44 Usc 3553

Page 153

TITLE 44—PUBLIC PRINTING AND DOCUMENTS

provements to address known vulnerabilities to information systems described in subsection (a).
‘‘(d) Not later than October 1, 2015, and semiannually
thereafter, the head of each Federal agency shall submit to the Director of the Office of Management and
Budget a report on the execution of the expenditure
plan for that agency required by subsection (c): Provided, That the Director of the Office of Management
and Budget shall summarize such execution reports and
annually submit such summaries to Congress in conjunction with the annual progress report on implementation of the E-Government Act of 2002 (Public Law
107–347) [see Tables for classification], as required by
section 3606 of title 44, United States Code.
‘‘(e) This section shall not apply to the legislative
and judicial branches of the Federal Government and
shall apply to all Federal agencies within the executive
branch except for the Department of Defense, the Central Intelligence Agency, and the Office of the Director
of National Intelligence.’’
Similar provisions were contained in the following
prior appropriation acts:
Pub. L. 113–76, div. F, title V, § 554, Jan. 17, 2014, 128
Stat. 278.
Pub. L. 113–6, div. D, title V, § 558, Mar. 26, 2013, 127
Stat. 377.

§ 3552. Definitions
(a) IN GENERAL.—Except as provided under
subsection (b), the definitions under section 3502
shall apply to this subchapter.
(b) ADDITIONAL DEFINITIONS.—As used in this
subchapter:
(1) The term ‘‘binding operational directive’’
means a compulsory direction to an agency
that—
(A) is for purposes of safeguarding Federal
information and information systems from a
known or reasonably suspected information
security threat, vulnerability, or risk;
(B) shall be in accordance with policies,
principles, standards, and guidelines issued
by the Director; and
(C) may be revised or repealed by the Director if the direction issued on behalf of the
Director is not in accordance with policies
and principles developed by the Director.
(2) The term ‘‘incident’’ means an occurrence that—
(A) actually or imminently jeopardizes,
without lawful authority, the integrity, confidentiality, or availability of information
or an information system; or
(B) constitutes a violation or imminent
threat of violation of law, security policies,
security procedures, or acceptable use policies.
(3) The term ‘‘information security’’ means
protecting information and information systems from unauthorized access, use, disclosure, disruption, modification, or destruction
in order to provide—
(A) integrity, which means guarding
against improper information modification
or destruction, and includes ensuring information nonrepudiation and authenticity;
(B) confidentiality, which means preserving authorized restrictions on access and
disclosure, including means for protecting
personal privacy and proprietary information; and
(C) availability, which means ensuring
timely and reliable access to and use of information.

§ 3553

(4) The term ‘‘information technology’’ has
the meaning given that term in section 11101
of title 40.
(5) The term ‘‘intelligence community’’ has
the meaning given that term in section 3(4) of
the National Security Act of 1947 (50 U.S.C.
3003(4)).
(6)(A) The term ‘‘national security system’’
means any information system (including any
telecommunications system) used or operated
by an agency or by a contractor of an agency,
or other organization on behalf of an agency—
(i) the function, operation, or use of
which—
(I) involves intelligence activities;
(II) involves cryptologic activities related to national security;
(III) involves command and control of
military forces;
(IV) involves equipment that is an integral part of a weapon or weapons system;
or
(V) subject to subparagraph (B), is critical to the direct fulfillment of military or
intelligence missions; or
(ii) is protected at all times by procedures
established for information that have been
specifically authorized under criteria established by an Executive order or an Act of
Congress to be kept classified in the interest
of national defense or foreign policy.
(B) Subparagraph (A)(i)(V) does not include
a system that is to be used for routine administrative and business applications (including
payroll, finance, logistics, and personnel management applications).
(7) The term ‘‘Secretary’’ means the Secretary of Homeland Security.
(Added Pub. L. 113–283, § 2(a), Dec. 18, 2014, 128
Stat. 3074.)
PRIOR PROVISIONS
Provisions similar to this section were contained in
sections 3532 and 3542 of this title prior to repeal by
Pub. L. 113–283.

