50 U.S.C. § 3383 — National Counterintelligence and Security

Page 872 TITLE 50—WAR AND NATIONAL DEFENSE § 3383 Subsec. (a). Pub. L. 115–31, § 401(a)(3), provided that the amendment made by Pub. L. 114–113, § 401(a), was deemed to not have taken effect. See 2015 Amendment and Effective Date of 2015 Amendment notes below. 2015—Subsec. (a). Pub. L. 114–113, which directed that subsec. (a) be amended to read as follows: ‘‘(a) ESTABLISHMENT.—There shall be a National Counterintelligence Executive who shall be appointed by the President, by and with the advice and consent of the Senate.’’, was deemed to not have taken effect by Pub. L. 115–31, § 401(a)(3). See 2017 Amendment note above. 2004—Subsec. (a)(1). Pub. L. 108–458, § 1072(d)(1)(B)(i), substituted ‘‘Director of National Intelligence’’ for ‘‘President’’. Subsec. (a)(2). Pub. L. 108–458, § 1072(d)(1)(B), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Presi- dent’’ and ‘‘Director of the Central Intelligence Agen- cy’’ for ‘‘Director of Central Intelligence’’. Subsec. (c). Pub. L. 108–458, § 1072(d)(1)(B)(i), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Presi- dent’’ in two places. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2015 AMENDMENT Pub. L. 115–31, div. N, title IV, § 401(a)(3), May 5, 2017, 131 Stat. 817, provided that: ‘‘The amendment made by subsection (a) of section 401 of the Intelligence Author- ization Act for Fiscal Year 2016 (division M of Public Law 114–113) [amending this section] shall not take ef- fect, or, if the date of the enactment of this Act [May 5, 2017] is on or after the effective date specified in sub- section (b) of such section [Dec. 18, 2016, see note below], such amendment shall be deemed to not have taken effect.’’ Pub. L. 114–113, div. M, title IV, § 401(b), Dec. 18, 2015, 129 Stat. 2921, provided that: ‘‘The amendment made by subsection (a) [amending this section] shall take effect on the date that is one year after the date of the enact- ment of this Act [Dec. 18, 2015].’’ EFFECTIVE DATE OF 2004 AMENDMENT For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memo- randum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title. Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of this title. PURPOSE Pub. L. 107–306, title IX, § 901(b), Nov. 27, 2002, 116 Stat. 2432, provided that: ‘‘The purpose of this title [see Tables for classification] is to facilitate the enhance- ment of the counterintelligence activities of the United States Government by— ‘‘(1) enabling the counterintelligence community of the United States Government to fulfill better its mission of identifying, assessing, prioritizing, and countering the intelligence threats to the United States; ‘‘(2) ensuring that the counterintelligence commu- nity of the United States Government acts in an effi- cient and effective manner; and ‘‘(3) providing for the integration of all the counter- intelligence activities of the United States Govern- ment.’’ § 3383. National Counterintelligence and Security Center (a) Establishment There shall be a National Counterintelligence and Security Center. (b) Head of Center The Director of the National Counterintel- ligence and Security Center shall be the head of the National Counterintelligence and Security Center. (c) Location of Center The National Counterintelligence and Secu- rity Center shall be located in the Office of the Director of National Intelligence. (d) Mission The mission of the National Counterintel- ligence and Security Center shall include orga- nizing and leading strategic planning for coun- terintelligence activities of the United States Government by integrating instruments of na- tional power as needed to counter foreign intel- ligence activities. (e) Functions Subject to the direction and control of the Di- rector of the National Counterintelligence and Security Center, the functions of the National Counterintelligence and Security Center shall be as follows: (1) National threat identification and prioritization assessment Subject to subsection (f), in consultation with appropriate department and agencies of the United States Government, and private sector entities, to produce a strategic plan- ning assessment of the counterintelligence re- quirements of the United States to be known as the National Threat Identification and Prioritization Assessment. (2) National Counterintelligence Strategy (A) Requirement to produce Subject to subsection (f), in consultation with appropriate department and agencies of the United States Government, and private sector entities, and based on the most cur- rent National Threat Identification and Prioritization Assessment under paragraph (1), to produce a strategy for the