IIB 

110TH CONGRESS 

2D SESSION H. R. 4791 

IN THE SENATE OF THE UNITED STATES 

JUNE 4, 2008 

Received; read twice and referred to the Committee on Homeland Security and 

Governmental Affairs 

AN ACT 

To amend title 44, United States Code, to strengthen requirements for ensuring the effectiveness of information 

security controls over information resources that support 

Federal operations and assets, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

2 (a) SHORT TITLE.—This Act may be cited as the 

3 ‘‘Federal Agency Data Protection Act’’. 

4 (b) TABLE OF CONTENTS.—The table of contents of 

5 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Purpose. 

Sec. 3. Definitions. 

Sec. 4. Authority of Director of Office of Management and Budget to establish 

information security policies and procedures. 

Sec. 5. Responsibilities of Federal agencies for information security. 

Sec. 6. Federal agency data breach notification requirements. 

Sec. 7. Protection of government computers from risks of peer-to-peer file sharing. 

Sec. 8. Annual independent audit. 

Sec. 9. Best practices for privacy impact assessments. 

Sec. 10. Implementation. 

6 SEC. 2. PURPOSE. 

7 The purpose of this Act is to protect personally iden8 tifiable information of individuals that is maintained in or 

9 transmitted by Federal agency information systems. 

10 SEC. 3. DEFINITIONS. 

11 (a) PERSONALLY IDENTIFIABLE INFORMATION AND

12 MOBILE DIGITAL DEVICE DEFINITIONS.—Section 

13 3542(b) of title 44, United States Code, is amended by 

14 adding at the end the following new paragraphs: 

15 ‘‘(4) The term ‘personally identifiable informa16 tion’, with respect to an individual, means any infor17 mation about the individual maintained by an agen18 cy, including information— 


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1 ‘‘(A) about the individual’s education, fi2 nances, or medical, criminal, or employment 

3 history; 

4 ‘‘(B) that can be used to distinguish or 

5 trace the individual’s identity, including name, 

6 social security number, date and place of birth, 

7 mother’s maiden name, or biometric records; or 

8 ‘‘(C) that is otherwise linked or linkable to 

9 the individual. 

10 ‘‘(5) The term ‘mobile digital device’ includes 

11 any device that can store or process information 

12 electronically and is designed to be used in a manner 

13 not limited to a fixed location, including— 

14 ‘‘(A) processing devices such as laptop 

15 computers, communication devices, and other 

16 hand-held computing devices; and 

17 ‘‘(B) storage devices such as portable hard 

18 drives, CD–ROMs, DVDs, and other portable 

19 electronic media.’’. 

20 (b) CONFORMING AMENDMENTS.—Section 208 of the 

21 E-Government Act of 2002 (Public Law 107–347; 44 

22 U.S.C. 3501 note) is amended— 

23 (1) in subsection (b)(1)(A)— 


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1 (A) in clause (i), by striking ‘‘information 

2 that is in an identifiable form’’ and inserting 

3 ‘‘personally identifiable information’’; and 

4 (B) in clause (ii)(II), by striking ‘‘informa5 tion in an identifiable form permitting the phys6 ical or online contacting of a specific indi7 vidual’’ and inserting ‘‘personally identifiable 

8 information’’; 

9 (2) in subsection (b)(2)(B)(i), by striking ‘‘in10 formation that is in an identifiable form’’ and insert11 ing ‘‘personally identifiable information’’; 

12 (3) in subsection (b)(3)(C), by striking ‘‘infor13 mation that is in an identifiable form’’ and inserting 

14 ‘‘personally identifiable information’’; and 

15 (4) in subsection (d), by striking the text and 

16 inserting ‘‘In this section, the term ‘personally iden17 tifiable information’ has the meaning given that 

18 term in section 3542(b)(4) of title 44, United States 

19 Code.’’. 

20 SEC. 4. AUTHORITY OF DIRECTOR OF OFFICE OF MANAGE21 MENT AND BUDGET TO ESTABLISH INFORMA22 TION SECURITY POLICIES AND PROCEDURES. 

