44 U.S.C. § 3553 — Authority and functions of the Director

Page 186 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 3553 § 3553. Authority and functions of the Director and the Secretary (a) DIRECTOR.—The Director shall oversee agency information security policies and prac- tices, including— (1) developing and overseeing the implemen- tation of policies, principles, standards, and guidelines on information security, including through ensuring timely agency adoption of and compliance with standards promulgated under section 11331 of title 40; (2) requiring agencies, consistent with the standards promulgated under such section 11331 and the requirements of this subchapter, to identify and provide information security protections commensurate with the risk and magnitude of the harm resulting from the un- authorized access, use, disclosure, disruption, modification, or destruction of— (A) information collected or maintained by or on behalf of an agency; or (B) information systems used or operated by an agency or by a contractor of an agency or other organization on behalf of an agency; (3) ensuring that the Secretary carries out the authorities and functions under subsection (b); (4) coordinating the development of stand- ards and guidelines under section 20 of the Na- tional Institute of Standards and Technology Act (15 U.S.C. 278g–3) with agencies and offices operating or exercising control of national se- curity systems (including the National Secu- rity Agency) to assure, to the maximum ex- tent feasible, that such standards and guide- lines are complementary with standards and guidelines developed for national security sys- tems; (5) overseeing agency compliance with the requirements of this subchapter and section 1326 of title 41, including through any author- ized action under section 11303 of title 40, to enforce accountability for compliance with such requirements; and (6) coordinating information security poli- cies and procedures with related information resources management policies and proce- dures. (b) SECRETARY.—The Secretary, in consulta- tion with the Director, shall administer the im- plementation of agency information security policies and practices for information systems, except for national security systems and infor- mation systems described in paragraph (2) or (3) of subsection (e), including— (1) assisting the Director in carrying out the authorities and functions under paragraphs (1), (2), (3), (5), and (6) of subsection (a); (2) developing and overseeing the implemen- tation of binding operational directives to agencies to implement the policies, principles, standards, and guidelines developed by the Di- rector under subsection (a)(1) and the require- ments of this subchapter, which may be re- vised or repealed by the Director if the oper- ational directives issued on behalf of the Di- rector are not in accordance with policies, principles, standards, and guidelines developed by the Director, including— (A) requirements for reporting security in- cidents to the Federal information security incident center established under section 3556; (B) requirements for the contents of the annual reports required to be submitted under section 3554(c)(1); (C) requirements for the mitigation of exi- gent risks to information systems; and (D) other operational requirements as the Director or Secretary, in consultation with the Director, may determine necessary; (3) monitoring agency implementation of in- formation security policies and practices; (4) convening meetings with senior agency officials to help ensure effective implementa- tion of information security policies and prac- tices; (5) coordinating Government-wide efforts on information security policies and practices, including consultation with the Chief Informa- tion Officers Council established under section 3603 and the Director of the National Institute of Standards and Technology; (6) providing operational and technical as- sistance to agencies in implementing policies, principles, standards, and guidelines on infor- mation security, including implementation of standards promulgated under section 11331 of title 40, including by— (A) operating the Federal information se- curity incident center established under sec- tion 3556; (B) upon request by an agency, deploying, operating, and maintaining technology to assist the agency to continuously diagnose and mitigate against cyber threats and vulnerabilities, with or without reimburse- ment; (C) compiling and analyzing data on agen- cy information security; and (D) developing and conducting targeted operational evaluations, including threat and vulnerability assessments, on the infor- mation systems; (7) hunting for and identifying, with or with- out advance notice to or authorization from agencies, threats and vulnerabilities within Federal