118th CONGRESS 1st Session |
To improve the classification and declassification of national security information, and for other purposes.
October 17, 2023
Mr. Wenstrup (for himself and Ms. Spanberger) introduced the following bill
October 25, 2023
Referred to the Committee on Oversight and Accountability, and in addition to the Committees on Intelligence (Permanent Select), and Energy and Commerce, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned
To improve the classification and declassification of national security information, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
(a) Short title.—This Act may be cited as the “Sensible Classification Act of 2023”.
(b) Table of contents.—The table of contents for this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Findings and sense of Congress.
Sec. 3. Classification authority.
Sec. 4. Promoting efficient declassification review.
Sec. 5. Training to promote sensible classification.
Sec. 6. Improvements to Public Interest Declassification Board.
Sec. 7. Implementation of technology for classification and declassification.
Sec. 8. Studies and recommendations on necessity of security clearances.
Sec. 9. Definitions.
(a) Findings.—Congress finds the following:
(1) According to a report released by the Office of the Director of Intelligence in 2020 titled “Fiscal Year 2019 Annual Report on Security Clearance Determinations”, more than 4,000,000 individuals have been granted eligibility for a security clearance.
(2) At least 1,300,000 of such individuals have been granted access to information classified at the Top Secret level.
(b) Sense of Congress.—It is the sense of Congress that—
(1) the classification system of the Federal Government is in urgent need of reform;
(2) the number of people with access to classified information is exceedingly high and must be justified or reduced;
(3) reforms are necessary to reestablish trust between the Federal Government and the people of the United States; and
(4) classification should be limited to the minimum necessary to protect national security while balancing the public’s interest in disclosure.
(a) In general.—The authority to classify information originally may be exercised only by—
(1) the President and, in the discharge of executive duties and responsibilities, the Vice President;
(2) the head or any other official of any agency authorized by the President pursuant to a designation of such authority in the Federal Register; and
(3) an official of the Federal Government to whom authority to classify information originally has been delegated pursuant to subsection (c).
(b) Scope of authority.—An individual authorized under this section to classify information originally at a specified level may also classify information originally at a lower level.
(c) Delegation of original classification authority.—An official of the Federal Government may be delegated original classification authority subject to the following:
(1) Delegation of original classification authority shall be limited to the minimum required to administer this section. Agency heads shall be responsible for ensuring that designated subordinate officials have a demonstrable and continuing need to exercise such authority.
(2) Authority to originally classify information at the level designated as “Top Secret” may be delegated only by the President, in the performance of executive duties, the Vice President, or an agency head or official designated pursuant to subsection (a)(2).
(3) Authority to originally classify information at the level designated as “Secret” or “Confidential” may be delegated only by the President, in the discharge of executive duties and responsibilities, the Vice President, or an agency head or official designated pursuant to subsection (a)(2), or the senior agency official described in section 5.4(d) of Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, provided that official has been delegated “Top Secret” original classification authority by the agency head.
(4) Each delegation of original classification authority shall be in writing and the authority shall not be redelegated except as provided by paragraph (1), (2), or (3). Each delegation shall identify the official by name or position title.
(1) IN GENERAL.—An individual may not be delegated original classification authority under this section unless the individual has first received training described in paragraph (2).
(2) TRAINING DESCRIBED.—Training described in this paragraph is training on original classification that includes instruction on the proper safeguarding of classified information and of the criminal, civil, and administrative sanctions that may be brought against an individual who fails to protect classified information from unauthorized disclosure.
(1) IN GENERAL.—When an employee, contractor, licensee, certificate holder, or grantee of an agency who does not have original classification authority originates information believed by that employee, contractor, licensee, certificate holder, or grantee to require classification, the information shall be protected in a manner consistent with Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order.
(2) TRANSMISSION.—An employee, contractor, licensee, certificate holder, or grantee described in paragraph (1), who originates information described in such paragraph, shall promptly transmit such information to—
(A) the head of the agency that has appropriate subject matter interest and classification authority with respect to the information; or
(B) if it is not clear which agency has appropriate subject matter interest and classification authority with respect to the information, to the Director of the Information Security Oversight Office of the National Archives and Records Administration.
(3) INFORMATION SECURITY OVERSIGHT OFFICE ACTION.—If the Director of the Information Security Oversight Office receives information under paragraph (2)(B), the Director shall determine which agency has appropriate subject matter interest and classification authority and submit the information, with appropriate recommendations, to the head of that agency for a classification determination.
(4) TIMING OF DETERMINATIONS.—Not later than 30 days after the head of agency receives information pursuant to paragraph (2)(A) or (3), the head shall make a determination as to whether to classify the information.
(a) In general.—Whenever the head of an agency is processing a request pursuant to section 552 of title 5, United States Code (commonly known as the “Freedom of Information Act”) or the mandatory declassification review provisions of Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, and identifies responsive classified records that are more than 25-years-of-age as of December 31 of the year in which the request is received, the head of the agency shall review the record and process the record for declassification and release by the National Declassification Center of the National Archives and Records Administration.
(b) Application.—Subsection (a) shall apply—
(1) regardless of whether or not the record described in such subsection is in the legal custody of the National Archives and Records Administration; and
(2) without regard for any other provisions of law or existing agreements or practices between agencies.
(a) Training required.—Each head of an agency with classification authority shall conduct training for employees of such agency with classification authority to discourage over-classification and to promote sensible classification.
(b) Definitions.—In this section:
(1) OVER-CLASSIFICATION.—The term “over-classification” means classification at a level that exceeds the minimum level of classification that is sufficient to protect the national security of the United States.
(2) SENSIBLE CLASSIFICATION.—The term “sensible classification” means classification at a level that is the minimum level of classification that is sufficient to protect the national security of the United States.
