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[Senate Report 115-419]
[From the U.S. Government Publishing Office]

                                                     Calendar No. 724
115th Congress        }                       {              Report
                                 SENATE
 2d Session           }                       {               115-419
_______________________________________________________________________

                                     

                        BIOMETRIC IDENTIFICATION

    TRANSNATIONAL MIGRATION ALERT PROGRAM AUTHORIZATION ACT OF 2018

                               __________

                              R E P O R T

                                 of the

                   COMMITTEE ON HOMELAND SECURITY AND

                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                               H.R. 6439

             TO AMEND THE HOMELAND SECURITY ACT OF 2002 TO
          ESTABLISH IN THE DEPARTMENT OF HOMELAND SECURITY THE
BIOMETRIC IDENTIFICATION TRANSNATIONAL MIGRATION ALERT PROGRAM, AND FOR 
                             OTHER PURPOSES
                             
                             
                             
                             
                             

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                December 5, 2018.--Ordered to be printed
                                    ______

                    U.S. GOVERNMENT PUBLISHING OFFICE 

89-010                      WASHINGTON : 2018
               
               
               
               
               
               
               
               
        COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS

                    RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio                    CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky                  THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma             HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming             GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota            MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana                KAMALA D. HARRIS, California
JON KYL, Arizona                     DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
           Brian P. Kennedy, Senior Professional Staff Member
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Subhasri Ramanathan, Minority Counsel
                     Laura W. Kilbride, Chief Clerk

                                                     Calendar No. 724
115th Congress        }                       {              Report
                                 SENATE
 2d Session           }                       {               115-419

======================================================================

 
    BIOMETRIC IDENTIFICATION TRANSNATIONAL MIGRATION ALERT PROGRAM 
                       AUTHORIZATION ACT OF 2018

                                _______
                                

                December 5, 2018.--Ordered to be printed

                                _______
                                

 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                        [To accompany H.R. 6439]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (H.R. 6439) to amend 
the Homeland Security Act of 2002 to establish in the 
Department of Homeland Security the Biometric Identification 
Transnational Migration Alert Program, and for other purposes, 
having considered the same, reports favorably thereon with 
amendments and recommends that the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................5
 VI. Congressional Budget Office Cost Estimate........................5
VII. Changes in Existing Law Made by the Act, as Reported.............6

                         I. Purpose and Summary

    The purpose of H.R. 6439, the Biometric Identification 
Transnational Migration Alert Program Authorization Act of 
2018, is to authorize the Biometric Identification 
Transnational Migration Alert Program (BITMAP) within the 
Department of Homeland Security (DHS or the Department). This 
Act codifies a program that already exists within U.S. 
Immigration and Customs Enforcement-Homeland Security 
Investigations (ICE-HSI). This Act instructs the Secretary of 
Homeland Security (Secretary) to establish partnerships with 
foreign governments for the voluntary collection and sharing of 
biometric and biographic information. It also requires the 
Secretary to train partner countries' law enforcement officials 
to properly collect and disseminate biometric and biographic 
information, and to compare collected information with certain 
U.S. data sources. The goal of BITMAP is to reduce and address 
national security, border security, and terrorism threats 
before those threats reach U.S. borders.

