timely, or complete; or
(ii) inform the individual of its refusal to amend the record in accordance with his request, the reason for the refusal, the procedures established by the agency for the individual to request a review of that refusal by the head of the agency or an officer designated by the head of the agency, and the name and business address of that official;

(3) permit the individual who disagrees with the refusal of the agency to amend his record to request a review of such refusal, and not later than 30 days (excluding Saturdays, Sundays, and legal public holidays) from the date on which the individual requests such review, complete such review and make a final determination unless, for good cause shown, the head of the agency extends such 30-day period; and if, after his review, the reviewing official also refuses to amend the record in accordance with the request, permit the individual to file with the agency a concise statement setting forth the reasons for his disagreement with the refusal of the agency, and notify the individual of the provisions for judicial review of the reviewing official’s determination under subsection (g)(1)(A) of this section;
(4) in any disclosure, containing information about which the individual has filed a statement of disagreement, occurring after the filing of the statement under paragraph (3) of this subsection, clearly note any portion of the record which is disputed and provide copies of the statement and, if the agency deems it appropriate, copies of a concise statement of the reasons of the agency for not making the amendments requested, to persons or other agencies to whom the disputed record has been disclosed; and
(5) nothing in this section shall allow an individual access to any information compiled in reasonable anticipation of a civil action or proceeding.

(e) AGENCY REQUIREMENTS.—Each agency that maintains a system of records shall—

(1) maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President;
(2) collect information to the greatest extent practicable directly from the subject individual when the information may result in adverse determinations about an individual’s rights, benefits, and privileges under Federal programs;
(3) inform each individual whom it asks to supply information, on the form which it uses to collect the information or on a separate form that can be retained by the individual—

(A) the authority (whether granted by statute, or by executive order of the President) which authorizes the solicitation of the information and whether disclosure of such information is mandatory or voluntary;
(B) the principal purpose or purposes for which the information is intended to be used;
(C) the routine uses which may be made of the information, as published pursuant to paragraph (4)(D) of this subsection; and
(D) the effects on him, if any, of not providing all or any part of the requested information;

(4) subject to the provisions of paragraph (11) of this subsection, publish in the Federal Register upon establishment or revision a notice of the existence and character of the system of records, which notice shall include—

(A) the name and location of the system;
(B) the categories of individuals on whom records are maintained in the system;
(C) the categories of records maintained in the system;
(D) each routine use of the records contained in the system, including the categories of users and the purpose of such use;
(E) the policies and practices of the agency regarding storage, retrievability, access controls, retention, and disposal of the records;
(F) the title and business address of the agency official who is responsible for the system of records;
(G) the agency procedures whereby an individual can be notified at his request if the system of records contains a record pertaining to him;
(H) the agency procedures whereby an individual can be notified at his request how he can gain access to any record pertaining to him contained in the system of records, and how he can contest its content; and

(I) the categories of sources of records in the system;

(5) maintain all records which are used by the agency in making any determination about any individual with such accuracy, relevance, timeliness, and completeness as is reasonably necessary to assure fairness to the individual in the determination;
(6) prior to disseminating any record about an individual to any person other than an agency, unless the dissemination is made pursuant to subsection (b)(2) of this section, make reasonable efforts to assure that such records are accurate, complete, timely, and relevant for agency purposes;
(7) maintain no record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity;
(8) make reasonable efforts to serve notice on an individual when any record on such individual is made available to any person under compulsory legal process when such process becomes a matter of public record;
(9) establish rules of conduct for persons involved in the design, development, operation, or maintenance of any system of records, or in maintaining any record, and instruct each such person with respect to such rules and the requirements of this section, including any other rules and procedures adopted pursuant to this section and the penalties for noncompliance;
(10) establish appropriate administrative, technical, and physical safeguards to insure the security and confidentiality of records and to protect against any anticipated threats or hazards to their security or integrity which could result in substantial harm, embarrassment, inconvenience, or unfairness to any individual on whom information is maintained;
(11) at least 30 days prior to publication of information under paragraph (4)(D) of this subsection, publish in the Federal Register notice of any new use or intended use of the information in the system, and provide an opportunity for interested persons to submit written data, views, or arguments to the agency; and
(12) if such agency is a recipient agency or a source agency in a matching program with a non-Federal agency, with respect to any establishment or revision of a matching program, at least 30 days prior to conducting such program, publish in the Federal Register notice of such establishment or revision.

(f) AGENCY RULES.—In order to carry out the provisions of this section, each agency that maintains a system of records shall promulgate rules, in accordance with the requirements (including general notice) of section 553 of this title, which shall—

(1) establish procedures whereby an individual can be notified in response to his request if any system of records named by the individual contains a record pertaining to him;
(2) define reasonable times, places, and requirements for identifying an individual who requests his record or information pertaining to him before the agency shall make the record or information available to the individual;
(3) establish procedures for the disclosure to an individual upon his request of his record or information pertaining to him, including special procedure, if deemed necessary, for the disclosure to an individual of medical records, including psychological records, pertaining to him;
(4) establish procedures for reviewing a request from an individual concerning the amendment of any record or information pertaining to the individual, for making a determination on the request, for an appeal within the agency of an initial adverse agency determination, and for whatever additional means may be necessary for each individual to be able to exercise fully his rights under this section; and
(5) establish fees to be charged, if any, to any individual for making copies of his record, excluding the cost of any search for and review of the record.
The Office of the Federal Register shall biennially compile and publish the rules promulgated under this subsection and agency notices published under subsection (e)(4) of this section in a form available to the public at low cost.

(g)(1) CIVIL REMEDIES.—Whenever any agency

(A) makes a determination under subsection (d)(3) of this section not to amend an individual’s record in accordance with his request, or fails to make such review in conformity with that subsection;
(B) refuses to comply with an individual request under subsection (d)(1) of this section;
(C) fails to maintain any record concerning any individual with such accuracy, relevance, timeliness, and completeness as is necessary to assure fairness in any determination relating to the qualifications, character, rights, or opportunities of, or benefits to the individual that may be made on the basis of such record, and consequently a determination is made which is adverse to the individual; or
(D) fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual,
the individual may bring a civil action against the agency, and the district courts of the United States shall have jurisdiction in the matters under the provisions of this subsection.

(2) (A) In any suit brought under the provisions of subsection (g)(1)(A) of this section, the court may order the agency to amend the individual’s record in accordance with his request or in such other way as the court may direct. In such a case the court shall determine the matter de novo.
(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(3) (A) In any suit brought under the provisions of subsection (g)(1)(B) of this section, the court may enjoin the agency from withholding the records and order the production to the complainant of any agency records improperly withheld from him. In such a case the court shall determine the matter de novo, and may examine the contents of any agency records in camera to determine whether the records or any portion thereof may be withheld under any of the exemptions set forth in subsection (k) of this section, and the burden is on the agency to sustain its action.
(B) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this paragraph in which the complainant has substantially prevailed.

(4) In any suit brought under the provisions of subsection (g)(1)(C) or (D) of this section in which the court determines that the agency acted in a manner which was intentional or willful, the United States shall be liable to the individual in an amount equal to the sum of—
(A) actual damages sustained by the individual as a result of the refusal or failure, but in no case shall a person entitled to recovery receive less than the sum of $1,000; and
(B) the costs of the action together with reasonable attorney fees as determined by the court.

(5) An action to enforce any liability created under this section may be brought in the district court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia, without regard to the amount in controversy, within two years from the date on which the cause of action arises, except that where an agency has materially and willfully misrepresented any information required under this section to be disclosed to an individual and the information so misrepresented is material to establishment of the liability of the agency to the individual under this section, the action may be brought at any time within two years after discovery by the individual of the misrepresentation. Nothing in this section shall be construed to authorize any civil action by reason of any injury sustained as the result of a disclosure of a record prior to September 27, 1975.

(h) RIGHTS OF LEGAL GUARDIANS.—For the purposes of this section, the parent of any minor, or the legal guardian of any individual who has been declared to be incompetent due to physical or mental incapacity or age by a court of competent jurisdiction, may act on behalf of the individual.

(i) (1) CRIMINAL PENALTIES.—Any officer or employee of an agency, who by virtue of his employment or official position, has possession of, or access to, agency records which contain individually identifiable information the disclosure of which is prohibited by this section or by rules or regulations established thereunder, and who knowing that disclosure of the specific material is so prohibited, willfully discloses the material in any manner to any person or agency not entitled to receive it, shall be guilty of a misdemeanor and fined not more than $5,000.
(2) Any officer or employee of any agency who willfully maintains a system of records without meeting the notice requirements of subsection (e)(4) of this section shall be guilty of a misdemeanor and fined not more than $5,000.
(3) Any person who knowingly and willfully requests or obtains any record concerning an individual from an agency under false pretenses shall be guilty of a misdemeanor and fined not more than $5,000.

