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[House Report 110-763]
[From the U.S. Government Publishing Office]

110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     110-763

======================================================================
 
   HOMELAND SECURITY OPEN SOURCE INFORMATION ENHANCEMENT ACT OF 2008

                                _______
                                

 July 21, 2008.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Thompson of Mississippi, from the Committee on Homeland Security, 
                        submitted the following

                              R E P O R T

                        [To accompany H.R. 3815]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security, to whom was referred 
the bill (H.R. 3815) to amend the Homeland Security Act of 2002 
to require the Secretary of Homeland Security to make full and 
efficient use of open source information to develop and 
disseminate open source homeland security information products, 
and for other purposes, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     3
Background and Need for Legislation..............................     3
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     4
Committee Oversight Findings.....................................     5
New Budget Authority, Entitlement Authority, and Tax Expenditures     5
Congressional Budget Office Estimate.............................     5
Statement of General Performance Goals and Objectives............     6
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................     6
Federal Mandates Statement.......................................     6
Advisory Committee Statement.....................................     6
Constitutional Authority Statement...............................     6
Applicability to Legislative Branch..............................     6
Section-by-Section Analysis of the Legislation...................     7
Changes in Existing Law Made by the Bill, as Reported............     8
Committee Correspondence.........................................     9

  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Homeland Security Open Source 
Information Enhancement Act of 2008''.

SEC. 2. FINDINGS.

  Congress finds the following:
          (1) The Internet has profoundly expanded the amount, 
        significance, and accessibility of all types of information, 
        but the Department of Homeland Security has not sufficiently 
        expanded its use of such information to produce analytical 
        products.
          (2) Open source products can be shared with Federal, State, 
        local, and tribal law enforcement, the American public, the 
        private sector, and foreign allies because of their 
        unclassified nature.
          (3) The Department of Homeland Security is responsible for 
        providing open source products to consumers consistent with 
        existing Federal open source information guidelines.

SEC. 3. FULL AND EFFICIENT USE OF OPEN SOURCE INFORMATION.

  (a) In General.--Subtitle A of title II of the Homeland Security Act 
of 2002 (6 U.S.C. 121 et seq.) is amended by adding at the end the 
following:

``SEC. 210F. FULL AND EFFICIENT USE OF OPEN SOURCE INFORMATION.

  ``(a) Responsibilities of Secretary.--The Secretary shall establish 
an open source collection, analysis, and dissemination program within 
the Department. This program shall make full and efficient use of open 
source information to develop and disseminate open source intelligence 
products.
  ``(b) Open Source Products.--The Secretary shall ensure that among 
the open source products that the Department generates, there shall be 
a specific focus on open source products that--
          ``(1) analyze news and developments related to foreign 
        terrorist organizations including how the threat of such 
        organizations is relevant to homeland security;
          ``(2) analyze the risks and vulnerabilities to the nation's 
        critical infrastructure;
          ``(3) analyze terrorist tactics and techniques to include 
        recommendations on how to identify patterns of terrorist 
        activity and behavior allowing State, local and tribal first 
        responders to allocate resources appropriately; and
          ``(4) utilize, as appropriate, computer-based electronic 
        visualization and animation tools that combine imagery, sound, 
        and written material into unclassified open source intelligence 
        products.
  ``(c) Sharing Results of Analysis.--The Secretary shall share the 
unclassified results of such analysis with appropriate Federal, State, 
local, tribal, and private-sector officials.
  ``(d) Protection of Privacy.--The Secretary shall ensure that the 
manner in which open source information is gathered and disseminated by 
the Department complies with the Constitution, section 552a of title 5, 
United States Code (popularly known as the Privacy Act of 1974), 
provisions of law enacted by the E-Government Act of 2002 (Public Law 
107-347), and all other relevant Federal laws.
  ``(e) Inspector General Report.--The Inspector General of the 
Department shall audit the use and dissemination of open source 
information by the Department to evaluate the effectiveness of the 
Department's activities and to ensure that it is consistent with the 
procedures established by the Secretary or a designee of the Secretary 
for the operation of the Department's open source program and with 
Federal open source information and intelligence guidelines promulgated 
by the Director of National Intelligence.
  ``(f) Open Source Information Defined.--In this section the term 
`open source information' means information that is publicly available 
and that can be used and disseminated in a timely manner to an 
appropriate audience for the purpose of addressing a specific homeland 
requirement.
  ``(g) Authorization of Appropriations.--There is authorized to be 
appropriated for each of fiscal years 2009 through 2013 such sums as 
may be necessary to carry out this section.''.
  (b) Clerical Amendment.--The table of contents in section 1(b) of 
such Act is amended by adding at the end of the items relating to such 
subtitle the following:

``Sec. 210F. Full and efficient use of open source information.''.

