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Ref Book - EO 13636

Thursday, November 03, 2016

EO 13636: Improving Critical Infrastructure Cybersecurity

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(Federal Register Vol. 78, No. 33 (February 12, 2013))

By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:

SECTION 1. POLICY.

Repeated cyber intrusions into critical infrastructure demonstrate the need for improved cybersecurity. The cyber threat to critical infrastructure continues to grow and represents one of the most serious national security challenges we must confront. The national and economic security of the United States depends on the reliable functioning of the Nation's critical infrastructure in the face of such threats. It is the policy of the United States to enhance the security and resilience of the Nation's critical infrastructure and to maintain a cyber environment that encourages efficiency, innovation, and economic prosperity while promoting safety, security, business confidentiality, privacy, and civil liberties. We can achieve these goals through a partnership with the owners and operators of critical infrastructure to improve cybersecurity information sharing and collaboratively develop and implement risk-based standards.

SEC. 2. CRITICAL INFRASTRUCTURE.

As used in this order, the term critical infrastructure means systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.

SEC. 3. POLICY COORDINATION.

Policy coordination, guidance, dispute resolution, and periodic in-progress reviews for the functions and programs described and assigned herein shall be provided through the interagency process established in Presidential Policy Directive-1 of February 13, 2009 (Organization of the National Security Council System), or any successor.

SEC. 4. CYBERSECURITY INFORMATION SHARING.

(a) It is the policy of the United States Government to increase the volume, timeliness, and quality of cyber threat information shared with U.S. private sector entities so that these entities may better protect and defend themselves against cyber threats. Within 120 days of the date of this order, the Attorney General, the Secretary of Homeland Security (the "Secretary"), and the Director of National Intelligence shall each issue instructions consistent with their authorities and with the requirements of section 12(c) of this order to ensure the timely production of unclassified reports of cyber threats to the U.S. homeland that identify a specific targeted entity. The instructions shall address the need to protect intelligence and law enforcement sources, methods, operations, and investigations.

(b) The Secretary and the Attorney General, in coordination with the Director of National Intelligence, shall establish a process that rapidly disseminates the reports produced pursuant to section 4(a) of this order to the targeted entity. Such process shall also, consistent with the need to protect national security information, include the dissemination of classified reports to critical infrastructure entities authorized to receive them. The Secretary and the Attorney General, in coordination with the Director of National Intelligence, shall establish a system for tracking the production, dissemination, and disposition of these reports.

(c) To assist the owners and operators of critical infrastructure in protecting their systems from unauthorized access, exploitation, or harm, the Secretary, consistent with 6 U.S.C. 143 and in collaboration with the Secretary of Defense, shall, within 120 days of the date of this order, establish procedures to expand the Enhanced Cybersecurity Services program to all critical infrastructure sectors. This voluntary information sharing program will provide classified cyber threat and technical information from the Government to eligible critical infrastructure companies or commercial service providers that offer security services to critical infrastructure.

(d) The Secretary, as the Executive Agent for the Classified National Security Information Program created under Executive Order 13549 of August 18, 2010 (Classified National Security Information Program for State, Local, Tribal, and Private Sector Entities), shall expedite the processing of security clearances to appropriate personnel employed by critical infrastructure owners and operators, prioritizing the critical infrastructure identified in section 9 of this order.

(e) In order to maximize the utility of cyber threat information sharing with the private sector, the Secretary shall expand the use of programs that bring private sector subject-matter experts into Federal service on a temporary basis. These subject matter experts should provide advice regarding the content, structure, and types of information most useful to critical infrastructure owners and operators in reducing and mitigating cyber risks.

SEC. 5. PRIVACY AND CIVIL LIBERTIES PROTECTIONS.

(a) Agencies shall coordinate their activities under this order with their senior agency officials for privacy and civil liberties and ensure that privacy and civil liberties protections are incorporated into such activities. Such protections shall be based upon the Fair Information Practice Principles and other privacy and civil liberties policies, principles, and frameworks as they apply to each agency's activities.

(b) The Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties of the Department of Homeland Security (DHS) shall assess the privacy and civil liberties risks of the functions and programs undertaken by DHS as called for in this order and shall recommend to the Secretary ways to minimize or mitigate such risks, in a publicly available report, to be released within 1 year of the date of this order. Senior agency privacy and civil liberties officials for other agencies engaged in activities under this order shall conduct assessments of their agency activities and provide those assessments to DHS for consideration and inclusion in the report. The report shall be reviewed on an annual basis and revised as necessary. The report may contain a classified annex if necessary. Assessments shall include evaluation of activities against the Fair Information Practice Principles and other applicable privacy and civil liberties policies, principles, and frameworks. Agencies shall consider the assessments and recommendations of the report in implementing privacy and civil liberties protections for agency activities.

(c) In producing the report required under subsection (b) of this section, the Chief Privacy Officer and the Officer for Civil Rights and Civil Liberties of DHS shall consult with the Privacy and Civil Liberties Oversight Board and coordinate with the Office of Management and Budget (OMB).

(d) Information submitted voluntarily in accordance with 6 U.S.C. 133 by private entities under this order shall be protected from disclosure to the fullest extent permitted by law.

SEC. 6. CONSULTATIVE PROCESS.

The Secretary shall establish a consultative process to coordinate improvements to the cybersecurity of critical infrastructure. As part of the consultative process, the Secretary shall engage and consider the advice, on matters set forth in this order, of the Critical Infrastructure Partnership Advisory Council; Sector Coordinating Councils; critical infrastructure owners and operators; Sector-Specific Agencies; other relevant agencies; independent regulatory agencies; State, local, territorial, and tribal governments; universities; and outside experts.

SEC. 7. BASELINE FRAMEWORK TO REDUCE CYBER RISK TO CRITICAL INFRASTRUCTURE.

(a) The Secretary of Commerce shall direct the Director of the National Institute of Standards and Technology (the "Director") to lead the development of a framework to reduce cyber risks to critical infrastructure (the "Cybersecurity Framework"). The Cybersecurity Framework shall include a set of standards, methodologies, procedures, and processes that align policy, business, and technological approaches to address cyber risks. The Cybersecurity Framework shall incorporate voluntary consensus standards and industry best practices to the fullest extent possible. The Cybersecurity Framework shall be consistent with voluntary international standards when such international standards will advance the objectives of this order, and shall meet the requirements of the National Institute of Standards and Technology Act, as amended (15 U.S.C. 271 et seq.), the National Technology Transfer and Advancement Act of 1995 (Public Law 104-113), and OMB Circular A-119, as revised.

(b) The Cybersecurity Framework shall provide a prioritized, flexible, repeatable, performance-based, and cost-effective approach, including information security measures and controls, to help owners and operators of critical infrastructure identify, assess, and manage cyber risk. The Cybersecurity Framework shall focus on identifying cross-sector security standards and guidelines applicable to critical infrastructure. The Cybersecurity Framework will also identify areas for improvement that should be addressed through future collaboration with particular sectors and standards-developing organizations. To enable technical innovation and account for organizational differences, the Cybersecurity Framework will provide guidance that is technology neutral and that enables critical infrastructure sectors to benefit from a competitive market for products and services that meet the standards, methodologies, procedures, and processes developed to address cyber risks. The Cybersecurity Framework shall include guidance for measuring the performance of an entity in implementing the Cybersecurity Framework.

(c) The Cybersecurity Framework shall include methodologies to identify and mitigate impacts of the Cybersecurity Framework and associated information security measures or controls on business confidentiality, and to protect individual privacy and civil liberties.

(d) In developing the Cybersecurity Framework, the Director shall engage in an open public review and comment process. The Director shall also consult with the Secretary, the National Security Agency, Sector-Specific Agencies and other interested agencies including OMB, owners and operators of critical infrastructure, and other stakeholders through the consultative process established in section 6 of this order. The Secretary, the Director of National Intelligence, and the heads of other relevant agencies shall provide threat and vulnerability information and technical expertise to inform the development of the Cybersecurity Framework. The Secretary shall provide performance goals for the Cybersecurity Framework informed by work under section 9 of this order.

(e) Within 240 days of the date of this order, the Director shall publish a preliminary version of the Cybersecurity Framework (the "preliminary Framework"). Within 1 year of the date of this order, and after coordination with the Secretary to ensure suitability under section 8 of this order, the Director shall publish a final version of the Cybersecurity Framework (the "final Framework").
(f) Consistent with statutory responsibilities, the Director will ensure the Cybersecurity Framework and related guidance is reviewed and updated as necessary, taking into consideration technological changes, changes in cyber risks, operational feedback from owners and operators of critical infrastructure, experience from the implementation of section 8 of this order, and any other relevant factors.

SEC. 8. VOLUNTARY CRITICAL INFRASTRUCTURE CYBERSECURITY PROGRAM.

(a) The Secretary, in coordination with Sector-Specific Agencies, shall establish a voluntary program to support the adoption of the Cybersecurity Framework by owners and operators of critical infrastructure and any other interested entities (the "Program").

(b) Sector-Specific Agencies, in consultation with the Secretary and other interested agencies, shall coordinate with the Sector Coordinating Councils to review the Cybersecurity Framework and, if necessary, develop implementation guidance or supplemental materials to address sector-specific risks and operating environments.

(c) Sector-Specific Agencies shall report annually to the President, through the Secretary, on the extent to which owners and operators notified under section 9 of this order are participating in the Program.

