Classification Reform Act of 2023

II 118TH CONGRESS 1ST SESSION S. 1541 To provide for a system to classify information in the interests of national security and a system to declassify such information, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 10, 2023 Mr. WARNER (for himself, Mr. WYDEN, Mr. MORAN, Mr. CORNYN, Mr. KING, Mr. HEINRICH, Mr. BENNET, Mr. CASEY, and Mr. ROUNDS) introduced the following bill; which was read twice and referred to the Select Com- mittee on Intelligence A BILL To provide for a system to classify information in the inter- ests of national security and a system to declassify such 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 ‘‘Classification Reform 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. VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 2 •S 1541 IS TITLE I—GOVERNANCE AND ACCOUNTABILITY FOR REFORM OF THE SECURITY CLASSIFICATION SYSTEM Sec. 101. Executive Agent for Classification and Declassification. Sec. 102. Executive Committee on Classification and Declassification Programs and Technology. Sec. 103. Advisory bodies for Executive Agent for Classification and Declas- sification. Sec. 104. Information Security Oversight Office. TITLE II—REDUCING OVERCLASSIFICATION Sec. 201. Classification and declassification of information. Sec. 202. Declassification working capital funds. Sec. 203. Transparency officers. Sec. 204. Continuity of membership of the Public Interest Declassification Board. TITLE III—PREVENTING MISHANDLING OF CLASSIFIED INFORMATION Sec. 301. Security review of certain records of the President and Vice Presi- dent. Sec. 302. Mandatory counterintelligence risk assessments. Sec. 303. Minimum standards for Executive agency insider threat programs. TITLE IV—OTHER MATTERS Sec. 401. Prohibitions. Sec. 402. Conforming amendment. Sec. 403. Clerical amendment. SEC. 2. DEFINITIONS. 1 Title VIII of the National Security Act of 1947 (50 2 U.S.C. 3161 et seq.) is amended— 3 (1) in the title heading by striking ‘‘ACCESS 4 TO CLASSIFIED INFORMATION PROCE- 5 DURES’’ and inserting ‘‘PROTECTION OF 6 NATIONAL SECURITY INFORMATION’’; 7 (2) in the matter before section 801, by insert- 8 ing the following: 9 ‘‘Subtitle A—Definitions 10 ‘‘SEC. 800. DEFINITIONS. 11 ‘‘In this title: 12 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 3 •S 1541 IS ‘‘(1) AGENCY.—The term ‘agency’ means any 1 Executive agency as defined in section 105 of title 2 5, United States Code, any military department as 3 defined in section 102 of such title, and any other 4 entity in the executive branch of the Federal Gov- 5 ernment that comes into the possession of classified 6 information. 7 ‘‘(2) AUTHORIZED INVESTIGATIVE AGENCY.— 8 The term ‘authorized investigative agency’ means an 9 agency authorized by law or regulation to conduct a 10 counterintelligence investigation or investigations of 11 persons who are proposed for access to classified in- 12 formation to ascertain whether such persons satisfy 13 the criteria for obtaining and retaining access to 14 such information. 15 ‘‘(3) CLASSIFY, CLASSIFIED, CLASSIFICATION.— 16 The terms ‘classify’, ‘classified’, and ‘classification’ 17 refer to the process by which information is deter- 18 mined to require protection from unauthorized dis- 19 closure pursuant to this title in order to protect the 20 national security of the United States. 21 ‘‘(4) CLASSIFIED INFORMATION.—the term 22 ‘classified information’ means information that has 23 been classified. 24 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 4 •S 1541 IS ‘‘(5) COMPUTER.—The term ‘computer’ means 1 any electronic, magnetic, optical, electrochemical, or 2 other high speed data processing device performing 3 logical, arithmetic, or storage functions, and includes 4 any data storage facility or communications facility 5 directly related to or operating in conjunction with 6 such device and any data or other information 7 stored or contained in such device. 8 ‘‘(6) CONSUMER REPORTING AGENCY.—The 9 term ‘consumer reporting agency’ has the meaning 10 given such term in section 603 of the Consumer 11 Credit Protection Act (15 U.S.C. 1681a). 12 ‘‘(7) DECLASSIFY, DECLASSIFIED, DECLAS- 13 SIFICATION.—The terms ‘declassify’, ‘declassified’, 14 and ‘declassification’ refer to the process by which 15 information that has been classified is determined to 16 no longer require protection from unauthorized dis- 17 closure pursuant to this title. 18 ‘‘(8) DOCUMENT.