SEC. 4. PRIVACY AND CIVIL LIBERTIES IMPACT ASSESSMENT.

  Not later than 90 days after the date of the enactment of this Act, 
the Privacy Officer and the Officer for Civil Rights and Civil 
Liberties of the Department of Homeland Security, in consultation with 
the Chief Privacy Officer and Civil Liberties Protection Officer of the 
Office of the Director of National Intelligence, shall submit to the 
Secretary of Homeland Security, the Director of National Intelligence, 
the Committee on Homeland Security and Governmental Affairs of the 
Senate, the Committee on Homeland Security of the House of 
Representatives, and the Privacy and Civil Liberties Oversight Board, a 
privacy and civil liberties impact assessment of the Department of 
Homeland Security's open source program, including information on the 
collection, analysis, and dissemination of any information on United 
States persons.

SEC. 5. OPEN SOURCE INFORMATION DEFINED.

  In this Act the term ``open source information'' has the meaning that 
term has in section 203 of Homeland Security Act of 2002, as amended by 
this Act.

                          Purpose and Summary

    The purpose of H.R. 3815 is to amend the Homeland Security 
Act of 2002 to require the Secretary of Homeland Security to 
make full and efficient use of open source information to 
develop and disseminate open source homeland security 
information products, and for other purposes.

                  Background and Need for Legislation

    In the 21st Century, detailed data about almost anything or 
anyone is accessible on the Internet. Although much of this 
information is for social or commercial use, some of it may be 
helpful to terrorists as they plot attacks against the 
homeland. Put simply, there is a world of publicly available 
information online that terrorists might exploit to cause death 
and extreme damage to the Nation's critical infrastructure. 
Open source information is a valuable source of data about 
terrorists themselves that must be fully integrated into the 
intelligence cycle to ensure that policymakers are fully and 
completely informed about threats. It therefore should be 
viewed not only as a supplement to classified data but also as 
a potential source of valuable intelligence that can make the 
Nation safer. Open source has the added benefit of being open, 
unclassified information that can be shared rapidly with State, 
local, and tribal law enforcement and other first preventers 
without the need for security clearances.
    Unfortunately, the Department of Homeland Security has not 
sufficiently exploited this type of information as part of its 
effort to provide its meaningful products to its customers. The 
Department must dedicate the time and resources to analyzing 
open source information and creating unclassified intelligence 
products based on it that help police, sheriffs, and other 
first responders--and the public--take appropriate preventative 
and preparedness action.
    H.R. 3815 accordingly directs the Department to establish a 
program specializing in this work with a particular emphasis on 
building privacy and civil liberties safeguards into its 
processes. The unclassified intelligence products that it will 
generate will enhance the Nation's counter-terrorism and 
infrastructure protection efforts.

                                Hearings

    No hearings were held on H.R. 3815, however the Committee 
held oversight hearings on the use of open source information.
    In the 109th Congress, on June 21, 2005, the Subcommittee 
on Intelligence, Information Sharing, and Terrorism Risk 
Assessment held a hearing entitled ``Using Open-Source 
Information Effectively.'' The Subcommittee received testimony 
from Dr. John C. Gannon, Vice President for Global Analysis, 
BAE Systems, Information Technology; Mr. Eliot Jardines, 
President, Open Source Publishing, Inc.; and Mr. Joe Onek, 
Senior Policy Analyst, Open Society Institute.
    On April 24, 2008, the Subcommittee on Intelligence, 
Information Sharing, and Terrorism Risk Assessment held a 
hearing entitled ``Moving Beyond the First Five Years: Evolving 
the Office of Intelligence and Analysis to Better Serve State, 
Local, and Tribal Needs.'' The Subcommittee received testimony 
from Mr. Matthew Bettenhausen, Executive Director, California 
Office of Homeland Security, State of California; Ms. Juliette 
Kayyem, Under Secretary for Homeland Security, Executive Office 
of Public Safety and Security, Commonwealth of Massachusetts; 
and Mr. Frank J. Cilluffo, Director and Associate Vice 
President, Homeland Security Policy Institute, The George 
Washington University.

                        Committee Consideration

    H.R. 3815 was introduced in the House on October 10, 2007, 
by Mr. Perlmutter and seven original co-sponsors, and referred 
solely to the Committee on Homeland Security. Within the 
Committee, H.R. 3815 was referred the Subcommittee on 
Intelligence, Information Sharing, and Terrorism Risk 
Assessment.
    On June 11, 2008, the Subcommittee on Intelligence, 
Information Sharing, and Terrorism Risk Assessment considered 
H.R. 3815 and ordered the measure favorably forwarded to the 
Full Committee for consideration, amended, by the unanimous 
consent.
    The following amendment was offered:
          An Amendment in the Nature of a Substitute offered by 
        Ms. Harman (#1), was AGREED TO by unanimous consent.
    On June 26, 2008, the Committee on Homeland Security 
considered H.R. 3815 and ordered the measure to be reported to 
the House favorably, as amended, by voice vote.
    The following amendment was offered:
          An Amendment in the Nature of a Substitute offered by 
        Mr. Perlmutter (#1); was AGREED TO by unanimous consent 
        pursuant.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires the Committee to list the recorded 
votes on the motion to report legislation and amendments 
thereto.
    No recorded votes occurred during Committee consideration.