information systems; (8) upon request by an agency, and at the Secretary’s discretion, with or without reim- bursement— (A) providing services, functions, and capa- bilities, including operation of the agency’s information security program, to assist the agency with meeting the requirements set forth in section 3554(b); and (B) deploying, operating, and maintaining secure technology platforms and tools, in- cluding networks and common business ap- plications, for use by the agency to perform agency functions, including collecting, maintaining, storing, processing, dissemi- nating, and analyzing information; and (9) other actions as the Director or the Sec- retary, in consultation with the Director, may determine necessary to carry out this sub- section. (c) REPORT.—Not later than March 1 of each year, the Director, in consultation with the Sec- retary, shall submit to Congress a report on the Page 187 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 3553 effectiveness of information security policies and practices during the preceding year, includ- ing— (1) a summary of the incidents described in the annual reports required to be submitted under section 3554(c)(1), including a summary of the information required under section 3554(c)(1)(A)(iii); (2) a description of the threshold for report- ing major information security incidents; (3) a summary of the results of evaluations required to be performed under section 3555; (4) an assessment of agency compliance with standards promulgated under section 11331 of title 40; and (5) an assessment of agency compliance with data breach notification policies and proce- dures issued by the Director. (d) NATIONAL SECURITY SYSTEMS.—Except for the authorities and functions described in sub- section (a)(5) and subsection (c), the authorities and functions of the Director and the Secretary under this section shall not apply to national se- curity systems. (e) DEPARTMENT OF DEFENSE AND INTELLIGENCE COMMUNITY SYSTEMS.—(1) The authorities of the Director described in paragraphs (1) and (2) of subsection (a) shall be delegated to the Sec- retary of Defense in the case of systems de- scribed in paragraph (2) and to the Director of National Intelligence in the case of systems de- scribed in paragraph (3). (2) The systems described in this paragraph are systems that are operated by the Depart- ment of Defense, a contractor of the Department of Defense, or another entity on behalf of the Department of Defense that processes any infor- mation the unauthorized access, use, disclosure, disruption, modification, or destruction of which would have a debilitating impact on the mission of the Department of Defense. (3) The systems described in this paragraph are systems that are operated by an element of the intelligence community, a contractor of an element of the intelligence community, or an- other entity on behalf of an element of the intel- ligence community that processes any informa- tion the unauthorized access, use, disclosure, disruption, modification, or destruction of which would have a debilitating impact on the mission of an element of the intelligence com- munity. (f) CONSIDERATION.— (1) IN GENERAL.—In carrying out the respon- sibilities under subsection (b), the Secretary shall consider any applicable standards or guidelines developed by the National Institute of Standards and Technology and issued by the Secretary of Commerce under section 11331 of title 40. (2) DIRECTIVES.—The Secretary shall— (A) consult with the Director of the Na- tional Institute of Standards and Tech- nology regarding any binding operational di- rective that implements standards and guidelines developed by the National Insti- tute of Standards and Technology; and (B) ensure that binding operational direc- tives issued under subsection (b)(2) do not conflict with the standards and guidelines issued under section 11331 of title 40. (3) RULE OF CONSTRUCTION.—Nothing in this subchapter shall be construed as authorizing the Secretary to direct the Secretary of Com- merce in the development and promulgation of standards and guidelines under section 11331 of title 40. (g) EXERCISE OF AUTHORITY.—To ensure fiscal and policy consistency, the Secretary shall exer- cise the authority under this section subject to direction by the President, in coordination with the Director. (h) DIRECTION TO AGENCIES.— (1) AUTHORITY.— (A) IN GENERAL.—Subject to subparagraph (B), in response to a known or reasonably suspected information security threat, vul- nerability, or incident that represents a sub- stantial threat to the information security of an agency, the Secretary may issue an emergency directive to the head of an agen- cy to take any lawful action with respect to the operation of the information system, in- cluding such systems used or operated by an- other entity on behalf of an agency, that col- lects, processes, stores, transmits, dissemi- nates, or otherwise maintains agency infor- mation, for the purpose of protecting the in- formation system from, or mitigating, an in- formation security threat. (B) EXCEPTION.