Sensible Classification Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1518 To improve the classification and declassification of national security information, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 10, 2023 Mr. CORNYN (for himself, Mr. WARNER, Mr. MORAN, Mr. WYDEN, Ms. COL- LINS, Mr. KING, Mr. ROUNDS, Mr. HEINRICH, Mr. CASEY, and Mr. LANKFORD) introduced the following bill; which was read twice and re- ferred to the Committee on Homeland Security and Governmental Affairs A BILL To improve the classification and declassification of national security information, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Sensible Classification Act of 2023’’. 5 (b) TABLE OF CONTENTS.—The table of contents for 6 this Act is as follows: 7 Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Findings and sense of the Senate. Sec. 4. Classification authority. Sec. 5. Promoting efficient declassification review. VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1518 IS Sec. 6. Training to promote sensible classification. Sec. 7. Improvements to Public Interest Declassification Board. Sec. 8. Implementation of technology for classification and declassification. Sec. 9. Studies and recommendations on necessity of security clearances. SEC. 2. DEFINITIONS. 1 In this Act: 2 (1) AGENCY.—The term ‘‘agency’’ has the 3 meaning given the term ‘‘Executive agency’’ in sec- 4 tion 105 of title 5, United States Code. 5 (2) CLASSIFIED INFORMATION.—The term 6 ‘‘classified information’’ means information that has 7 been determined pursuant to Executive order 12958 8 (50 U.S.C. 3161 note; relating to classified national 9 security information), or successor order, to require 10 protection against unauthorized disclosure and is 11 marked to indicate its classified status when in doc- 12 umentary form. 13 (3) CLASSIFICATION.—The term ‘‘classifica- 14 tion’’ means the act or process by which information 15 is determined to be classified information. 16 (4) DECLASSIFICATION.—The term ‘‘declas- 17 sification’’ means the authorized change in the sta- 18 tus of information from classified information to un- 19 classified information. 20 (5) DOCUMENT.—The term ‘‘document’’ means 21 any recorded information, regardless of the nature of 22 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1518 IS the medium or the method or circumstances of re- 1 cording. 2 (6) DOWNGRADE.—The term ‘‘downgrade’’ 3 means a determination by a declassification author- 4 ity that information classified and safeguarded at a 5 specified level shall be classified and safeguarded at 6 a lower level. 7 (7) INFORMATION.—The term ‘‘information’’ 8 means any knowledge that can be communicated or 9 documentary material, regardless of its physical 10 form or characteristics, that is owned by, is pro- 11 duced by or for, or is under the control of the 12 United States Government. 13 (8) ORIGINATE, ORIGINATING, AND ORIGI- 14 NATED.—The term ‘‘originate’’, ‘‘originating’’, and 15 ‘‘originated’’, with respect to classified information 16 and an authority, means the authority that classified 17 the information in the first instance. 18 (9) RECORDS.—The term ‘‘records’’ means the 19 records of an agency and Presidential papers or 20 Presidential records, as those terms are defined in 21 title 44, United States Code, including those created 22 or maintained by a government contractor, licensee, 23 certificate holder, or grantee that are subject to the 24 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1518 IS sponsoring agency’s control under the terms of the 1 contract, license, certificate, or grant. 2 (10) SECURITY CLEARANCE.—The term ‘‘secu- 3 rity clearance’’ means an authorization to access 4 classified information. 5 (11) UNAUTHORIZED DISCLOSURE.—The term 6 ‘‘unauthorized disclosure’’ means a communication 7 or physical transfer of classified information to an 8 unauthorized recipient. 9 (12) UNCLASSIFIED INFORMATION.—The term 10 ‘‘unclassified information’’ means information that is 11 not classified information. 12 SEC. 3. FINDINGS AND SENSE OF THE SENATE. 13 (a) FINDINGS.—The Senate makes the following 14 findings: 15 (1) According to a report released by the Office 16 of the Director of Intelligence in 2020 titled ‘‘Fiscal 17 Year 2019 Annual Report on Security Clearance De- 18 terminations’’, more than 4,000,000 individuals have 19 been granted eligibility for a security clearance. 20 (2) At least 1,300,000 of such individuals have 21 been granted access to information classified at the 22 Top Secret level. 