(d) The Secretary shall coordinate establishment of a set of incentives designed to promote participation in the Program. Within 120 days of the date of this order, the Secretary and the Secretaries of the Treasury and Commerce each shall make recommendations separately to the President, through the Assistant to the President for Homeland Security and Counterterrorism and the Assistant to the President for Economic Affairs, that shall include analysis of the benefits and relative effectiveness of such incentives, and whether the incentives would require legislation or can be provided under existing law and authorities to participants in the Program.

(e) Within 120 days of the date of this order, the Secretary of Defense and the Administrator of General Services, in consultation with the Secretary and the Federal Acquisition Regulatory Council, shall make recommendations to the President, through the Assistant to the President for Homeland Security and Counterterrorism and the Assistant to the President for Economic Affairs, on the feasibility, security benefits, and relative merits of incorporating security standards into acquisition planning and contract administration. The report shall address what steps can be taken to harmonize and make consistent existing procurement requirements related to cybersecurity.

SEC. 9. IDENTIFICATION OF CRITICAL INFRASTRUCTURE AT GREATEST RISK.

(a) Within 150 days of the date of this order, the Secretary shall use a risk-based approach to identify critical infrastructure where a cybersecurity incident could reasonably result in catastrophic regional or national effects on public health or safety, economic security, or national security. In identifying critical infrastructure for this purpose, the Secretary shall use the consultative process established in section 6 of this order and draw upon the expertise of Sector-Specific Agencies. The Secretary shall apply consistent, objective criteria in identifying such critical infrastructure. The Secretary shall not identify any commercial information technology products or consumer information technology services under this section. The Secretary shall review and update the list of identified critical infrastructure under this section on an annual basis, and provide such list to the President, through the Assistant to the President for Homeland Security and Counterterrorism and the Assistant to the President for Economic Affairs.

(b) Heads of Sector-Specific Agencies and other relevant agencies shall provide the Secretary with information necessary to carry out the responsibilities under this section. The Secretary shall develop a process for other relevant stakeholders to submit information to assist in making the identifications required in subsection (a) of this section.

(c) The Secretary, in coordination with Sector-Specific Agencies, shall confidentially notify owners and operators of critical infrastructure identified under subsection (a) of this section that they have been so identified, and ensure identified owners and operators are provided the basis for the determination. The Secretary shall establish a process through which owners and operators of critical infrastructure may submit relevant information and request reconsideration of identifications under subsection (a) of this section.

SEC. 10. ADOPTION OF FRAMEWORK.

(a) Agencies with responsibility for regulating the security of critical infrastructure shall engage in a consultative process with DHS, OMB, and the National Security Staff to review the preliminary Cybersecurity Framework and determine if current cybersecurity regulatory requirements are sufficient given current and projected risks. In making such determination, these agencies shall consider the identification of critical infrastructure required under section 9 of this order. Within 90 days of the publication of the preliminary Framework, these agencies shall submit a report to the President, through the Assistant to the President for Homeland Security and Counterterrorism, the Director of OMB, and the Assistant to the President for Economic Affairs, that states whether or not the agency has clear authority to establish requirements based upon the Cybersecurity Framework to sufficiently address current and projected cyber risks to critical infrastructure, the existing authorities identified, and any additional authority required.

(b) If current regulatory requirements are deemed to be insufficient, within 90 days of publication of the final Framework, agencies identified in subsection (a) of this section shall propose prioritized, risk-based, efficient, and coordinated actions, consistent with Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review), and Executive Order 13609 of May 1, 2012 (Promoting International Regulatory Cooperation), to mitigate cyber risk.

(c) Within 2 years after publication of the final Framework, consistent with Executive Order 13563 and Executive Order 13610 of May 10, 2012 (Identifying and Reducing Regulatory Burdens), agencies identified in subsection (a) of this section shall, in consultation with owners and operators of critical infrastructure, report to OMB on any critical infrastructure subject to ineffective, conflicting, or excessively burdensome cybersecurity requirements. This report shall describe efforts made by agencies, and make recommendations for further actions, to minimize or eliminate such requirements.

(d) The Secretary shall coordinate the provision of technical assistance to agencies identified in subsection (a) of this section on the development of their cybersecurity workforce and programs.

(e) Independent regulatory agencies with responsibility for regulating the security of critical infrastructure are encouraged to engage in a consultative process with the Secretary, relevant Sector-Specific Agencies, and other affected parties to consider prioritized actions to mitigate cyber risks for critical infrastructure consistent with their authorities.

SEC. 11. DEFINITIONS.

(a) "Agency" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

(b) "Critical Infrastructure Partnership Advisory Council" means the council established by DHS under 6 U.S.C. 451 to facilitate effective interaction and coordination of critical infrastructure protection activities among the Federal Government; the private sector; and State, local, territorial, and tribal governments.

(c) "Fair Information Practice Principles" means the eight principles set forth in Appendix A of the National Strategy for Trusted Identities in Cyberspace.

(d) "Independent regulatory agency" has the meaning given the term in 44 U.S.C. 3502(5).

(e) "Sector Coordinating Council" means a private sector coordinating council composed of representatives of owners and operators within a particular sector of critical infrastructure established by the National Infrastructure Protection Plan or any successor.

(f) "Sector-Specific Agency" has the meaning given the term in Presidential Policy Directive-21 of February 12, 2013 (Critical Infrastructure Security and Resilience), or any successor.

SEC. 12. GENERAL PROVISIONS.

(a) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. Nothing in this order shall be construed to provide an agency with authority for regulating the security of critical infrastructure in addition to or to a greater extent than the authority the agency has under existing law. Nothing in this order shall be construed to alter or limit any authority or responsibility of an agency under existing law.

(b) Nothing in this order shall be construed to impair or otherwise affect the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals.

(c) All actions taken pursuant to this order shall be consistent with requirements and authorities to protect intelligence and law enforcement sources and methods. Nothing in this order shall be interpreted to supersede measures established under authority of law to protect the security and integrity of specific activities and associations that are in direct support of intelligence and law enforcement operations.

(d) This order shall be implemented consistent with U.S. international obligations.

(e) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

-/S/- Barack Obama
THE WHITE HOUSE, February 12, 2013.


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Ref Book - Judicial Redress Act of 2015

Tuesday, November 01, 2016

Judicial Redress Act of 2015

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(Public Law 114–126, of February 24, 2016; 130 STAT. 285)

An Act to extend Privacy Act remedies to citizens of certified states, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SEC. 1. SHORT TITLE.

This Act may be cited as the “Judicial Redress Act of 2015”.

SEC. 2. EXTENSION OF PRIVACY ACT REMEDIES TO CITIZENS OF DESIGNATED COUNTRIES.

  1. CIVIL ACTION; CIVIL REMEDIES.—With respect to covered records, a covered person may bring a civil action against an agency and obtain civil remedies, in the same manner, to the same extent, and subject to the same limitations, including exemptions and exceptions, as an individual may bring and obtain with respect to records under—
    1. section 552a(g)(1)(D) of title 5, United States Code, but only with respect to disclosures intentionally or willfully made in violation of section 552a(b) of such title; and
    2. subparagraphs (A) and (B) of section 552a(g)(1) of title 5, United States Code, but such an action may only be brought against a designated Federal agency or component.
  2. EXCLUSIVE REMEDIES.—The remedies set forth in subsection (a) are the exclusive remedies available to a covered person under this section.
  3. APPLICATION OF THE PRIVACY ACT WITH RESPECT TO A COVERED PERSON.—For purposes of a civil action described in subsection (a), a covered person shall have the same rights, and be subject to the same limitations, including exemptions and exceptions, as an individual has and is subject to under section 552a of title 5, United States Code, when pursuing the civil remedies described in paragraphs (1) and (2) of subsection (a).
  4. DESIGNATION OF COVERED COUNTRY.—
    1. IN GENERAL.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, designate a foreign country or regional economic integration organization, or member country of such organization, as a ‘‘covered country’’ for purposes of this section if—
      1. (A)
        1. the country or regional economic integration organization, or member country of such organization, has entered into an agreement with the United States that provides for appropriate privacy protections for information shared for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses; or
        2. the Attorney General has determined that the country or regional economic integration organization, or member country of such organization, has effectively shared information with the United States for the purpose of preventing, investigating, detecting, or prosecuting criminal offenses and has appropriate privacy protections for such shared information;
      2. the country or regional economic integration organization, or member country of such organization, permits the transfer of personal data for commercial purposes between the territory of that country or regional economic organization and the territory of the United States, through an agreement with the United States or otherwise; and
      3. the Attorney General has certified that the policies regarding the transfer of personal data for commercial purposes and related actions of the country or regional economic integration organization, or member country of such organization, do not materially impede the national security interests of the United States.
    2. REMOVAL OF DESIGNATION.—The Attorney General may, with the concurrence of the Secretary of State, the Secretary of the Treasury, and the Secretary of Homeland Security, revoke the designation of a foreign country or regional economic integration organization, or member country of such organization, as a ‘‘covered country’’ if the Attorney General determines that such designated ‘‘covered country’’—
      1. is not complying with the agreement described under paragraph (1)(A)(i);
      2. no longer meets the requirements for designation under paragraph (1)(A)(ii);
      3. fails to meet the requirements under paragraph (1)(B);
      4. no longer meets the requirements for certification under paragraph (1)(C); or
      5. impedes the transfer of information (for purposes of reporting or preventing unlawful activity) to the United States by a private entity or person.
  5. DESIGNATION OF DESIGNATED FEDERAL AGENCY OR COMPONENT.—
    1. IN GENERAL.—The Attorney General shall determine whether an agency or component thereof is a ‘‘designated Federal agency or component’’ for purposes of this section. The Attorney General shall not designate any agency or component thereof other than the Department of Justice or a component of the Department of Justice without the concurrence of the head of the relevant agency, or of the agency to which the component belongs.
    2. REQUIREMENTS FOR DESIGNATION.—The Attorney General may determine that an agency or component of an agency is a ‘‘designated Federal agency or component’’ for purposes of this section, if—
      1. the Attorney General determines that information exchanged by such agency with a covered country is within the scope of an agreement referred to in subsection (d)(1)(A); or
      2. with respect to a country or regional economic integration organization, or member country of such organization, that has been designated as a ‘‘covered country’’ under subsection(d)(1)(B), the Attorney General determines that designating such agency or component thereof is in the law enforcement interests of the United States.
  6. FEDERAL REGISTER REQUIREMENT; NONREVIEWABLE DETERMINATION.—The Attorney General shall publish each determination made under subsections (d) and (e). Such determination shall not be subject to judicial or administrative review.
  7. JURISDICTION.—The United States District Court for the District of Columbia shall have exclusive jurisdiction over any claim arising under this section.
  8. DEFINITIONS.—In this Act:
    1. AGENCY.—The term ‘‘agency’’ has the meaning given that term in section 552(f) of title 5, United States Code.
    2. COVERED COUNTRY.—The term ‘‘covered country’’ means a country or regional economic integration organization, or member country of such organization, designated in accordance with subsection (d).
    3. COVERED PERSON.—The term ‘‘covered person’’ means a natural person (other than an individual) who is a citizen of a covered country.
    4. COVERED RECORD.—The term ‘‘covered record’’ has the same meaning for a covered person as a record has for an individual under section 552a of title 5, United States Code, once the covered record is transferred—
      1. by a public authority of, or private entity within, a country or regional economic organization, or member country of such organization, which at the time the record is transferred is a covered country; and
      2. to a designated Federal agency or component for purposes of preventing, investigating, detecting, or prosecuting criminal offenses.
    5. DESIGNATED FEDERAL AGENCY OR COMPONENT.—The term ‘‘designated Federal agency or component’’ means a Federal agency or component of an agency designated in accordance with subsection (e).
    6. INDIVIDUAL.—The term ‘‘individual’’ has the meaning given that term in section 552a(a)(2) of title 5, United States Code.
  9. PRESERVATION OF PRIVILEGES.—Nothing in this section shall be construed to waive any applicable privilege or require the disclosure of classified information. Upon an agency’s request, the district court shall review in camera and ex parte any submission by the agency in connection with this subsection.
  10. EFFECTIVE DATE.—This Act shall take effect 90 days after the date of the enactment of this Act.