§ 3553. Authority and functions of the Director
and the Secretary
(a) DIRECTOR.—The Director shall oversee
agency information security policies and practices, including—
(1) developing and overseeing the implementation 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 unauthorized 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;

§ 3553

TITLE 44—PUBLIC PRINTING AND DOCUMENTS

(3) ensuring that the Secretary carries out
the authorities and functions under subsection
(b);
(4) coordinating the development of standards and guidelines under section 20 of the National Institute of Standards and Technology
Act (15 U.S.C. 278g–3) with agencies and offices
operating or exercising control of national security systems (including the National Security Agency) to assure, to the maximum extent feasible, that such standards and guidelines are complementary with standards and
guidelines developed for national security systems;
(5) overseeing agency compliance with the
requirements of this subchapter, including
through any authorized action under section
11303 of title 40, to enforce accountability for
compliance with such requirements; and
(6) coordinating information security policies and procedures with related information
resources management policies and procedures.
(b) SECRETARY.—The Secretary, in consultation with the Director, shall administer the implementation of agency information security
policies and practices for information systems,
except for national security systems and information 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 implementation of binding operational directives to
agencies to implement the policies, principles,
standards, and guidelines developed by the Director under subsection (a)(1) and the requirements of this subchapter, which may be revised or repealed by the Director if the operational directives issued on behalf of the Director are not in accordance with policies,
principles, standards, and guidelines developed
by the Director, including—
(A) requirements for reporting security incidents 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 exigent 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 information security policies and practices;
(4) convening meetings with senior agency
officials to help ensure effective implementation of information security policies and practices;
(5) coordinating Government-wide efforts on
information security policies and practices,
including consultation with the Chief Information Officers Council established under section
3603 and the Director of the National Institute
of Standards and Technology;
(6) providing operational and technical assistance to agencies in implementing policies,

Page 154

principles, standards, and guidelines on information security, including implementation of
standards promulgated under section 11331 of
title 40, including by—
(A) operating the Federal information security incident center established under section 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 reimbursement;
(C) compiling and analyzing data on agency information security; and
(D) developing and conducting targeted
operational evaluations, including threat
and vulnerability assessments, on the information systems; and
(7) other actions as the Director or the Secretary, in consultation with the Director, may
determine necessary to carry out this subsection.
(c) REPORT.—Not later than March 1 of each
year, the Director, in consultation with the Secretary, shall submit to Congress a report on the
effectiveness of information security policies
and practices during the preceding year, including—
(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 reporting 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 procedures issued by the Director.
(d) NATIONAL SECURITY SYSTEMS.—Except for
the authorities and functions described in subsection (a)(5) and subsection (c), the authorities
and functions of the Director and the Secretary
under this section shall not apply to national security 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 Secretary of Defense in the case of systems described in paragraph (2) and to the Director of
National Intelligence in the case of systems described in paragraph (3).
(2) The systems described in this paragraph
are systems that are operated by the Department of Defense, a contractor of the Department
of Defense, or another entity on behalf of the
Department of Defense that processes any information 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-

Page 155

TITLE 44—PUBLIC PRINTING AND DOCUMENTS

other entity on behalf of an element of the intelligence community that processes any information 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 community.
(f) CONSIDERATION.—
(1) IN GENERAL.—In carrying out the responsibilities 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 National Institute of Standards and Technology regarding any binding operational directive that implements standards and
guidelines developed by the National Institute of Standards and Technology; and
(B) ensure that binding operational directives 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 Commerce 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 exercise 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, vulnerability, or incident that represents a substantial threat to the information security
of an agency, the Secretary may issue an
emergency directive to the head of an agency to take any lawful action with respect to
the operation of the information system, including such systems used or operated by another entity on behalf of an agency, that collects, processes, stores, transmits, disseminates, or otherwise maintains agency information, for the purpose of protecting the information system from, or mitigating, an information 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 protections; and

§ 3553

(iii) providing notice to potentially affected third parties;
(B) specify the reasons for the required action 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 National Institute of Standards and Technology regarding any directive under this
subsection that implements standards and
guidelines developed by the National Institute of Standards and Technology;
(F) ensure that directives issued under this
subsection do not conflict with the standards and guidelines issued under section
11331 of title 40;
(G) consider any applicable standards or
guidelines developed by the National Institute 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 detection and prevention capabilities established
under section 230(b)(1) of the Homeland Security 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 expected to result from the use of the intrusion detection and prevention capabilities
under the control of the Secretary;
(iv) the Secretary provides prior notice
to the Director, and the head and chief information 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 paragraph; and
(II) the reasons for and duration and
nature of the action;
(v) the action of the Secretary is consistent with applicable law; and

§ 3553

TITLE 44—PUBLIC PRINTING AND DOCUMENTS
(vi) the Secretary authorizes the use of
the intrusion detection and prevention capabilities in accordance with the advance
procedures established under subparagraph
(C).

(B) LIMITATION ON DELEGATION.—The authority under this paragraph may not be delegated 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 detection and prevention capabilities under
subparagraph (A). The Secretary shall submit the procedures to Congress.
(4) LIMITATION.—The Secretary may direct
or authorize lawful action or the use of the intrusion detection and prevention capabilities
under this subsection only to—
(A) protect agency information from unauthorized 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 system used or operated by an agency or by a
contractor of an agency or other organization 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), including any actions taken pursuant to section
11303(b)(5) of title 40.
(j) 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 Governmental Affairs of the Senate; and
(2) the Committee on Appropriations, the
Committee on Homeland Security, the Committee on Oversight and Government Reform,
and the Committee on Science, Space, and
Technology of the House of Representatives.
(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.)
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 is classified to section 151(b)(1) of Title 6, Domestic Security.
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.