23 (b) SENSE OF THE SENATE.—It is the sense of the 24 Senate that— 25 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1518 IS (1) the classification system of the Federal Gov- 1 ernment is in urgent need of reform; 2 (2) the number of people with access to classi- 3 fied information is exceedingly high and must be jus- 4 tified or reduced; 5 (3) reforms are necessary to reestablish trust 6 between the Federal Government and the people of 7 the United States; and 8 (4) classification should be limited to the min- 9 imum necessary to protect national security while 10 balancing the public’s interest in disclosure. 11 SEC. 4. CLASSIFICATION AUTHORITY. 12 (a) IN GENERAL.—The authority to classify informa- 13 tion originally may be exercised only by— 14 (1) the President and, in the performance of ex- 15 ecutive duties, the Vice President; 16 (2) the head of an agency or an official of any 17 agency authorized by the President pursuant to a 18 designation of such authority in the Federal Reg- 19 ister; and 20 (3) an official of the Federal Government to 21 whom authority to classify information originally has 22 been delegated pursuant to subsection (c). 23 (b) SCOPE OF AUTHORITY.—An individual author- 24 ized by this section to classify information originally at 25 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1518 IS a specified level may also classify the information origi- 1 nally at a lower level. 2 (c) DELEGATION OF ORIGINAL CLASSIFICATION AU- 3 THORITY.—An official of the Federal Government may be 4 delegated original classification authority subject to the 5 following: 6 (1) Delegation of original classification author- 7 ity shall be limited to the minimum required to ad- 8 minister this section. Agency heads shall be respon- 9 sible for ensuring that designated subordinate offi- 10 cials have a demonstrable and continuing need to ex- 11 ercise this authority. 12 (2) Authority to originally classify information 13 at the level designated as ‘‘Top Secret’’ may be dele- 14 gated only by the President, in the performance of 15 executive duties, the Vice President, or an agency 16 head or official designated pursuant to subsection 17 (a)(2). 18 (3) Authority to originally classify information 19 at the level designated as ‘‘Secret’’ or ‘‘Confidential’’ 20 may be delegated only by the President, in the per- 21 formance of executive duties, the Vice President, or 22 an agency head or official designated pursuant to 23 subsection (a)(2), or the senior agency official de- 24 scribed in section 5.4(d) of Executive Order 13526 25 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1518 IS (50 U.S.C. 3161 note; relating to classified national 1 security information), or successor order, provided 2 that official has been delegated ‘‘Top Secret’’ origi- 3 nal classification authority by the agency head. 4 (4) Each delegation of original classification au- 5 thority shall be in writing and the authority shall 6 not be redelegated except as provided by paragraph 7 (1), (2), and (3). Each delegation shall identify the 8 official by name or position title. 9 (d) TRAINING REQUIRED.— 10 (1) IN GENERAL.—An individual may not be 11 delegated original classification authority under this 12 section unless the individual has first received train- 13 ing described in paragraph (2). 14 (2) TRAINING DESCRIBED.—Training described 15 in this paragraph is training on original classifica- 16 tion that includes instruction on the proper safe- 17 guarding of classified information and of the crimi- 18 nal, civil, and administrative sanctions that may be 19 brought against an individual who fails to protect 20 classified information from unauthorized disclosure. 21 (e) EXCEPTIONAL CASES.— 22 (1) IN GENERAL.—When an employee, Govern- 23 ment contractor, licensee, certificate holder, or 24 grantee of an agency who does not have original 25 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1518 IS classification authority originates information be- 1 lieved by that employee, contractor, licensee, certifi- 2 cate holder, or grantee to require classification, the 3 information shall be protected in a manner con- 4 sistent with Executive Order 13526 (50 U.S.C. 3161 5 note; relating to classified national security informa- 6 tion), or successor order. 7 (2) TRANSMITTAL.