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Ref Book - PPD 19: Protecting Whistleblowers with Access to Classified Information

Thursday, October 27, 2016

PPD 19: Protecting Whistleblowers

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THE WHITE HOUSE
WASHINGTON
October 10, 2012

PRESIDENTIAL POLICY DIRECTIVE/PPD-19

SUBJECT: Protecting Whistleblowers with Access to Classified Information

This Presidential Policy Directive ensures that employees (1) serving in the Intelligence Community or (2) who are eligible for access to classified information can effectively report waste, fraud, and abuse while protecting classified national security information. It prohibits retaliation against employees for reporting waste, fraud, and abuse.

To ensure the timely and effective implementation of the goals of this directive, I hereby direct that the following actions be taken:

A. Prohibition on Retaliation in the Intelligence Community

Any officer or employee of a Covered Agency who has authority to take, direct others to take, recommend, or approve any Personnel Action, shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, a Personnel Action with respect to any employee serving in an Intelligence Community Element as a reprisal for a Protected Disclosure.

Within 270 days of the date of this directive, the head of each Intelligence Community Element shall certify to the Director of National Intelligence (DNI) that the personnel policies that apply to that element provide a process for employees to seek review of Personnel Actions they allege to be in violation of this directive and that the review process is consistent with the requirements of this directive. Such review process shall apply to Personnel Actions that arise after the date on which the department or agency ("agency") head certifies the agency review process. If the head of any Intelligence Community Element fails to make this certification or if the DNI disagrees with the certification, the DNI shall notify the President.

The review process required by the above paragraph shall be consistent, to the fullest extent possible, with the policies and procedures used to adjudicate alleged violations of section 2302(b) (8) of title 5, United States Code. The review process shall provide for the protection of classified national security information and intelligence sources and methods. As part of the review process, the agency Inspector General shall conduct a review to determine whether a Personnel Action violated this directive and may recommend that the agency take specific corrective action to return the employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred. An agency head shall carefully consider the findings of and actions recommended by the agency Inspector General. To the extent authorized by law (including the Back Pay Act), corrective action may include, but is not limited to, reinstatement, reassignment, the award of reasonable attorney's fees, other reasonable costs, back pay and related benefits, travel expenses, and compensatory damages.

B. Prohibition on Retaliation by Affecting Eligibility for Access to Classified Information

Any officer or employee of an executive branch agency who has authority to take, direct others to take, recommend, or approve any action affecting an employee's Eligibility for Access to Classified Information shall not, with respect to such authority, take or fail to take, or threaten to take or fail to take, any action affecting an employee's Eligibility for Access to Classified Information as a reprisal for a Protected Disclosure.

Within 270 days of the date of this directive, the head of each agency in possession of classified information shall certify to the DNI, acting in his or her capacity as the head of the entity selected by the President under subsection 435b(b) of title 50, United States Code, and as the Security Executive Agent designated in Executive Order 13467 of June 30, 2008, that the agency has a review process that permits employees to appeal actions affecting Eligibility for Access to Classified Information they allege to be in violation of this directive and that the review process is consistent with the requirements of this directive. Such review process shall apply to actions that arise after the date on which the agency head certifies the agency review process. If the head of any agency fails to make this certification or if the DNI disagrees with the certification, the DNI shall notify the President.

The review process required by the above paragraph shall, to the fullest extent possible, be consistent with and integrated into the policies and procedures used to review security clearance determinations under Section 5.2 of Executive Order 12968 of August 2, 1995, as amended. The review process shall provide for the protection of classified national security information and intelligence sources and methods. As part of the review process, the agency Inspector General shall conduct a review to determine whether an action affecting Eligibility for Access to Classified Information violated this directive and may recommend that the agency reconsider the employee's Eligibility for Access to Classified Information consistent with the national security and with Executive Order 12968 and recommend that the agency take other corrective action to return the employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred. An agency head shall carefully consider the findings of and actions recommended by the agency Inspector General. To the extent authorized by law (including the Back Pay Act), corrective action may include, but is not limited to, reinstatement, reassignment, reasonable attorney's fees, other reasonable costs, back pay and related benefits, travel expenses, and compensatory damages.

C. Inspector General External Review Panel

An employee alleging a reprisal who has exhausted the applicable review process required by Section A or B of this directive may request an external review by a three-member Inspector General panel (External Review Panel) chaired by the Inspector General of the Intelligence Community (on behalf of the DNI, acting in his capacity as the head of the entity selected by the President under subsection 435b(b) of title 50, United States Code, and as the Security Executive Agent designated in Executive Order 13467 of June 30, 2008). If such a request is made, the Inspector General of the Intelligence Community shall decide, in his or her discretion, whether to convene the External Review Panel, and, if so, shall designate two other panel members from the Inspectors General of the following agencies: Departments of State, the Treasury, Defense, Justice, Energy, and Homeland Security and Central Intelligence Agency. The Inspector General from the agency that completed the initial review shall not be a member of the External Review Panel. The External Review Panel shall complete a review of the claim, which may consist of a file review, as appropriate, within 180 days.

If the External Review Panel determines that the individual was the subject of a Personnel Action prohibited by Section A while an employee of a Covered Agency or an action affecting his or her Eligibility for Access to Classified Information prohibited by Section B, the panel may recommend that the agency head take corrective action to return the employee, as nearly as practicable and reasonable, to the position such employee would have held had the reprisal not occurred and that the agency head reconsider the employee's Eligibility for Access to Classified Information consistent with the national security and with Executive Order 12968.

An agency head shall carefully consider the recommendation of the External Review Panel pursuant to the above paragraph and within 90 days, inform the panel and the DNI of what action he or she has taken. If the head of any agency fails to so inform the DNI, the DNI shall notify the President.

On an annual basis, the Inspector General of the Intelligence Community shall report the determinations and recommendations and department and agency head responses to the DNI and, as appropriate, to the relevant congressional committees.

With respect to matters covered by this directive, all agencies shall cooperate with their respective agency Inspectors General, the Inspector General of the Intelligence Community, and External Review Panels and provide such information and assistance to their respective agency Inspectors General, the Inspector General of the Intelligence Community, and members of External Review Panels as such Inspectors General may request, to the extent permitted by law.

D. Policies and Procedures

Within 365 days of the date of this directive, the DNI shall, in consultation with the Secretary of Defense, the Attorney General, and the heads of agencies containing Intelligence Community Elements, issue policies and procedures for ensuring that all employees serving in Intelligence Community Elements are aware of the protections and review processes available to individuals who make Protected Disclosures. These policies and procedures shall to the extent practicable be publically available, and shall provide:

  1. guidance for individual officers or employees regarding what disclosures are protected;
  2. guidance for potential recipients on the appropriate handling of Protected Disclosures, including for referral by the DNI or Inspector General of the Intelligence Community to appropriate agency officials of any Protected Disclosures unrelated to national intelligence; and
  3. information regarding the review processes required by Sections A, B, and C of this directive.

