S. 1618 — Reported in Senate

II Calendar No. 610 113th CONGRESS 2d Session S. 1618 [Report No. 113–283] IN THE SENATE OF THE UNITED STATES October 30, 2013Ms. Collins (for herself, Mrs. McCaskill, Ms. Ayotte, Ms. Heitkamp, Mrs. Boxer, Mrs. Shaheen, Ms. Landrieu, and Mrs. Gillibrand) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs December 2, 2014Reported by Mr. Carper, with an amendment and an amendment to the titleStrike out all after the enacting clause and insert the part printed in italic A BILL To enhance the Office of Personnel Management background check system for the granting, denial, or revocation of security clearances or access to classified information of employees and contractors of the Federal Government. 1. Short title This Act may be cited as the Enhanced Security Clearance Act of 2013. 2. Office of Personnel Management enhanced security clearance system (a) In general Part III of title 5, United States Code, is amended by adding at the end the following: J Office of Personnel Management enhanced security clearance system 110 Office of Personnel Management enhanced security clearance system Sec. 11001. Office of Personnel Management enhanced security clearance system. 11001. Office of Personnel Management enhanced security clearance system. (a) Definitions In this section— (1) the term agency has the meaning given that term in section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341); (2) the term consumer reporting agency has the same meaning given that term in section 603 of the Fair Credit Reporting Act (15 U.S.C. 1681a); (3) the term covered individual means an individual who is being considered for, or has been, appointed to a position as an employee or contractor of an agency that requires its occupant to have access to classified information; (4) the term enhanced security clearance system means the database established by the Director of the Office of Personnel Management under section 3001(e) of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341(e)), including the enhancements thereto required under this section; and (5) the term major consumer reporting agency means a major consumer reporting agency as determined by the Director of the Office of Personnel Management. (b) Enhanced security clearance system Not later than 1 year after the date of enactment of the Enhanced Security Clearance Act of 2013, the Director of the Office of Personnel Management shall implement the enhanced security clearance system. (c) Comprehensiveness (1) Sources of information The enhanced security clearance system shall integrate information obtained from various sources, including government, publically available, and commercial data sources, the major consumer reporting agencies, and social media. (2) Types of information Information obtained and integrated from sources described in paragraph (1) shall include— (A) information relating to any criminal or civil legal proceeding to which the covered individual is or becomes a party or witness; (B) financial information relating to the covered individual, including information relating to— (i) any bankruptcy proceeding of the covered individual; (ii) any lien against property of the covered individual; (iii) credit reports from the major consumer reporting agencies relating to the covered individual; (iv) mortgage fraud engaged in by the covered individual; (v) high-value assets, including financial assets, obtained by the covered individual from an unknown source; and (vi) bank accounts and the bank account balances of the covered individual; (C) associations, past or present, of the covered individual with any individual or group that may suggest ill intent, vulnerability to blackmail, compulsive behavior, allegiance to another country, or change in ideology of the covered individual; (D) public information, including news articles or reports, that includes derogatory information about the covered individual; (E) information posted on any social media website or forum that may suggest ill intent, vulnerability to blackmail, compulsive behavior, allegiance to another country, or change in ideology of the covered individual; and (F) data maintained on any terrorist or criminal watch list maintained by any agency, State or local government, or international organization, including any such list maintained by— (i) the Office of Foreign Assets Control of the Department of the Treasury; (ii) the Federal Bureau of Investigation; and (iii) the International Criminal Police Organization. (3) Wealth indicator The enhanced security clearance system shall have the ability to provide a wealth indicator for a covered individual about whom the major credit reporting agencies have little or no information. (4) Past contacts The enhanced security clearance system shall have the ability to provide the contact information of family members and present and former associates, co-habitants, and neighbors of the covered individual that has not been provided by the covered individual. (d) Reviews of security clearances and access (1) Reviews (A) In general Not less than 2 times every 5 years, the Director of the Office of Personnel Management, using the enhanced security clearance system, shall review the accuracy and comprehensiveness of information relating to the security clearance or access to classified information of each covered individual who is appointed to a position that requires its occupant to have such security clearance or access. (B) Individual reviews A review of the information relating to the security clearance or access to classified information of a covered individual under subparagraph (A) may not be conducted until after the end of the 120-day period beginning on the date such covered individual receives the required notification under paragraph (4). (2) Reporting results The Director of the Office of Personnel Management shall— (A) notify the agency that employs or contracts a covered individual if a review under paragraph (1) finds information pertinent to the revocation of the security clearance or access to classified information of the covered individual; and (B) provide such information to the agency. (3) Active security clearances and access Each agency that employs or contracts a covered individual who has an active security clearance or access to classified information shall provide the names of such individuals to the Director of the Office of Personnel