23 Section 3543(a) of title 44, United States Code, is 

24 amended— 


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1 (1) by inserting before the semicolon at the end 

2 of paragraph (5) the following: ‘‘, including plans 

3 and schedules, developed by the agency on the basis 

4 of priorities for addressing levels of identified risk, 

5 for conducting— 

6 ‘‘(A) testing and evaluation, as required 

7 under section 3544(b)(5); and 

8 ‘‘(B) remedial action, as required under 

9 section 3544(b)(6), to address deficiencies iden10 tified by such testing and evaluation’’; and 

11 (2) by adding at the end the following: 

12 ‘‘(9) establishing minimum requirements re13 garding the protection of personally identifiable in14 formation maintained in or transmitted by mobile 

15 digital devices, including requirements for the use of 

16 technologies that efficiently and effectively render in17 formation unusable by unauthorized persons; 

18 ‘‘(10) requiring agencies to comply with— 

19 ‘‘(A) minimally acceptable system configu20 ration requirements consistent with best prac21 tices, including checklists developed under sec22 tion 8(c) of the Cyber Security Research and 

23 Development Act (Public Law 107–305; 116 

24 Stat. 2378) by the Director of the National In25 stitute of Standards and Technology; and 


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1 ‘‘(B) minimally acceptable requirements 

2 for periodic testing and evaluation of the imple3 mentation of such configuration requirements; 

4 ‘‘(11) ensuring that agency contracts for (or in5 volving or including) the provision of information 

6 technology products or services include requirements 

7 for contractors to meet minimally acceptable con8 figuration requirements, as required under para9 graph (10); 

10 ‘‘(12) ensuring the establishment through regu11 lation and guidance of contract requirements to en12 sure compliance with this subchapter with regard to 

13 providing information security for information and 

14 information systems used or operated by a con15 tractor of an agency or other organization on behalf 

16 of the agency; and’’. 

17 SEC. 5. RESPONSIBILITIES OF FEDERAL AGENCIES FOR IN18 FORMATION SECURITY. 

19 Section 3544(b) of title 44, United States Code, is 

20 amended— 

21 (1) in paragraph (2)(D)(iii), by striking ‘‘as de22 termined by the agency’’ and inserting ‘‘as required 

23 by the Director under section 3543(a)(10)’’; 

24 (2) in paragraph (5)— 


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1 (A) by inserting after ‘‘annually’’ the fol2 lowing: ‘‘and as approved by the Director’’; 

3 (B) by striking ‘‘and’’ at the end of sub4 paragraph (A); 

5 (C) by redesignating subparagraph (B) as 

6 subparagraph (D); and 

7 (D) by inserting after subparagraph (A) 

8 the following: 

9 ‘‘(B) shall include testing and evaluation of 

10 system configuration requirements as required 

11 under section 3543(a)(10); 

12 ‘‘(C) shall include testing of systems oper13 ated by a contractor of the agency or other or14 ganization on behalf of the agency, which test15 ing requirement may be satisfied by inde16 pendent testing, evaluation, or audit of such 

17 systems; and’’; 

18 (3) by striking ‘‘and’’ at the end of paragraph 

19 (7); 

20 (4) by striking the period at the end of para21 graph (8) and inserting a semicolon; and 

22 (5) by adding at the end the following: 

23 ‘‘(9) plans and procedures for ensuring the ade24 quacy of information security protections for sysVerDate Aug 31 2005 06:47 Jun 05, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H4791.RFS H4791

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1 tems maintaining or transmitting personally identifi2 able information, including requirements for— 

3 ‘‘(A) maintaining a current inventory of 

4 systems maintaining or transmitting such infor5 mation; 

6 ‘‘(B) implementing information security re7 quirements for mobile digital devices maintain8 ing or transmitting such information, as re9 quired by the Director (including the use of 

10 technologies rendering data unusable by unau11 thorized persons); and 

12 ‘‘(C) developing, implementing, and over13 seeing remediation plans to address 

14 vulnerabilities in information security protec15 tions for such information;’’. 

16 SEC. 6. FEDERAL AGENCY DATA BREACH NOTIFICATION 

17 REQUIREMENTS. 

18 (a) AUTHORITY OF DIRECTOR OF OFFICE OF MAN19 AGEMENT AND BUDGET TO ESTABLISH DATA BREACH

20 POLICIES.—Section 3543(a) of title 44, United States 

21 Code, as amended by section 4, is further amended— 

22 (1) by striking ‘‘and’’ at the end of paragraph 

23 (7); 

24 (2) in paragraph (8)— 


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1 (A) by striking ‘‘and’’ at the end of sub2 paragraph (D); 

3 (B) by striking the period and inserting ‘‘; 

4 and’’ at the end of subparagraph (E); and 

5 (C) by adding at the end the following new 

6 subparagraph: 

7 ‘‘(F) a summary of the breaches of infor8 mation security reported by agencies to the Di9 rector and the Federal information security in10 cident center pursuant to paragraph (13);’’; and 

11 (3) by adding at the end the following: 

12 ‘‘(13) establishing policies, procedures, and 

13 standards for agencies to follow in the event of a 

14 breach of data security involving the disclosure of 

15 personally identifiable information, specifically in16 cluding— 

17 ‘‘(A) a requirement for timely notice to be 

18 provided to those individuals whose personally 

19 identifiable information could be compromised 

20 as a result of such breach, except no notice 

21 shall be required if the breach does not create 

22 a reasonable risk— 

23 ‘‘(i) of identity theft, fraud, or other 

24 unlawful conduct regarding such indi25 vidual; or 


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1 ‘‘(ii) of other harm to the individual; 

2 ‘‘(B) guidance on determining how timely 

3 notice is to be provided; 

4 ‘‘(C) guidance regarding whether addi5 tional special actions are necessary and appro6 priate, including data breach analysis, fraud 

7 resolution services, identify theft insurance, and 

8 credit protection or monitoring services; and 

9 ‘‘(D) a requirement for timely reporting by 

10 the agencies of such breaches to the Director 

11 and Federal information security center.’’. 