—The term ‘document’ means 19 any recorded information, regardless of the nature of 20 the medium or the method or circumstances of re- 21 cording. 22 ‘‘(9) EMPLOYEE.—The term ‘employee’ includes 23 any person who receives a salary or compensation of 24 any kind from the United States Government, is a 25 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 5 •S 1541 IS contractor of the United States Government or an 1 employee thereof, is an unpaid consultant of the 2 United States Government, or otherwise acts for or 3 on behalf of the United States Government, except 4 as otherwise determined by the President. 5 ‘‘(10) EXECUTIVE AGENT FOR CLASSIFICATION 6 AND DECLASSIFICATION.—The term ‘Executive 7 Agent for Classification and Declassification’ means 8 the Executive Agent for Classification and Declas- 9 sification established by section 811(a). 10 ‘‘(11) FINANCIAL AGENCY AND HOLDING COM- 11 PANY.—The terms ‘financial agency’ and ‘financial 12 institution’ have the meanings given to such terms 13 in section 5312(a) of title 31, United States Code, 14 and the term ‘holding company’ has the meaning 15 given to such term in section 1101(6) of the Right 16 to Financial Privacy Act of 1978 (12 U.S.C. 3401). 17 ‘‘(12) FOREIGN POWER AND AGENT OF A FOR- 18 EIGN POWER.—The terms ‘foreign power’ and ‘agent 19 of a foreign power’ have the meanings given such 20 terms in section 101 of the Foreign Intelligence Sur- 21 veillance Act of 1978 (50 U.S.C. 1801). 22 ‘‘(13) INFORMATION.—The term ‘information’ 23 means any knowledge that can be communicated or 24 documentary material, regardless of its physical 25 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 6 •S 1541 IS form or characteristics, that is owned by, is pro- 1 duced by or for, or is under the control of the 2 United States Government. 3 ‘‘(14) INFORMATION SECURITY OVERSIGHT OF- 4 FICE.—The term ‘Information Security Oversight 5 Office’ means the Information Security Oversight 6 Office established by section 814(a). 7 ‘‘(15) ORIGINAL CLASSIFICATION AUTHOR- 8 ITY.—The term ‘original classification authority’ 9 means an individual authorized in writing, either by 10 the President, the Vice President, or by agency 11 heads or other officials designated by the President, 12 to classify information in the first instance. 13 ‘‘(16) RECORDS.—The term ‘records’ means the 14 records of an agency and Presidential papers or 15 Presidential records, as those terms are defined in 16 title 44, United States Code, including those created 17 or maintained by a government contractor, licensee, 18 certificate holder, or grantee that are subject to the 19 sponsoring agency’s control under the terms of the 20 contract, license, certificate, or grant. 21 ‘‘(17) STATE.—The term ‘State’ means each of 22 the several States of the United States, the District 23 of Columbia, the Commonwealth of Puerto Rico, the 24 Commonwealth of the Northern Mariana Islands, 25 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 7 •S 1541 IS the United States Virgin Islands, Guam, American 1 Samoa, the Republic of the Marshall Islands, the 2 Federated States of Micronesia, and the Republic of 3 Palau, and any other possession of the United 4 States. 5 ‘‘Subtitle B—Access to Classified 6 Information Procedures’’; 7 and 8 (3) by striking section 805. 9 TITLE I—GOVERNANCE AND AC- 10 COUNTABILITY FOR REFORM 11 OF THE SECURITY CLASSI- 12 FICATION SYSTEM 13 SEC. 101. EXECUTIVE AGENT FOR CLASSIFICATION AND DE- 14 CLASSIFICATION. 15 Title VIII of the National Security Act of 1947 (50 16 U.S.C. 3161 et seq.), as amended by section 2, is further 17 amended by adding at the end the following: 18 ‘‘Subtitle C—Security Classification 19 Governance 20 ‘‘SEC. 811. EXECUTIVE AGENT FOR CLASSIFICATION AND 21 DECLASSIFICATION. 22 ‘‘(a) ESTABLISHMENT.—There is in the executive 23 branch of the Federal Government an Executive Agent for 24 Classification and Declassification who shall be respon- 25 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 8 •S 1541 IS sible for promoting programs, processes, and systems re- 1 lating to classification and declassification, including de- 2 veloping technical solutions for automating declassification 3 review, and directing resources for such purposes in the 4 Federal Government. 5 ‘‘(b) DESIGNATION.—The Director of National Intel- 6 ligence shall serve as the Executive Agent for Classifica- 7 tion and Declassification. 8 ‘‘(c) DUTIES.