—The authorities of the Secretary under this subsection shall not apply to a system described subsection (d) or to a system described in paragraph (2) or (3) of subsection (e). (2) PROCEDURES FOR USE OF AUTHORITY.—The Secretary shall— (A) in coordination with the Director, and in consultation with Federal contractors as appropriate, establish procedures governing the circumstances under which a directive may be issued under this subsection, which shall include— (i) thresholds and other criteria; (ii) privacy and civil liberties protec- tions; and (iii) providing notice to potentially af- fected third parties; (B) specify the reasons for the required ac- tion and the duration of the directive; (C) minimize the impact of a directive under this subsection by— (i) adopting the least intrusive means possible under the circumstances to secure the agency information systems; and (ii) limiting directives to the shortest period practicable; (D) notify the Director and the head of any affected agency immediately upon the issuance of a directive under this subsection; (E) consult with the Director of the Na- tional Institute of Standards and Tech- nology regarding any directive under this subsection that implements standards and guidelines developed by the National Insti- tute of Standards and Technology; (F) ensure that directives issued under this subsection do not conflict with the stand- ards and guidelines issued under section 11331 of title 40; Page 188 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 3553 1 See References in Text note below. (G) consider any applicable standards or guidelines developed by the National Insti- tute of Standards and Technology issued by the Secretary of Commerce under section 11331 of title 40; and (H) not later than February 1 of each year, submit to the appropriate congressional committees a report regarding the specific actions the Secretary has taken pursuant to paragraph (1)(A). (3) IMMINENT THREATS.— (A) IN GENERAL.—Notwithstanding section 3554, the Secretary may authorize the use under this subsection of the intrusion detec- tion and prevention capabilities established under section 230(b)(1) 1 of the Homeland Se- curity Act of 2002 for the purpose of ensuring the security of agency information systems, if— (i) the Secretary determines there is an imminent threat to agency information systems; (ii) the Secretary determines a directive under subsection (b)(2)(C) or paragraph (1)(A) is not reasonably likely to result in a timely response to the threat; (iii) the Secretary determines the risk posed by the imminent threat outweighs any adverse consequences reasonably ex- pected to result from the use of the intru- sion detection and prevention capabilities under the control of the Secretary; (iv) the Secretary provides prior notice to the Director, and the head and chief in- formation officer (or equivalent official) of each agency to which specific actions will be taken pursuant to this paragraph, and notifies the appropriate congressional committees and authorizing committees of each such agency within 7 days of taking an action under this paragraph of— (I) any action taken under this para- graph; and (II) the reasons for and duration and nature of the action; (v) the action of the Secretary is con- sistent with applicable law; and (vi) the Secretary authorizes the use of the intrusion detection and prevention ca- pabilities in accordance with the advance procedures established under subparagraph (C). (B) LIMITATION ON DELEGATION.—The au- thority under this paragraph may not be del- egated by the Secretary. (C) ADVANCE PROCEDURES.—The Secretary shall, in coordination with the Director, and in consultation with the heads of Federal agencies, establish procedures governing the circumstances under which the Secretary may authorize the use of the intrusion de- tection and prevention capabilities under subparagraph (A). The Secretary shall sub- mit the procedures to Congress. (4) LIMITATION.—The Secretary may direct or authorize lawful action or the use of the in- trusion detection and prevention capabilities under this subsection only to— (A) protect agency information from unau- thorized access, use, disclosure, disruption, modification, or destruction; or (B) require the remediation of or protect against identified information security risks with respect to— (i) information collected or maintained by or on behalf of an agency; or (ii) that portion of an information sys- tem used or operated by an agency or by a contractor of an agency or other organiza- tion on behalf of an agency. (i) ANNUAL REPORT TO CONGRESS.