Homeland Security Bulletin

Kirkpatrick & Lockhart LLP Homelad Security Bulleti This Homelad Security Bulleti is the iitial publicatio of the Homelad Security practice group at Kirkpatrick & Lockhart LLP. Future issues will address ogoig legislative, judicial ad regulatory developmets, icludig i the areas of procuremet, govermet cotractig, crimial ivestigatios ad iformatio security. We welcome your commets o this Bulleti, as well as your questios o the topics covered. The Homelad Security Act of 2002 A Summary OVERVIEW O November 25, 2002, Presidet Bush siged ito law the Homelad Security Act of 2002 ( Act ). 1 I cosideratio of the breadth of the Act s iteded goals to defed the Uited States ad protect citizes from the dagers of a ew era, as declared by Presidet Bush, the Act will have a sigificat impact o America. This summary sets forth the structure of the Act ad describes the key reorgaizatios that will occur. The Act creates a ew federal agecy, the Departmet of Homelad Security ( DHS ), which will combie 22 existig ad separate federal agecies, icludig the Immigratio ad Naturalizatio Service, the Secret Service, the Customs Service, the Federal Emergecy Maagemet Admiistratio ad the Border Patrol. DHS will be headed by a Secretary of Homelad Security ( Secretary ) appoited by the Presidet. 2 The iitial Secretary is former Pesylvaia goveror Thomas Ridge. The primary missio of DHS shall iclude pursuit of the followig objectives: prevetig terrorist attacks withi the Uited States; reducig the vulerability of the Uited States to terrorism; miimizig the damage, ad assist i the recovery, from domestic terrorist attacks; carryig out all fuctios of various etities trasferred to DHS; ad esurig that the overall ecoomic security of the Uited States is ot dimiished by homelad security efforts, activities ad programs. 3 ORGANIZATION OF THE ACT The Act establishes the followig seve major fuctios for DHS: iformatio aalysis ad ifrastructure protectio; procuremet, ad the advacemet of sciece ad techology, i support of homelad security; border ad trasportatio security; emergecy preparedess ad respose; coordiatio with other braches of the federal govermet, state ad local govermets ad the private sector; establishmet of the Natioal Homelad Security Coucil; ad iformatio security. Additioally, DHS will cotiue to implemet other fuctios of the agecies it will absorb. 4 For each major fuctio, a separate Title of the Act addresses admiistrative procedures related to the performace of each fuctio, as well as substative legal structures required to ehace the ability of DHS to perform those fuctios. The followig is a summary of the Act s provisios regardig each major fuctio. TITLE II INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION Subtitle A Directorate for Iformatio Aalysis ad Ifrastructure Protectio; Access to Iformatio I furtherace of the Act s missio, a Uder Secretary for Iformatio Aalysis ad Ifrastructure Protectio shall be appoited to develop a comprehesive atioal Kirkpatrick & Lockhart LLP

Homelad Security Bulleti pla both to assess the ature ad scope of ay vulerability of key resources ad critical ifrastructures through receivig, aalyzig ad itegratig relevat law eforcemet iformatio, itelligece ad other iformatio, as well as to idetify, implemet ad support protective measures. 5 For purposes of the Act, critical ifrastructure meas either physical or virtual systems ad assets that are vital to the Uited States ad whose icapacity or destructio would have a debilitatig impact o security, atioal ecoomic security, atioal public health or safety. 6 Specifically, the Uder Secretary is resposible for establishig a secure commuicatios ad iformatio techology ifrastructure, icludig data-miig ad other advaced aalytical tools i order to hadle ad dissemiate data relatig to critical ifrastructures (see Subtitle B, The Critical Ifrastructure Iformatio Act). 7 The Directorate for Iformatio Aalysis ad Ifrastructure Protectio must coordiate traiig ad other support to various federal, state ad local govermet persoel to facilitate the appropriate idetificatio ad sharig of such iformatio. 8 The Secretary of DHS is broadly authorized to cosult with the private sector to esure appropriate exchages of iformatio relatig to threats of terrorism i the Uited States, icludig those related to law eforcemet. 