counter- intelligence programs and activities of the United States Government to be known as the National Counterintelligence Strategy. (B) Revision and requirement The National Counterintelligence Strategy shall be revised or updated at least once every three years and shall be aligned with the strategy and policies of the Director of National Intelligence. (3) Implementation of National Counterintel- ligence Strategy To evaluate on an ongoing basis the imple- mentation of the National Counterintelligence Strategy and to submit to the President peri- odic reports on such evaluation, including a discussion of any shortfalls in the implemen- tation of the Strategy and recommendations for remedies for such shortfalls. (4) National counterintelligence strategic anal- yses As directed by the Director of National In- telligence and in consultation with appro- priate elements of the departments and agen- Page 873 TITLE 50—WAR AND NATIONAL DEFENSE § 3383 1 See References in Text note below. cies of the United States Government, to over- see and coordinate the production of strategic analyses of counterintelligence matters, in- cluding the production of counterintelligence damage assessments and assessments of les- sons learned from counterintelligence activi- ties. (5) National counterintelligence program budg- et At the direction of the Director of National Intelligence— (A) to coordinate the development of budg- ets and resource allocation plans for the counterintelligence programs and activities of the Department of Defense, the Federal Bureau of Investigation, the Central Intel- ligence Agency, and other appropriate ele- ments of the United States Government; (B) to ensure that the budgets and re- source allocation plans developed under sub- paragraph (A) address the objectives and pri- orities for counterintelligence under the Na- tional Counterintelligence Strategy; and (C) to submit to the National Security Council periodic reports on the activities un- dertaken by the Office under subparagraphs (A) and (B). (6) National counterintelligence collection and targeting coordination To develop priorities for counterintelligence investigations and operations, and for collec- tion of counterintelligence, for purposes of the National Counterintelligence Strategy, except that the National Counterintelligence and Se- curity Center may not— (A) carry out any counterintelligence in- vestigations or operations; or (B) establish its own contacts, or carry out its own activities, with foreign intelligence services. (7) National counterintelligence outreach, watch, and warning (A) Counterintelligence vulnerability assess- ments and surveys To develop standards and criteria for coun- terintelligence risk assessments and surveys of the vulnerability of the United States to intelligence threats, including with respect to critical infrastructure and critical tech- nologies, in order to identify the areas, pro- grams, and activities that require protection from such threats. (B) Outreach To carry out and coordinate outreach pro- grams and activities on counterintelligence to other elements of the United States Gov- ernment, and the private sector, and to co- ordinate the dissemination to the public of warnings on intelligence threats to the United States. (C) Research and development To ensure that research and development programs and activities of the United States Government, and the private sector, direct attention to the needs of the counterintel- ligence community for technologies, prod- ucts, and services. (D) Training and professional development To develop policies and standards for training and professional development of in- dividuals engaged in counterintelligence ac- tivities and to manage the conduct of joint training exercises for such personnel. (E) Vulnerabilities from foreign commercial spyware (i) Consultation In carrying out efforts to secure covered devices, to consult with the private sector of the United States and reputable third- party researchers to identify vulnerabilities from foreign commercial spyware (as defined in section 3232a(a) of this title) and maintain effective security measures for such devices. (ii) Covered device defined In this subparagraph, the term ‘‘covered device’’ means any electronic mobile de- vice including smartphones, tablet com- puting devices, or laptop computing de- vices, that is issued by an element of the intelligence community for official use. (f) Additional requirements regarding National Threat Identification and Prioritization As- sessment and National Counterintelligence Strategy (1) A National Threat Identification and Prioritization Assessment under subsection (e)(1), and any modification of