              II. Background and the Need for Legislation

    The U.S. Government is responsible for ``securing 
approximately 7,000 miles of land border, 95,000 miles of 
shoreline, 328 ports of entry, and the associated air and 
maritime space.''\1\ Millions of foreign nationals enter the 
U.S. every year.\2\ The vast majority of those entering the 
United States are entering legally for business and tourism. 
However, some foreign nationals entering the United States pose 
a potential threat to national security or public safety. Human 
traffickers, drug smugglers, and potential terrorists attempt 
to enter the U.S.--both legally and illegally.\3\
---------------------------------------------------------------------------
    \1\The Implications of the Reinterpretation of the Flores 
Settlement Agreement for Border Security and Illegal Immigration 
Incentives: Hearing Before the S. Comm. on Homeland Sec. & Governmental 
Affairs, 115th Cong. (2018) (statement of Robert E. Perez, Acting 
Deputy Comm'r , Dep't of Homeland Sec.), available at https://
www.hsgac.senate.gov/imo/media/doc/Testimony-Perez-2018-09-18.pdf.
    \2\Int'l Trade Admin., Nat'l Travel & Tourism Office, Fast Facts: 
United States Travel and Tourism Industry (2017), available at http://
tinet.ita.doc.gov/outreachpages/download_data_table/
Fast_Facts_2017.pdf; see also Lori Robertson, Illegal Immigration 
Statistics, Fact Check (June 28, 2018), https://www.factcheck.org/2018/
06/illegal-immigration-statistics/.
    \3\See generally U.S. Gov't Accountability Office, GAO-17-170, DHS 
Has Made Progress in Planning for a Biometric Air Exit System and 
Reporting Overstays, but Challenges Remain (2017), available at https:/
/www.gao.gov/assets/690/683036.pdf (``[visa] overstays could pose 
significant homeland security risks. 5 of the 19 September 11, 2001, 
hijackers were overstays''); Securing the Border: Biometric Entry and 
Exit at our Ports of Entry: Roundtable Before the S. Comm. on Homeland 
Sec. & Governmental Affairs, 114th Cong. (2015); see generally U.S. 
Immigration & Customs Enforcement, Human Trafficking and Smuggling, 
available at https://www.ice.gov/factsheets/human-trafficking 
(highlighting specific instances where people are trafficked into the 
U.S. illegally or with legal visas for the purpose of exploitation).
---------------------------------------------------------------------------
    One way that the United States works to prevent the entry 
of potential threat actors is to form partnerships with foreign 
governments to prevent them from ever reaching the U.S. 
border.\4\ The BITMAP is an extension of these partnerships and 
security operations that go beyond U.S. borders. Participating 
BITMAP countries collect biographical and biometric data from 
individuals they have identified as being a potential 
threat.\5\
---------------------------------------------------------------------------
    \4\U.S. Immigration and Customs Enforcement, International 
Operations (2018), available at https://www.ice.gov/international-
operations.
    \5\Dep't of Homeland Sec., Operations Analysis--Biometric 
Identification Transnational Migration Alert Program (BITMAP) Project, 
(2016), available at https://www.dhs.gov/sites/default/files/
publications/BITMAP_2016%2009%2027.pdf.
---------------------------------------------------------------------------
    The data collected through BITMAP is shared with U.S. and 
partner countries' law enforcement and intelligence community 
members to assess and monitor potential threats.\6\ These 
threats include human traffickers, drug smugglers, and 
terrorists who are bound for the U.S. border or port of 
entry.\7\ This data is used to assess migration trends of 
special interest individuals and assist DHS in developing more 
refined strategies for preventing threats from reaching U.S. 
borders.\8\ In 2018, more than a dozen countries are 
participating in BITMAP, with additional countries regularly 
joining.\9\
---------------------------------------------------------------------------
    \6\Id.
    \7\Marc R. Rosenblum et al., Cong. Research Serv., R42969, Border 
Security: Understanding Threats at U.S. Borders (Feb 21, 2013), 
available at https://fas.org/sgp/crs/row/R41349.pdf.
    \8\Dep't of Homeland Sec., supra note 5.
    \9\Combatting Transnational Gangs Through Information Sharing: 
Hearing Before the H. Comm. on Homeland Sec., Subcomm. on Counterterror 
and Intelligence, 115th Cong. (2018) (statement of Raymond Villanueva, 
Ass. Dir. of Int'l Operations, U.S. Immigration and Customs 
Enforcement), available at https://www.ice.gov/sites/default/files/
docum5nts/Speech/2018/180523villanueva.pdf.
---------------------------------------------------------------------------
    The 9/11 Commission Report and the Implementing 
Recommendations of the 9/11 Commission Act of 2007 stressed the 
importance and value of collecting biometric data at U.S. 
border entry locations to keep the nation safe.\10\ BITMAP has 
taken the very same principles of the biometric data collection 
in the U.S. and expanded those capabilities to partner 
countries.\11\
---------------------------------------------------------------------------
    \10\Dep't of Homeland Sec., Privacy Impact Assessment Update for 
the Biometric Exit Mobile Program (2018), available at https://
www.dhs.gov/sites/default/files/publications/privacy-pia-cbp026a-
bemobile-june2018.pdf.
    \11\Threats to the Homeland: Hearing Before the S. Comm. on 
Homeland Sec. & Governmental Affairs, 115th Cong. (2018) (statement of 
Elaine C. Duke, Acting Sec'y of Homeland Sec., Dep't of Homeland Sec.) 
available at https://www.hsgac.senate.gov/imo/media/doc/Testimony-Duke-
2017-09-27.pdf.
---------------------------------------------------------------------------
    The BITMAP program is a vital component of DHS's ability to 
detect potential threats beyond our borders. H.R. 6439 codifies 
the program to solidify the role BITMAP is already playing in 
identifying and tracking members of transnational criminal 
organizations, smugglers, and terrorists.\12\ To ensure 
appropriate congressional oversight, the bill requires the DHS 
Secretary to submit reports and brief the appropriate 
congressional committees on BITMAP's progress and 
implementation.\13\
---------------------------------------------------------------------------
    \12\See Combatting Transnational Gangs Through Information Sharing, 
supra note 9.
    \13\H.R. 6439, 115th Cong. (2018).
---------------------------------------------------------------------------