—An employee, contractor, 8 licensee, certificate holder, or grantee described in 9 paragraph (1), who originates information described 10 in such paragraph, shall promptly transmit such in- 11 formation to— 12 (A) the agency that has appropriate sub- 13 ject matter interest and classification authority 14 with respect to this information; or 15 (B) if it is not clear which agency has ap- 16 propriate subject matter interest and classifica- 17 tion authority with respect to the information, 18 to the Director of the Information Security 19 Oversight Office. 20 (3) AGENCY DECISIONS.—An agency that re- 21 ceives information pursuant to paragraph (2)(A) or 22 (4) shall decide within 30 days whether to classify 23 this information. 24 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1518 IS (4) INFORMATION SECURITY OVERSIGHT OF- 1 FICE ACTION.—If the Director of the Information 2 Security Oversight Office receives information under 3 paragraph (2)(B), the Director shall determine the 4 agency having appropriate subject matter interest 5 and classification authority and forward the infor- 6 mation, with appropriate recommendations, to that 7 agency for a classification determination. 8 SEC. 5. PROMOTING EFFICIENT DECLASSIFICATION RE- 9 VIEW. 10 (a) IN GENERAL.—Whenever an agency is processing 11 a request pursuant to section 552 of title 5, United States 12 Code (commonly known as the ‘‘Freedom of Information 13 Act’’) or the mandatory declassification review provisions 14 of Executive Order 13526 (50 U.S.C. 3161 note; relating 15 to classified national security information), or successor 16 order, and identifies responsive classified records that are 17 more than 25-years-of-age as of December 31 of the year 18 in which the request is received, the head of the agency 19 shall review the record and process the record for declas- 20 sification and release by the National Declassification 21 Center of the National Archives and Records Administra- 22 tion. 23 (b) APPLICATION.—Subsection (a) shall apply— 24 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1518 IS (1) regardless of whether or not the record de- 1 scribed in such subsection is in the legal custody of 2 the National Archives and Records Administration; 3 and 4 (2) without regard for any other provisions of 5 law or existing agreements or practices between 6 agencies. 7 SEC. 6. TRAINING TO PROMOTE SENSIBLE CLASSIFICA- 8 TION. 9 (a) DEFINITIONS.—In this section: 10 (1) OVER-CLASSIFICATION.—The term ‘‘over- 11 classification’’ means classification at a level that ex- 12 ceeds the minimum level of classification that is suf- 13 ficient to protect the national security of the United 14 States. 15 (2) SENSIBLE CLASSIFICATION.—The term 16 ‘‘sensible classification’’ means classification at a 17 level that is the minimum level of classification that 18 is sufficient to protect the national security of the 19 United States. 20 (b) TRAINING REQUIRED.—Each head of an agency 21 with classification authority shall conduct training for em- 22 ployees of the agency with classification authority to dis- 23 courage over-classification and to promote sensible classi- 24 fication. 25 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1518 IS SEC. 7. IMPROVEMENTS TO PUBLIC INTEREST DECLAS- 1 SIFICATION BOARD. 2 Section 703 of the Public Interest Declassification 3 Act of 2000 (50 U.S.C. 3355a) is amended— 4 (1) in subsection (c), by adding at the end the 5 following: 6 ‘‘(5) A member of the Board whose term has expired 7 may continue to serve until a successor is appointed and 8 sworn in.’’; and 9 (2) in subsection (f)— 10 (A) by inserting ‘‘(1)’’ before ‘‘Any em- 11 ployee’’; and 12 (B) by adding at the end the following: 13 ‘‘(2)(A) In addition to any employees detailed to the 14 Board under paragraph (1), the Board may hire not more 15 than 12 staff members. 16 ‘‘(B) There are authorized to be appropriated to 17 carry out subparagraph (A) such sums as are necessary 18 for fiscal year 2024 and each fiscal year thereafter.’’. 19 SEC. 8. IMPLEMENTATION OF TECHNOLOGY FOR CLASSI- 20 FICATION AND DECLASSIFICATION. 21 (a) IN GENERAL.—Not later than 1 year after the 22 date of the enactment of this Act, the Administrator of 23 the Office of Electronic Government (in this section re- 24 ferred to as the ‘‘Administrator’’) shall, in consultation 25 with the Secretary of Defense, the Director of the Central 26 VerDate Sep 11 2014 06:08 May 19, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1518.IS S1518 kjohnson on DSK79L0C42PROD with BILLS 12 •S 1518 IS Intelligence Agency, the Director of National Intelligence, 1 the Public Interest Declassific [Text truncated for display. Full text available on Congress.gov.]