9 The Secretary is etitled to receive the followig three broad categories of itelligece ad other iformatio collected, possessed, or prepared by ay agecy or departmet of the federal govermet: Ay reports, assessmets ad aalytical iformatio relatig to threats of terrorism i the Uited States or to other areas govered by DHS (icludig ay work product of law eforcemet, itelligece ad other govermet agecies); Ay iformatio cocerig ifrastructure or other vulerabilities of the Uited States to terrorism (icludig certai uprocessed or raw data or iformatio); ad Ay uprocessed or raw data or iformatio o subjects other tha those relatig to ifrastructure or other vulerabilities of the Uited States to terrorism. 10 For the first ad secod categories of iformatio listed above, federal agecies are required to furish such material to the Secretary without request, except where the Presidet directs otherwise. With respect to the third category of iformatio, the Secretary has the right to receive such iformatio oly as the Presidet istructs. 11 I all cases, the Secretary shall be provided by law eforcemet agecies such terrorism-related iformatio that is curretly required to be provided to the Director of Cetral Itelligece. 12 Subtitle B The Critical Ifrastructure Iformatio Act Withi the Act, the Critical Ifrastructure Iformatio Act of 2002 ecourages the sharig of iformatio with DHS by the private sector, state ad local govermets ad idividuals. It provides for the desigatio by either the Presidet or the Secretary of a critical ifrastructure protectio program from a existig compoet or bureau of a federal agecy to receive critical ifrastructure iformatio. 13 Uder Sectio 212(3) of the Act, the term critical ifrastructure iformatio is defied as iformatio ot customarily i the public domai ad related to the security of critical ifrastructure or protected systems, 14 icludig (a) ay actual or potetial physical or computer-based attack, (b) the ability of ay critical ifrastructure or protected system to resist such compromise, or (c) ay plaed or past operatioal problem or solutio related to such compromise, icludig repair or isurace. Critical ifrastructure iformatio that is volutarily submitted to DHS for use i the security of critical ifrastructure ad protected systems, aalysis, warig, iterdepedecy study, recovery, recostitutio or other iformatioal purpose (icludig the idetity of the submittig perso or etity) is ot subject to public disclosure uder the Freedom of Iformatio Act 15 ad other federal ad state disclosure requiremets, whe accompaied by a express statemet that such iformatio is beig submitted volutarily i expectatio of such odisclosure protectio. 16 To this ed, the Secretary is required to establish certai procedures for the receipt, care ad storage by federal agecies of volutarily submitted critical ifrastructure iformatio; the uauthorized disclosure of such iformatio shall be subject to crimial pealty. 17 Additioally, the federal govermet is authorized to issue advisories, alerts ad warigs to certai relevat compaies, targeted sectors, other govermetal etities or the geeral public regardig potetial threats to critical ifrastructure, but shall take appropriate steps to 2 HOMELAND SECURITY BULLETIN

Homelad Security Bulleti protect from disclosure the source of such iformatio ad ay related proprietary or sesitive iformatio. 18 Subtitle C Iformatio Security The Secretary is required to establish procedures o the use of iformatio shared uder Title II of the Act that: limit its re-dissemiatio for a uauthorized purpose; esure its security ad cofidetiality; protect the costitutioal ad statutory rights of the idividual subjects of such iformatio; ad provide data itegrity by timely removig ad destroyig obsolete or erroeous ames ad iformatio. 19 Also, the Secretary must appoit a seior DHS official to assume primary resposibility for iformatio privacy policy. 20 I carryig out the objectives of the Directorate for Iformatio Aalysis ad Ifrastructure Protectio, the Uder Secretary is required to provide: (1) to state ad local govermets ad, upo request, to private etities that ow or operate critical iformatio systems, aalysis ad warigs related to threats to ad vulerabilities of such systems, as well as crisis maagemet support i respose to threats to or attacks of such systems; ad (2) techical assistace, upo request, to private sector ad other govermet etities with respect to emergecy recovery plas to respod to major failures of such systems. 21 Additioally, the Uder Secretary is authorized to establish a atioal techology guard (referred to as NET Guard ) to assist local commuities to respod to ad recover from attacks o iformatio systems ad commuicatios etworks. 