Management at intervals determined appropriate by the Director of the Office of Personnel Management. (4) Information for covered individuals The Director of the Office of Personnel Management, in consultation with the head of each agency that employs or contracts with covered individuals who have an active security clearance or access to classified information, shall ensure that each such individual is adequately advised of what types of information the individual is required to report to the head of the agency that may be pertinent to the continuation of the security clearance or access to classified information of the individual. (5) Limitation Nothing in this subsection shall be construed as requiring increased consideration of information relating to minor financial or mental health issues of a covered individual in evaluating the security clearance or access to classified information of such individual. (e) Customization An agency may provide to the Director of the Office of Personnel Management specific parameters, including specifications relating to the types of information to be monitored by the enhanced security clearance system, to create a method for evaluating the potential risk posed by a covered individual based on the position to which the covered individual is being considered for appointment or has been appointed. (f) Individuals under investigation (1) Requirements for Inspector General The Inspector General of each agency shall— (A) maintain a list of each individual employed by or contracted with the agency who— (i) has an active security clearance or access to classified information; and (ii) is the subject of a completed investigation by the Director of the Office of Personnel Management or such Inspector General; and (B) provide the list required under subparagraph (A) to the Director of the Office of Personnel Management upon request. (2) Requirements for Director of the Office of Personnel Management The Director of the Office of Personnel Management shall— (A) request the list required under paragraph (1)(A) before any notification under subsection (d)(2)(A); and (B) include in any notification regarding a covered individual under subsection (d)(2)(A) information indicating that the covered individual is included on a list maintained under paragraph (1)(A). (g) Audit Beginning 2 years after the date of implementation of the enhanced security clearance system under subsection (b), the Inspector General of the Office of Personnel Management shall conduct an audit of the enhanced security clearance system to assess the effectiveness of the enhanced security clearance system, and its fairness to covered individuals. . (b) Funding from the revolving fund of the Office of Personnel Management Section 1304(e)(1) of title 5, United States Code, is amended by inserting implementation of the enhanced security clearance system under section 11001 and after including. (c) Amendment to the Fair Credit Reporting Act Section 603(d) of the Fair Credit Reporting Act (15 U.S.C. 1681a(d)) is amended— (1) in paragraph (2)— (A) in the matter preceding subparagraph (A), by striking paragraph (3) and inserting paragraphs (3) and (4); (B) in subparagraph (C), by striking or at the end; (C) in subparagraph (D), by striking the period and inserting ; or; and (D) by adding at the end the following: (E) any communication made in connection with the granting, denial, review, or revocation of a Federal security clearance or access to classified information of a covered individual (as that term is defined in section 11001 of title 5, United States Code), if that communication is made to— (i) an agency (as that term is defined in section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341)); or (ii) an authorized contractor or subcontractor of the Federal Government. ; and (2) by adding at the end the following: (4) Communications relating to Federal security clearances and access to classified information The exclusion under paragraph (2)(E) shall not apply with respect to information originating from a major consumer reporting agency (as that term is defined in section 11001 of title 5, United States Code) relating to a credit account or the credit history of a covered individual (as that term is defined in section 11001 of title 5, United States Code). . (d) Technical and conforming amendment The table of chapters for part III of title 5, United States Code, is amended by adding at the end following: Subpart J—Office of Personnel Management Enhanced Security Clearance System 110.Office of Personnel Management Enhanced Security Clearance System 11001 . 1. Short title This Act may be cited as the Enhanced Security Clearance Act of 2014. 2. Enhancing government personnel security programs (a) Definitions In this section— (1) the term covered individual means an individual who has been determined eligible for access to classified information or eligible to hold a sensitive position; and (2) the term periodic reinvestigations means investigations conducted periodically, with a frequency as required by the Director of National Intelligence, for the purpose of updating a previously completed background investigation. (b) Resolution of backlog of overdue periodic reinvestigations (1) In general The Director of National Intelligence shall develop and implement a plan to eliminate the backlog of overdue periodic reinvestigations of covered individuals. (2) Requirements The plan developed under paragraph (1) shall— (A) use a risk-based approach to— (i) identify high-risk populations; and (ii) prioritize reinvestigations that are due or overdue to be conducted; and (B) use random automated record checks of covered individuals that shall include all covered individuals in the pool of individuals subject to a one-time check. (c) Enhanced security clearance programs Part III of title 5, United States Code, is amended by adding at the end the following: J Enhanced personnel security programs 110 Enhanced personnel security programs Sec. 11001. Enhanced personnel security programs. 