Page 156

AMENDMENTS
2015—Subsec. (b)(6)(B). Pub. L. 114–113, § 224(e), inserted ‘‘, operating, and maintaining’’ after ‘‘deploying’’.
Subsecs. (h) to (j). Pub. L. 114–113, § 229(a), added subsecs. (h) to (j).
BREACHES
Pub. L. 113–283, § 2(d), Dec. 18, 2014, 128 Stat. 3085, provided that:
‘‘(1) REQUIREMENTS.—The Director of the Office of
Management and Budget shall ensure that data breach
notification policies and guidelines are updated periodically 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 Committee on the Judiciary of the Senate, and the Committee on the Judiciary of the House of Representatives,
which shall—
‘‘(i) be provided expeditiously and not later than
30 days after the date on which the agency discovered 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 provided 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 notification is provided, including an assessment of the
risk of harm to affected individuals;
‘‘(III) a description of any circumstances necessitating a delay in providing notice to affected individuals; 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 individuals, pursuant to data breach notification policies
and guidelines, which shall be provided as expeditiously as practicable and without unreasonable
delay after the agency discovers the unauthorized acquisition or access.
‘‘(2) NATIONAL SECURITY; LAW ENFORCEMENT; REMEDIATION.—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 Security may delay the notice to affected individuals under
paragraph (1)(B) if the notice would disrupt a law enforcement investigation, endanger national security, or
hamper security remediation actions.
‘‘(3) REPORTS.—
‘‘(A) DIRECTOR OF OMB.—During the first 2 years beginning 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
‘‘(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 enactment 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.

Page 157

TITLE 44—PUBLIC PRINTING AND DOCUMENTS

‘‘(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 protections commensurate with the risk and magnitude of the harm resulting from unauthorized 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 operated 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 and related policies, procedures, standards, and guidelines, including—
(i) information security standards promulgated 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 directed by the President; and
(v) emergency directives issued by the
Secretary under section 3553(h); and
(C) ensuring that information security
management processes are integrated with
agency strategic, operational, and budgetary
planning processes;
(2) ensure that senior agency officials provide information security for the information
and information systems that support the operations and assets under their control, including through—
(A) assessing the risk and magnitude of
the harm that could result from the unauthorized access, use, disclosure, disruption,
modification, or destruction of such information or information systems;
(B) determining the levels of information
security appropriate to protect such information and information systems in accordance with standards promulgated under section 11331 of title 40, for information security classifications and related requirements;
(C) implementing policies and procedures
to cost-effectively reduce risks to an acceptable level; and
(D) periodically testing and evaluating information security controls and techniques
to ensure that they are effectively implemented;
(3) delegate to the agency Chief Information
Officer established under section 3506 (or comparable official in an agency not covered by
such section) the authority to ensure compliance with the requirements imposed on the
agency under this subchapter, including—

§ 3554

(A) designating a senior agency information security officer who shall—
(i) carry out the Chief Information Officer’s responsibilities under this section;
(ii) possess professional qualifications,
including training and experience, required to administer the functions described 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 agencywide information security program as required by subsection (b);
(C) developing and maintaining information security policies, procedures, and control techniques to address all applicable requirements, 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 responsibilities; and
(E) assisting senior agency officials concerning their responsibilities under paragraph (2);
(4) ensure that the agency has trained personnel sufficient to assist the agency in complying with the requirements of this subchapter 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 agency head on the effectiveness of the agency information
security
program,
including
progress of remedial actions;
(6) ensure that senior agency officials, including chief information officers of component agencies or equivalent officials, carry out
responsibilities under this subchapter as directed by the official delegated authority
under paragraph (3); and
(7) ensure that all personnel are held accountable for complying with the agency-wide
information security program implemented
under subsection (b).
(b) AGENCY PROGRAM.—Each agency shall develop, document, and implement an agency-wide
information security program to provide information security for the information and information systems that support the operations and
assets of the agency, including those provided or
managed by another agency, contractor, or
other source, that includes—
(1) periodic assessments of the risk and magnitude of the harm that could result from the
unauthorized access, use, disclosure, disruption, modification, or destruction of information and information systems that support the
operations and assets of the agency, which
may include using automated tools consistent
with standards and guidelines promulgated
under section 11331 of title 40;
(2) policies and procedures that—
(A) are based on the risk assessments required by paragraph (1);