                        III. Legislative History

    Rep. Michael McCaul, (R-TX-10) introduced H.R. 6439 on July 
19, 2018, with Representatives Don Bacon (R-NE-2), John Katko 
(R-NY-24), Debbie Lesko (R-AZ-8), Brian K. Fitzpatrick (R-PA-
8), Clay Higgins (R-LA-3), Mike Rogers (R-AL-3), Peter T. King 
(R-NY-2), Martha McSally (R-AZ-2), William R. Keating (D-MA-9), 
and Daniel M. Donovan Jr. (R-NY-11). Representatives John 
Ratcliffe (R-TX-4), and Mike Gallagher (R-WI-8) joined as 
cosponsors on July 23, 2018.
    The Act passed the House Committee on Homeland Security on 
July 24, 2018. The Act passed the House on September 4, 2018 by 
a vote of 272 to 119.
    The Act was referred to the Committee on Homeland Security 
and Governmental Affairs on September 5, 2018. The Committee 
considered H.R. 6439 at a business meeting on September 26, 
2018. During the business meeting, Senators Doug Jones and Tom 
Carper offered an amendment that made several changes, 
including requiring: (1) the program to expunge erroneously-
captured U.S. citizen data from the BITMAP database; (2) a 
Government Accountability Office (GAO) audit; (3) detailed 
information for the written report the Secretary must provide 
to Congress; and (4) a six-year sunset on the authorization.
    Senators Jones and Carper offered a modification to the 
amendment. The modification made the following changes: (1) 
created an exception in the expungement provision that allows 
law enforcement to retain U.S. citizen data that is captured 
for a specific law enforcement purpose; (2) consolidated the 
details required in the written report the Secretary must 
provide to Congress; (3) requires the Secretary to brief the 
appropriate congressional committees; and (4) changed the GAO 
audit requirement from every two years to every three years. 
The amendment as modified was adopted by voice vote with 
Senators Johnson, Portman, Lankford, Enzi, Hoeven, McCaskill, 
Carper, Heitkamp, Peters, Hassan, Harris, and Jones present.
    The Act, as amended, was ordered reported favorably by a 
voice vote en bloc. The Senators present for voice vote were 
Johnson, Portman, Lankford, Enzi, Hoeven, McCaskill, Carper, 
Heitkamp, Peters, Hassan, Harris, and Jones. Senator Kamala 
Harris asked to be recorded as voting ``no'' for the record.

        IV. Section-by-Section Analysis of the Act, as Reported

Section 1. Short title

    This section established that the Act may be cited as the 
``Biometric Identification Transnational Migration Alert 
Program Authorization Act of 2018.''