(j) GENERAL EXEMPTIONS.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from any part of this section except subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) if the system of records is—

(1) maintained by the Central Intelligence Agency; or
(2) maintained by an agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws, including police efforts to prevent, control, or reduce crime or to apprehend criminals, and the activities of prosecutors, courts, correctional, probation, pardon, or parole authorities, and which consists of (A) information compiled for the purpose of identifying individual criminal offenders and alleged offenders and consisting only of identifying data and notations of arrests, the nature and disposition of criminal charges, sentencing, confinement, release, and parole and probation status; (B) information compiled for the purpose of a criminal investigation, including reports of informants and investigators, and associated with an identifiable individual; or (C) reports identifiable to an individual compiled at any stage of the process of enforcement of the criminal laws from arrest or indictment through release from supervision.
At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.

(k) SPECIFIC EXEMPTIONS.—The head of any agency may promulgate rules, in accordance with the requirements (including general notice) of sections 553(b)(1), (2), and (3), (c), and (e) of this title, to exempt any system of records within the agency from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of this section if the system of records is—

(1) subject to the provisions of section 552(b)(1) of this title;
(2) investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) of this section: Provided, however, That if any individual is denied any right, privilege, or benefit that he would otherwise be entitled by Federal law, or for which he would otherwise be eligible, as a result of the maintenance of such material, such material shall be provided to such individual, except to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(3) maintained in connection with providing protective services to the President of the United States or other individuals pursuant to section 3056 of title 18;
(4) required by statute to be maintained and used solely as statistical records;
(5) investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence;
(6) testing or examination material used solely to determine individual qualifications for appointment or promotion in the Federal service the disclosure of which would compromise the objectivity or fairness of the testing or examination process; or
(7) evaluation material used to determine potential for promotion in the armed services, but only to the extent that the disclosure of such material would reveal the identity of a source who furnished information to the Government under an express promise that the identity of the source would be held in confidence, or, prior to the effective date of this section, under an implied promise that the identity of the source would be held in confidence.
At the time rules are adopted under this subsection, the agency shall include in the statement required under section 553(c) of this title, the reasons why the system of records is to be exempted from a provision of this section.

(l)(1) ARCHIVAL RECORDS.—Each agency record which is accepted by the Archivist of the United States for storage, processing, and servicing in accordance with section 3103 of title 44 shall, for the purposes of this section, be considered to be maintained by the agency which deposited the record and shall be subject to the provisions of this section. The Archivist of the United States shall not disclose the record except to the agency which maintains the record, or under rules established by that agency which are not inconsistent with the provisions of this section.
(2) Each agency record pertaining to an identifiable individual which was transferred to the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, prior to the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall not be subject to the provisions of this section, except that a statement generally describing such records (modeled after the requirements relating to records subject to subsections (e)(4)(A) through (G) of this section) shall be published in the Federal Register.
(3) Each agency record pertaining to an identifiable individual which is transferred to the National Archives of the United States as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, on or after the effective date of this section, shall, for the purposes of this section, be considered to be maintained by the National Archives and shall be exempt from the requirements of this section except subsections (e)(4)(A) through (G) and (e)(9) of this section.

(m)(1) GOVERNMENT CONTRACTORS.—When an agency provides by a contract for the operation by or on behalf of the agency of a system of records to accomplish an agency function, the agency shall, consistent with its authority, cause the requirements of this section to be applied to such system. For purposes of subsection (i) of this section any such contractor and any employee of such contractor, if such contract is agreed to on or after the effective date of this section, shall be considered to be an employee of an agency.
(2) A consumer reporting agency to which a record is disclosed under section 3711(e) of title 31 shall not be considered a contractor for the purposes of this section.

(n) MAILING LISTS.—An individual’s name and address may not be sold or rented by an agency unless such action is specifically authorized by law. This provision shall not be construed to require the withholding of names and addresses otherwise permitted to be made public.

(o) MATCHING AGREEMENTS.—
(1) No record which is contained in a system of records may be disclosed to a recipient agency or non-Federal agency for use in a computer matching program except pursuant to a written agreement between the source agency and the recipient agency or non-Federal agency specifying—

(A) the purpose and legal authority for conducting the program;
(B) the justification for the program and the anticipated results, including a specific estimate of any savings;
(C) a description of the records that will be matched, including each data element that will be used, the approximate number of records that will be matched, and the projected starting and completion dates of the matching program;
(D) procedures for providing individualized notice at the time of application, and notice periodically thereafter as directed by the Data Integrity Board of such agency (subject to guidance provided by the Director of the Office of Management and Budget pursuant to subsection (v)), to—

(i) applicants for and recipients of financial assistance or payments under Federal benefit programs, and

(ii) applicants for and holders of positions as Federal personnel,
that any information provided by such applicants, recipients, holders, and individuals may be subject to verification through matching programs;

(E) procedures for verifying information produced in such matching program as required by subsection (p);
(F) procedures for the retention and timely destruction of identifiable records created by a recipient agency or non-Federal agency in such matching program;
(G) procedures for ensuring the administrative, technical, and physical security of the records matched and the results of such programs;
(H) prohibitions on duplication and redisclosure of records provided by the source agency within or outside the recipient agency or the non-Federal agency, except where required by law or essential to the conduct of the matching program;
(I) procedures governing the use by a recipient agency or non-Federal agency of records provided in a matching program by a source agency, including procedures governing return of the records to the source agency or destruction of records used in such program;
(J) information on assessments that have been made on the accuracy of the records that will be used in such matching program; and
(K) that the Comptroller General may have access to all records of a recipient agency or a non-Federal agency that the Comptroller General deems necessary in order to monitor or verify compliance with the agreement.

(2)(A) A copy of each agreement entered into pursuant to paragraph (1) shall—

(i) be transmitted to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives; and
(ii) be available upon request to the public.

(B) No such agreement shall be effective until 30 days after the date on which such a copy is transmitted pursuant to subparagraph (A)(i).
(C) Such an agreement shall remain in effect only for such period, not to exceed 18 months, as the Data Integrity Board of the agency determines is appropriate in light of the purposes, and length of time necessary for the conduct, of the matching program.
(D) Within 3 months prior to the expiration of such an agreement pursuant to subparagraph (C), the Data Integrity Board of the agency may, without additional review, renew the matching agreement for a current, ongoing matching program for not more than one additional year if—

(i) such program will be conducted without any change; and
(ii) each party to the agreement certifies to the Board in writing that the program has been conducted in compliance with the agreement.
(p) VERIFICATION AND OPPORTUNITY TO CONTEST FINDINGS.—

(1) In order to protect any individual whose records are used in a matching program, no recipient agency, non-Federal agency, or source agency may suspend, terminate, reduce, or make a final denial of any financial assistance or payment under a Federal benefit program to such individual, or take other adverse action against such individual, as a result of information produced by such matching program, until—
(A)(i) the agency has independently verified the information; or
(ii) the Data Integrity Board of the agency, or in the case of a non-Federal agency the Data Integrity Board of the source agency, determines in accordance with guidance issued by the Director of the Office of Management and Budget that—
(I) the information is limited to identification and amount of benefits paid by the source agency under a Federal benefit program; and
(II) there is a high degree of confidence that the information provided to the recipient agency is accurate;
(B) the individual receives a notice from the agency containing a statement of its findings and informing the individual of the opportunity to contest such findings; and
(C)(i) the expiration of any time period established for the program by statute or regulation for the individual to respond to that notice; or
(ii) in the case of a program for which no such period is established, the end of the 30-day period beginning on the date on which notice under subparagraph (B) is mailed or otherwise provided to the individual.
(2) Independent verification referred to in paragraph (1) requires investigation and confirmation of specific information relating to an individual that is used as a basis for an adverse action against the individual, including where applicable investigation and confirmation of—
(A) the amount of any asset or income involved;
(B) whether such individual actually has or had access to such asset or income for such individual’s own use; and
(C) the period or periods when the individual actually had such asset or income.
(3) Notwithstanding paragraph (1), an agency may take any appropriate action otherwise prohibited by such paragraph if the agency determines that the public health or public safety may be adversely affected or significantly threatened during any notice period required by such paragraph.

(q) SANCTIONS.—
(1) Notwithstanding any other provision of law, no source agency may disclose any record which is contained in a system of records to a recipient agency or non-Federal agency for a matching program if such source agency has reason to believe that the requirements of subsection (p), or any matching agreement entered into pursuant to subsection (o), or both, are not being met by such recipient agency.
(2) No source agency may renew a matching agreement unless—
(A) the recipient agency or non-Federal agency has certified that it has complied with the provisions of that agreement; and
(B) the source agency has no reason to believe that the certification is inaccurate.