12 (b) AUTHORITY OF CHIEF INFORMATION OFFICER

13 TO DEVELOP AND MAINTAIN INVENTORIES.—Section 

14 3544(a)(3) of title 44, United States Code, is amended— 

15 (1) by inserting after ‘‘authority to ensure com16 pliance with’’ the following: ‘‘and, to the extent de17 termined necessary and explicitly authorized by the 

18 head of the agency, to enforce’’; 

19 (2) by striking ‘‘and’’ at the end of subpara20 graph (D); 

21 (3) by inserting ‘‘and’’ at the end of subpara22 graph (E); and 

23 (4) by adding at the end the following: 

24 ‘‘(F) developing and maintaining an inven25 tory of all personal computers, laptops, or any 


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1 other hardware containing personally identifi2 able information;’’. 

3 (c) INCLUSION OF DATA BREACH NOTIFICATION.— 

4 Section 3544(b) of title 44, United States Code, as amend5 ed by section 5, is further amended by adding at the end 

6 the following: 

7 ‘‘(10) procedures for notifying individuals 

8 whose personally identifiable information may have 

9 been compromised or accessed following a breach of 

10 information security; and 

11 ‘‘(11) procedures for timely reporting of infor12 mation security breaches involving personally identi13 fiable information to the Director and the Federal 

14 information security incident center.’’. 

15 (d) AUTHORITY OF AGENCY CHIEF HUMAN CAPITAL

16 OFFICERS TO ASSESS FEDERAL PERSONAL PROPERTY.— 

17 Section 1402(a) of title 5, United States Code, is amend18 ed— 

19 (1) by striking ‘‘, and’’ at the end of paragraph 

20 (5) and inserting a semicolon; 

21 (2) by striking the period and inserting ‘‘; and’’ 

22 at the end of paragraph (6); and 

23 (3) by adding at the end the following: 

24 ‘‘(7) prescribing policies and procedures for exit 

25 interviews of employees, including a full accounting 


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1 of all Federal personal property that was assigned to 

2 the employee during the course of employment.’’. 

3 SEC. 7. PROTECTION OF GOVERNMENT COMPUTERS FROM 

4 RISKS OF PEER-TO-PEER FILE SHARING. 

5 (a) PLANS REQUIRED.—As part of the Federal agen6 cy responsibilities set forth in sections 3544 and 3545 of 

7 title 44, United States Code, the head of each agency shall 

8 develop and implement a plan to ensure the security and 

9 privacy of information collected or maintained by or on 

10 behalf of the agency from the risks posed by certain peer11 to-peer file sharing programs. 

12 (b) CONTENTS OF PLANS.—Such plans shall set forth 

13 appropriate methods, including both technological (such as 

14 the use of software and hardware) and nontechnological 

15 methods (such as employee policies and user training), to 

16 achieve the goal of securing and protecting such informa17 tion from the risks posed by peer-to-peer file sharing pro18 grams. 

19 (c) IMPLEMENTATION OF PLANS.—The head of each 

20 agency shall— 

21 (1) develop and implement the plan required 

22 under this section as expeditiously as possible, but in 

23 no event later than six months after the date of the 

24 enactment of this Act; and 


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1 (2) review and revise the plan periodically as 

2 necessary. 

3 (d) REVIEW OF PLANS.—Not later than 18 months 

4 after the date of the enactment of this Act, the Comp5 troller General shall— 

6 (1) review the adequacy of the agency plans re7 quired by this section; and 

8 (2) submit to the Committee on Oversight and 

9 Government Reform of the House of Representatives 

10 and the Committee on Homeland Security and Gov11 ernmental Affairs of the Senate a report on the re12 sults of the review, together with any recommenda13 tions the Comptroller General considers appropriate. 

14 (e) DEFINITIONS.—In this section: 

15 (1) PEER-TO-PEER FILE SHARING PROGRAM.— 

16 The term ‘‘peer-to-peer file sharing program’’ means 

17 computer software that allows the computer on 

18 which such software is installed (A) to designate 

19 files available for transmission to another such com20 puter, (B) to transmit files directly to another such 

21 computer, and (C) to request the transmission of 

22 files from another such computer. The term does not 

23 include the use of such software for file sharing be24 tween, among, or within Federal, State, or local govVerDate Aug 31 2005 06:47 Jun 05, 2008 Jkt 069200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H4791.RFS H4791

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1 ernment agencies in order to perform official agency 

2 business. 