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee has held oversight 
hearings and made findings that are reflected in this report.

   New Budget Authority, Entitlement Authority, and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee finds that H.R. 
3815, the Homeland Security Open Source Information Enhancement 
Act of 2008, would result in no new or increased budget 
authority, entitlement authority, or tax expenditures or 
revenues.

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 10, 2008.
Hon. Bennie G. Thompson,
Chairman, Committee on Homeland Security,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3815, the Homeland 
Security Open Source Information Enhancement Act of 2008.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                         Robert A. Sunshine
                                   (For Peter R. Orszag, Director).
    Enclosure.

H.R. 3815--Homeland Security Open Source Information Enhancement Act of 
        2008

    H.R. 3815 would authorize the appropriation of whatever 
sums are necessary for each of fiscal years 2009 through 2013 
for the Department of Homeland Security (DHS) to establish a 
program to collect and analyze open source (publicly available) 
information and disseminate reports and other products based on 
that analysis. The bill would direct the department to focus 
those efforts on foreign terrorist organizations and 
vulnerabilities of the nation's infrastructure. Based on 
information from DHS, CBO expects that the department would 
hire about 10 people to carry out the activities required by 
the bill. We estimate that the additional staff would cost 
about $1 million annually over the 2009-2013 period, assuming 
the availability of appropriated funds.
    Enacting the bill would not affect direct spending or 
revenues. H.R. 3815 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Mark Grabowicz. 
This estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         Statement of General Performance Goals and Objectives

     Pursuant to clause 3(c)(4) of rule XIII of the Rules of 
the House of Representatives, H.R. 3815 contains the following 
general performance goals, and objectives, including outcome 
related goals and objectives authorized.
    The primary goal of H.R. 3815 is to establish an open 
source program within the Department of Homeland Security to 
provide accurate, actionable, and timely unclassified 
intelligence products to its State, local, tribal, and private 
sector partners--and the public--in order to strengthen the 
Nation's prevention and preparedness posture. At the same time, 
the Department should become a key provider of homeland 
security relevant open source intelligence products to the rest 
of the Federal Intelligence Community in order to maximize 
situational awareness of threats. In that way, the Department's 
open source program could have a powerful impact in informing 
the Nation's overall homeland and national security efforts. To 
ensure the quality of its products, the Department will be 
expected to make the information needs of its customers the 
starting point of its open source work.

   Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
                                Benefits

     In compliance with rule XXI of the Rules of the House of 
Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(d), 9(e), or 9(f) of the rule 
XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that the 
Constitutional authority for this legislation is provided in 
Article I, section 8, clause 1, which grants Congress the power 
to provide for the common Defense of the United States.

                  Applicability to Legislative Branch

     The Committee finds that the legislation does not relate 
to the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

             Section-by-Section Analysis of the Legislation

Section 1.  Short title

    This section states that this measure may be cited as the 
``Homeland Security Open Source Information Act of 2007''.

Section 2.  Findings

    This section outlines a series of Congressional findings, 
including that: (1) the Department of Homeland Security has not 
sufficiently expanded its use of open source information to 
produce open source analytical products; (2) open source 
products can be easily shared with the Department's State, 
local, and tribal partners, the private sector and the public 
because of its unclassified nature; (3) more than three years 
ago, the Commission on the Intelligence Capabilities of the 
United States Regarding Weapons of Mass Destruction identified 
both the increasing importance of exploiting open source 
information and the Federal Government's failure to do so; (4) 
the Department has been specifically tasked with creating open 
source products under existing Federal open source guidelines.