(r) REPORT ON NEW SYSTEMS AND MATCHING PROGRAMS.—Each agency that proposes to establish or make a significant change in a system of records or a matching program shall provide adequate advance notice of any such proposal (in duplicate) to the Committee on Government Operations of the House of Representatives, the Committee on Governmental Affairs of the Senate, and the Office of Management and Budget in order to permit an evaluation of the probable or potential effect of such proposal on the privacy or other rights of individuals.

(s) BIENNIAL REPORT.—The President shall biennially submit to the Speaker of the House of Representatives and the President pro tempore of the Senate a report—
(1) describing the actions of the Director of the Office of Management and Budget pursuant to section 6 of the Privacy Act of 1974 during the preceding 2 years;
(2) describing the exercise of individual rights of access and amendment under this section during such years;
(3) identifying changes in or additions to systems of records;
(4) containing such other information concerning administration of this section as may be necessary or useful to the Congress in reviewing the effectiveness of this section in carrying out the purposes of the Privacy Act of 1974.

(t)(1) EFFECT OF OTHER LAWS.—No agency shall rely on any exemption contained in section 552 of this title to withhold from an individual any record which is otherwise accessible to such individual under the provisions of this section.
(2) No agency shall rely on any exemption in this section to withhold from an individual any record which is otherwise accessible to such individual under the provisions of section 552 of this title.

(u) DATA INTEGRITY BOARDS.—
(1) Every agency conducting or participating in a matching program shall establish a Data Integrity Board to oversee and coordinate among the various components of such agency the agency’s implementation of this section.
(2) Each Data Integrity Board shall consist of senior officials designated by the head of the agency, and shall include any senior official designated by the head of the agency as responsible for implementation of this section, and the inspector general of the agency, if any. The inspector general shall not serve as chairman of the Data Integrity Board.
(3) Each Data Integrity Board—

(A) shall review, approve, and maintain all written agreements for receipt or disclosure of agency records for matching programs to ensure compliance with subsection (o), and all relevant statutes, regulations, and guidelines;
(B) shall review all matching programs in which the agency has participated during the year, either as a source agency or recipient agency, determine compliance with applicable laws, regulations, guidelines, and agency agreements, and assess the costs and benefits of such programs;
(C) shall review all recurring matching programs in which the agency has participated during the year, either as a source agency or recipient agency, for continued justification for such disclosures;
(D) shall compile an annual report, which shall be submitted to the head of the agency and the Office of Management and Budget and made available to the public on request, describing the matching activities of the agency, including—

(i) matching programs in which the agency has participated as a source agency or recipient agency;
(ii) matching agreements proposed under subsection (o) that were disapproved by the Board;
(iii) any changes in membership or structure of the Board in the preceding year;
(iv) the reasons for any waiver of the requirement in paragraph (4) of this section for completion and submission of a cost-benefit analysis prior to the approval of a matching program;
(v) any violations of matching agreements that have been alleged or identified and any corrective action taken; and
(vi) any other information required by the Director of the Office of Management and Budget to be included in such report;

(E) shall serve as a clearinghouse for receiving and providing information on the accuracy, completeness, and reliability of records used in matching programs;
(F) shall provide interpretation and guidance to agency components and personnel on the requirements of this section for matching programs;
(G) shall review agency recordkeeping and disposal policies and practices for matching programs to assure compliance with this section; and
(H) may review and report on any agency matching activities that are not matching programs.

(4)(A) Except as provided in subparagraphs (B) and (C), a Data Integrity Board shall not approve any written agreement for a matching program unless the agency has completed and submitted to such Board a cost-benefit analysis of the proposed program and such analysis demonstrates that the program is likely to be cost effective.
(B) The Board may waive the requirements of subparagraph (A) of this paragraph if it determines in writing, in accordance with guidelines prescribed by the Director of the Office of Management and Budget, that a cost-benefit analysis is not required.
(C) A cost-benefit analysis shall not be required under subparagraph (A) prior to the initial approval of a written agreement for a matching program that is specifically required by statute. Any subsequent written agreement for such a program shall not be approved by the Data Integrity Board unless the agency has submitted a cost-benefit analysis of the program as conducted under the preceding approval of such agreement.

(5)(A) If a matching agreement is disapproved by a Data Integrity Board, any party to such agreement may appeal the disapproval to the Director of the Office of Management and Budget. Timely notice of the filing of such an appeal shall be provided by the Director of the Office of Management and Budget to the Committee on Governmental Affairs of the Senate and the Committee on Government Operations of the House of Representatives.
(B) The Director of the Office of Management and Budget may approve a matching agreement notwithstanding the disapproval of a Data Integrity Board if the Director determines that—

(i) the matching program will be consistent with all applicable legal, regulatory, and policy requirements;
(ii) there is adequate evidence that the matching agreement will be cost-effective; and
(iii) the matching program is in the public interest.

(C) The decision of the Director to approve a matching agreement shall not take effect until 30 days after it is reported to committees described in subparagraph (A).
(D) If the Data Integrity Board and the Director of the Office of Management and Budget disapprove a matching program proposed by the inspector general of an agency, the inspector general may report the disapproval to the head of the agency and to the Congress.

(6) In the reports required by paragraph (3)(D), agency matching activities that are not matching programs may be reported on an aggregate basis, if and to the extent necessary to protect ongoing law enforcement or counterintelligence investigations.

(v) OFFICE OF MANAGEMENT AND BUDGET RESPONSIBILITIES.—
The Director of the Office of Management and Budget shall—

(1) develop and, after notice and opportunity for public comment, prescribe guidelines and regulations for the use of agencies in implementing the provisions of this section; and
(2) provide continuing assistance to and oversight of the implementation of this section by agencies.

(w) APPLICABILITY TO BUREAU OF CONSUMER FINANCIAL PROTECTION.—Except as provided in the Consumer Financial Protection Act of 2010, this section shall apply with respect to the Bureau of Consumer Financial Protection.

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Ref Book - FISMA

Federal Information Security Management Act


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(Public Law 107-347; 116 Stat. 2899; November 25, 2002.  FISMA amends chapter 35 of Title 44 United States Code; Section 11331 of Title 40 United States Code; and Sections 20 and 21 of the National Institute of Standards and Technology Act (15 U.S.C. §278-g3 and 278-g4))


Amendments to: Title 44 United States Code
 

Chapter 35 – Coordination of Federal Information Policy

Subchapter II – Information Security
 

Section. 3541. Purposes

The purposes of this subchapter are to—

(1) provide a comprehensive framework for ensuring the effectiveness of information security controls over information resources that support Federal operations and assets;

(2) recognize the highly networked nature of the current Federal computing environment and provide effective Government-wide management and oversight of the related information security risks, including coordination of information security efforts throughout the civilian, national security, and law enforcement communities;

(3) provide for development and maintenance of minimum controls required to protect Federal information and information systems;

(4) provide a mechanism for improved oversight of Federal agency information security programs;

(5) acknowledge that commercially developed information security products offer advanced, dynamic, robust, and effective information security solutions, reflecting market solutions for the protection of critical information infrastructures important to the national defense and economic security of the nation that are designed, built, and operated by the private sector; and

(6) recognize that the selection of specific technical hardware and software information security solutions should be left to individual agencies from among commercially developed products.

 

Sec. 3542. Definitions

(a) In General.—Except as provided under subsection (b), the definitions under section 3502 shall apply to this subchapter.

(b) Additional Definitions.—As used in this subchapter:

(1) The term “information security” means protecting information and information systems from unauthorized access, use, disclosure, disruption, modification, or destruction in order to provide—

(A) integrity, which means guarding against improper information modification or destruction, and includes ensuring information non-repudiation and authenticity;

(B) confidentiality, which means preserving authorized restrictions on access and disclosure, including means for protecting personal privacy and proprietary information; and

(C) availability, which means ensuring timely and reliable access to and use of information.

(2)(A) The term “national security system” means any information system (including any telecommunications system) used or operated by an agency or by a contractor of an agency, or other organization on behalf of an agency—

(i) the function, operation, or use of which—

(I) involves intelligence activities;

(II) involves cryptologic activities related to national security;

(III) involves command and control of military forces;

(IV) involves equipment that is an integral part of a weapon or weapons system; or

(V) subject to subparagraph (B), is critical to the direct fulfillment of military or intelligence missions; or

(ii) is protected at all times by procedures established for information that have been specifically authorized under criteria established by an Executive order or an Act of Congress to be kept classified in the interest of national defense or foreign policy.