—Not later than February 1 of each year, the Director and the Secretary shall submit to the appropriate congressional committees a report regarding the specific actions the Director and the Secretary have taken pursuant to subsection (a)(5), includ- ing any actions taken pursuant to section 11303(b)(5) of title 40. (j) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to require the Sec- retary to provide notice to any private entity before the Secretary issues a binding oper- ational directive under subsection (b)(2). (k) APPROPRIATE CONGRESSIONAL COMMITTEES DEFINED.—In this section, the term ‘‘appropriate congressional committees’’ means— (1) the Committee on Appropriations and the Committee on Homeland Security and Govern- mental Affairs of the Senate; and (2) the Committee on Appropriations, the Committee on Homeland Security, the Com- mittee on Oversight and Government Reform, and the Committee on Science, Space, and Technology of the House of Representatives. (l) INFORMATION SHARING.— (1) IN GENERAL.—Notwithstanding any other provision of law, including any provision of law that would otherwise restrict or prevent the head of an agency from disclosing informa- tion to the Secretary, the Secretary in car- rying out this section and title XXII of the Homeland Security Act of 2002 (6 U.S.C. 651 et seq.) may access, use, retain, and disclose, and the head of an agency may disclose to the Sec- retary, information, for the purpose of pro- tecting information and information systems from cybersecurity risks. (2) EXCEPTION.—Paragraph (1) shall not apply to national security systems or to infor- mation systems described in paragraph (2) or (3) of subsection (e). (Added Pub. L. 113–283, § 2(a), Dec. 18, 2014, 128 Stat. 3075; amended Pub. L. 114–113, div. N, title II, §§ 224(e), 229(a), Dec. 18, 2015, 129 Stat. 2967, 2972; Pub. L. 115–390, title II, § 204(a)(1), Dec. 21, 2018, 132 Stat. 5192; Pub. L. 116–92, div. E, title LXIV, § 6432, Dec. 20, 2019, 133 Stat. 2200; Pub. L. 116–283, div. A, title XVII, § 1705, Jan. 1, 2021, 134 Stat. 4082.) Editorial Notes REFERENCES IN TEXT Section 230(b)(1) of the Homeland Security Act of 2002, referred to in subsec. (h)(3)(A), is section 230(b)(1) of title II of Pub. L. 107–296, as added by Pub. L. 114–113, div. N, title II, § 223(a)(6), Dec. 18, 2015, 129 Stat. 2964, which was redesignated section 2213(b)(1) of Pub. L. Page 189 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 3553 107–296 by section 2(g)(2)(I) of Pub. L. 115–278, Nov. 16, 2018, 132 Stat. 4178, and is classified to section 663(b)(1) of Title 6, Domestic Security. The Homeland Security Act of 2002, referred to in subsec. (l)(1), is Pub. L. 107–296, Nov. 25, 2002, 116 Stat. 2135. Title XXII of the Act is classified generally to sub- chapter XVIII (§ 651 et seq.) of chapter 1 of Title 6, Do- mestic Security. For complete classification of this Act to the Code, see Short Title note set out under section 101 of Title 6 and Tables. PRIOR PROVISIONS Provisions similar to this section were contained in sections 3533 and 3543 of this title prior to repeal by Pub. L. 113–283. AMENDMENTS 2021—Subsec. (b)(7) to (9). Pub. L. 116–283, § 1705(1), added pars. (7) and (8) and redesignated former par. (7) as (9). Subsec. (l). Pub. L. 116–283, § 1705(2), added subsec. (l). 2019—Subsecs. (j), (k). Pub. L. 116–92 added subsec. (j) and redesignated former subsec. (j) as (k). 2018—Subsec. (a)(5). Pub. L. 115–390 inserted ‘‘and sec- tion 1326 of title 41’’ after ‘‘compliance with the re- quirements of this subchapter’’. 2015—Subsec. (b)(6)(B). Pub. L. 114–113, § 224(e), in- serted ‘‘, operating, and maintaining’’ after ‘‘deploy- ing’’. Subsecs. (h) to (j). Pub. L. 114–113, § 229(a), added sub- secs. (h) to (j). Statutory Notes and Related Subsidiaries CHANGE OF NAME Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Con- gress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representa- tives by House Resolution No. 5, One Hundred Eight- eenth Congress, Jan. 9, 2023. EFFECTIVE DATE OF 2018 AMENDMENT Amendment by Pub. L. 115–390 effective 90 days after Dec. 21, 2018, see section 205 of Pub. L. 115–390, set out as an Effective Date note under section 1321 of this title. CONSTRUCTION Pub. L. 115–390, title II, § 204(b), Dec. 21, 2018, 132 Stat. 5193, provided that: ‘‘Nothing in this title [see section 201 of Pub. L. 115–390, set out as a Short Title of 2018 note under section 101 of Title 41, Public Contracts] shall be construed to alter or impede any authority or responsibility under section 3553 of title 44, United States Code.’’ NO TIKTOK ON GOVERNMENT DEVICES Pub. L. 117–328, div. R, Dec. 29, 2022, 136 Stat. 5258, provided that: ‘‘SEC. 101. SHORT TITLE. ‘‘This division may be cited as the ‘No TikTok on Government Devices Act’. ‘‘SEC. 102. PROHIBITION ON THE USE OF TIKTOK. ‘‘(a) DEFINITIONS.