E. Review of Regulations Implementing Section 2303 of Title 5, United States Code

Within 180 days of the date of this directive, the Attorney General, in consultation with the Special Counsel and Federal Bureau of Investigation employees, shall deliver a report to the President that assesses the efficacy of the provisions contained in part 27 of title 28, Code of Federal Regulations in deterring the personnel practices prohibited in section 2303 of title 5, United States Code, and ensuring appropriate enforcement of that section, and describes any proposed revisions to the provisions contained in Part 27 of title 28 that would increase their effectiveness in fulfilling the purposes of section 2303 of title 5, United States Code.

F. Definitions

For purposes of this directive:

  1. The term "Covered Agency" means an executive department or independent establishment, as defined under sections 101 and 104 of title 5, United States Code, that contains or constitutes an Intelligence Community Element, as defined below.
  2. The term "Eligibility for Access to Classified Information" means the result of the determination whether an employee (a) is eligible for access to classified information in accordance with Executive Order 12968 (relating to access to classified information), or any successor thereto, and Executive Order 10865 of February 20, 1960, as amended (relating to safeguarding classified information with industry), or any successor thereto; and (b) possesses a need to know under such orders.
  3. The term "Intelligence Community Element" means any executive agency or unit thereof determined by the President under section 2302 (a) (2) (C) (ii) of title 5, United States Code, to have as its principal function the conduct of foreign intelligence or counterintelligence activities, including but not limited to the Office of the DNI, the Central Intelligence Agency, the National Security Agency, the Defense Intelligence Agency, the National Geospatial-Intelligence Agency, and the National Reconnaissance Office. For purposes of this directive, the term "Intelligence Community Element" does not include the Federal Bureau of Investigation.
  4. The term "Personnel Action" means an appointment, promotion, detail, transfer, reassignment, demotion, suspension, termination, reinstatement, restoration, reemployment, or performance evaluation; a decision concerning pay, benefits, or awards; a decision concerning education or training if the education or training may reasonably be expected to lead to an appointment, reassignment, promotion, or performance evaluation; a decision to order psychiatric testing or examination; and any other significant change in duties, responsibilities, or working conditions.

The term "Personnel Action" does not include the termination of an employee pursuant to section 1609 of title 10, United States Code. The term "Personnel Action" does not include the termination of an employee pursuant to section 102A(m) of the National Security Act of 1947, section 104A(e) of the National Security Act of 1947, or section 7532 of title 5, United States Code, so long as the official authorized by those provisions to terminate the employee (and not his or her de1egee) (i) determines that the alternative legal procedures to terminate the employee cannot be invoked in a manner consistent with the national security and (ii) promptly notifies the Inspector General of the employing agency. The term "Personnel Action" does not include actions taken with respect to a position that the agency head has designated, prior to the action as being of a confidential, policy determining, policymaking, or policy advocating character. The term "Personnel Action" does not include actions taken with respect to a member of the Armed Forces, as used in section 1034 of Title 10, United States Code. The term "Personnel Action" does not include any actions taken prior to the issuance of this directive.

  1. The term "Protected Disclosure" means:
    1. a disclosure of information by the employee to a supervisor in the employee's direct chain of command up to and including the head of the employing agency, to the Inspector General of the employing agency or Intelligence Community Element, to the Director of National Intelligence, to the Inspector General of the Intelligence Community, or to an employee designated by any of the above officials for the purpose of receiving such disclosures, that the employee reasonably believes evidences (i) a violation of any law, rule, or regulation; or (ii) gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety;
    2. any communication described by and that complies with subsection (a) (1), (d), or (h) of section 8H of the Inspector General Act of 1978 (5 U.S.C. App.); subsection (d) (5) (A) of section 17 of the Central Intelligence Agency Act of 1949 (50 U.S.C. 403q); or subsection (k) (5) (A), (D), or (G), of section 103H of the National Security Act of 1947 (50 U.S.C. 403-3h);
    3. the exercise of any appeal, complaint, or grievance with regard to the violation of Section A or B of this directive;
    4. lawfully participating in an investigation or proceeding regarding a violation of Section A or B of this directive; or
    5. cooperating with or disclosing information to an Inspector General, in accordance with applicable provisions of law in connection with an audit, inspection, or investigation conducted by the Inspector General,
      if the actions described under subparagraphs (c) through (e) do not result in the employee disclosing classified information or other information contrary to law.

G. General Provisions

This directive shall be implemented in a manner consistent with applicable law, including all statutory authorities of the heads of agencies and Inspectors General, and does not restrict available rights, procedures, and remedies under section 2302(b) of Title 5, United States Code.

This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

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Ref Book - PPD 21- Critical Infrastructure Security & Resilience

Thursday, October 27, 2016

PPD 21: Critical Infrastructure Security and Resilience

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THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
February 12, 2013

PRESIDENTIAL POLICY DIRECTIVE/PPD-21

SUBJECT: Critical Infrastructure Security and Resilience

The Presidential Policy Directive (PPD) on Critical Infrastructure Security and Resilience advances a national unity of effort to strengthen and maintain secure, functioning, and resilient critical infrastructure.

Introduction

The Nation's critical infrastructure provides the essential services that underpin American society. Proactive and coordinated efforts are necessary to strengthen and maintain secure, functioning, and resilient critical infrastructure – including assets, networks, and systems – that are vital to public confidence and the Nation's safety, prosperity, and well-being.

The Nation's critical infrastructure is diverse and complex. It includes distributed networks, varied organizational structures and operating models (including multinational ownership), interdependent functions and systems in both the physical space and cyberspace, and governance constructs that involve multi-level authorities, responsibilities, and regulations. Critical infrastructure owners and operators are uniquely positioned to manage risks to their individual operations and assets, and to determine effective strategies to make them more secure and resilient.

Critical infrastructure must be secure and able to withstand and rapidly recover from all hazards. Achieving this will require integration with the national preparedness system across prevention, protection, mitigation, response, and recovery.
This directive establishes national policy on critical infrastructure security and resilience. This endeavor is a shared responsibility among the Federal, state, local, tribal, and territorial (SLTT) entities, and public and private owners and operators of critical infrastructure (herein referred to as "critical infrastructure owners and operators"). This directive also refines and clarifies the critical infrastructure-related functions, roles, and responsibilities across the Federal Government, as well as enhances overall coordination and collaboration.

The Federal Government also has a responsibility to strengthen the security and resilience of its own critical infrastructure, for the continuity of national essential functions, and to organize itself to partner effectively with and add value to the security and resilience efforts of critical infrastructure owners and operators.

Policy

It is the policy of the United States to strengthen the security and resilience of its critical infrastructure against both physical and cyber threats. The Federal Government shall work with critical infrastructure owners and operators and SLTT entities to take proactive steps to manage risk and strengthen the security and resilience of the Nation's critical infrastructure, considering all hazards that could have a debilitating impact on national security, economic stability, public health and safety, or any combination thereof. These efforts shall seek to reduce vulnerabilities, minimize consequences, identify and disrupt threats, and hasten response and recovery efforts related to critical infrastructure.

The Federal Government shall also engage with international partners to strengthen the security and resilience of domestic critical infrastructure and critical infrastructure located outside of the United States on which the Nation depends.
U.S. efforts shall address the security and resilience of critical infrastructure in an integrated, holistic manner to reflect this infrastructure's interconnectedness and interdependency. This directive also identifies energy and communications systems as uniquely critical due to the enabling functions they provide across all critical infrastructure sectors.

Three strategic imperatives shall drive the Federal approach to strengthen critical infrastructure security and resilience:

  1. Refine and clarify functional relationships across the Federal Government to advance the national unity of effort to strengthen critical infrastructure security and resilience;
  2. Enable effective information exchange by identifying baseline data and systems requirements for the Federal Government; and
  3. Implement an integration and analysis function to inform planning and operations decisions regarding critical infrastructure.

All Federal department and agency heads are responsible for the identification, prioritization, assessment, remediation, and security of their respective internal critical infrastructure that supports primary mission essential functions. Such infrastructure shall be addressed in the plans and execution of the requirements in the National Continuity Policy.

Federal departments and agencies shall implement this directive in a manner consistent with applicable law, Presidential directives, and Federal regulations, including those protecting privacy, civil rights, and civil liberties. In addition, Federal departments and agencies shall protect all information associated with carrying out this directive consistent with applicable legal authorities and policies.

Roles and Responsibilities

Effective implementation of this directive requires a national unity of effort pursuant to strategic guidance from the Secretary of Homeland Security. That national effort must include expertise and day-to-day engagement from the Sector-Specific Agencies (SSAs) as well as the specialized or support capabilities from other Federal departments and agencies, and strong collaboration with critical infrastructure owners and operators and SLTT entities. Although the roles and responsibilities identified in this directive are directed at Federal departments and agencies, effective partnerships with critical infrastructure owners and operators and SLTT entities are imperative to strengthen the security and resilience of the Nation's critical infrastructure.

Secretary of Homeland Security

The Secretary of Homeland Security shall provide strategic guidance, promote a national unity of effort, and coordinate the overall Federal effort to promote the security and resilience of the Nation's critical infrastructure. In carrying out the responsibilities assigned in the Homeland Security Act of 2002, as amended, the Secretary of Homeland Security evaluates national capabilities, opportunities, and challenges in protecting critical infrastructure; analyzes threats to, vulnerabilities of, and potential consequences from all hazards on critical infrastructure; identifies security and resilience functions that are necessary for effective public-private engagement with all critical infrastructure sectors; develops a national plan and metrics, in coordination with SSAs and other critical infrastructure partners; integrates and coordinates Federal cross-sector security and resilience activities; identifies and analyzes key interdependencies among critical infrastructure sectors; and reports on the effectiveness of national efforts to strengthen the Nation's security and resilience posture for critical infrastructure.