(B) Subparagraph (A)(i)(V) does not include a system that is to be used for routine administrative and business applications (including payroll, finance, logistics, and personnel management applications).

(3) The term “information technology” has the meaning given that term in section 11101 of title 40.

 

Sec. 3543. Authority and Functions of the Director.

(a) In General.—The Director shall oversee agency information security policies and practices, including—

(1) developing and overseeing the implementation of policies, principles, standards, and guidelines on information security, including through ensuring timely agency adoption of and compliance with standards promulgated under section 11331 of title 40;

(2) requiring agencies, consistent with the standards promulgated under such section 11331 and the requirements of this subchapter, to identify and provide information security protections commensurate with the risk and magnitude of the harm resulting from the unauthorized access, use, disclosure, disruption, modification, or destruction of—

(A) information collected or maintained by or on behalf of an agency; or

(B) information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency;

(3) coordinating the development of standards and guidelines under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. §§278g-3) with agencies and offices operating or exercising control of national security systems (including the National Security Agency) to assure, to the maximum extent feasible, that such standards and guidelines are complementary with standards and guidelines developed for national security systems;

(4) overseeing agency compliance with the requirements of this subchapter, including through any authorized action under section 11303 of title 40, to enforce accountability for compliance with such requirements;

(5) reviewing at least annually, and approving or disapproving, agency information security programs required under section 3544(b);

(6) coordinating information security policies and procedures with related information resources management policies and procedures;

(7) overseeing the operation of the Federal information security incident center required under section 3546; and

(8) reporting to Congress no later than March 1 of each year on agency compliance with the requirements of this subchapter, including—

(A) a summary of the findings of evaluations required by section 3545;

(B) an assessment of the development, promulgation, and adoption of, and compliance with, standards developed under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. §§278g-3) and promulgated under section 11331 of title 40;

(C) significant deficiencies in agency information security practices;

(D) planned remedial action to address such deficiencies; and

(E) a summary of, and the views of the Director on, the report prepared by the National Institute of Standards and Technology under section 20(d)(10) of the National Institute of Standards and Technology Act (15 U.S.C. §§278g-3).

(b) National Security Systems.—Except for the authorities described in paragraphs (4) and (8) of subsection (a), the authorities of the Director under this section shall not apply to national security systems.

(c) Department of Defense and Central Intelligence Agency

Systems. –

(1) The authorities of the Director described in paragraphs (1) and (2) of subsection (a) shall be delegated to the Secretary of Defense in the case of systems described in paragraph (2) and to the Director of Central Intelligence in the case of systems described in paragraph (3).

(2) The systems described in this paragraph are systems that are operated by the Department of Defense, a contractor of the Department of Defense, or another entity on behalf of the Department of Defense that processes any information the unauthorized access, use, disclosure, disruption, modification, or destruction of which would have a debilitating impact on the mission of the Department of Defense.

(3) The systems described in this paragraph are systems that are operated by the Central Intelligence Agency, a contractor of the Central Intelligence Agency, or another entity on behalf of the Central Intelligence Agency that processes any information the unauthorized access, use, disclosure, disruption, modification, or destruction of which would have a debilitating impact on the mission of the Central Intelligence Agency.

 

Sec. 3544. Federal Agency Responsibilities.

(a) In General.—The head of each agency shall—

(1) be responsible for—

(A) providing information security protections commensurate with the risk and magnitude of the harm resulting from unauthorized access, use, disclosure, disruption, modification, or destruction of—

(i) information collected or maintained by or on behalf of the agency; and

(ii) information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency;

(B) complying with the requirements of this subchapter and related policies, procedures, standards, and guidelines, including—

(i) information security standards promulgated under section 11331 of title 40; and

(ii) information security standards and guidelines for national security systems issued in accordance with law and as directed by the President; and

(C) ensuring that information security management processes are integrated with agency strategic and operational planning processes;

(2) ensure that senior agency officials provide information security for the information and information systems that support the operations and assets under their control, including through

(A) assessing the risk and magnitude of the harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of such information or information systems;

(B) determining the levels of information security appropriate to protect such information and information systems in accordance with standards promulgated under section 11331 of title 40, for information security classifications and related requirements;

(C) implementing policies and procedures to cost-effectively reduce risks to an acceptable level; and

(D) periodically testing and evaluating information security controls and techniques to ensure that they are effectively implemented;

(3) delegate to the agency Chief Information Officer established under section 3506 (or comparable official in an agency not covered by such section) the authority to ensure compliance with the requirements imposed on the agency under this subchapter, including—

(A) designating a senior agency information security officer who shall—

(i) carry out the Chief Information Officer’s responsibilities under this section;

(ii) possess professional qualifications, including training and experience, required to administer the functions described under this section;

(iii) have information security duties as that official’s primary duty; and

(iv) head an office with the mission and resources to assist in ensuring agency compliance with this section;

(B) developing and maintaining an agency wide information security program as required by subsection (b);

(C) developing and maintaining information security policies, procedures, and control techniques to address all applicable requirements, including those issued under section 3543 of this title, and section 11331 of title 40;

(D) training and overseeing personnel with significant responsibilities for information security with respect to such responsibilities; and

(E) assisting senior agency officials concerning their responsibilities under paragraph (2);

(4) ensure that the agency has trained personnel sufficient to assist the agency in complying with the requirements of this subchapter and related policies, procedures, standards, and guidelines; and

(5) ensure that the agency Chief Information Officer, in coordination with other senior agency officials, reports annually to the agency head on the effectiveness of the agency information security program, including progress of remedial actions.

(b) Agency Program.—Each agency shall develop, document, and implement an agency-wide information security program, approved by the Director under section 3543(a)(5), to provide information security for the information and information systems that support the operations and assets of the agency, including those provided or managed by another agency, contractor, or other source, that includes—

(1) periodic assessments of the risk and magnitude of the harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of information and information systems that support the operations and assets of the agency;

(2) policies and procedures that—

(A) are based on the risk assessments required by paragraph (1);

(B) cost-effectively reduce information security risks to an acceptable level;

(C) ensure that information security is addressed throughout the life cycle of each agency information system; and

(D) ensure compliance with—

(i) the requirements of this subchapter;

(ii) policies and procedures as may be prescribed by the Director, and information security standards promulgated under section 11331 of title 40;

(iii) minimally acceptable system configuration requirements, as determined by the agency; and

(iv) any other applicable requirements, including standards and guidelines for national security systems issued in accordance with law and as directed by the President;

(3) subordinate plans for providing adequate information security for networks, facilities, and systems or groups of information systems, as appropriate;

(4) security awareness training to inform personnel, including contractors and other users of information systems that support the operations and assets of the agency, of—

(A) information security risks associated with their activities; and

(B) their responsibilities in complying with agency policies and procedures designed to reduce these risks;

(5) periodic testing and evaluation of the effectiveness of information security policies, procedures, and practices, to be performed with a frequency depending on risk, but no less than annually, of which such testing—

(A) shall include testing of management, operational, and technical controls of every information system identified in the inventory required under section 3505(c); and

(B) may include testing relied on in a evaluation under section 3545;

(6) a process for planning, implementing, evaluating, and documenting remedial action to address any deficiencies in the information security policies, procedures, and practices of the agency;

(7) procedures for detecting, reporting, and responding to security incidents, consistent with standards and guidelines issued pursuant to section 3546(b), including—

(A) mitigating risks associated with such incidents before substantial damage is done;

(B) notifying and consulting with the Federal information security incident center referred to in section 3546; and

(C) notifying and consulting with, as appropriate—

(i) law enforcement agencies and relevant Offices of Inspector General;

(ii) an office designated by the President for any incident involving a national security system; and

(iii) any other agency or office, in accordance with law or as directed by the President; and

(8) plans and procedures to ensure continuity of operations for information systems that support the operations and assets of the agency.