Section 3.  Full and efficient use of open source information

    This section modifies Title II of the Homeland Security Act 
of 2002 (P.L. 107-296) by requiring the Secretary of Homeland 
Security to establish an open source program at the Department 
of Homeland Security that produces open source intelligence 
products that: (1) analyze news reports and developments 
related to foreign terrorist organizations including how the 
threat is relevant to homeland security; (2) analyze the risks 
and vulnerabilities to the Nation's critical infrastructure; 
(3) analyze terrorist tactics and techniques to include 
recommendations on how to identify patterns of terrorist 
activity and behavior allowing State, local and tribal first 
responders to allocate resources appropriately; and (4) 
utilize, as appropriate, computer-based electronic 
visualization and animation tools that combine imagery, sound, 
and written material into unclassified open source intelligence 
products. This section likewise requires the Secretary to share 
these and other open source products with Federal, State, 
local, tribal, and private sector customers and to ensure that 
the manner in which open source material is gathered and 
disseminated complies with the Constitution, the Privacy Act, 
the E-Government Act and all other relevant laws.
    This section further modifies Title II of the Homeland 
Security Act of 2002 by requiring the Inspector General of the 
Department to produce a report ensuring compliance with the 
National Open Source Enterprise coordinated by the Director of 
National Intelligence. It likewise defines ``open source 
information'' and authorizes appropriations for the 
Department's open source program.
    The Committee believes that progress and efficacy of the 
Department of Homeland Security's open source program should be 
assessed on: (1) its inclusion of customer input into the open 
source intelligence production process; (2) the degree to which 
it is creating products that are easily accessible through 
appropriate dissemination channels and recognizable as open 
source; (3) the extent to which its products receive positive 
feedback from the Department's customers at all levels of 
government and in the private sector; (4) the actual role the 
products are having in prevention and preparedness efforts, 
including any role in preventing or responding to a terrorist 
attack or other disaster; and (5) the extent to which privacy 
and civil liberties safeguards are incorporated into the 
production process.

Section 4.  Privacy and civil liberties impact assessment

    This section modifies Title II of the Homeland Security Act 
of 2002 (P.L. 107-296) by requiring the Privacy Officer and the 
Officer for Civil Rights and Civil Liberties of the Department 
of Homeland Security to conduct a privacy and civil liberties 
impact assessment of the Department's open source program 
within 90 days of enactment.

Section 5.  Definitions

    This section defines terms used in this measure.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (new matter is 
printed in italic and existing law in which no change is 
proposed is shown in roman):

                     HOMELAND SECURITY ACT OF 2002

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

  (a) * * *
  (b) Table of Contents.--The table of contents for this Act is 
as follows:
     * * * * * * *

      TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

  Subtitle A--Information and Analysis and Infrastructure Protection; 
                          Access to Information

     * * * * * * *
Sec. 210F. Full and efficient use of open source information.

           *       *       *       *       *       *       *

      TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

  Subtitle A--Information and Analysis and Infrastructure Protection; 
Access to Information

           *       *       *       *       *       *       *

SEC. 210F. FULL AND EFFICIENT USE OF OPEN SOURCE INFORMATION.

  (a) Responsibilities of Secretary.--The Secretary shall 
establish an open source collection, analysis, and 
dissemination program within the Department. This program shall 
make full and efficient use of open source information to 
develop and disseminate open source intelligence products.
  (b) Open Source Products.--The Secretary shall ensure that 
among the open source products that the Department generates, 
there shall be a specific focus on open source products that--
          (1) analyze news and developments related to foreign 
        terrorist organizations including how the threat of 
        such organizations is relevant to homeland security;
          (2) analyze the risks and vulnerabilities to the 
        nation's critical infrastructure;
          (3) analyze terrorist tactics and techniques to 
        include recommendations on how to identify patterns of 
        terrorist activity and behavior allowing State, local 
        and tribal first responders to allocate resources 
        appropriately; and
          (4) utilize, as appropriate, computer-based 
        electronic visualization and animation tools that 
        combine imagery, sound, and written material into 
        unclassified open source intelligence products.
  (c) Sharing Results of Analysis.--The Secretary shall share 
the unclassified results of such analysis with appropriate 
Federal, State, local, tribal, and private-sector officials.
  (d) Protection of Privacy.--The Secretary shall ensure that 
the manner in which open source information is gathered and 
disseminated by the Department complies with the Constitution, 
section 552a of title 5, United States Code (popularly known as 
the Privacy Act of 1974), provisions of law enacted by the E-
Government Act of 2002 (Public Law 107-347), and all other 
relevant Federal laws.
  (e) Inspector General Report.--The Inspector General of the 
Department shall audit the use and dissemination of open source 
information by the Department to evaluate the effectiveness of 
the Department's activities and to ensure that it is consistent 
with the procedures established by the Secretary or a designee 
of the Secretary for the operation of the Department's open 
source program and with Federal open source information and 
intelligence guidelines promulgated by the Director of National 
Intelligence.
  (f) Open Source Information Defined.--In this section the 
term ``open source information'' means information that is 
publicly available and that can be used and disseminated in a 
timely manner to an appropriate audience for the purpose of 
addressing a specific homeland requirement.
  (g) Authorization of Appropriations.--There is authorized to 
be appropriated for each of fiscal years 2009 through 2013 such 
sums as may be necessary to carry out this section.

           *       *       *       *       *       *       *

                        Committee Correspondence

                                  
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