such assessment, shall not go into effect until approved by the President. (2) A National Counterintelligence Strategy under subsection (e)(2), and any modification of such strategy, shall not go into effect until ap- proved by the President. (3) The Director of the National Counterintel- ligence and Security Center shall submit to the congressional intelligence committees each Na- tional Threat Identification and Prioritization Assessment, or modification thereof, and each National Counterintelligence Strategy, or modi- fication thereof, approved under this section. (4) In this subsection, the term ‘‘congressional intelligence committees’’ means— (A) the Select Committee on Intelligence of the Senate; and (B) the Permanent Select Committee on In- telligence of the House of Representatives. (g) Personnel (1) Personnel of the National Counterintel- ligence and Security Center may consist of per- sonnel employed by the Center or personnel on detail from any other department, agency, or element of the Federal Government. Any such detail may be on a reimbursable or non- reimbursable basis, at the election of the head of the agency detailing such personnel. (2) Notwithstanding section 104(d) 1 or any other provision of law limiting the period of the detail of personnel on a nonreimbursable basis, the detail of an officer or employee of United States or a member of the Armed Forces under paragraph (1) on a nonreimbursable basis may be for any period in excess of one year that the Di- Page 874 TITLE 50—WAR AND NATIONAL DEFENSE § 3383 rector of the National Counterintelligence and Security Center and the head of the department, agency, or element concerned consider appro- priate. (h) Treatment of activities under certain admin- istrative laws The files of the National Counterintelligence and Security Center shall be treated as oper- ational files of the Central Intelligence Agency for purposes of section 701 of the National Secu- rity Act of 1947 (50 U.S.C. 3141) to the extent such files meet criteria under subsection (b) of that section for treatment of files as operational files of an element of the Agency. (i) Oversight by Congress The location of the National Counterintel- ligence and Security Center within the Office of the Director of National Intelligence shall not be construed as affecting access by Congress, or any committee of Congress, to— (1) any information, document, record, or paper in the possession of the Center; or (2) any personnel of the Center. (j) Construction Nothing in this section shall be construed as affecting the authority of the Director of Na- tional Intelligence, the Secretary of Defense, the Secretary of State, the Attorney General, or the Director of the Federal Bureau of Investiga- tion as provided or specified under the National Security Act of 1947 or under other provisions of law. (Pub. L. 107–306, title IX, § 904, Nov. 27, 2002, 116 Stat. 2434; Pub. L. 108–458, title I, §§ 1071(g)(2)(B), 1072(d)(1)(C), Dec. 17, 2004, 118 Stat. 3691, 3693; Pub. L. 111–259, title IV, § 412, Oct. 7, 2010, 124 Stat. 2725; Pub. L. 112–18, title IV, § 401, June 8, 2011, 125 Stat. 227; Pub. L. 112–87, title III, § 311(b), Jan. 3, 2012, 125 Stat. 1886; Pub. L. 115–31, div. N, title IV, § 401(b)(1)–(5), May 5, 2017, 131 Stat. 817, 818; Pub. L. 117–263, div. F, title LXIII, § 6318(d)(4), Dec. 23, 2022, 136 Stat. 3521; Pub. L. 118–31, div. G, title III, §§ 7303, 7305(a), (b)(1), Dec. 22, 2023, 137 Stat. 1025, 1026; Pub. L. 118–159, div. F, title LXIII, § 6302, Dec. 23, 2024, 138 Stat. 2471.) Editorial Notes REFERENCES IN TEXT Section 104(d), referred to in subsec. (g)(2), is section 104(d) of Pub. L. 107–306, title I, Nov. 27, 2002, 116 Stat. 2387, which is not classified to the Code. The National Security Act of 1947, referred to in sub- sec. (j), is act July 26, 1947, ch. 343, 61 Stat. 495, which is classified principally to chapter 44 (§ 3001 et seq.) of this title. For complete classification of this Act to the Code, see Tables. CODIFICATION Section was formerly classified to section 402c of this title prior to editorial reclassification and renumbering as this section. AMENDMENTS 2024—Subsec. (f)(3). Pub. L. 118–159 substituted ‘‘Di- rector of the National Counterintelligence and Secu- rity Center’’ for ‘‘National Counterintelligence Execu- tive’’. 2023—Subsec. (d). Pub. L. 118–31, § 7305(a)(2), added subsec. (d). Former subsec. (d) redesignated (e). Subsec. (d)(7)(A). Pub. L. 118–31, § 7303, amended sub- par. (A) generally. Prior to amendment, text read as follows: ‘‘To carry out and coordinate surveys of the vulnerability of the United States Government, and the private sector, to intelligence threats in order to iden- tify the areas, programs, and activities that require protection from such threats.’’ Subsec. (e). Pub. L. 118–31, § 7305(a)(1), (b)(1)(A), redes- ignated subsec. (d) as (e) and substituted ‘‘Subject to subsection (f)’’ for ‘‘Subject to subsection (e)’’ in pars. (1) and (2)(A). Former subsec. (e) redesignated (f). Subsec. (f). Pub. L. 118–31, § 7305(a)(1), (b)(1)(B), redes- ignated subsec. (e) as (f) and substituted ‘‘subsection (e)(1)’’ for ‘‘subsection (d)(1)’’ in par. (1) and ‘‘sub- section (e)(2)’’ for ‘‘subsection (d)(2)’’ in par. (2). Former subsec. (f) redesignated (g). Subsecs. (g) to (j). Pub. L. 118–31, § 7305(a)(1), redesig- nated subsecs. (f) to (i) as (g) to (j), respectively. 2022—Subsec. (d)(7)(E). Pub. L. 117–263 added subpar. (E). 2017—Pub. L. 115–31, § 401(b)(1)(A), substituted ‘‘Na- tional Counterintelligence and Security Center’’ for ‘‘Office of the National Counterintelligence Executive’’ in section catchline. Subsecs. (a) to (c). Pub. L. 115–31, § 401(b)(1)(B), added subsecs. (a) to (c) and struck out former subsecs. (a) to (c) which related to establishment of Office of the Na- tional Counterintelligence Executive, head of Office, and location of Office, respectively. Subsec. (d). Pub. L. 115–31, § 401(b)(2)(A), substituted ‘‘Director of the National Counterintelligence and Se- curity Center, the functions of the National Counter- intelligence and Security Center’’ for ‘‘National Coun- terintelligence Executive, the functions of the Office of the National Counterintelligence Executive’’ in intro- ductory provisions. Subsec. (d)(5). Pub. L. 115–31, § 401(b)(2)(B), substituted ‘‘At the direction of’’ for ‘‘In consultation with’’ in in- troductory provisions. Subsec. (d)(6). Pub. L. 115–31, § 401(b)(2)(C), substituted ‘‘National Counterintelligence and Security Center’’ for ‘‘Office’’ in introductory provisions. Subsec. (f)(1). Pub. L. 115–31, § 401(b)(3)(A), substituted ‘‘National Counterintelligence and Security Center may consist of personnel employed by the Center’’ for ‘‘Office of the National Counterintelligence Executive may consist of personnel employed by the Office’’. Subsec. (f)(2). Pub. L. 115–31, § 401(b)(3)(B), substituted ‘‘Director of the National Counterintelligence and Se- curity Center’’ for ‘‘National Counterintelligence Exec- utive’’. Subsec. (g). Pub. L. 115–31, § 401(b)(4), substituted ‘‘Na- tional Counterintelligence and Security Center shall be treated as operational files of the Central Intelligence Agency for purposes of section 701 of the National Secu- rity Act of 1947 (50 U.S.C. 3141)’’ for ‘‘Office shall be treated as operational files of the Central Intelligence Agency for purposes of section 701 of the National Secu- rity Act of 1947 (50 U.S.C. 431)’’. Subsec. (h). Pub. L. 115–31, § 401(b)(5)(A), substituted ‘‘National Counterintelligence and Security Center’’ for ‘‘Office of the National Counterintelligence Execu- tive’’ in introductory provisions. Subsec. (h)(1), (2). Pub. L. 115–31, § 401(b)(5)(B), sub- stituted ‘‘Center’’ for ‘‘Office’’. 2012—Subsec. (d)(1). Pub. L. 112–87 struck out ‘‘on an annual basis’’ after ‘‘to produce’’. 2011—Subsec. (d)(2). Pub. L. 112–18 inserted subpar. (A) designation and heading, struck out ‘‘on an annual basis’’ after ‘‘to produce’’, and added subpar. (B). 2010—Subsec. (d). Pub. L. 111–259, § 412(a)(1), (2), redes- ignated subsec. (e) as (d) and struck out former subsec. (d). Text read as follows: ‘‘(1) There shall be in the Office of the National Coun- terintelligence Executive a general counsel who shall serve as principal legal advisor to the National Coun- terintelligence Executive. ‘‘(2) The general counsel shall— ‘‘(A) provide legal advice and counsel to the Execu- tive on matters relating to functions of the Office; Page 875 TITLE 50—WAR AND NATIONAL DEFENSE § 3384 ‘‘(B) ensure that the Office complies with all appli- cable laws, regulations, Executive orders, and guide- lines; and ‘‘(C) carry out such other duties as the Executive may specify.’’ Subsec. (d)(1), (2). Pub. L. 111–259, § 412(b)(1), sub- stituted ‘‘subsection (e)’’ for ‘‘subsection (f)’’. Subsec. (e). Pub. L. 111–259, § 412(a)(2), redesignated subsec. (f) as (e). Former subsec. (e) redesignated (d). Subsec. (e)(1). Pub. L. 111–259, § 412(b)(2)(A), sub- stituted ‘‘subsection (d)(1)’’ for ‘‘subsection (e)(1)’’. Subsec. (e)(2). Pub. L. 111–259, § 412(b)(2)(B), sub- stituted ‘‘subsection (d)(2)’’ for ‘‘subsection (e)(2)’’. Subsec. (f). Pub. L. 111–259, § 412(a)(2), redesignated subsec. (g) as (f). Former subsec. (f) redesignated (e). Subsec. (f)(3), (4). Pub. L. 111–259, § 412(a)(3), struck out pars. (3) and (4) which read as follows: ‘‘(3) The employment of personnel by the Office, in- cluding the appointment, compensation and benefits, management, and separation of such personnel, shall be governed by the provisions of law on such matters with respect to the personnel of the Central Intelligence Agency, except that, for purposes of the applicability of such provisions of law to personnel of the Office, the National Counterintelligence Executive shall be treat- ed as the head of the Office. ‘‘(4) Positions in the Office shall be excepted service positions for purposes of title 5.’’ Subsecs. (g) to (m). Pub. L. 111–259, § 412(a)(1), (2), re- designated subsecs. (k) to (m) as (g) to (i), respectively, and struck out former subsecs. (h) to (j) which related to support, availability of funds for reimbursement, and contracts, respectively. Former subsec. (g) redesig- nated (f). 2004—Subsec. (c). Pub. L. 108–458, § 1072(d)(1)(C)(i), sub- stituted ‘‘Office of the Director of National Intel- ligence’’ for ‘‘Office of the Director of Central Intel- ligence’’. Subsec. (e)(4). Pub. L. 108–458, § 1071(g)(2)(B)(i), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Direc- tor of Central Intelligence’’. Subsec. (e)(5). Pub. L. 108–458, § 1071(g)(2)(B)(ii), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Direc- tor of Central Intelligence’’ in introductory provisions. Subsec. (h)(1), (2). Pub. L. 108–458, § 1071(g)(2)(B)(iii), substituted ‘‘Director of National Intelligence’’ for ‘‘Di- rector of Central Intelligence’’. Subsec. (l). Pub. L. 108–458, § 1072(d)(1)(C)(ii), sub- stituted ‘‘Office of the Director of National Intel- ligence’’ for ‘‘Office of the Director of Central Intel- ligence’’ in introductory provisions. Subsec. (m). Pub. L. 108–458, § 1071(g)(2)(B)(iv), sub- stituted ‘‘Director of National Intelligence’’ for ‘‘Direc- tor of Central Intelligence’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2004 AMENDMENT For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memo- randum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of this title. Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out in an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of this title. RULE OF CONSTRUCTION—NO ENHANCED AUTHORITIES Nothing in amendment made by Pub. L. 117–263 to be construed as enhancing, or otherwise changing, the au- thorities of the intelligence community to target, col- lect, process, or disseminate information regarding United States Government personnel, see section 6318(e) of Pub. L. 117–263, set out as a note under section 3232a of this title. § 3384. Intelligence Community Counterintel- ligence Office at the Department of Agri- culture (a) Definitions In this section: (1) Department The term ‘‘Department’’ means the Depart- ment of Agriculture. (2) Secretary The term ‘‘Secretary’’ means the Secretary of Agriculture. (b)Omitted (c) Establishment of Intelligence Community Counterintelligence Office (1) Agreement with Secretary of Agriculture The Director of National Intelligence, acting through the Director of the National Counter- intelligence and Security Center, shall seek to enter into an agreement with the Secretary under which the Director of National Intel- ligence and the Secretary shall establish with- in the Department an office, which shall be known as the ‘‘Intelligence Community Coun- terintelligence Office’’, in accordance with this section. (2) Location The Intelligence Community Counterintel- ligence Office established pursuant to this sec- tion shall be physically located within the headquarters of the Department and within reasonable proximity to the offices of the lead- ership of the Department. (3) Security The Director of the National Counterintel- ligence and Security Center shall be respon- sible for the protection of classified informa- tion and for the establishment and enforce- ment of all security-related controls within the Intelligence Community Counterintel- ligence Office. (d) Personnel (1) Director (A) Appointment There shall be at the head of the Intel- ligence Community Counterintelligence Of- fice a Director who is appointed by the Di- rector of National Intelligence. The Director of the Intelligence Community Counterintel- ligence Office shall— (i) be supervised and subject to perform- ance evaluations by the Director of the National Counterintelligence and Security Center, in consultation with the Sec- retary; (ii) be an employee of the intelligence community with significant counterintel- ligence experience; and (iii) serve for a period of 3 years. (B) Responsibilities The Director of the Intelligence Commu- nity Counterintelligence Office shall carry out the following responsibilities: (i) Serving as the head of the Intel- ligence Community Counterintelligence