(c) Agency Reporting.—Each agency shall—

(1) report annually to the Director, the Committees on Government Reform and Science of the House of Representatives, the Committees on Governmental Affairs and Commerce , Science, and Transportation of the Senate, the appropriate authorization and appropriations committees of Congress, and the Comptroller General on the adequacy and effectiveness of information security policies, procedures, and practices, and compliance with the requirements of this subchapter, including compliance with each requirement of subsection (b);

(2) address the adequacy and effectiveness of information security policies, procedures, and practices in plans and reports relating to—

(A) annual agency budgets;

(B) information resources management under subchapter 1 of this chapter;

(C) information technology management under subtitle III of title 40;

(D) program performance under sections 1105 and 1115 through 1119 of title 31, and sections 2801 and 2805 of title 39;

(E) financial management under chapter 9 of title 31, and the Chief Financial Officers Act of 1990 (31 U.S.C. §501 note; Public Law 101-576) (and the amendments made by that Act);

(F) financial management systems under the Federal Financial Management Improvement Act (31 U.S.C. §3512 note); and

(G) internal accounting and administrative controls under section 3512 of title 31, (known as the “Federal Managers Financial Integrity Act”); and

(3) report any significant deficiency in a policy, procedure, or practice identified under paragraph (1) or (2)—

(A) as a material weakness in reporting under section 3512 of title 31; and

(B) if relating to financial management systems, as an instance of a lack of substantial compliance under the Federal Financial Management Improvement Act (31 U.S.C. §3512 note).

(d) Performance Plan.—

(1) In addition to the requirements of subsection (c), each agency, in consultation with the Director, shall include as part of the performance plan required under section 1115 of title 31 a description of—

(A) the time periods, and

(B) the resources, including budget, staffing, and training, that are necessary to implement the program required under subsection (b).

(2) The description under paragraph (1) shall be based on the risk assessments required under subsection (b)(2)(1).

(e) Public Notice and Comment.—Each agency shall provide the public with timely notice and opportunities for comment on proposed information security policies and procedures to the extent that such policies and procedures affect communication with the public.

 

Sec. 3545. Annual Independent Evaluation.

(a) In General.—

(1) Each year each agency shall have performed an independent evaluation of the information security program and practices of that agency to determine the effectiveness of such program and practices.

(2) Each evaluation under this section shall include—

(A) testing of the effectiveness of information security policies, procedures, and practices of a representative subset of the agency’s information systems;

(B) an assessment (made on the basis of the results of the testing) of compliance with—

(i) the requirements of this subchapter; and

(ii) related information security policies, procedures, standards, and guidelines; and

(C) separate presentations, as appropriate, regarding information security relating to national security systems.

(b) Independent Auditor.—Subject to subsection (c)—

(1) for each agency with an Inspector General appointed under the Inspector General Act of 1978 or any other law, the annual evaluation required by this section shall be performed by the Inspector General or by an independent external auditor, as determined by the Inspector General of the agency; and

(2) for each agency to which paragraph (1) does not apply, the head of the agency shall engage an independent external auditor to perform the evaluation.

(c) National Security Systems.—For each agency operating or exercising control of a national security system, that portion of the evaluation required by this section directly relating to a national security system shall be performed—

(1) only by an entity designated by the agency head; and

(2) in such a manner as to ensure appropriate protection for information associated with any information security vulnerability in such system commensurate with the risk and in accordance with all applicable laws.

(d) Existing Evaluations.—The evaluation required by this section may be based in whole or in part on an audit, evaluation, or report relating to programs or practices of the applicable agency.

 
(e) Agency Reporting.—

(1) Each year, not later than such date established by the Director, the head of each agency shall submit to the Director the results of the evaluation required under this section.

(2) To the extent an evaluation required under this section directly relates to a national security system, the evaluation results submitted to the Director shall contain only a summary and assessment of that portion of the evaluation directly relating to a national security system.

(f) Protection of Information.—Agencies and evaluators shall take appropriate steps to ensure the protection of information which, if disclosed, may adversely affect information security. Such protections shall be commensurate with the risk and comply with all applicable laws and regulations.

(g) OMB Reports to Congress.—

(1) The Director shall summarize the results of the evaluations conducted under this section in the report to Congress required under section 3543(a)(8).

(2) The Director’s report to Congress under this subsection shall summarize information regarding information security relating to national security systems in such a manner as to ensure appropriate protection for information associated with any information security vulnerability in such system commensurate with the risk and in accordance with all applicable laws.

(3) Evaluations and any other descriptions of information systems under the authority and control of the Director of Central Intelligence or of National Foreign Intelligence Programs systems under the authority and control of the Secretary of Defense shall be made available to Congress only through the appropriate oversight committees of Congress, in accordance with applicable laws.

(h) Comptroller General.—The Comptroller General shall periodically evaluate and report to Congress on—

(1) the adequacy and effectiveness of agency information security policies and practices; and

(2) implementation of the requirements of this subchapter.

 

Sec. 3546. Federal Information Security Incident Center.

(a) In General.—The Director shall ensure the operation of a central Federal information security incident center to—

(1) provide timely technical assistance to operators of agency information systems regarding security incidents, including guidance on detecting and handling information security incidents;

(2) compile and analyze information about incidents that threaten information security;

(3) inform operators of agency information systems about current and potential information security threats, and vulnerabilities; and

(4) consult with the National Institute of Standards and Technology, agencies or offices operating or exercising control of national security systems (including the National Security Agency), and such other agencies or offices in accordance with law and as directed by the President regarding information security incidents and related matters.

(b) National Security Systems.—Each agency operating or exercising control of a national security system shall share information about information security incidents, threats, and vulnerabilities with the Federal information security incident center to the extent consistent with standards and guidelines for national security systems, issued in accordance with law and as directed by the President.

 

Sec. 3547. National Security Systems.

The head of each agency operating or exercising control of a national security system shall be responsible for ensuring that the agency—

(1) provides information security protections commensurate with the risk and magnitude of the harm resulting from the unauthorized access, use, disclosure, disruption, modification, or destruction of the information contained in such system;

(2) implements information security policies and practices as required by standards and guidelines for national security systems, issued in accordance with law and as directed by the President; and

(3) complies with the requirements of this subchapter.

 

Sec. 3548. Authorization of Appropriations.

There are authorized to be appropriated to carry out the provisions of this subchapter such sums as may be necessary for each of fiscal years 2003 through 2007.

 

SEC. 3549. Effect on Existing Law.

Nothing in this subchapter, section 11331 of title 40, or section 20 of the National Standards  and Technology Act (15 U.S.C. §278g-3) may be construed as affecting the authority of the President, the Office of Management and Budget or the Director thereof, the National Institute of Standards and Technology, or the head of any agency, with respect to the authorized use or disclosure of information, including with regard to the protection of personal privacy under section 552a of title 5, the disclosure of information under section 552 of title 5, the management and disposition of records under chapters 29, 31, or 33 of title 44, the management of information resources under subchapter I of chapter 35 of this title, or the disclosure of information to the Congress or the Comptroller General of the United States. While this subchapter is in effect, subchapter II of this chapter shall not apply.

 

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Amendments to:

 

Title 40 United States Code

Chapter 113–Responsibility for Acquisitions of Information Technology

Subchapter III–Other Responsibilities

 

SEC. 11331.  Responsibilities for Federal Information Systems Standards.

(a) Definition.—In this section, the term “information security” has the meaning given that term in section 3532(b)(1) of title 44

(b) Requirement to Prescribe Standards.

(1)In General.—

(A) Requirement.—Except as provided under paragraph (2), the Director of the Office of Management and Budget shall, on the basis of proposed standards developed by the National Institute of Standards and Technology pursuant to paragraphs (2) and (3) of section 20(a) of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3(a)) and in consultation with the Secretary of Homeland Security, promulgate information security standards pertaining to Federal information systems.

(B) Required Standards.—Standards promulgated under subparagraph (A) shall include—

(i) standards that provide minimum information security requirements as determined under section 20(b) of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3(b)); and

(ii) such standards that are otherwise necessary to improve the efficiency of operation or security of Federal information systems.

(c)Application of More Stringent Standards.—The head of an agency may employ standards for the cost-effective information security for all operations and assets within or under the supervision of that agency that are more stringent than the standards promulgated by the Director under this section, if such standards—

(1) contain, at a minimum, the provisions of those applicable standards made compulsory and binding by the Director; and

(2) are otherwise consistent with policies and guidelines issued under section 3533 of title 44.

(d)Requirements Regarding Decisions by Director.—

(1) Deadline. —The decision regarding the promulgation of any standard by the Director under subsection (b) shall occur not later than 6 months after the submission of the proposed standard to the Director by the National Institute of Standards and Technology, as provided under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3).

(2) Notice and Comment. —A decision by the Director to significantly modify, or not promulgate a proposed standard submitted to the Director by the National Institute of Standards and Technology, as provided under section 20 of the National Institute of Standards and Technology Act (15 U.S.C. 278g-3), shall be made after the public is given an opportunity to comment on the Director’s proposed decision.

 
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Amendments to:

National Institute of Standards and Technology Act Sections 20 and 21

 
Computer Standards Program

 

Section 20 [15 U.S.C. §278g-3]. 