22 Withi the Act, the Cyber Security Ehacemet Act of 2002 requires ehaced crimial pealties i cases ivolvig fraud i coectio with computers ad access to protected iformatio, protected computers, or restricted data i iterstate or foreig commerce or ivolvig a computer used by or for the federal govermet, except where such electroic commuicatio stems from the good faith belief that a emergecy ivolvig the threat of death or serious physical ijury may result without such immediate disclosure to govermet authorities. 23 Subtitle D Departmet of Justice Office of Sciece ad Techology The Act establishes withi the Departmet of Justice ( DoJ ) a Office of Sciece ad Techology ( OST ). The OST is ot withi DHS, but has a closely aliged missio to: (1) serve as the atioal focal poit for work o law eforcemet techology (e.g., ivestigative ad foresic techologies); ad (2) implemet programs that improve the safety ad effectiveess of such techology ad improve techology access by federal, state, ad local law eforcemet agecies. 24 Specific duties of the OST iclude: establishig ad maitaiig techology advisory groups ad performace stadards; coductig research, developmet, testig, evaluatio, ad cost-beefit aalyses for improvig the safety, effectiveess, ad efficiecy of techologies used by federal, state, ad local law eforcemet agecies; ad operatig existig regioal Natioal Law Eforcemet ad Correctios Techology Ceters ad establishig additioal ceters through a merit-based, competitive process. 25 Additioally, the Attorey Geeral is authorized to trasfer to the OST ay other DoJ program or activity determied to be cosistet with its missio. 26 Fuctios Trasferred Certai federal agecies ad fuctios related to iformatio aalysis ad ifrastructure protectio that are trasferred to DHS iclude: the Natioal Ifrastructure Protectio Ceter ( NIPC ) of the Federal Bureau of Ivestigatio (other tha the Computer Ivestigatios ad Operatios Sectio); the Natioal Commuicatios System of the Departmet of Defese; the Critical Ifrastructure Assurace Offices of the Departmet of Commerce; the Natioal Ifrastructure Simulatio ad Aalysis Ceter of the Departmet of Eergy ad its eergy security ad assurace program; ad the Federal Computer Icidet Respose Ceter of the Geeral Services Admiistratio. Kirkpatrick & Lockhart LLP 3

Homelad Security Bulleti Title III Sciece ad Techology Advaces I furtherace of the Act s missio, a Uder Secretary for Sciece ad Techology (Dr. Charles E. McQueary has bee idetified as the iitial Uder Secretary) shall be appoited to direct, fud, coduct ad coordiate atioal research, developmet ad procuremet efforts i support of homelad security, icludig measures seekig to (a) prevet the importatio of terrorist weapos ad material ad (b) detect, prevet, protect agaist, ad respod to terrorist attacks, by: developig i coordiatio with other appropriate executive agecies as well as the federal govermet s civilia efforts a atioal pla for idetifyig coutermeasures to chemical, biological, radiological, uclear ad other emergig terrorist threats; assessig ad testig homelad security vulerabilities ad possible threats i support of the Uder Secretary for Iformatio Aalysis ad Ifrastructure Protectio; coductig basic ad applied research, developmet, demostratio, testig ad evaluatio activities relevat to homelad security objectives, excludig certai huma health-related research ad developmet activities; establishig a system for dissemiatig homelad security developmets ad techologies to federal, state, local govermet ad private sector etities; ad eterig ito agreemets or otherwise collaboratig with the Departmet of Eergy ( DoE ), the Departmet of Agriculture, the Departmet of Health ad Huma Services ( HHS ) ad the Attorey Geeral i furtherace of the above. 27 With respect to civilia huma health-related R&D activities relatig to HHS coutermeasures for chemical, biological, radiological, ad uclear ad other emergig terrorist threats, the HHS Secretary is required to: (1) set priorities, goals, objectives, ad policies ad develop a coordiated strategy for such activities i collaboratio with the DHS Secretary to esure cosistecy with the atioal policy ad strategic pla; (2) collaborate with the DHS Secretary i developig specific bechmarks ad outcome measuremets for evaluatig progress toward achievig such priorities ad goals; ad (3) specify the substaces to be cosidered coutermeasures. 28 Additioally, the HHS Secretary is authorized to declare whe a actual or potetial bioterrorist icidet or other public health emergecy makes advisable the admiistratio of a covered coutermeasure agaist smallpox to oe or more categories of idividuals. 