—In this section— ‘‘(1) the term ‘covered application’ means the social networking service TikTok or any successor applica- tion or service developed or provided by ByteDance Limited or an entity owned by ByteDance Limited; ‘‘(2) the term ‘executive agency’ has the meaning given that term in section 133 of title 41, United States Code; and ‘‘(3) the term ‘information technology’ has the meaning given that term in section 11101 of title 40, United States Code. ‘‘(b) PROHIBITION ON THE USE OF TIKTOK.— ‘‘(1) IN GENERAL.—Not later than 60 days after the date of the enactment of this Act [Dec. 29, 2022], the Director of the Office of Management and Budget, in consultation with the Administrator of General Serv- ices, the Director of the Cybersecurity and Infra- structure Security Agency, the Director of National Intelligence, and the Secretary of Defense, and con- sistent with the information security requirements under subchapter II of chapter 35 of title 44, United States Code, shall develop standards and guidelines for executive agencies requiring the removal of any covered application from information technology. ‘‘(2) NATIONAL SECURITY AND RESEARCH EXCEP- TIONS.—The standards and guidelines developed under paragraph (1) shall include— ‘‘(A) exceptions for law enforcement activities, national security interests and activities, and secu- rity researchers; and ‘‘(B) for any authorized use of a covered applica- tion under an exception, requirements for executive agencies to develop and document risk mitigation actions for such use.’’ BREACHES Pub. L. 113–283, § 2(d), Dec. 18, 2014, 128 Stat. 3085, pro- vided that: ‘‘(1) REQUIREMENTS.—The Director of the Office of Management and Budget shall ensure that data breach notification policies and guidelines are updated periodi- cally and require— ‘‘(A) except as provided in paragraph (4), notice by the affected agency to each committee of Congress described in section 3554(c)(1) of title 44, United States Code, as added by subsection (a), the Com- mittee on the Judiciary of the Senate, and the Com- mittee on the Judiciary of the House of Representa- tives, which shall— ‘‘(i) be provided expeditiously and not later than 30 days after the date on which the agency discov- ered the unauthorized acquisition or access; and ‘‘(ii) include— ‘‘(I) information about the breach, including a summary of any information that the agency knows on the date on which notification is pro- vided about how the breach occurred; ‘‘(II) an estimate of the number of individuals affected by the breach, based on information that the agency knows on the date on which notifica- tion is provided, including an assessment of the risk of harm to affected individuals; ‘‘(III) a description of any circumstances neces- sitating a delay in providing notice to affected in- dividuals; and ‘‘(IV) an estimate of whether and when the agency will provide notice to affected individuals; and ‘‘(B) notice by the affected agency to affected indi- viduals, pursuant to data breach notification policies and guidelines, which shall be provided as expedi- tiously as practicable and without unreasonable delay after the agency discovers the unauthorized ac- quisition or access. ‘‘(2) NATIONAL SECURITY; LAW ENFORCEMENT; REMEDI- ATION.—The Attorney General, the head of an element of the intelligence community (as such term is defined under section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)), or the Secretary of Homeland Secu- rity may delay the notice to affected individuals under paragraph (1)(B) if the notice would disrupt a law en- forcement investigation, endanger national security, or hamper security remediation actions. ‘‘(3) REPORTS.— ‘‘(A) DIRECTOR OF OMB.—During the first 2 years be- ginning after the date of enactment of this Act [Dec. 18, 2014], the Director of the Office of Management and Budget shall, on an annual basis— ‘‘(i) assess agency implementation of data breach notification policies and guidelines in aggregate; and Page 190 TITLE 44—PUBLIC PRINTING AND DOCUMENTS § 3554 ‘‘(ii) include the assessment described in clause (i) in the report required under section 3553(c) of title 44, United States Code. ‘‘(B) SECRETARY OF HOMELAND SECURITY.—During the first 2 years beginning after the date of enact- ment of this Act, the Secretary of Homeland Security shall include an assessment of the status of agency implementation of data breach notification policies and guidelines in the requirements under section 3553(b)(2)(B) of title 44, United States Code. ‘‘(4) EXCEPTION.—Any element of the intelligence community (as such term is defined under section 3(4) of the National Security Act of 1947 (50 U.S.C. 3003(4)) that is required to provide notice under paragraph (1)(A) shall only provide such notice to appropriate committees of Congress. ‘‘(5) RULE OF CONSTRUCTION.