(a) In General. The Institute shall—

(1) have the mission of developing standards, guidelines, and associated methods and techniques for information systems;

(2) develop standards and guidelines, including minimum requirements, for information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency, other than national security systems (as defined in section 3532(b)(2) of title 44);

(3) develop standards and guidelines, including minimum requirements, for providing adequate information security for all agency operations and assets, but such standards and guidelines shall not apply to national security systems; and

(4) carry out the responsibilities described in paragraph (3) through the Computer Security Division.

(b) Minimum Requirements for Standards and Guidelines.—The standards and guidelines required by subsection (a) of this section shall include, at a minimum—

(1)

            (A) standards to be used by all agencies to categorize all information and information

             systems collected or maintained by or on behalf of each agency based on the objectives

            of providing appropriate levels of information security according to a range of risk levels;

(B) guidelines recommending the types of information and information systems to be included in each such category; and

(C) minimum information security requirements for information and information systems in each such category;

(2) a definition of and guidelines concerning detection and handling of information security incidents; and

(3) guidelines developed in coordination with the National Security Agency for identifying an information system as a national security system consistent with applicable requirements for national security systems, issued in accordance with law and as directed by the President.

(c) Development of Standards and Guidelines.—In developing standards and guidelines required by subsections (a) and (b) of this section, the Institute shall—

(1) consult with other agencies and offices (including, but not limited to, the Director of the Office of Management and Budget, the Departments of Defense and Energy, the National Security Agency, the Government Accountability Office, and the Secretary of Homeland Security) to assure—

(A) use of appropriate information security policies, procedures, and techniques, in order to improve information security and avoid unnecessary and costly duplication of effort; and

(B) that such standards and guidelines are complementary with standards and guidelines employed for the protection of national security systems and information contained in such systems;

(2) provide the public with an opportunity to comment on proposed standards and guidelines;

(3) submit to the Director of the Office of Management and Budget for promulgation under section 11331 of title 40—

(A) standards, as required under subsection (b)(1)(A) of this section, no later than 12 months after November 25, 2002; and

(B) minimum information security requirements for each category, as required under subsection (b)(1)(C) of this section, no later than 36 months after November 25, 2002;

(4) issue guidelines as required under subsection (b)(1)(B) of this section, no later than 18 months after November 25, 2002;

(5) ensure that such standards and guidelines do not require specific technological solutions or products, including any specific hardware or software security solutions;

(6) ensure that such standards and guidelines provide for sufficient flexibility to permit alternative solutions to provide equivalent levels of protection for identified information security risks; and

(7) use flexible, performance-based standards and guidelines that, to the greatest extent possible, permit the use of off-the-shelf commercially developed information security products.

(d) Information Security Functions. The Institute shall—

(1) submit standards developed pursuant to subsection (a) of this section, along with recommendations as to the extent to which these should be made compulsory and binding, to the Director of the Office of Management and Budget for promulgation under section 11331 of title 40;

(2) provide assistance to agencies regarding—

(A) compliance with the standards and guidelines developed under subsection (a) of this section;

(B) detecting and handling information security incidents; and

(C) information security policies, procedures, and practices;

(3) conduct research, as needed, to determine the nature and extent of information security vulnerabilities and techniques for providing cost-effective information security;

(4) develop and periodically revise performance indicators and measures for agency information security policies and practices;

(5) evaluate private sector information security policies and practices and commercially available information technologies to assess potential application by agencies to strengthen information security;

(6) evaluate security policies and practices developed for national security systems to assess potential application by agencies to strengthen information security;

(7) periodically assess the effectiveness of standards and guidelines developed under this section and undertake revisions as appropriate;

(8) solicit and consider the recommendations of the Information Security and Privacy Advisory Board, established by section 278g-4 of this title, regarding standards and guidelines developed under subsection (a) of this section and submit such recommendations to the Director of the Office of Management and Budget with such standards submitted to the Director; and

(9) prepare an annual public report on activities undertaken in the previous year, and planned for the coming year, to carry out responsibilities under this section.

(e) Definitions.—As used in this section—

(1) the term “agency” has the same meaning as provided in section 3502(1) of title 44;

(2) the term “information security” has the same meaning as provided in section 3532(1) of such title;

(3) the term “information system” has the same meaning as provided in section 3502(8) of such title;

(4) the term “information technology” has the same meaning as provided in section 11101 of title 40; and

(5) the term “national security system” has the same meaning as provided in section 3532(b)(2) of such title.

 

Information Security and Privacy Advisory Board

 

Sec. 21. [15 U.S.C. §278g-4].             

(a) Establishment and Composition.—There is hereby established an Information Security and Privacy Advisory Board within the Department of Commerce. The Secretary of Commerce shall appoint the chairman of the Board. The Board shall be composed of twelve additional members appointed by the Secretary of Commerce as follows:

(1) four members from outside the Federal Government who are eminent in the information technology industry, at least one of whom is representative of small or medium sized companies in such industries;

(2) four members from outside the Federal Government who are eminent in the fields of information technology, or related disciplines, but who are not employed by or representative of a producer of information technology; and

(3) four members from the Federal Government who have information system management experience, including experience in information security and privacy, at least one of whom shall be from the National Security Agency.

(b) Duties.—The duties of the Board shall be—

(1) to identify emerging managerial, technical, administrative, and physical safeguard issues relative to information security and privacy;

(2) to advise the Institute, the Secretary of Commerce, and the Director of the Office of Management and Budget on information security and privacy issues pertaining to Federal Government information systems, including through review of proposed standards and guidelines developed under section 278g-3 of this title; and

(3) to report annually its findings to the Secretary of Commerce, the Director of the Office of Management and Budget, the Director of the National Security Agency, and the appropriate committees of the Congress.

(c) Term of Office.—The term of office of each member of the Board shall be four years, except that—

(1) of the initial members, three shall be appointed for terms of one year, three shall be appointed for terms of two years, three shall be appointed for terms of three years, and three shall be appointed for terms of four years; and

(2) any member appointed to fill a vacancy in the Board shall serve for the remainder of the term for which his predecessor was appointed.

(d) Quorum.—The Board shall not act in the absence of a quorum, which shall consist of seven members.

(e) Allowance for Travel Expenses.—Members of the Board, other than full-time employees of the Federal Government, while attending meetings of such committees or while otherwise performing duties at the request of the Board Chairman while away from their homes or a regular place of business, may be allowed travel expenses in accordance with subchapter I of chapter 57 of title 5.

(f) Meetings.The Board shall hold meetings at such locations and at such time and place as determined by a majority of the Board.

(g) Staff Services and Utilization of Federal Personnel.—To provide the staff services necessary to assist the Board in carrying out its functions, the Board may utilize personnel from the Institute or any other agency of the Federal Government with the consent of the head of the agency.

(h) Definitions.—As used in this section, the terms “information system” and “information technology” have the meanings given in section 278g-3 of this title. 

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Ref Book - Intelligence Community and Government Websites

Intelligence Community and Government Websites


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Office of the Director of National Intelligence: www.dni.gov


Central Intelligence Agency: www.cia.gov

National Security Agency: www.nsa.gov

Defense Intelligence Agency: www.dia.mil

National Geospatial-Intelligence Agency: www.nga.mil

National Reconnaissance Office: www.nro.gov

Department of Defense: www.defenselink.mil; www.defense.gov


Department of Justice: www.usdoj.gov


Department of State:
www.state.gov

Department of Treasury: www.ustreas.gov

Department of Homeland Security: www.dhs.gov


Department of Energy:
www.energy.gov

White House: www.whitehouse.gov

U.S. Senate: www.senate.gov


U.S. House of Representatives: www.house.gov


Library of Congress: www.loc.gov


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Ref Book - AG Guidelines involving FIS

Criminal Activity Involving FIS

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Guidelines Regarding Prompt Handling of Reports of Possible Criminal Activity Involving Foreign Intelligence Sources

Office of the Attorney General
Washington, DC 20530
September 23, 2002
 

MEMORANDUM FOR HEADS OF DEPARTMENT COMPONENTS
 

FROM THE ATTORNEY GENERAL -/S/-John Ashcroft
 

SUBJECT: Guidelines Regarding Prompt Handling of Reports of Possible Criminal Activity Involving Foreign Intelligence Sources
 

Section 905(b) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. 107-56, 115 Stat. 272,389, requires the Attorney General to develop guidelines to ensure that the Department of Justice responds within a reasonable period of time to reports from the intelligence community of possible criminal activity involving foreign intelligence sources or potential foreign intelligence sources. See 50 U.S.C. §403-5b(b). This memorandum establishes procedures to administer the requirement so f section 905 (b).