Additional roles and responsibilities for the Secretary of Homeland Security include:

  1. Identify and prioritize critical infrastructure, considering physical and cyber threats, vulnerabilities, and consequences, in coordination with SSAs and other Federal departments and agencies;
  2. Maintain national critical infrastructure centers that shall provide a situational awareness capability that includes integrated, actionable information about emerging trends, imminent threats, and the status of incidents that may impact critical infrastructure;
  3. In coordination with SSAs and other Federal departments and agencies, provide analysis, expertise, and other technical assistance to critical infrastructure owners and operators and facilitate access to and exchange of information and intelligence necessary to strengthen the security and resilience of critical infrastructure;
  4. Conduct comprehensive assessments of the vulnerabilities of the Nation's critical infrastructure in coordination with the SSAs and in collaboration with SLTT entities and critical infrastructure owners and operators;
  5. Coordinate Federal Government responses to significant cyber or physical incidents affecting critical infrastructure consistent with statutory authorities;
  6. Support the Attorney General and law enforcement agencies with their responsibilities to investigate and prosecute threats to and attacks against critical infrastructure;
  7. Coordinate with and utilize the expertise of SSAs and other appropriate Federal departments and agencies to map geospatially, image, analyze, and sort critical infrastructure by employing commercial satellite and airborne systems, as well as existing capabilities within other departments and agencies; and
  8. Report annually on the status of national critical infrastructure efforts as required by statute.

Sector-Specific Agencies

Each critical infrastructure sector has unique characteristics, operating models, and risk profiles that benefit from an identified Sector-Specific Agency that has institutional knowledge and specialized expertise about the sector. Recognizing existing statutory or regulatory authorities of specific Federal departments and agencies, and leveraging existing sector familiarity and relationships, SSAs shall carry out the following roles and responsibilities for their respective sectors:

  1. As part of the broader national effort to strengthen the security and resilience of critical infrastructure, coordinate with the Department of Homeland Security (DHS) and other relevant Federal departments and agencies and collaborate with critical infrastructure owners and operators, where appropriate with independent regulatory agencies, and with SLTT entities, as appropriate, to implement this directive;
  2. Serve as a day-to-day Federal interface for the dynamic prioritization and coordination of sector-specific activities;
  3. Carry out incident management responsibilities consistent with statutory authority and other appropriate policies, directives, or regulations;
  4. Provide, support, or facilitate technical assistance and consultations for that sector to identify vulnerabilities and help mitigate incidents, as appropriate; and
  5. Support the Secretary of Homeland Security's statutorily required reporting requirements by providing on an annual basis sector-specific critical infrastructure information.

Additional Federal Responsibilities

The following departments and agencies have specialized or support functions related to critical infrastructure security and resilience that shall be carried out by, or along with, other Federal departments and agencies and independent regulatory agencies, as appropriate.

  1. The Department of State, in coordination with DHS, SSAs, and other Federal departments and agencies, shall engage foreign governments and international organizations to strengthen the security and resilience of critical infrastructure located outside the United States and to facilitate the overall exchange of best practices and lessons learned for promoting the security and resilience of critical infrastructure on which the Nation depends.
  2. The Department of Justice (DOJ), including the Federal Bureau of Investigation (FBI), shall lead counterterrorism and counterintelligence investigations and related law enforcement activities across the critical infrastructure sectors. DOJ shall investigate, disrupt, prosecute, and otherwise reduce foreign intelligence, terrorist, and other threats to, and actual or attempted attacks on, or sabotage of, the Nation's critical infrastructure. The FBI also conducts domestic collection, analysis, and dissemination of cyber threat information, and shall be responsible for the operation of the National Cyber Investigative Joint Task Force (NCIJTF). The NCIJTF serves as a multi-agency national focal point for coordinating, integrating, and sharing pertinent information related to cyber threat investigations, with representation from DHS, the Intelligence Community (IC), the Department of Defense (DOD), and other agencies as appropriate. The Attorney General and the Secretary of Homeland Security shall collaborate to carry out their respective critical infrastructure missions.
  3. The Department of the Interior, in collaboration with the SSA for the Government Facilities Sector, shall identify, prioritize, and coordinate the security and resilience efforts for national monuments and icons and incorporate measures to reduce risk to these critical assets, while also promoting their use and enjoyment.
  4. The Department of Commerce (DOC), in collaboration with DHS and other relevant Federal departments and agencies, shall engage private sector, research, academic, and government organizations to improve security for technology and tools related to cyber-based systems, and promote the development of other efforts related to critical infrastructure to enable the timely availability of industrial products, materials, and services to meet homeland security requirements.
  5. The IC, led by the Director of National Intelligence (DNI), shall use applicable authorities and coordination mechanisms to provide, as appropriate, intelligence assessments regarding threats to critical infrastructure and coordinate on intelligence and other sensitive or proprietary information related to critical infrastructure. In addition, information security policies, directives, standards, and guidelines for safeguarding national security systems shall be overseen as directed by the President, applicable law, and in accordance with that direction, carried out under the authority of the heads of agencies that operate or exercise authority over such national security systems.
  6. The General Services Administration, in consultation with DOD, DHS, and other departments and agencies as appropriate, shall provide or support government-wide contracts for critical infrastructure systems and ensure that such contracts include audit rights for the security and resilience of critical infrastructure.
  7. The Nuclear Regulatory Commission (NRC) is to oversee its licensees' protection of commercial nuclear power reactors and non-power nuclear reactors used for research, testing, and training; nuclear materials in medical, industrial, and academic settings, and facilities that fabricate nuclear fuel; and the transportation, storage, and disposal of nuclear materials and waste. The NRC is to collaborate, to the extent possible, with DHS, DOJ, the Department of Energy, the Environmental Protection Agency, and other Federal departments and agencies, as appropriate, on strengthening critical infrastructure security and resilience.
  8. The Federal Communications Commission, to the extent permitted by law, is to exercise its authority and expertise to partner with DHS and the Department of State, as well as other Federal departments and agencies and SSAs as appropriate, on: (1) identifying and prioritizing communications infrastructure; (2) identifying communications sector vulnerabilities and working with industry and other stakeholders to address those vulnerabilities; and (3) working with stakeholders, including industry, and engaging foreign governments and international organizations to increase the security and resilience of critical infrastructure within the communications sector and facilitating the development and implementation of best practices promoting the security and resilience of critical communications infrastructure on which the Nation depends.

Federal departments and agencies shall provide timely information to the Secretary of Homeland Security and the national critical infrastructure centers necessary to support cross-sector analysis and inform the situational awareness capability for critical infrastructure.

Three Strategic Imperatives

  1. Refine and Clarify Functional Relationships across the Federal Government to Advance the National Unity of Effort to Strengthen Critical Infrastructure Security and Resilience

An effective national effort to strengthen critical infrastructure security and resilience must be guided by a national plan that identifies roles and responsibilities and is informed by the expertise, experience, capabilities, and responsibilities of the SSAs, other Federal departments and agencies with critical infrastructure roles, SLTT entities, and critical infrastructure owners and operators.

During the past decade, new programs and initiatives have been established to address specific infrastructure issues, and priorities have shifted and expanded. As a result, Federal functions related to critical infrastructure security and resilience shall be clarified and refined to establish baseline capabilities that will reflect this evolution of knowledge, to define relevant Federal program functions, and to facilitate collaboration and information exchange between and among the Federal Government, critical infrastructure owners and operators, and SLTT entities.

As part of this refined structure, there shall be two national critical infrastructure centers operated by DHS – one for physical infrastructure and another for cyber infrastructure. They shall function in an integrated manner and serve as focal points for critical infrastructure partners to obtain situational awareness and integrated, actionable information to protect the physical and cyber aspects of critical infrastructure. Just as the physical and cyber elements of critical infrastructure are inextricably linked, so are the vulnerabilities. Accordingly, an integration and analysis function (further developed in Strategic Imperative 3) shall be implemented between these two national centers.

The success of these national centers, including the integration and analysis function, is dependent on the quality and timeliness of the information and intelligence they receive from the SSAs and other Federal departments and agencies, as well as from critical infrastructure owners and operators and SLTT entities.

These national centers shall not impede the ability of the heads of Federal departments and agencies to carry out or perform their responsibilities for national defense, criminal, counterintelligence, counterterrorism, or investigative activities

2. Enable Efficient Information Exchange by Identifying Baseline Data and Systems Requirements for the Federal Government

A secure, functioning, and resilient critical infrastructure requires the efficient exchange of information, including intelligence, between all levels of governments and critical infrastructure owners and operators. This must facilitate the timely exchange of threat and vulnerability information as well as information that allows for the development of a situational awareness capability during incidents. The goal is to enable efficient information exchange through the identification of requirements for data and information formats and accessibility, system interoperability, and redundant systems and alternate capabilities should there be a disruption in the primary systems.

Greater information sharing within the government and with the private sector can and must be done while respecting privacy and civil liberties. Federal departments and agencies shall ensure that all existing privacy principles, policies, and procedures are implemented consistent with applicable law and policy and shall include senior agency officials for privacy in their efforts to govern and oversee information sharing properly.

3) Implement an Integration and Analysis Function to Inform Planning and Operational Decisions Regarding Critical Infrastructure

The third strategic imperative builds on the first two and calls for the implementation of an integration and analysis function for critical infrastructure that includes operational and strategic analysis on incidents, threats, and emerging risks. It shall reside at the intersection of the two national centers as identified in Strategic Imperative 1, and it shall include the capability to collate, assess, and integrate vulnerability and consequence information with threat streams and hazard information to:

a. Aid in prioritizing assets and managing risks to critical infrastructure;
b. Anticipate interdependencies and cascading impacts;
c. Recommend security and resilience measures for critical infrastructure prior to, during, and after an event or incident; and
d. Support incident management and restoration efforts related to critical infrastructure.