—Nothing in paragraph (1) shall be construed to alter any authority of a Federal agency or department.’’ Similar provisions were contained in Pub. L. 113–282, § 7(b), Dec. 18, 2014, 128 Stat. 3071. § 3554. Federal agency responsibilities (a) IN GENERAL.—The head of each agency shall— (1) be responsible for— (A) providing information security protec- tions commensurate with the risk and mag- nitude of the harm resulting from unauthor- ized access, use, disclosure, disruption, modification, or destruction of— (i) information collected or maintained by or on behalf of the agency; and (ii) information systems used or oper- ated by an agency or by a contractor of an agency or other organization on behalf of an agency; (B) complying with the requirements of this subchapter, subchapter III of chapter 13 of title 41, and related policies, procedures, standards, and guidelines, including— (i) information security standards pro- mulgated under section 11331 of title 40; (ii) operational directives developed by the Secretary under section 3553(b); (iii) policies and procedures issued by the Director; (iv) information security standards and guidelines for national security systems issued in accordance with law and as di- rected by the President; (v) emergency directives issued by the Secretary under section 3553(h); and (vi) responsibilities relating to assessing and avoiding, mitigating, transferring, or accepting supply chain risks under section 1326 of title 41, and complying with exclu- sion and removal orders issued under sec- tion 1323 of such title; and (C) ensuring that information security management processes are integrated with agency strategic, operational, and budgetary planning processes; (2) ensure that senior agency officials pro- vide information security for the information and information systems that support the op- erations and assets under their control, in- cluding through— (A) assessing the risk and magnitude of the harm that could result from the unau- thorized access, use, disclosure, disruption, modification, or destruction of such infor- mation or information systems; (B) determining the levels of information security appropriate to protect such infor- mation and information systems in accord- ance with standards promulgated under sec- tion 11331 of title 40, for information secu- rity classifications and related require- ments; (C) implementing policies and procedures to cost-effectively reduce risks to an accept- able level; and (D) periodically testing and evaluating in- formation security controls and techniques to ensure that they are effectively imple- mented; (3) delegate to the agency Chief Information Officer established under section 3506 (or com- parable official in an agency not covered by such section) the authority to ensure compli- ance with the requirements imposed on the agency under this subchapter, including— (A) designating a senior agency informa- tion security officer who shall— (i) carry out the Chief Information Offi- cer’s responsibilities under this section; (ii) possess professional qualifications, including training and experience, re- quired to administer the functions de- scribed under this section; (iii) have information security duties as that official’s primary duty; and (iv) head an office with the mission and resources to assist in ensuring agency compliance with this section; (B) developing and maintaining an agency- wide information security program as re- quired by subsection (b); (C) developing and maintaining informa- tion security policies, procedures, and con- trol techniques to address all applicable re- quirements, including those issued under section 3553 of this title and section 11331 of title 40; (D) training and overseeing personnel with significant responsibilities for information security with respect to such responsibil- ities; and (E) assisting senior agency officials con- cerning their responsibilities under para- graph (2); (4) ensure that the agency has trained per- sonnel sufficient to assist the agency in com- plying with the requirements of this sub- chapter and related policies, procedures, standards, and guidelines; (5) ensure that the agency Chief Information Officer, in coordination with other senior agency officials, reports annually to the agen- cy head on the effectiveness of the agency in- formation security program, including progress of remedial actions; (6) ensure that senior agency officials, in- cluding chief information officers of compo- nent agencies or equivalent officials, carry out responsibilities under this subchapter as di- rected by the official delegated authority under paragraph (3); and (7) ensure that all personnel are held ac- countable for complying with the agency-wide information security program implemented under subsection (b).