29 Withi DHS, the followig programs ad etities shall be established at the directio of the DHS Secretary: a Office for Natioal Laboratories withi the Directorate of Sciece ad Techology which shall be resposible for the coordiatio ad utilizatio of DoE atioal laboratories ad sites i a maer to create a etworked laboratory system to support DHS missios; 30 a Homelad Security Sciece ad Techology Advisory Committee to make recommedatios with respect to the activities of the Uder Secretary; 31 ad the Homelad Security Istitute, a federally fuded R&D ceter, which shall: (a) determie the vulerabilities of the Uited States critical ifrastructures; (b) assess the costs ad beefits of alterative approaches to ehacig security; ad (c) evaluate the effectiveess of measures deployed to ehace the security of istitutios, facilities, ad ifrastructure that may be terrorist targets. With respect to the reliace o the private sector i fulfillig DHS s sciece ad techology objectives, the Secretary is authorized to perform the followig specific obligatios: establish or cotract with oe or more federally fuded research ad developmet ceters to provide idepedet aalysis of homelad security issues; 32 admiister the Homelad Security Advaced Research Projects Agecy, icludig the Acceleratio Fud for Research ad Developmet of Homelad Security Techologies, 33 to (a) support basic ad applied techology research; (b) advace the developmet ad deploymet of critical techologies; ad (c) accelerate techologies to prevet existig ad future vulerabilities, i coordiatio with other relevat research agecies; 4 HOMELAND SECURITY BULLETIN

Homelad Security Bulleti establish ad promote a program to ecourage techological iovatio i facilitatig the missio of DHS, icludig creatig: (1) a cetralized federal clearighouse to further the dissemiatio of iformatio o techologies; ad (2) a techical assistace team to assist i screeig submitted proposals; 34 ad collaborate with a wide geographic samplig of colleges, uiversities, private research istitutes, ad compaies to: (a) operate extramural research ad developmet programs; ad (b) establish a uiversity-based ceter or ceters for homelad security which shall establish a coordiated, uiversity-based system to ehace U.S. homelad security. 35 Additioally, the Uder Secretary is resposible for: (1) drawig upo the expertise of ay govermet laboratory, icludig certai DoE atioal laboratories ad sites; 36 ad (2) establishig a headquarters laboratory for DHS ad additioal laboratory uits. 37 Except as described above, the Act does ot provide specific directio with regard to the dispositio of existig federally fiaced research ad developmet ceters, such as those established uder the Departmet of Defese Research Operatios. Fuctios Trasferred The Secretary is resposible for developig with HHS a coordiated strategy with respect to civilia huma health-related research ad developmet activities relatig to coutermeasures for chemical, biological, radiological, ad uclear ad other emergig terrorist threats. 38 I additio to such coordiatio efforts, DHS shall also acquire: certai DoE fuctios related to (a) chemical ad biological atioal security programs; (b) uclear smugglig, detectio ad assessmet programs; (c) biological ad evirometal research program activities related to microbial pathoges; (d) the Evirometal Measuremets Laboratory; ad (e) the advaced scietific computig research program located at Lawrece Livermore Natioal Laboratory; the Natioal Bio-Weapos Defese Aalysis Ceter from the DoD; 39 ad the Plum Islad Aimal Disease Ceter from the Departmet of Agriculture. 40 Title IV Border ad Trasportatio Security The Act establishes a ew Directorate for Border ad Trasportatio Security ad requires the appoitmet of a Uder Secretary of Border ad Trasportatio Security (Asa Hutchiso has bee idetified as the first such Uder Secretary). The Uder Secretary of Border ad Trasportatio Security is primarily resposible for: prevetig the etry of terrorists ad the istrumet of terrorism ito the Uited States; securig the borders, ports, termials, waterways ad ay other air, lad ad sea trasportatio systems to prevet the etry of terrorists ad ay istrumets of terrorism ito the Uited States; admiisterig the customs ad immigratio ad aturalizatio laws of the Uited States, icludig establishig rules goverig the gratig of visas ad other forms of permissio to eter the coutry to idividuals who are either citizes or lawful permaet residets of the Uited States; establishig atioal immigratio eforcemet policies ad priorities; admiisterig U.S. customs laws (with certai exceptios); ad esurig the speedy, orderly ad efficiet flow of lawful traffic ad commerce i fulfillig these resposibilities. 