11001. Enhanced personnel security programs (a) Definitions In this section— (1) the term agency has the meaning given that term in section 3001 of the Intelligence Reform and Terrorism Prevention Act of 2004 (50 U.S.C. 3341); (2) the term consumer reporting agency has the meaning given that term in section 603 of the Fair Credit Reporting Act (15 U.S.C. 1681a); (3) the term covered individual means an individual who has been determined eligible for access to classified information or eligible to hold a sensitive position; (4) the term enhanced personnel security program means a program implemented by an agency at the direction of the Director of National Intelligence under subsection (b); and (5) the term periodic reinvestigations means investigations conducted periodically, with a frequency as required by the Director of National Intelligence, for the purpose of updating a previously completed background investigation. (b) Enhanced Personnel Security Program The Director of National Intelligence shall direct each agency to implement a program to provide enhanced security review of covered individuals— (1) in accordance with this section; and (2) not later than the earlier of— (A) the date that is 5 years after the date of enactment of the Enhanced Security Clearance Act of 2014; or (B) the date on which the backlog of overdue periodic reinvestigations of covered individuals is eliminated, as determined by the Director of National Intelligence. (c) Comprehensiveness (1) Sources of information The enhanced personnel security program of an agency shall integrate relevant information from various sources, including government, publicly available, and commercial data sources, consumer reporting agencies, social media, and such other sources as determined by the Director of National Intelligence. (2) Types of information Information obtained and integrated from sources described in paragraph (1) may include— (A) information relating to any criminal or civil legal proceeding; (B) financial information relating to the covered individual, including the credit worthiness of the covered individual; (C) public information, including news articles or reports, that includes relevant security or counterintelligence information about the covered individual; (D) publicly available electronic information, to include relevant security or counterintelligence information on any social media website or forum, that may suggest ill intent, vulnerability to blackmail, compulsive behavior, allegiance to another country, change in ideology, or any other information that may suggest the covered individual lacks good judgment, reliability or trustworthiness; and (E) data maintained on any terrorist or criminal watch list maintained by any agency, State or local government, or international organization. (d) Reviews of covered individuals (1) Reviews (A) In general The enhanced personnel security program of an agency shall require that, not less than 2 times every 5 years, the head of the agency shall conduct or request the conduct of automated record checks and checks of information from sources under subsection (c) to ensure the continued eligibility of each covered individual employed by the agency or a contractor of the agency, unless more frequent reviews of automated record checks and checks of information from sources under subsection (c) are conducted on the covered individual. (B) Scope of reviews Except for a covered individual who is subject to more frequent reviews to ensure the continued eligibility of the covered individual, the reviews under subparagraph (A) shall consist of random or aperiodic checks of covered individuals, such that each covered individual is subject to at least 2 reviews during the 5-year period beginning on the date on which the agency implements the enhanced personnel security program of an agency, and during each 5-year period thereafter. (C) Individual reviews A review of the information relating to the continued eligibility of a covered individual under subparagraph (A) may not be conducted until after the end of the 120-day period beginning on the date the covered individual receives the notification required under paragraph (3). (2) Results The head of an agency shall take appropriate action if a review under paragraph (1) finds relevant information that may affect the continued eligibility of a covered individual. (3) Information for covered individuals The head of an agency shall ensure that each covered individual employed by the agency or a contractor of the agency is adequately advised of the types of relevant security or counterintelligence information the covered individual is required to report to the head of the agency. (4) Limitation Nothing in this subsection shall be construed to affect the authority of an agency to determine the appropriate weight to be given to information relating to a covered individual in evaluating the continued eligibility of the covered individual. (5) Guidance for minor financial or mental health issues The Director of National Intelligence shall issue guidance defining minor financial or mental health issues, in accordance with this section and any direction from the President. (6) Authority of the President Nothing in this subsection shall be construed as limiting the authority of the President to direct or perpetuate periodic reinvestigations of a more comprehensive nature or to delegate the authority to direct or perpetuate such reinvestigations. (e) Audit (1) In general Beginning 2 years after the date of implementation of the enhanced personnel security program of an agency under subsection (b), the Inspector General of the agency shall conduct at least 1 audit to assess the effectiveness and fairness, which shall be determined in accordance with performance measures and standards established by the Director of National Intelligence, to covered individuals of the enhanced personnel security program of the agency. (2) Submissions to the DNI The results of each audit conducted under paragraph (1) shall be submitted to the Director of National Intelligence to assess the effectiveness and fairness of the enhanced personnel security programs across the Federal Government. . (d) Technical and conforming amendment The table of chapters for part III of title 5, United States Code, is amended by adding at the end following: Subpart J—Enhanced personnel security programs110. Enhanced personnel security programs11001 . Amend the title so as to read: A bill to enhance background checks for the granting, denial, or revocation of eligibility for access to classified information for employees and contractors of the Federal Government, or eligibility to hold a sensitive position for Federal employees.. December 2, 2014Reported with an amendment and an amendment to the title