—The duties of the Executive Agent for 9 Classification and Declassification are as follows: 10 ‘‘(1) To promote classification and declassifica- 11 tion programs, processes, and systems with the goal 12 of ensuring that declassification activities keep pace 13 with classification activities and that classified infor- 14 mation is declassified at such time as it no longer 15 meets the standard for classification. 16 ‘‘(2) To promote classification and declassifica- 17 tion programs, processes, and systems that ensure 18 secure management of and tracking of classified 19 records. 20 ‘‘(3) To promote the establishment of a fed- 21 erated classification and declassification system to 22 streamline, modernize, and oversee declassification 23 across agencies. 24 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 9 •S 1541 IS ‘‘(4) To direct resources to develop, coordinate, 1 and implement a federated classification and declas- 2 sification system that includes technologies that 3 automate declassification review and promote con- 4 sistency in declassification determinations across the 5 executive branch of the Federal Government. 6 ‘‘(5) To work with the Director of the Office of 7 Management and Budget in developing a line item 8 for classification and declassification in each budget 9 of the President that is submitted for a fiscal year 10 under section 1105(a) of title 31, United States 11 Code. 12 ‘‘(6) To identify and support the development 13 of— 14 ‘‘(A) best practices for classification and 15 declassification among agencies; and 16 ‘‘(B) goal oriented classification and de- 17 classification pilot programs. 18 ‘‘(7) To promote and implement technological 19 and automated solutions relating to classification 20 and declassification, with human input as necessary 21 for key policy decisions. 22 ‘‘(8) To promote feasible, sustainable, and 23 interoperable programs and processes to facilitate a 24 federated classification and declassification system. 25 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 10 •S 1541 IS ‘‘(9) To direct the implementation across agen- 1 cies of the most effective programs and approaches 2 relating to classification and declassification. 3 ‘‘(10) To establish, oversee, and enforce acquisi- 4 tion and contracting policies relating to classification 5 and declassification programs. 6 ‘‘(11) In coordination with the Information Se- 7 curity Oversight Office— 8 ‘‘(A) to issue policies and directives to the 9 heads of agencies relating to directing resources 10 and making technological investments in classi- 11 fication and declassification that include sup- 12 port for a federated system; 13 ‘‘(B) to ensure implementation of the poli- 14 cies and directives issued under subparagraph 15 (A); 16 ‘‘(C) to collect information on classification 17 and declassification practices and policies across 18 agencies, including challenges to effective de- 19 classification, training, accounting, and costs 20 associated with classification and declassifica- 21 tion; 22 ‘‘(D) to develop policies for ensuring the 23 accuracy of information obtained from Federal 24 agencies; and 25 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 11 •S 1541 IS ‘‘(E) to develop accurate and relevant 1 metrics for judging the success of classification 2 and declassification policies and directives. 3 ‘‘(12) To work with appropriate agencies to 4 oversee the implementation of policies, procedures, 5 and processes governing the submission of materials 6 for prepublication review by persons obligated to 7 submit materials for such review by the terms of a 8 nondisclosure agreement signed in accordance with 9 Executive Order 12968 (50 U.S.C. 3161 note; relat- 10 ing to access to classified information), or successor 11 order, and to ensure such policies, procedures, and 12 processes— 13 ‘‘(A) include clear and consistent guidance 14 on materials that must be submitted and the 15 mechanisms for making such submissions; 16 ‘‘(B) produce timely and consistent deter- 17 minations across agencies; and 18 ‘‘(C) incorporate mechanisms for the time- 19 ly appeal of such determinations. 20 ‘‘(d) CONSULTATION WITH EXECUTIVE COMMITTEE 21 ON CLASSIFICATION AND DECLASSIFICATION PROGRAMS 22 AND TECHNOLOGY.—In making decisions under this sec- 23 tion, the Executive Agent for Classification and Declas- 24 sification shall consult with the Executive Committee on 25 VerDate Sep 11 2014 00:57 May 20, 2023 Jkt 039200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S1541.IS S1541 kjohnson on DSK79L0C42PROD with BILLS 1 [Text truncated for display. Full text available on Congress.gov.]