41 While the Act trasfers cotrol over the issuace ad deial of visas to the Secretary, the authority to dey visas to alies o the basis of foreig policy is preserved withi the traditioal fuctios of the Secretary of State. 42 Fuctios Trasferred Certai federal agecies ad fuctios related to border ad trasportatio security that are trasferred to DHS iclude: the U.S. Customs Service (from the Departmet of Treasury); all Border Patrol, detetio ad removal, itelligece, ivestigatios ad ispectios programs withi the Immigratio ad Naturalizatio Service (from DoJ); the Aimal ad Plat Health Ispectio Service (from Departmet of Agriculture); Kirkpatrick & Lockhart LLP 5

Homelad Security Bulleti the Coast Guard (from the Departmet of Trasportatio ( DoT )); the Trasportatio Security Admiistratio (from DoT); the Federal Protective Service of the Geeral Services Admiistratio; ad the Office for Domestic Preparedess of the Office of Justice Programs (from DoJ). Title V Emergecy Preparedess ad Respose The Act establishes a ew Directorate for Emergecy Preparedess ad Respose uder the admiistratio of a separate Uder Secretary (the aouced omiee is Michael Brow, former FEMA Deputy Director ad Geeral Cousel). The Uder Secretary of Emergecy Preparedess ad Respose must esure the preparedess of emergecy respose providers for terrorist attacks, major disasters ad other emergecies. 43 Additioally, the Uder Secretary must provide the federal govermet s respose to terrorist attacks ad major disasters, icludig the coordiatio of the overall respose through various formal ad iformal resources, icludig: (1) the Domestic Emergecy Support Team, (2) the Strategic Natioal Stockpile, (3) the Natioal Disaster Medical System, (4) the Nuclear Icidet Respose Team, (5) the Metropolita Medical System, ad (6) other federal respose resources. 44 Other resposibilities of the Uder Secretary with respect to emergecy preparedess ad respose iclude: aidig i the recovery efforts from terrorist attacks ad major disasters; workig with other federal ad o-federal agecies to build a comprehesive atioal icidet maagemet system; cosolidatig existig federal govermet emergecy respose plas ito a sigle, uified atioal respose pla; developig comprehesive programs for developig iteroperative commuicatios techology ad esurig that emergecy respose providers acquire such techology; ad establishig stadards, traiig ad evaluatio procedures ad providig fuds to support the Nuclear Icidet Respose Team. 45 Fuctios Trasferred I additio to the special directio of the Nuclear Icidet Respose Team by the Secretary i the evet of a actual or threateed terrorist attack, major disaster or other domestic emergecy, the Act also trasfers to DHS: the Federal Emergecy Maagemet Agecy (FEMA); the Itegrated Hazard Iformatio System of the Natioal Oceaic ad Atmospheric Admiistratio, which shall be reamed FIRESAT; the Natioal Domestic Preparedess Office of the FBI; the Domestic Emergecy Support Teams of DoJ; the Office of Emergecy Preparedess, the Natioal Disaster Medical System, ad the Metropolita Medical Respose System of HHS; ad the Strategic Natioal Stockpile of HHS. 46 Title VIII Coordiatio with No-Federal Etities; Ispector Geeral; Uited States Secret Service; Geeral Provisios I additio to establishig the primary Directorates, the Act also addresses a rage of additioal fuctios ad resposibilities for DHS, may of which are ew duties withi the federal govermet. Title VIII addresses may of these additioal topics. Withi the Office of the Secretary, the Office for State ad Local Govermet coordiatio will be geerally resposible for oversight ad coordiatio with state ad local officials ad the private sector i advacig the Act s missio. 47 Such coordiatio will provide state ad local govermets with: (a) resource assessmets to implemet the atioal ati-terrorism strategy, (b) regular iformatio, research ad techical support to assist local homelad security efforts, ad (c) a process for providig to the federal govermet meaigful iput regardig the developmet of the atioal strategy agaist terrorism as well as other homelad security activities. 48 6 HOMELAND SECURITY BULLETIN