 

Pursuant to section 1.7(a) of Executive Order 12333; 28 U.S.C. §535(b); and the 1995 Memorandum of Understanding: Reporting of Information Concerning Federal Crimes (“1995 MOU”) between the Department of Justice and members of the intelligence community (Attachment A hereto), the intelligence community is required, inter alia, to report to the Assistant Attorney General or a  designated Deputy Assistant Attorney General of the Criminal Division information that it has collected in the performance of its intelligence activities concerning possible federal crimes by employees of an intelligence agency and violations of specified federal criminal laws by any other person. This reporting requirement extends to matters in which the intelligence community agency determines that investigation or prosecution of the matter “may result in a public disclosure of classified information or intelligence sources or methods or would jeopardize the security of ongoing intelligence operations.” 1995 MOU at 9

Upon receipt of a report of possible criminal activity pursuant to the 1995 MOU, the designated Deputy Assistant Attorney General shall refer the possible crime report to the appropriate component within the Department of Justice for review, including a determination of whether to commence or decline to commence a criminal investigation.

 

Section 905(b) reflects a recognition that when the possible criminal activities involve a foreign intelligence source or potential foreign intelligence source, the referring intelligence community agency may have a strong interest in knowing on an expedited basis whether the Department of Justice intends to investigate potential crimes.

 

Accordingly, I hereby direct that, when an intelligence community agency making such a possible crime report (all of which fall within the scope of and therefore should be made pursuant to the 1995 MOU) to the Criminal Division of the Department:

 

(1) notifies the Assistant Attorney General or designated Deputy Assistant Attorney General[1] that the possible crime report involves activity of a foreign intelligence source or potential foreign intelligence source; and

 

(2) requests an expedited determination of the Department of Justice’s intent to commence or decline to commence a criminal investigation,

 

the designated Deputy Assistant Attorney General and/or another attorney within the Criminal Division or other relevant component of the Department shall expeditiously confer with the referring intelligence community agency about the possible criminal activity, the reasons for the time sensitivity, and the nature and extent of the intelligence equities that may be affected by a decision to commence or decline to commence a criminal investigation of the reported activity.  Upon receipt of the report, the designated Deputy Assistant Attorney General shall determine whether immediate contact with the referring agency is necessary. If a need for immediate contact is not established, an appropriate Department attorney will be made available for an initial contact with the referring intelligence community agency within seven days of the receipt of the report requesting an expedited determination.

 

After conferencing with the referencing agency, receiving any necessary additional information, and consulting with other appropriate Department components, the Assistant Attorney General or the designated Deputy Assistant Attorney General of the Criminal Division or another appropriate Department attorney shall inform the referring agency within a reasonable period of time whether the Department intends to commence or decline t o commence a criminal investigation of the conduct described in the crime report. In all cases, Department attorneys shall take into account any special time urgency associated with the intelligence community agency’s intelligence equities or the possible criminal activity and, if necessary, provide notice of the prosecutorial decision on a highly expedited basis. Except in extraordinary circumstances, the referencing agency should be informed within 30 days. Extraordinary circumstances requiring more than 30 days may include situations where the case is of unusual complexity or where information necessary for a prosecutorial decision is unavailable.

 

These procedures are not intended to and do not create any rights, privileges, or benefits, substantive or procedural, enforceable by any party against the United State, its departments, agencies, or other entities, its officers or employees, or any other person.

 

The guidelines in this memorandum shall be effective immediately.



[1] The notification should be documented in writing, consistent with the procedures set forth in the 1995 Memorandum of Understanding governing the reporting by the intelligence community of possible criminal activity to the Department of Justice.

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Ref Book - Foreign Intelligence Acquired in the course of a Criminal Investigation

Foreign Intelligence & Criminal Investigations

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Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the course of a Criminal Investigation

Office of the Attorney General
Washington
, DC 20530
September 23, 2002

MEMORANDUM FOR HEADS OF DEPARTMENT OF JUSTICE COMPONENTS AND HEADS OF FEDERAL DEPARTMENTS AND AGENCIES WITH LAW ENFORCEMENT RESPONSIBILITIES

FROM THE ATTORNEY GENERAL -/S/-John Ashcroft

SUBJECT: Guidelines Regarding Disclosure to the Director of Central Intelligence and Homeland Security Officials of Foreign Intelligence Acquired in the course of a Criminal Investigation

Background

            The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub. L. 107-56, 115 Stat. 272, 389, enacted into law certain requirements for the sharing of information by Federal Law enforcement agencies with the intelligence community. Specifically, section 905(a) of the USA PATRIOT Act provides that “the Attorney General, or the head of any other department or agency of the Federal Government with law enforcement responsibilities, shall expeditiously disclose to the Director of Central Intelligence, pursuant to guidelines developed by the Attorney General in consultation with the Director, foreign intelligence acquired by an element of the Department of Justice or an element of such department or agency, as the case may be, in the course of a criminal investigation.”

            Since the enactment of the USA PATRIOT Act, federal law enforcement agencies have taken steps to improve existing channels of communication with the intelligence community and certain offices relating to homeland security (collectively, “Receiving Agencies”) in order to share foreign intelligence acquired in the course of criminal investigations.  The purpose of these guidelines is to formalize a framework pursuant to section 905(a) of the USA PATRIOT Act that will facilitate and increase to the fullest extent possible the continued expeditious sharing of such information.  The procedures established by these guidelines for the sharing of information between components of the Department of Justice or other departments and agencies having law enforcement responsibilities with Recipients (as defined below) are not, however, intended to replace or supersede existing operational or information sharing mechanisms between Federal law enforcement agencies and Receiving Agencies.  As appropriate, those relationships should continue to be used to the fullest extent possible.

            Heads of Department of Justice components and heads of other departments and agencies of the Federal government having law enforcement responsibility shall distribute these guidelines within their respective departments, components and agencies, as appropriate, to ensure prompt and effective implementation of section 905(a) and these guidelines.

Guidelines for Section 905(a) Information Sharing

1                    Scope of Application.  These guidelines apply to all elements of the Department of Justice having criminal investigative or prosecutorial responsibilities and to all other departments and agencies of the Federal government having law enforcement responsibilities (herinafter, collectively, “Federal Law Enforcement Agencies”).  These guidelines do not apply to agencies that provide support to criminal investigations, but that do not themselves conduct criminal investigations (e.g., the Department of Treasury’s Office of Foreign Assets Control and Financial Crimes Enforcement Network).

 

2                    Law Enforcement Information Subject to Mandatory Disclosure.  Subject to any exceptions established by the Attorney General in consultation with the Director of Central Intelligence (the “Director”) and Assistant to the President for Homeland Security, section 905(a) and these guidelines require expeditious disclosure to the Director, the Assistant to the President for Homeland Security or other members of the U.S. intelligence community or homeland security agencies as are designated under paragraph 4, infra, of foreign intelligence acquired in the course of a criminal investigation conducted by Federal Law Enforcement Agencies.

 

a.    As used herein, the term “foreign intelligence” is defined in section 3 of the National Security Act of 1947 (50 U.S.C. §401a) as:  “information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, or foreign persons, or international terrorist activities.”

 

b.    The term “section 905(a) information” means foreign intelligence acquired in the course of a criminal investigation.

 

c.    Section 203(d) of the USA PATRIOT Act, provides that:  “Notwithstanding any other law, it shall be lawful for foreign intelligence or counterintelligence (as defined in section 3 of the National Security Act of 1947 (50 U.S.C §401a)) or foreign intelligence information obtained as part of a criminal investigation to be disclosed to any Federal law enforcement, intelligence, protective, immigration, national defense, or national security official in order to assist the official receiving that information in the performance of his official duties.”  Thus, no other Federal or state law operates to prevent the sharing of such information so long as disclosure of such information will assist the Director and the Assistant to the President for Homeland Security in the performance of their official duties, and Federal Law Enforcement Agencies shall, notwithstanding any other law, expeditiously disclose to the Recipients (as defined below) section 905(a) information.

 

3                    Training.  Pursuant to section 908 of the USA PATRIOT Act, the department of Justice, in consultation with the Director, the Assistant to the President for Homeland Security, and other Federal Law Enforcement Agencies, will develop a training curriculum and program to ensure that law enforcement officials receive sufficient training to identify foreign intelligence subject to the disclosure requirements under these guidelines.

 

4                    Entities to Whom Disclosure Shall Be Made.  The Director, in consultation with the Assistant to the President for Homeland Security, shall promptly advise the Attorney General of his designations of appropriate offices, entities and/or officials of Receiving Agencies to receive the disclosure of section 905(a) information not covered by an established operational or information sharing mechanism.  Said designees, together with the Director and the Assistant to the President for Homeland Security and all offices, entities, or individuals covered by such an established mechanism, are collectively referred to herein as the “Recipients.”  The Director, in consultation with the Assistant to the President for Homeland Security, shall ensure that sufficient Recipients are identified to facilitate expeditious sharing and handling of section 905(a) information.