Section 2. Biometric Identification Transnational Migration Alert 
        Program

    Subsection (a) codifies BITMAP. BITMAP is established to 
identify, track, and reduce national security, terrorist, or 
border security threats before they reach the U.S. 
international border.
    The subsection establishes the Secretary's obligations, 
acting through the Director of Immigration and Customs 
Enforcement, to carry out BITMAP. The Secretary must work with 
the Secretary of State, the heads of other Federal agencies, 
and foreign government officials to encourage voluntary sharing 
of biometric and biographic data to help determine which 
foreign nationals pose a security threat. Under this 
subsection, the Secretary must also provide training and 
equipment to partner countries so that they can voluntarily 
collect the necessary BITMAP data and learn to collect the data 
properly. Partner countries must also be trained and equipped 
to compare BITMAP data to U.S. databases. The subsection also 
requires the Secretary to ensure that the data collected for 
BITMAP is in compliance with policies established by the 
Privacy Officer.
    The subsection establishes that the Secretary is required 
to include relevant parts of the Department in BITMAP and seek 
out participation from other Federal agencies. It also 
establishes the requirements for the Secretary to follow when 
incorporating a new partner country into BITMAP. When entering 
into new BITMAP agreements with foreign countries the 
agreements must include specific information, objectives, and 
training. The new agreements must also be made in consultation 
with the Secretary of State.
    There are congressional reporting requirements for BITMAP. 
Sixty days prior to entering into a new agreement, the 
Secretary must provide the appropriate congressional committees 
a copy of the agreement.
    The subsection also requires that all data collected on 
U.S. citizens for BITMAP be expunged from all databases unless 
the information was gathered for law enforcement purposes.
    Subsection (b) requires the Secretary to provide a report 
to the appropriate congressional committees and specifies what 
information must be provided in that report. The report must be 
provided within the first 180 days of the Act's enactment and 
then annually for the following five years.
    Subsection (c) requires the Secretary to brief the 
appropriate congressional committees promptly after providing 
the reports required by subsection (b). The briefing must 
specify the individuals enrolled in BITMAP who were arrested 
and of any asylum claims made by individuals enrolled in 
BITMAP.
    Subsection (d) requires GAO to conduct an audit of BITMAP 
no later than six months after the enactment of this Act and 
every three years thereafter. The audit must study the 
effectiveness of BITMAP.
    Subsection (e) sunsets the authorization of the program six 
years after it is enacted.
    Subsection (f) amends the table of contents of the Homeland 
Security Act of 2002.

                   V. Evaluation of Regulatory Impact

    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this Act and determined 
that the Act will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the Act contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.

             VI. Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 3, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental 
        Affairs, U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for Department of Homeland 
Security legislation ordered reported by the Committee on 
Homeland Security and Governmental Affairs on September 26, 
2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

Department of Homeland Security Legislation

    On September 26, the Senate Committee on Homeland Security 
and Governmental Affairs ordered two pieces of legislation to 
be reported:
           H.R. 5206, the Office of Biometric Identity 
        Management Authorization Act of 2018; and
           H.R. 6439, the Biometric Identification 
        Transnational Migration Alert Program Authorization Act 
        of 2018.
    Each act would mostly codify a current program in the 
Department of Homeland Security (DHS). CBO estimates that 
enacting the legislation would not significantly affect 
spending by DHS.
    Enacting the legislation would not affect direct spending 
or revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting the legislation would not 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2029.
    Neither act contains intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On June 28, 2018, CBO transmitted a cost estimate for H.R. 
5206 as reported by the House Committee on Homeland Security on 
June 21, 2018. On August 6, 2018, CBO transmitted a cost 
estimate for H.R. 6439 as ordered reported by the House 
Committee on Homeland Security on July 24, 2018. CBO's 
estimates of the two versions for each piece of legislation are 
the same.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

       VII. Changes in Existing Law Made by the Act, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
the Act, as reported, are shown as follows: (existing law 
proposed to be omitted is enclosed in brackets, new matter is 
printed in italic, and existing law in which no change is 
proposed is shown in roman):

HOMELAND SECURITY ACT OF 2002

           *       *       *       *       *       *       *

SEC. 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Homeland 
Security Act of 2002.''
    (b) Table of Contents.--The table of contents for this Act 
is as follows:

Sec. 1. * * *
     * * * * * * *

         TITLE IV--BORDER, MARITIME, AND TRANSPORTATION SECURITY

     * * * * * * *

             Subtitle D--Immigration Enforcement Functions.