Homelad Security Bulleti With respect to iformatio sharig activities, withi the Act, the Homelad Security Iformatio Sharig Act 49 ecourages federal, state, ad local etities to share homelad security iformatio to the maximum extet practicable by: directig the Presidet to prescribe ad implemet procedures for federal agecy sharig of appropriate homelad security iformatio ad hadlig of classified iformatio ad sesitive but uclassified iformatio; 50 allowig disclosure to appropriate federal, state, local, or foreig govermet officials of grad jury matters ivolvig a threat of grave hostile acts of a foreig power, domestic or iteratioal sabotage or terrorism, or cladestie itelligece gatherig activities by a itelligece service or etwork of a foreig power (threat), withi the Uited States or elsewhere; 51 authorizig federal ivestigative ad law eforcemet officers coductig commuicatios iterceptio activities, who have obtaied kowledge of the cotets of ay itercepted commuicatio or derivative evidece, to disclose such cotets or evidece to: (a) a foreig ivestigative or law eforcemet officer if the disclosure is appropriate to the performace of the official duties of the officer makig or receivig the disclosure; ad (b) ay appropriate federal, state, local, or foreig govermet official if the cotets or evidece reveals such a threat, for the purpose of prevetig or respodig to such threat; 52 ad allowig federal officers who coduct electroic surveillace ad physical searches i order to acquire foreig itelligece iformatio to cosult with state ad local law eforcemet persoel to coordiate efforts to ivestigate or protect agaist such a threat. 53 With respect to audits or ivestigatios by DHS, or the issuace of subpoeas by DHS, that require access to sesitive iformatio cocerig itelligece, couteritelligece, or couter-terrorism matters, crimial ivestigatios or proceedigs, udercover operatios, the idetity of cofidetial sources, ad certai matters of disclosure, the DHS Ispector Geeral is subject to the authority, directio, ad cotrol of the Secretary. 54 Withi the Act, the Support Ati-terrorism by Fosterig Effective Techologies Act ( SAFETY Act ) of 2002 authorizes the Secretary to desigate ad admiister protectios to ati-terrorism techologies that qualify uder a risk maagemet system i accordace with criteria that shall iclude: prior govermet use or demostrated substatial utility ad effectiveess; availability for immediate deploymet i public ad private settigs; substatial likelihood that such techology will ot be deployed uless protectios uder such system are exteded; ad the magitude of risk exposure to the public if such techology is ot deployed. 55 The SAFETY Act further (a) provides a federal cause of actio for sellers sufferig a loss from qualified atiterrorism techologies so deployed, (b) prohibits puitive damages from beig awarded agaist a seller, ad (c) requires sellers of qualified ati-terrorism techologies to obtai liability isurace i amouts certified as satisfactory by the Secretary. 56 I furtherace of the stated coordiatio objectives uder Title VIII, withi DHS, the Secretary has the followig resposibilities: appoit a seior DHS official to assume primary resposibility for coordiatig policy ad operatios withi DHS ad amog DHS ad other federal departmets ad agecies with respect to iterdictig the etry of illegal drugs ito the Uited States ad trackig ad severig coectios betwee illegal drug traffickig ad terrorism; 57 establish withi the Office of the Secretary a Office of Iteratioal Affairs, headed by a Director, to: (a) promote iformatio ad educatio exchage o homelad security best practices ad techologies with friedly atios; (b) idetify areas for homelad security iformatio ad traiig exchage where the Uited States has a demostrated weakess ad aother friedly atio has a demostrated expertise; (c) pla ad udertake iteratioal cofereces, exchage programs, ad traiig activities; ad (d) maage iteratioal activities Kirkpatrick & Lockhart LLP 7

Homelad Security Bulleti withi DHS i coordiatio with other federal officials with resposibility for couter-terrorism matters; 58 ad establish withi the Office of the Secretary the Office of Natioal Capital Regio Coordiatio, headed by a Director, to oversee ad coordiate federal homelad security programs for ad relatioships with state, local, ad regioal authorities withi the Natioal Capital Regio. 