This function shall not replicate the analysis function of the IC or the National Counterterrorism Center, nor shall it involve intelligence collection activities. The IC, DOD, DOJ, DHS, and other Federal departments and agencies with relevant intelligence or information shall, however, inform this integration and analysis capability regarding the Nation's critical infrastructure by providing relevant, timely, and appropriate information to the national centers. This function shall also use information and intelligence provided by other critical infrastructure partners, including SLTT and nongovernmental analytic entities.

Finally, this integration and analysis function shall support DHS's ability to maintain and share, as a common Federal service, a near real-time situational awareness capability for critical infrastructure that includes actionable information about imminent threats, significant trends, and awareness of incidents that may affect critical infrastructure.

Innovation and Research and Development

The Secretary of Homeland Security, in coordination with the Office of Science and Technology Policy (OSTP), the SSAs, DOC, and other Federal departments and agencies, shall provide input to align those Federal and Federally-funded research and development (R&D) activities that seek to strengthen the security and resilience of the Nation's critical infrastructure, including:

  1. Promoting R&D to enable the secure and resilient design and construction of critical infrastructure and more secure accompanying cyber technology;
  2. Enhancing modeling capabilities to determine potential impacts on critical infrastructure of an incident or threat scenario, as well as cascading effects on other sectors;
  3. Facilitating initiatives to incentivize cybersecurity investments and the adoption of critical infrastructure design features that strengthen all-hazards security and resilience; and
  4. Prioritizing efforts to support the strategic guidance issued by the Secretary of Homeland Security.

Implementation of the Directive

The Secretary of Homeland Security shall take the following actions as part of the implementation of this directive.

  1. Critical Infrastructure Security and Resilience Functional Relationships. Within 120 days of the date of this directive, the Secretary of Homeland Security shall develop a description of the functional relationships within DHS and across the Federal Government related to critical infrastructure security and resilience. It should include the roles and functions of the two national critical infrastructure centers and a discussion of the analysis and integration function. When complete, it should serve as a roadmap for critical infrastructure owners and operators and SLTT entities to navigate the Federal Government's functions and primary points of contact assigned to those functions for critical infrastructure security and resilience against both physical and cyber threats. The Secretary shall coordinate this effort with the SSAs and other relevant Federal departments and agencies. The Secretary shall provide the description to the President through the Assistant to the President for Homeland Security and Counterterrorism.

  2. Evaluation of the Existing Public-Private Partnership Model. Within 150 days of the date of this directive, the Secretary of Homeland Security, in coordination with the SSAs, other relevant Federal departments and agencies, SLTT entities, and critical infrastructure owners and operators, shall conduct an analysis of the existing public-private partnership model and recommend options for improving the effectiveness of the partnership in both the physical and cyber space. The evaluation shall consider options to streamline processes for collaboration and exchange of information and to minimize duplication of effort. Furthermore, the analysis shall consider how the model can be flexible and adaptable to meet the unique needs of individual sectors while providing a focused, disciplined, and effective approach for the Federal Government to coordinate with the critical infrastructure owners and operators and with SLTT governments. The evaluation shall result in recommendations to enhance partnerships to be approved for implementation through the processes established in the Organization of the National Security Council System directive.

  3. Identification of Baseline Data and Systems Requirements for the Federal Government to Enable Efficient Information Exchange. Within 180 days of the date of this directive, the Secretary of Homeland Security, in coordination with the SSAs and other Federal departments and agencies, shall convene a team of experts to identify baseline data and systems requirements to enable the efficient exchange of information and intelligence relevant to strengthening the security and resilience of critical infrastructure. The experts should include representatives from those entities that routinely possess information important to critical infrastructure security and resilience; those that determine and manage information technology systems used to exchange information; and those responsible for the security of information being exchanged. Interoperability with critical infrastructure partners; identification of key data and the information requirements of key Federal, SLTT, and private sector entities; availability, accessibility, and formats of data; the ability to exchange various classifications of information; and the security of those systems to be used; and appropriate protections for individual privacy and civil liberties should be included in the analysis. The analysis should result in baseline requirements for sharing of data and interoperability of systems to enable the timely exchange of data and information to secure critical infrastructure and make it more resilient. The Secretary shall provide that analysis to the President through the Assistant to the President for Homeland Security and Counterterrorism.

  4. Development of a Situational Awareness Capability for Critical Infrastructure. Within 240 days of the date of this directive, the Secretary of Homeland Security shall demonstrate a near real-time situational awareness capability for critical infrastructure that includes threat streams and all-hazards information as well as vulnerabilities; provides the status of critical infrastructure and potential cascading effects; supports decision making; and disseminates critical information that may be needed to save or sustain lives, mitigate damage, or reduce further degradation of a critical infrastructure capability throughout an incident. This capability should be available for and cover physical and cyber elements of critical infrastructure, and enable an integration of information as necessitated by the incident.

  5. Update to National Infrastructure Protection Plan. Within 240 days of the date of this directive, the Secretary of Homeland Security shall provide to the President, through the Assistant to the President for Homeland Security and Counterterrorism, a successor to the National Infrastructure Protection Plan to address the implementation of this directive, the requirements of Title II of the Homeland Security Act of 2002 as amended, and alignment with the National Preparedness Goal and System required by PPD-8. The plan shall include the identification of a risk management framework to be used to strengthen the security and resilience of critical infrastructure; the methods to be used to prioritize critical infrastructure; the protocols to be used to synchronize communication and actions within the Federal Government; and a metrics and analysis process to be used to measure the Nation's ability to manage and reduce risks to critical infrastructure. The updated plan shall also reflect the identified functional relationships within DHS and across the Federal Government and the updates to the public-private partnership model. Finally, the plan should consider sector dependencies on energy and communications systems, and identify pre-event and mitigation measures or alternate capabilities during disruptions to those systems. The Secretary shall coordinate this effort with the SSAs, other relevant Federal departments and agencies, SLTT entities, and critical infrastructure owners and operators.

  6. National Critical Infrastructure Security and Resilience R&D Plan. Within 2 years of the date of this directive, the Secretary of Homeland Security, in coordination with the OSTP, the SSAs, DOC, and other Federal departments and agencies, shall provide to the President, through the Assistant to the President for Homeland Security and Counterterrorism, a National Critical Infrastructure Security and Resilience R&D Plan that takes into account the evolving threat landscape, annual metrics, and other relevant information to identify priorities and guide R&D requirements and investments. The plan should be issued every 4 years after its initial delivery, with interim updates as needed.

    Policy coordination, dispute resolution, and periodic in-progress reviews for the implementation of this directive shall be carried out consistent with PPD-1, including the use of Interagency Policy Committees coordinated by the National Security Staff.

    Nothing in this directive alters, supersedes, or impedes the authorities of Federal departments and agencies, including independent regulatory agencies, to carry out their functions and duties consistent with applicable legal authorities and other Presidential guidance and directives, including, but not limited to, the designation of critical infrastructure under such authorities.

    This directive revokes Homeland Security Presidential Directive/HSPD-7, Critical Infrastructure Identification, Prioritization, and Protection, issued December 17, 2003. Plans developed pursuant to HSPD-7 shall remain in effect until specifically revoked or superseded.

Designated Critical Infrastructure Sectors and Sector-Specific Agencies

This directive identifies 16 critical infrastructure sectors and designates associated Federal SSAs. In some cases co-SSAs are designated where those departments share the roles and responsibilities of the SSA. The Secretary of Homeland Security shall periodically evaluate the need for and approve changes to critical infrastructure sectors and shall consult with the Assistant to the President for Homeland Security and Counterterrorism before changing a critical infrastructure sector or a designated SSA for that sector. The sectors and SSAs are as follows:

Chemical: Sector-Specific Agency: Department of Homeland Security

Commercial Facilities: Sector-Specific Agency: Department of Homeland Security

Communications: Sector-Specific Agency: Department of Homeland Security

Critical Manufacturing: Sector-Specific Agency: Department of Homeland Security

Dams: Sector-Specific Agency: Department of Homeland Security

Defense Industrial Base: Sector-Specific Agency: Department of Defense

Emergency Services: Sector-Specific Agency: Department of Homeland Security

Energy: Sector-Specific Agency: Department of Energy

Financial Services: Sector-Specific Agency: Department of the Treasury

Food and Agriculture: Co-Sector-Specific Agencies: U.S. Department of Agriculture and Department of Health and Human Services

Government Facilities: Co-Sector-Specific Agencies: Department of Homeland Security and General Services Administration

Healthcare and Public Health: Sector-Specific Agency: Department of Health and Human Services

Information Technology: Sector-Specific Agency: Department of Homeland Security

Nuclear Reactors, Materials, and Waste: Sector-Specific Agency: Department of Homeland Security

Transportation Systems: Co-Sector-Specific Agencies: Department of Homeland Security and Department of Transportation

Water and Wastewater Systems: Sector-Specific Agency: Environmental Protection Agency

Definitions

For purposes of this directive:

The term "all hazards" means a threat or an incident, natural or manmade, that warrants action to protect life, property, the environment, and public health or safety, and to minimize disruptions of government, social, or economic activities. It includes natural disasters, cyber incidents, industrial accidents, pandemics, acts of terrorism, sabotage, and destructive criminal activity targeting critical infrastructure.

The term "collaboration" means the process of working together to achieve shared goals.