3 (2) AGENCY.—The term ‘‘agency’’ has the 

4 meaning provided by section 3502 of title 44, United 

5 States Code. 

6 SEC. 8. ANNUAL INDEPENDENT AUDIT. 

7 (a) REQUIREMENT FOR AUDIT INSTEAD OF EVALUA8 TION.—Section 3545 of title 44, United States Code, is 

9 amended— 

10 (1) in the section heading, by striking ‘‘eval11 uation’’ and inserting ‘‘audit’’ ; and 

12 (2) in paragraphs (1) and (2) of subsection (a), 

13 by striking ‘‘evaluation’’ and inserting ‘‘audit’’ both 

14 places it appears. 

15 (b) ADDITIONAL SPECIFIC REQUIREMENTS FOR AU16 DITS.—Section 3545(a) of such title is amended— 

17 (1) in paragraph (2)— 

18 (A) in subparagraph (A), by striking ‘‘sub19 set of the agency’s information systems;’’ and 

20 inserting the following: ‘‘subset of— 

21 ‘‘(i) the information systems used or oper22 ated by the agency; and 

23 ‘‘(ii) the information systems used, oper24 ated, or supported on behalf of the agency by 

25 a contractor of the agency, any subcontractor 


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1 (at any tier) of such a contractor, or any other 

2 entity;’’; 

3 (B) in subparagraph (B), by striking 

4 ‘‘and’’ at the end; 

5 (C) in subparagraph (C), by striking the 

6 period and inserting ‘‘; and’’; and 

7 (D) by adding at the end the following new 

8 subparagraph: 

9 ‘‘(D) a conclusion whether the agency’s infor10 mation security controls are effective, including an 

11 identification of any significant deficiencies in such 

12 controls.’’; and 

13 (2) by adding at the end the following new 

14 paragraph: 

15 ‘‘(3) Each audit under this section shall conform to 

16 generally accepted government auditing standards.’’. 

17 (c) CONFORMING AMENDMENTS.— 

18 (1) Each of the following provisions of section 

19 3545 of title 44, United States Code, is amended by 

20 striking ‘‘evaluation’’ and inserting ‘‘audit’’ each 

21 place it appears: 

22 (A) Subsection (b)(1). 

23 (B) Subsection (b)(2). 

24 (C) Subsection (c). 

25 (D) Subsection (e)(1). 


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1 (E) Subsection (e)(2). 

2 (2) Section 3545(d) of such title is amended to 

3 read as follows: 

4 ‘‘(d) EXISTING AUDITS.—The audit required by this 

5 section may be based in whole or in part on an audit relat6 ing to programs or practices of the applicable agency.’’. 

7 (3) Section 3545(f) of such title is amended by 

8 striking ‘‘evaluators’’ and inserting ‘‘auditors’’. 

9 (4) Section 3545(g)(1) of such title is amended 

10 by striking ‘‘evaluations’’ and inserting ‘‘audits’’. 

11 (5) Section 3545(g)(3) of such title is amended 

12 by striking ‘‘Evaluations’’ and inserting ‘‘Audits’’. 

13 (6) Section 3543(a)(8)(A) of such title is 

14 amended by striking ‘‘evaluations’’ and inserting 

15 ‘‘audits’’. 

16 (7) Section 3544(b)(5)(D) of such title (as re17 designated by section 5(2)(C)) is amended by strik18 ing ‘‘a evaluation’’ and inserting ‘‘an audit’’. 

19 SEC. 9. BEST PRACTICES FOR PRIVACY IMPACT ASSESS20 MENTS. 

21 Section 208(b)(3) of the E-Government Act of 2002 

22 (Public Law 107–347; 44 U.S.C. 3501 note) is amend23 ed— 

24 (1) in subparagraph (B), by striking ‘‘and’’ at 

25 the end; 


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1 (2) in subparagraph (C), by striking the period 

2 and inserting ‘‘; and’’, and 

3 (3) by adding at the end the following: 

4 ‘‘(D) develop best practices for agencies to 

5 follow in conducting privacy impact assess6 ments.’’. 

7 SEC. 10. IMPLEMENTATION. 

8 Except as otherwise specifically provided in this Act, 

9 implementation of this Act and the amendments made by 

10 this Act shall begin not later than 90 days after the date 

11 of the enactment of this Act. 

Passed the House of Representatives June 3, 2008. 

Attest: LORRAINE C. MILLER, 

Clerk. 


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