Section 703 of the Public Interest Declassification Act of 2000 (50 U.S.C. 3355a) is amended—
(1) in subsection (c), by adding at the end the following:
“(5) A member of the Board whose term has expired may continue to serve until a successor is appointed and sworn in.”; and
(A) by inserting “(1)” before “Any employee”; and
(B) by adding at the end the following:
“(2) In addition to any employees detailed to the Board under paragraph (1), the Board may hire not more than 12 staff members.”.
(a) In general.—Not later than 1 year after the date of the enactment of this Act, the Administrator of the Office of Electronic Government of the Office of Management and Budget (in this section referred to as the “Administrator”), in consultation with the Secretary of Defense, the Director of the Central Intelligence Agency, the Director of National Intelligence, the Director of the Information Security Oversight Office, the head of the National Declassification Center of the National Archives and Records Administration, and the Public Interest Declassification Board, shall—
(1) research a technology-based solution—
(A) using machine learning and artificial intelligence to support efficient and effective systems for classification and declassification; and
(B) to be implemented on an interoperable and federated basis across the Federal Government; and
(2) submit to the President a recommendation regarding a technology-based solution described in paragraph (1) that should be adopted by the Federal Government.
(b) Staff.—The Administrator may hire sufficient staff to carry out subsection (a).
(1) SUBMISSION.—Not later than 540 days after the date of the enactment of this Act, the President shall submit to Congress a report on the technology-based solution recommended by the Administrator under subsection (a)(2) and the determination of the President regarding its adoption.
(2) FORM.—The report under paragraph (1) may be submitted in classified form.
(a) Studies on necessity of security clearances.—
(1) STUDIES REQUIRED.—The head of each agency that grants security clearances to personnel of such agency shall conduct a study on the necessity of such security clearances.
(A) IN GENERAL.—Not later than 1 year after the date of the enactment of this Act, each head of an agency that conducts a study under paragraph (1) shall submit to Congress a report on the findings of the head with respect to such study, which the head may classify as appropriate.
(B) REQUIRED ELEMENTS.—Each report submitted by the head of an agency under subparagraph (A) shall include, for such agency, the following:
(i) The number of personnel eligible for access to information up to the Top Secret level.
(ii) The number of personnel eligible for access to information up to the Secret level.
(iii) Information on the any reduction in the number of personnel eligible for access to classified information based on the study conducted under paragraph (1).
(iv) A description of how the head will ensure that the number of security clearances granted by such agency will be kept to the minimum required for the conduct of agency functions, commensurate with the size, needs, and mission of the agency.
(3) INDUSTRY.—This subsection shall apply to the Secretary of Defense in the capacity of such Secretary as the Executive Agent for the National Industrial Security Program. The Secretary of Defense shall treat contractors, licensees, and grantees as personnel of the Department of Defense for purposes of the studies and reports required by this subsection.
(b) Director of National Intelligence review of sensitive compartmented information.—The Director of National Intelligence shall—
(1) review the number of personnel eligible for access to sensitive compartmented information; and
(2) submit to Congress a report on how the Director will ensure that the number of such personnel is limited to the minimum required.
(c) Agency review of special access programs.—Each head of an agency who is authorized to establish a special access program by Executive Order 13526 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, shall—
(1) review the number of personnel of the agency eligible for access to such special access programs; and
(2) submit to Congress a report on how the head will ensure that the number of such personnel is limited to the minimum required.
(d) Secretary of Energy review of Q and L clearances.—The Secretary of Energy shall—
(1) review the number of personnel of the Department of Energy granted Q and L access; and
(2) submit to Congress a report on how the Secretary will ensure that the number of such personnel is limited to the minimum required.
(e) Independent reviews.—Not later than 180 days after the date on which a study is completed under subsection (a) or a review is completed under subsections (b) through (d), the Director of the Information Security Oversight Office of the National Archives and Records Administration, the Director of National Intelligence, and the Public Interest Declassification Board shall each review the study or review, as the case may be.
In this Act:
(1) AGENCY.—The term “agency” has the meaning given the term “Executive agency” in section 105 of title 5, United States Code.
(2) CLASSIFIED INFORMATION.—The term “classified information” means information that has been determined pursuant to Executive order 12958 (50 U.S.C. 3161 note; relating to classified national security information), or successor order, to require protection against unauthorized disclosure and is marked to indicate its classified status when in documentary form.
(3) CLASSIFICATION.—The term “classification” means the act or process by which information is determined to be classified information.
(4) DECLASSIFICATION.—The term “declassification” means the authorized change in the status of information from classified information to unclassified information.
(5) DOCUMENT.—The term “document” means any recorded information, regardless of the nature of the medium or the method or circumstances of recording.
(6) DOWNGRADE.—The term “downgrade” means a determination by a declassification authority that information classified and safeguarded at a specified level shall be classified and safeguarded at a lower level.
(7) INFORMATION.—The term “information” means any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, is produced by or for, or is under the control of the United States Government.
(8) ORIGINATE, ORIGINATING, AND ORIGINATED.—The term “originate”, “originating”, and “originated”, with respect to classified information and an authority, means the authority that classified the information in the first instance.
(9) RECORDS.—The term “records” means the records of an agency and Presidential papers or Presidential records, as those terms are defined in title 44, United States Code, including those created or maintained by a government contractor, licensee, certificate holder, or grantee that are subject to the sponsoring agency’s control under the terms of the contract, license, certificate, or grant.
(10) SECURITY CLEARANCE.—The term “security clearance” means an authorization to access classified information.
(11) UNAUTHORIZED DISCLOSURE.—The term “unauthorized disclosure” means a communication or physical transfer of classified information to an unauthorized recipient.
(12) UNCLASSIFIED INFORMATION.—The term “unclassified information” means information that is not classified information.