The terms "coordinate" and "in coordination with" mean a consensus decision-making process in which the named coordinating department or agency is responsible for working with the affected departments and agencies to achieve consensus and a consistent course of action.

The term "critical infrastructure" has the meaning provided in section 1016(e) of the USA Patriot Act of 2001 (42 U.S.C. 5195c(e)), namely systems and assets, whether physical or virtual, so vital to the United States that the incapacity or destruction of such systems and assets would have a debilitating impact on security, national economic security, national public health or safety, or any combination of those matters.

The term "Federal departments and agencies" means any authority of the United States that is an "agency" under 44 U.S.C. 3502(1), other than those considered to be independent regulatory agencies, as defined in 44 U.S.C. 3502(5).

The term "national essential functions" means that subset of Government functions that are necessary to lead and sustain the Nation during a catastrophic emergency.

The term "primary mission essential functions" means those Government functions that must be performed in order to support or implement the performance of the national essential functions before, during, and in the aftermath of an emergency.

The term "national security systems" has the meaning given to it in the Federal Information Security Management Act of 2002 (44 U.S.C. 3542(b)).

The term "resilience" means the ability to prepare for and adapt to changing conditions and withstand and recover rapidly from disruptions. Resilience includes the ability to withstand and recover from deliberate attacks, accidents, or naturally occurring threats or incidents.

The term "Sector-Specific Agency" (SSA) means the Federal department or agency designated under this directive to be responsible for providing institutional knowledge and specialized expertise as well as leading, facilitating, or supporting the security and resilience programs and associated activities of its designated critical infrastructure sector in the all-hazards environment.

The terms "secure" and "security" refer to reducing the risk to critical infrastructure by physical means or defense cyber measures to intrusions, attacks, or the effects of natural or manmade disasters.

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Ref Book - PPD 28 - Signals Intelligence Activities

Thursday, October 27, 2016

PPD 28 - Signals Intelligence Activities

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THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release
January 17, 2014

PRESIDENTIAL POLICY DIRECTIVE/PPD-28

SUBJECT: Signals Intelligence Activities

The United States, like other nations, has gathered intelligence throughout its history to ensure that national security and foreign policy decisionmakers have access to timely, accurate, and insightful information.

The collection of signals intelligence is necessary for the United States to advance its national security and foreign policy interests and to protect its citizens and the citizens of its allies and partners from harm. At the same time, signals intelligence activities and the possibility that such activities may be improperly disclosed to the public pose multiple risks. These include risks to: our relationships with other nations, including the cooperation we receive from other nations on law enforcement, counterterrorism, and other issues; our commercial, economic, and financial interests, including a potential loss of international trust in U.S. firms and the decreased willingness of other nations to participate in international data sharing, privacy, and regulatory regimes; the credibility of our commitment to an open, interoperable, and secure global Internet; and the protection of intelligence sources and methods.

In addition, our signals intelligence activities must take into account that all persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and that all persons have legitimate privacy interests in the handling of their personal information.

In determining why, whether, when, and how the United States conducts signals intelligence activities, we must weigh all of these considerations in a context in which information and communications technologies are constantly changing.

The evolution of technology has created a world where communications important to our national security and the communications all of us make as part of our daily lives are transmitted through the same channels. This presents new and diverse opportunities for, and challenges with respect to, the collection of intelligence – and especially signals intelligence. The United States Intelligence Community (IC) has achieved remarkable success in developing enhanced capabilities to perform its signals intelligence mission in this rapidly changing world, and these enhanced capabilities are a major reason we have been able to adapt to a dynamic and challenging security environment.1 The United States must preserve and continue to develop a robust and technologically advanced signals intelligence capability to protect our security and that of our partners and allies. Our signals intelligence capabilities must also be agile enough to enable us to focus on fleeting opportunities or emerging crises and to address not only the issues of today, but also the issues of tomorrow, which we may not be able to foresee.

Advanced technologies can increase risks, as well as opportunities, however, and we must consider these risks when deploying our signals intelligence capabilities. The IC conducts signals intelligence activities with care and precision to ensure that its collection, retention, use, and dissemination of signals intelligence account for these risks. In light of the evolving technological and geopolitical environment, we must continue to ensure that our signals intelligence policies and practices appropriately take into account our alliances and other partnerships; the leadership role that the United States plays in upholding democratic principles and universal human rights; the increased globalization of trade, investment, and information flows; our commitment to an open, interoperable and secure global Internet; and the legitimate privacy and civil liberties concerns of U.S. citizens and citizens of other nations.

Presidents have long directed the acquisition of foreign intelligence and counterintelligence2 pursuant to their constitutional authority to conduct U.S. foreign relations and to fulfill their constitutional responsibilities as Commander in Chief and Chief Executive. They have also provided direction on the conduct of intelligence activities in furtherance of these authorities and responsibilities, as well as in execution of laws enacted by the Congress. Consistent with this historical practice, this directive articulates principles to guide why, whether, when, and how the United States conducts signals intelligence activities for authorized foreign intelligence and counterintelligence purposes.3

Section 1. Principles Governing the Collection of Signals Intelligence.

Signals intelligence collection shall be authorized and conducted consistent with the following principles:

  1. The collection of signals intelligence shall be authorized by statute or Executive Order, proclamation, or other Presidential directive, and undertaken in accordance with the Constitution and applicable statutes, Executive Orders, proclamations, and Presidential directives.
  2. Privacy and civil liberties shall be integral considerations in the planning of U.S. signals intelligence activities. The United States shall not collect signals intelligence for the purpose of suppressing or burdening criticism or dissent, or for disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion. Signals intelligence shall be collected exclusively where there is a foreign intelligence or counterintelligence purpose to support national and departmental missions and not for any other purposes.
  3. The collection of foreign private commercial information or trade secrets is authorized only to protect the national security of the United States or its partners and allies. It is not an authorized foreign intelligence or counterintelligence purpose to collect such information to afford a competitive advantage4 to U.S. companies and U.S. business sectors commercially.
  4. Signals intelligence activities shall be as tailored as feasible. In determining whether to collect signals intelligence, the United States shall consider the availability of other information, including from diplomatic and public sources. Such appropriate and feasible alternatives to signals intelligence should be prioritized.
Sec. 2. Limitations on the Use of Signals Intelligence Collected in Bulk.

Locating new or emerging threats and other vital national security information is difficult, as such information is often hidden within the large and complex system of modern global communications. The United States must consequently collect signals intelligence in bulk5 in certain circumstances in order to identify these threats. Routine communications and communications of national security interest increasingly transit the same networks, however, and the collection of signals intelligence in bulk may consequently result in the collection of information about persons whose activities are not of foreign intelligence or counterintelligence value. The United States will therefore impose new limits on its use of signals intelligence collected in bulk. These limits are intended to protect the privacy and civil liberties of all persons, whatever their nationality and regardless of where they might reside.

In particular, when the United States collects nonpublicly available signals intelligence in bulk, it shall use that data only for the purposes of detecting and countering:

  1. espionage and other threats and activities directed by foreign powers or their intelligence services against the United States and its interests;
  2. threats to the United States and its interests from terrorism;
  3. threats to the United States and its interests from the development, possession, proliferation, or use of weapons of mass destruction;
  4. cybersecurity threats;
  5. threats to U.S. or allied Armed Forces or other U.S or allied personnel; and
  6. transnational criminal threats, including illicit finance and sanctions evasion related to the other purposes named in this section. In no event may signals intelligence collected in bulk be used for the purpose of suppressing or burdening criticism or dissent; disadvantaging persons based on their ethnicity, race, gender, sexual orientation, or religion; affording a competitive advantage to U.S. companies and U.S. business sectors commercially; or achieving any purpose other than those identified in this section.
The Assistant to the President and National Security Advisor (APNSA), in consultation with the Director of National Intelligence (DNI), shall coordinate, on at least an annual basis, a review of the permissible uses of signals intelligence collected in bulk through the National Security Council Principals and Deputies Committee system identified in PPD-1 or any successor document. At the end of this review, I will be presented with recommended additions to or removals from the list of the permissible uses of signals intelligence collected in bulk.
The DNI shall maintain a list of the permissible uses of signals intelligence collected in bulk. This list shall be updated as necessary and made publicly available to the maximum extent feasible, consistent with the national security.

Sec. 3. Refining the Process for Collecting Signals Intelligence.

U.S. intelligence collection activities present the potential for national security damage if improperly disclosed. Signals intelligence collection raises special concerns, given the opportunities and risks created by the constantly evolving technological and geopolitical environment; the unique nature of such collection and the inherent concerns raised when signals intelligence can only be collected in bulk; and the risk of damage to our national security interests and our law enforcement, intelligence-sharing, and diplomatic relationships should our capabilities or activities be compromised. It is, therefore, essential that national security policymakers consider carefully the value of signals intelligence activities in light of the risks entailed in conducting these activities.

To enable this judgment, the heads of departments and agencies that participate in the policy processes for establishing signals intelligence priorities and requirements shall, on an annual basis, review any priorities or requirements identified by their departments or agencies and advise the DNI whether each should be maintained, with a copy of the advice provided to the APNSA.

Additionally, the classified Annex to this directive, which supplements the existing policy process for reviewing signals intelligence activities, affirms that determinations about whether and how to conduct signals intelligence activities must carefully evaluate the benefits to our national interests and the risks posed by those activities.6

Sec. 4. Safeguarding Personal Information Collected Through Signals Intelligence.