59 With respect to other federal agecies, the Secretary must (1) develop a aual federal respose pla, which is required to be cosistet with public health emergecy provisios of the Public Health Service Act ad (2) esure full disclosure of public health emergecies, or potetial emergecies, amog HHS, DHS, DoJ, ad the FBI. 60 Specific provisios of the Act that directly impact relatios with the private sector iclude the grat of authority to the Secretary to: establish, appoit members of, ad use the services of advisory committees as ecessary; 61 egage i trasactios, other tha cotracts, grats ad cooperative agreemets, for (a) research ad developmet projects for respose to existig or emergig terrorist threats; ad (b) defese prototype projects, icludig the employmet of private cosultats ad experts; 62 procure property or services to be used to facilitate the defese agaist or recovery from terrorism or uclear, biological, chemical or radiological attack; 63 ad establish a permaet Joit Iteragecy Homelad Security Task Force, composed of represetatives from military ad civilia agecies, for the purpose of aticipatig terrorist threats ad takig actios to prevet harm to the Uited States. 64 Additioally, each executive agecy shall be required to coduct market research to idetify the capabilities of small busiesses ad ew etrats ito federal cotractig that are available to meet agecy requiremets i furtherace of defese agaist, or recovery from, terrorism or uclear, biological, chemical, or radiological attack. 65 The Act also establishes special streamlied acquisitio authority for a variety of procuremets to be coducted by DHS for homelad security-related products ad services. These ad other related provisios will give DHS great flexibility to cotract with techology compaies ad other cotractors o a expedited basis that miimizes the traditioal use of certai socioecoomic ad pricig cotractual provisios. 66 Fuctios Trasferred The Act trasfers to the Secretary the fuctios of the Uited States Secret Service ad the Coast Guard, which both shall be maitaied as distict etities withi DHS. 67 Accordigly, the DHS Ispector Geeral shall have oversight resposibility for iteral ivestigatios performed by the Office of Iteral Affairs of the Uited States Customs Service ad the Office of Ispectios of the Uited States Secret Service. 68 Title IX Natioal Homelad Security Coucil The Act establishes withi the Executive Office of the Presidet the Homelad Security Coucil ( Coucil ) to advise the Presidet o homelad security matters. 69 Icluded as members of the Coucil are: (1) the Presidet; (2) the Vice Presidet; (3) the Secretary; (4) the Attorey Geeral; ad (5) the Secretary of Defese. 70 Overall, the Coucil is required to: assess the objectives, commitmets, ad risks of the Uited States i the iterest of homelad security ad make recommedatios to the Presidet; ad oversee ad review federal homelad security policies ad make policy recommedatios to the Presidet. 71 Title X Iformatio Security Withi the Act, the Federal Iformatio Security Maagemet Act of 2002 revises federal govermet iformatio security requiremets. 72 Additioally, the head of each agecy operatig or exercisig cotrol of a atioal security system must esure that the respective agecy: (1) provides iformatio security protectios commesurate with the risk ad magitude of the harm resultig from the uauthorized access, use, disclosure, disruptio, modificatio, or destructio of the iformatio; ad (2) implemets iformatio security policies ad practices as required by stadards ad guidelies for atioal security systems. 73 8 HOMELAND SECURITY BULLETIN

Homelad Security Bulleti To achieve these objectives, the Act: ameds the Natioal Istitute of Stadards ad Techology Act to revise ad expad the madate of the Natioal Istitute of Stadards ad Techology to develop stadards, guidelies, ad associated methods ad techiques for iformatio systems; ad reames the Computer System Security ad Privacy Advisory Board as the Iformatio Security ad Privacy Board; ad requires it to advise the Director of the Office of Maagemet ad Budget ( OMB ) (istead of the Secretary of Commerce) o iformatio security ad privacy issues pertaiig to federal govermet iformatio systems. 74 Other Fuctios uder the Act I additio to the major fuctios summarized above, other Titles of the Act address related homelad security issues, icludig: the overall orgaizatio of DHS (Title I); the treatmet of charitable trusts for members of the U.S. armed forces ad other govermetal orgaizatios (Title VI); maagemet ad admiistratio resposibilities of DHS (Title VII); establishmet ad trasfer of certai DoJ Divisios (other tha the ew DoJ Office of Sciece ad Techology), icludig a ew Bureau of Alcohol, Tobacco, Firearms ad Explosives (trasferred from the Departmet of Treasury) (Title XI); the limitatio of liability ad extesio of isurace policies to airlie carriers for thirdparty claims arisig out of terrorist acts (Title XII); federal workforce improvemets (Title XIII); armig pilots agaist terrorism (Title XIV); a reorgaizatio ad trasitio pla uder the Act (Title XV); certai correctios to