 

5                    Methods for Disclosure of Section 905(a) Information.  Subject only to any exceptions that may be established pursuant to paragraph 9(a), infra, all section 905(a) information shall be shared as expeditiously as possible with one or more of the Recipients.  The procedures established in this paragraph may be supplemented by more detailed definitions and protocols disseminated to appropriate law enforcement, intelligence, and homeland security officials in classified or confidential form.

 

a.    Terrorism or Weapons of Mass Destruction (WMD) Information.  Federal law enforcement officials shall disclose immediately to one or more Recipients information which they reasonably believe relates to a potential terrorism or WMD threat to the United States homeland, its critical infrastructure, key resources (whether physical or electronic), or to United States persons or interests worldwide.  Other terrorism or WMD information, as defined by section 5(a)(i) and (ii), shall be disclosed to one or more Recipients as expeditiously as possible.  In all cases, the official shall disclose such information with the understood priorities of disrupting terrorist plans, preventing terrorists’ attacks, and preserving the lives of United States persons.  Disclosure may be made through one or more of the following:  existing field-level operational or information sharing mechanisms, including a Joint Terrorism Task Force (JTTF); existing headquarters operational or information sharing mechanisms; or when the officer reasonably believes that time does not permit the use of any such established mechanisms, any other field level or other mechanism intended to facilitate immediate action, response or other efforts to address such threats.

 

As soon as possible after any disclosure under the preceding paragraph, the disclosing official shall notify the relevant JTTF of the disclosure.  The JTTF shall, as appropriate, keep the relevant Anti-Terrorism Task Force (ATTF) apprised of the nature of the information disclosed.  The relevant ATTF shall, in turn, apprise the Department of Justice Criminal Division’s Terrorism and Violent Crime Section (TVCS).  Where information is disclosed by the headquarters of the relevant Federal Law Enforcement Agency, the headquarters shall, as soon as practicable and to the extent reasonable, notify TVCS of all disclosures.  Federal agencies may require additional notification procedures where appropriate. 

 

For purposes of these guidelines, “terrorism information” and “weapons of mass destruction information” are defined as follows:

 

Terrorism Information:  All information relating to the existence, organization, capabilities, plans, intentions, vulnerabilities, means of finance or material support, or activities of foreign or international terrorist groups or individuals or threats posed by such groups or individuals to the United States, United States persons, or United States interests, or to those of other nations, or to communications between such groups or individuals, or information relating to groups or individuals reasonably believed to be assisting or associated with them. 

 

Weapons of Mass Destruction (WMD) Information:  All information relating to conventional explosive weapons and non-conventional weapons capable of causing mass casualties and damage, including chemical, biological, radiological and nuclear agents and weapons and the means of delivery of such weapons.

 

b.    All Other Section 905(a) Information.  In consultation with the Department of Justice and the Director, Federal Law Enforcement Agencies shall develop (or continue to follow existing) protocols (which may be classified or confidential) to provide for the expeditious sharing of section 905(a) information concerning all other subjects.

 

c.    Consultation With Respect to Title III and Grand Jury Materials.  Except as to section 905(a) information related to a potential terrorism or WMD threat, disclosure of 905(a) information will be accomplished in consultation with the prosecuting official assigned to the case if:  (i) the information was developed through investigatory activities occurring after a particular investigation has been referred formally to the Department of Justice for prosecution; and (ii) the information was produced by an electronic, wire, or oral interception or solely as a result of a grand jury subpoena or testimony occurring before a grand jury receiving information concerning the particular investigation.  This consultation may be the basis for identifying appropriate use restrictions or for seeking an exception to the section 905(a) disclosure requirements as set forth in paragraph 9, infra.  Consultation shall be accomplished expeditiously, and any resulting disclosure shall occur no later than 48 hours after the prosecutor is initially notified.  Section 905(a) information that a Federal law enforcement official reasonably believes is related to a potential terrorism or WMD threat, including information received from an electronic, wire, or oral interception or as a result of a grand jury subpoena or testimony occurring before a grand jury, shall be immediately disclosed by the Federal law enforcement official using the mechanisms described in paragraph 5(a), supra, and without need for advance consultation with the prosecuting official responsible for the case.  Contemporaneously or as soon after making the disclosure as possible, the Federal law enforcement official shall notify the prosecuting official responsible for the case in order to facilitate notice to the court, if necessary or appropriate.

 

6                    Requests for Additional Information and Amplification on Initial Disclosure.

 a.    Initial disclosure of section 905(a) information to Recipients shall be accomplished automatically and without specific prior request to the disclosing department, component, or agency.

 

b.    Requests by any Recipient for additional information or for clarification or amplification related to the initial disclosure should be coordinated, as applicable, through the component that provided the initial information or the designated headquarters office of the relevant Federal law enforcement agency.

7                    Disclosure of Grand Jury and Electronic, Wire, and Oral Interception Information.

 a.    Sections 203(a) and (b) of the USA PATRIOT Act permit the disclosure of federal grand jury information and electronic, wire and oral interception information to specified recipients for specified purposes (hereinafter “section 203 information”).

 

b.    Where section 203 information is shared pursuant to Paragraph 5, notice of such disclosures shall be promptly provided to the Office of Enforcement Operations (OEO) of the Department of Justice, Criminal Division.  OEO shall establish appropriate record keeping procedures to ensure compliance with notice requirements related to the disclosure of grand jury information pursuant to section 203.

 

c.    The USA PATRIOT Act requires special procedures for the disclosure of section 203 information that identifies United States persons.  The Federal law enforcement agency disclosing section 203 information pursuant to these guidelines shall observe the procedures established by the Attorney General for disclosing such information that identifies a United States person.  A copy of the section 203 United States person information procedures is attached as Appendix B.

 

d.    By these guidelines the special procedures that were established pursuant to section 203(c) are made applicable to all section 905(a) disclosures of information that identify a United States person. 

 

8.                  Information Use Restrictions.

 

a.    In the absence of any significant law enforcement interests, as identified below in paragraph 8(b), necessitating the imposition of use restrictions, Federal Law Enforcement Agencies shall disclose section 905(a) information to Recipients pursuant to these guidelines free of any originator controls or information use restrictions.

b.   The originator of the section 905(a) information may impose appropriate use restrictions necessary to protect sensitive law enforcement sources and ongoing criminal investigations and prosecutions.  The scope and duration of such restrictions, including caveats restricting use of the disclosed information to a particular level or element of the intelligence community, will be tailored to address the particular situation or subject matter involved.

 

i.                    When imposed, use restrictions shall be no more restrictive than necessary to accomplish the desired effect.

 

ii.                  Once imposed, use restrictions shall be reviewed periodically by the originator to determine whether they can be narrowed or lifted at the request of Recipients.

 

c.   Section 203 information shall be disclosed subject to any use restrictions necessary to comply with notice and record keeping requirements and to protect sensitive law enforcement sources and ongoing criminal investigations and prosecutions.

 

9.                  Attorney General Exceptions to Mandatory Disclosure of Section 905 Information.

 

a.   Section 905(a) expressly authorizes the Attorney General, in consultation with the Director, to exempt by regulation from the mandatory disclosure obligation one or more classes of foreign intelligence or foreign intelligence related to one or more targets or matters.

 

b.   Pending the development of appropriate permanent exceptions, exemptions from the mandatory disclosure obligation will be determined by the Attorney General in consultation with the Director and the Assistant to the President for Homeland Security on a case-by-case basis.

 

c.   Requests for an Attorney General exception to mandatory disclosure of section 905(a) information must be submitted by the department, component or agency head in writing with a complete description of the facts and circumstances giving rise to the need for an exception and why lesser measures such as use restrictions are not adequate.

 

10.              Administering Agent.  The Assistant Attorney General of the Criminal Division, in consultation with affected Agencies, Offices and Divisions of the Department of Justice, will act as executive agent for the Attorney General in administering these guidelines and providing advice and assistance to Federal law enforcement regarding the implementation of sections 203 and 905.

 

11.              No Private Rights Created.  These procedures are not intended to and do not create and rights, privileges, or benefits, substantive or procedural, enforceable by any party against the United States, its departments, agencies, or other entities, its officers or employees, or any other person

 

12.              Effective Immediately.  The guidelines in this memorandum shall be effective immediately.

 

APPENDICES:

 

A.                 Extract Copy of Section 905

Procedures for Marking, Handling and Disclosing Information that Identifies a United States Person.

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