All persons should be treated with dignity and respect, regardless of their nationality or wherever they might reside, and all persons have legitimate privacy interests in the handling of their personal information.7 U.S. signals intelligence activities must, therefore, include appropriate safeguards for the personal information of all individuals, regardless of the nationality of the individual to whom the information pertains or where that individual resides.8

  1. Policies and Procedures. The DNI, in consultation with the Attorney General, shall ensure that all elements of the IC establish policies and procedures that apply the following principles for safeguarding personal information collected from signals intelligence activities. To the maximum extent feasible consistent with the national security, these policies and procedures are to be applied equally to the personal information of all persons, regardless of nationality:9
    1. Minimization. The sharing of intelligence that contains personal information is necessary to protect our national security and advance our foreign policy interests, as it enables the United States to coordinate activities across our government. At the same time, however, by setting appropriate limits on such sharing, the United States takes legitimate privacy concerns into account and decreases the risks that personal information will be misused or mishandled. Relatedly, the significance to our national security of intelligence is not always apparent upon an initial review of information: intelligence must be retained for a sufficient period of time for the IC to understand its relevance and use it to meet our national security needs. However, long-term storage of personal information unnecessary to protect our national security is inefficient, unnecessary, and raises legitimate privacy concerns. Accordingly, IC elements shall establish policies and procedures reasonably designed to minimize the dissemination and retention of personal information collected from signals intelligence activities.
      • Dissemination: Personal information shall be disseminated only if the dissemination of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333.
      • Retention: Personal information shall be retained only if the retention of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333 and shall be subject to the same retention periods as applied to comparable information concerning U.S. persons. Information for which no such determination has been made shall not be retained for more than 5 years, unless the DNI expressly determines that continued retention is in the national security interests of the United State i. Minimization. The sharing of intelligence that contains personal information is necessary to protect our national security and advance our foreign policy interests, as it enables the United States to coordinate activities across our government. At the same time, however, by setting appropriate limits on such sharing, the United States takes legitimate privacy concerns into account and decreases the risks that personal information will be misused or mishandled. Relatedly, the significance to our national security of intelligence is not always apparent upon an initial review of information: intelligence must be retained for a sufficient period of time for the IC to understand its relevance and use it to meet our national security needs. However, long-term storage of personal information unnecessary to protect our national security is inefficient, unnecessary, and raises legitimate privacy concerns. Accordingly, IC elements shall establish policies and procedures reasonably designed to minimize the dissemination and retention of personal information collected from signals intelligence activities.
      • Dissemination: Personal information shall be disseminated only if the dissemination of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333.
      • Retention: Personal information shall be retained only if the retention of comparable information concerning U.S. persons would be permitted under section 2.3 of Executive Order 12333 and shall be subject to the same retention periods as applied to comparable information concerning U.S. persons. Information for which no such determination has been made shall not be retained for more than 5 years, unless the DNI expressly determines that continued retention is in the national security interests of the United State standards for accuracy and objectivity, as set forth in relevant IC directives. Moreover, while IC elements should apply the IC Analytic Standards as a whole, particular care should be taken to apply standards relating to the quality and reliability of the information, consideration of alternative sources of information and interpretations of data, and objectivity in performing analysis.
    2. Oversight. The IC has long recognized that effective oversight is necessary to ensure that we are protecting our national security in a manner consistent with our interests and values. Accordingly, the policies and procedures of IC elements, and departments and agencies containing IC elements, shall include appropriate measures to facilitate oversight over the implementation of safeguards protecting personal information, to include periodic auditing against the standards required by this section.

      The policies and procedures shall also recognize and facilitate the performance of oversight by the Inspectors General of IC elements, and departments and agencies containing IC elements, and other relevant oversight entities, as appropriate and consistent with their responsibilities. When a significant compliance issue occurs involving personal information of any person, regardless of nationality, collected as a result of signals intelligence activities, the issue shall, in addition to any existing reporting requirements, be reported promptly to the DNI, who shall determine what, if any, corrective actions are necessary. If the issue involves a non-United States person, the DNI, in consultation with the Secretary of State and the head of the notifying department or agency, shall determine whether steps should be taken to notify the relevant foreign government, consistent with the protection of sources and methods and of U.S. personnel.
(b) Update and Publication. Within 1 year of the date of this directive, IC elements shall update or issue new policies and procedures as necessary to implement section 4 of this directive, in coordination with the DNI. To enhance public understanding of, and promote public trust in, the safeguards in place to protect personal information, these updated or newly issued policies and procedures shall be publicly released to the maximum extent possible, consistent with classification requirements.

(c) Privacy and Civil Liberties Policy Official. To help ensure that the legitimate privacy interests all people share related to the handling of their personal information are appropriately considered in light of the principles in this section, the APNSA, the Director of the Office of Management and Budget (OMB), and the Director of the Office of Science and Technology Policy (OSTP) shall identify one or more senior officials who will be responsible for working with the DNI, the Attorney General, the heads of other elements of the IC, and the heads of departments and agencies containing other elements of the IC, as appropriate, as they develop the policies and procedures called for in this section.

(d) Coordinator for International Diplomacy. The Secretary of State shall identify a senior official within the Department of State to coordinate with the responsible departments and agencies the United States Government's diplomatic and foreign policy efforts related to international information technology issues and to serve as a point of contact for foreign governments who wish to raise concerns regarding signals intelligence activities conducted by the United States.

Sec. 5. Reports.

(a) Within 180 days of the date of this directive, the DNI shall provide a status report that updates me on the progress of the IC's implementation of section 4 of this directive.

(b) The Privacy and Civil Liberties Oversight Board is encouraged to provide me with a report that assesses the implementation of any matters contained within this directive that fall within its mandate.

(c) Within 120 days of the date of this directive, the President's Intelligence Advisory Board shall provide me with a report identifying options for assessing the distinction between metadata and other types of information, and for replacing the "need-to-share" or "need-to-know" models for classified information sharing with a Work-Related Access model.

(d) Within 1 year of the date of this directive, the DNI, in coordination with the heads of relevant elements of the IC and OSTP, shall provide me with a report assessing the feasibility of creating software that would allow the IC more easily to conduct targeted information acquisition rather than bulk collection.

Sec. 6. General Provisions.

(a) Nothing in this directive shall be construed to prevent me from exercising my constitutional authority, including as Commander in Chief, Chief Executive, and in the conduct of foreign affairs, as well as my statutory authority. Consistent with this principle, a recipient of this directive may at any time recommend to me, through the APNSA, a change to the policies and procedures contained in this directive.

(b) Nothing in this directive shall be construed to impair or otherwise affect the authority or responsibility granted by law to a United States Government department or agency, or the head thereof, or the functions of the Director of OMB relating to budgetary, administrative, or legislative proposals. This directive is intended to supplement existing processes or procedures for reviewing foreign intelligence or counterintelligence activities and should not be read to supersede such processes and procedures unless explicitly stated.

(c) This directive shall be implemented consistent with applicable U.S. law and subject to the availability of appropriations.

(d) This directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.


1 For the purposes of this directive, the terms "Intelligence Community" and "elements of the Intelligence Community" shall have the same meaning as they do in Executive Order 12333 of December 4, 1981, as amended (Executive Order 12333).

2 For the purposes of this directive, the terms "foreign intelligence" and "counterintelligence" shall have the same meaning as they have in Executive Order 12333. Thus, "foreign intelligence" means "information relating to the capabilities, intentions, or activities of foreign governments or elements thereof, foreign organizations, foreign persons, or international terrorists," and "counterintelligence" means "information gathered and activities conducted to identify, deceive, exploit, disrupt, or protect against espionage, other intelligence activities, sabotage, or assassinations conducted for or on behalf of foreign powers, organizations, or persons, or their agents, or international terrorist organizations or activities." Executive Order 12333 further notes that "[i]ntelligence includes foreign intelligence and counterintelligence."

3 Unless otherwise specified, this directive shall apply to signals intelligence activities conducted in order to collect communications or information about communications, except that it shall not apply to signals intelligence activities undertaken to test or develop signals intelligence capabilities.

4 Certain economic purposes, such as identifying trade or sanctions violations or government influence or direction, shall not constitute competitive advantage.

5 The limitations contained in this section do not apply to signals intelligence data that is temporarily acquired to facilitate targeted collection. References to signals intelligence collected in "bulk" mean the authorized collection of large quantities of signals intelligence data which, due to technical or operational considerations, is acquired without the use of discriminants (e.g., specific identifiers, selection terms, etc.).

6 Section 3 of this directive, and the directive's classified Annex, do not apply to (1) signals intelligence activities undertaken by or for the Federal Bureau of Investigation in support of predicated investigations other than those conducted solely for purposes of acquiring foreign intelligence; or (2) signals intelligence activities undertaken in support of military operations in an area of active hostilities, covert action, or human intelligence operations.

7 Departments and agencies shall apply the term "personal information" in a manner that is consistent for U.S. persons and non-U.S. persons. Accordingly, for the purposes of this directive, the term "personal information" shall cover the same types of information covered by "information concerning U.S. persons" under section 2.3 of Executive Order 12333.

8 The collection, retention, and dissemination of information concerning "United States persons" is governed by multiple legal and policy requirements, such as those required by the Foreign Intelligence Surveillance Act and Executive Order 12333. For the purposes of this directive, the term "United States person" shall have the same meaning as it does in Executive Order 12333.

9 The policies and procedures of affected elements of the IC shall also be consistent with any additional IC policies, standards, procedures, and guidance the DNI, in coordination with the Attorney General, the heads of IC elements, and the heads of any other departments containing such elements, may issue to implement these principles. This directive is not intended to alter the rules applicable to U.S. persons in Executive Order 12333, the Foreign Intelligence Surveillance Act, or other applicable law.

 

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