existig law relatig to airlie trasportatio security (Title XVI); ad coformig ad techical amedmets (Title XVII). Effective Dates The Act became effective o Jauary 24, 2003, 60 days followig its eactmet, at which time the Bush admiistratio provided to Cogress a detailed reorgaizatio pla o the meas of admiisterig the creatio of DHS. Begiig Jauary 24, 2003, federal officials were give 90 days to oversee ad implemet the Departmet s formatio. However, the Presidet stated i the reorgaizatio pla that he aticipates most of the compoet parts will move ito DHS by March 1, 2003. Overall, the Secretary is required to complete the trasfer of all 22 federal agecies to DHS o later tha Jauary 24, 2004. Additioal Iformatio This summary of the Homelad Security Act has bee prepared by members of Kirkpatrick & Lockhart s Homelad Security practice group. The group icludes attoreys i the firm with experiece i the areas of govermet cotractig, iformatio security, ad govermet relatios, amog others. The practice group is assistig cliets of the firm with govermet cotract issues arisig from the reorgaizatio, as well as questios relatig to critical ifrastructure iformatio submissios ad aalyses. This Bulleti was prepared by Jeffrey B. Ritter ad Agela Y. Ball. For further iformatio regardig the Homelad Security Act, or our law firm s Homelad Security practice, please cotact Robert J. Sherry (rsherry@kl.com; 415.249.1032) or Jeffrey B. Ritter (jritter@kl.com; 202.778.9396). Kirkpatrick & Lockhart LLP 9

Homelad Security Bulleti 1 See Homelad Security Act of 2002, P.L. 107-296 (Nov. 25, 2002). 2 Id. at 102(a). 3 Id. at 101(b). 4 Uitig ad Stregtheig America by Providig Appropriate Tools Required to Itercept ad Obstruct Terrorism Act ( USA PATRIOT Act ) of 2001, P.L. 107-56, 1016(e). 5 See the Act at 201(d). 6 Id. at 201(d)(4) (citig 42 U.S.C. 5195c(e)). 7 Id. at 201(d)(14). 8 Id. at 201(d)(16). 9 Id. at 201(d)(11), 201(e). 10 Id. at 202(a). 11 Id. at 202(b). 12 Id. at 202(c). 13 See geerally 211-215 of the Act. 14 Uder Sectio 212(6) of the Act, protected system is defied as ay service, physical or computer-based system, process, or procedure that directly or idirectly affects the viability of a facility of critical ifrastructure. 15 See 5 U.S.C. 552. 16 However, such iformatio may be used or disclosed by ay officer or employee of the Uited States without prior writte coset i furtherace of a ivestigatio or the prosecutio of a crimial act or to the Comptroller Geeral i performig the duties of the Geeral Accoutig Office. Id. at 214(a)(1). 17 Id. at 214(e)(1), (f). 18 Id. at 214(g). 19 Id. at 221. 20 Id. at 222. 21 Id. at 223. 22 Id. at 224. 23 Id. at 225. 24 Id. at 231, 232. 25 Id. at 232(b). 26 Id. at 234. 27 See geerally 302 of the Act. 28 Id. at 304. 29 Id. at 304(c). 30 Id. at 309(g). 31 Id. at 311. 32 Id. at 305. 33 Sectio 307(c)(2) of the Act authorizes $500 millio i appropriatios for the Fud for FY 2003, with such sums as may be ecessary thereafter. 34 Id. at 313. 35 Id. at 308. 36 Id. at 309. 37 Id. 38 Id. at 304(a). 39 Id. at 303(1) & (2). 40 Id. at 310. 41 Id. at 402. 42 Id. at 428. 43 Id. at 502. 44 Id. at 502(3). 45 Sectios 504 ad 506 of the Act provide that certai elemets of the DoE ad the Evirometal Protectio Agecy may be called ito service by DHS to form the Nuclear Icidet Respose Team i coectio with a actual or threateed terrorist attack, major disaster or other emergecy. 46 Id. at 503, 504. 47 Id. at 801. 48 Id. at 801(b). 49 Id. at 891. 50 Id. at 892. 51 Such state, local, ad foreig officials must use such disclosed iformatio oly i coformity with guidelies joitly issued by the Attorey Geeral ad the Director of Cetral Itelligece; Id. at 895. 52 Id. at 896, 897 (amedig 18 U.S.C. 2517 & 50 U.S.C. 403-5d). 53 Id. at 811 (amedig 50 U.S.C. 1806). 54 Id. at 811. 55 Id. at 862. 56 Id. at 863, 864. 57 Id. at 878. 58 Id. at 879. 59 Id. at 882. 10 HOMELAND SECURITY BULLETIN

Homelad Security Bulleti 60 Id. at 887. 61 Id. at 871. 62 Id. at 831, 832. 63 Id. at 852. 64 Id. at 885. 65 Id. at 858. 66 Id. at 833-35. 67 Id. at 821, 888. 68 Id. at 811. 69 Id. at 901. 70 Id. at 903. 71 Id. at 904. 72 Id. at 1001(b) (codified at 44 U.S.C. 3531-3538). 73 Id. 74 Id. at 1003. Kirkpatrick & Lockhart LLP Challege us. www.kl.com... This publicatio/ewsletter is for iformatioal purposes ad does ot cotai or covey legal advice. The iformatio herei should ot be used or relied upo i regard to ay particular facts or circumstaces without first cosultig a lawyer. 2003 KIRKPATRICK & LOCKHART LLP. ALL RIGHTS RESERVED. Kirkpatrick & Lockhart LLP 11