TITLE II — INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

This title concerns the responsibilities of the Department of Homeland Security for information analysis and infrastructure protection.

Section 201. Under Secretary for Information Analysis and Infrastructure Protection.

This section specifies primary responsibilities of the Under Secretary for Information Analysis and Infrastructure Protection. These include: (1) receiving and analyzing law enforcement information, intelligence, and other information in order to understand the nature and scope of the terrorist threat to the American homeland and to detect and identify potential threats of terrorism within the United States; (2) comprehensively assessing the vulnerabilities of key resources and critical infrastructures; (3) integrating relevant information, intelligence analyses, and vulnerability assessments to identify protective priorities and support protective measures; (4) developing a comprehensive national plan for securing key resources and critical infrastructures; (5) taking or seeking to effect necessary measures to protect those key resources and infrastructures; (6) administering the Homeland Security Advisory System, exercising primary responsibility for public threat advisories, and providing specific warning information to state and local governments and the private sector, as well as advice about appropriate protective actions and countermeasures; and (7) reviewing, analyzing, and making recommendations for improvements in the policies and procedures governing the sharing of law enforcement, intelligence, and other information relating to homeland security within the federal government and between the federal government and state and local governments.

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Section 202. Functions transferred.

This section identifies agencies and functions relevant to information analysis and infrastructure protection that are to be transferred to the Department of Homeland Security. These include the National Infrastructure Protection Center of the FBI (other than the Computer Investigations and Operations Section), the National Communications System of the Department of Defense, the Critical Infrastructure Assurance Office of the Department of Commerce, the Computer Security Division of the National Institute of Standards and Technology, the National Infrastructure Simulation and Analysis Center of the Department of Energy, and the Federal Computer Incident Response Center of the General Services Administration.

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Section 203. Access to information.

This section establishes the Secretary of Homeland Security’s entitlement to receive intelligence and other information from agencies and departments of the United States government for the purpose of fulfilling the mission of information analysis and infrastructure protection. Under the terms of this section, there are three broad categories of information to which the Secretary is given access.

The first includes reports, assessments and analytical information relating to threats of terrorism in the United States and to other areas within the Department’s responsibility. These materials represent the work product of United States law enforcement, intelligence, and other government agencies. This category ordinarily would not include "raw," unprocessed data; for example, recordings or verbatim transcripts of conversations. Unless the President directs otherwise, all executive agencies have an affirmative obligation to furnish the specified reports, assessments, and analytical information to the Secretary, even if no request has been made for them.

The second category of material to which the Secretary is granted access by this section is information concerning infrastructure or other vulnerabilities of the United States to terrorism. This material may include "raw" data or information. In this category, too, unless the President directs otherwise, federal agencies are required to furnish the material to the Secretary without request.

The final category includes unprocessed "raw" data or information on subjects other than infrastructure or other vulnerabilities of the United States to terrorism. The Secretary has the right to receive such information only as the President provides. If the President provides that the Secretary shall have access to such information and it relates to significant and credible threats of terrorism, however, that information must be provided to the Secretary without request. Otherwise, the Secretary may request the material or make other cooperative arrangements with other executive agencies to receive it.

It is anticipated that the Secretary and executive agency heads will enter into agreements regarding thresholds for the automatic provision of each category of materials, but that information sharing will not be delayed pending such agreements. Given that the initial volume of information may be high, prior to the execution of any such agreements, the Secretary is expected to work with agency heads to ensure the orderly and appropriate sharing of information.

In all cases, the Secretary is required to ensure that material received pursuant to this section is used only for the performance of official duties and is protected from unauthorized disclosure. The Secretary’s right to receive information is also made subject to the traditional authority of the intelligence and law enforcement agencies to protect sources and methods and sensitive law enforcement information.

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Section 204. Information voluntarily provided.

This section encourages the sharing of information with the Department of Homeland Security by the private sector, state and local governments, and individuals. It provides that information voluntarily provided by non-federal parties to the Department of Homeland Security that relates to infrastructure vulnerabilities or other vulnerabilities to terrorism is not subject to public disclosure under the Freedom of Information Act. Also, such information would not lose its protected character if forwarded by the Department of Homeland Security to other federal departments or agencies.

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