     * * * * * * *
Sec. 447. Biometric Identification Transnational Migration Alert Program
     * * * * * * *

TITLE IV--BORDER, MARITIME, AND TRANSPORTATION SECURITY

           *       *       *       *       *       *       *

Subtitle D--Immigration Enforcement Functions

           *       *       *       *       *       *       *

SEC. 447. BIOMETRIC IDENTIFICATION TRANSNATIONAL MIGRATION ALERT 
                    PROGRAM.

    (a) Establishment.--There is established in the Department 
a program to be known as the Biometric Identification 
Transnational Migration Alert Program (referred to in this 
section as ``BITMAP'') to address and reduce national security, 
border security, and terrorist threats before such threats 
reach the international border of the United States.
    (b) Duties.--In carrying out BITMAP operations, the 
Secretary, acting through the Director of U.S. Immigration and 
Customs Enforcement, shall--
          (1) coordinate, in consultation with the Secretary of 
        State, appropriate representatives of foreign 
        governments, and the heads of other Federal agencies, 
        as appropriate, to facilitate the voluntary sharing of 
        biometric and biographic information collected from 
        foreign nationals for the purpose of identifying and 
        screening such nationals to identify those nationals 
        who may pose a terrorist threat or a threat to national 
        security or border security;
          (2) provide capabilities, including training and 
        equipment, to partner countries to voluntarily collect 
        biometric and biographic identification data from 
        individuals to identify, prevent, detect, and interdict 
        high risk individuals identified as national security, 
        border security, or terrorist threats who may attempt 
        to enter the United States utilizing illicit pathways;
          (3) provide capabilities, including training and 
        equipment, to partner countries to compare foreign data 
        against appropriate United States national security, 
        border security, terrorist, immigration, and counter-
        terrorism data, including--
                  (A) the Federal Bureau of Investigation's 
                Terrorist Screening Database, or successor 
                database;
                  (B) the Federal Bureau of Investigation's 
                Next Generation Identification database, or 
                successor database;
                  (C) the Department of Defense Automated 
                Biometric Identification System (commonly known 
                as ``ABIS''), or successor database;
                  (D) the Department's Automated Biometric 
                Identification System (commonly known as 
                ``IDENT''), or successor database; and
                  (E) any other database, notice, or means that 
                the Secretary, in consultation with the heads 
                of other Federal departments and agencies 
                responsible for such databases, notices, or 
                means, designates;
          (4) provide partner countries with training, 
        guidance, and best practices recommendations regarding 
        the enrollment of individuals in BITMAP; and
          (5) ensure biometric and biographic identification 
        data collected pursuant to BITMAP are incorporated into 
        appropriate United States Government databases, in 
        compliance with the policies and procedures established 
        by the Privacy Officer appointed under section 222.
    (c) Collaboration.--The Secretary shall ensure that BITMAP 
operations include participation from relevant components of 
the Department, and request participation from other Federal 
agencies, as appropriate.
    (d) Agreements.--Before carrying out BITMAP operations in a 
foreign country that, as of the date of the enactment of this 
section, was not a partner country described in this section, 
the Secretary, in consultation with the Secretary of State, 
shall enter into agreement or arrangement with the government 
of such country that sets forth program goals for such country, 
includes training, guidance, and best practices recommendations 
regarding the enrollment of individuals in BITMAP, and outlines 
such operations in such country, including related departmental 
operations. Such country shall be a partner country described 
in this section pursuant to and for purposes of such agreement 
or arrangement.
    (e) Notification to Congress.--Not later than 60 days 
before an agreement with the government of a foreign country to 
carry out BITMAP operations in such foreign country enters into 
force, the Secretary shall provide the Committee on Homeland 
Security of the House of Representatives and the Committee on 
Homeland Security and Governmental Affairs of the Senate with a 
copy of the agreement to establish such operations, which shall 
include--
          (1) the identification of the foreign country with 
        which the Secretary intends to enter into such an 
        agreement;
          (2) the location at which such operations will be 
        conducted;
          (3) goals for BITMAP operations in the foreign 
        country; and
          (4) the terms and conditions for Department personnel 
        operating at such location.
    (f) Captured Information of United States Citizens.--The 
Secretary shall ensure that any biometric and biographic 
identification data of United States citizens that is captured 
by BITMAP operations is expunged from all databases to which 
such data was uploaded, unless the information is retained for 
specific law enforcement or intelligence purposes.

                                  [all]
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