S4681-118

1. Short title This Act may be cited as the Enhanced Oversight and Accountability in Screening Act.

2. Definitions In this Act: The term appropriate congressional committees means— the Committee on Homeland Security and Governmental Affairs of the Senate; the Committee on the Judiciary of the Senate; the Committee on Armed Services of the Senate; the Select Committee on Intelligence of the Senate; the Committee on Foreign Relations of the Senate; the Committee on Homeland Security of the House of Representatives; the Committee on Oversight and Accountability of the House of Representatives; the Committee on the Judiciary of the House of Representatives; the Committee on Armed Services of the House of Representatives; the Permanent Select Committee on Intelligence of the House of Representatives; and the Committee on Foreign Affairs of the House of Representatives. The term Committee means the Screening and Watchlisting Advisory Committee established under section 3(a). The term consolidated terrorist watchlist means any database or watchlist maintained by the Terrorist Screening Center for the purpose of monitoring individuals suspected of engaging in terrorist activity, including the terrorist screening database and any successor database. The term covered processes means the practices, policies, and programs used to conduct primary, secondary, enhanced, and additional screenings, vettings, inspections, and other processes related to watchlists maintained by any Federal agency. The term Department means the Department of Homeland Security. The term enhanced redress means the process by which the Department confirms whether a United States person, who has been denied boarding and has applied for redress, is on the No Fly List maintained by the Terrorist Screening Center. The term homeland security congressional committees means— the Committee on Homeland Security and Governmental Affairs of the Senate; and the Committee on Homeland Security of the House of Representatives. The term redress means the process established by the Department to assist individuals to resolve travel-related issues, such as being— denied or delayed airline boarding; denied or delayed entry into or exit from the United States at a port of entry or border crossing; or repeatedly referred to additional screening or inspection. The term Secretary means the Secretary of Homeland Security.

3. Screening and Watchlisting Advisory Committee Not later than 60 days after the date of enactment of this Act, the Secretary shall establish a Screening and Watchlisting Advisory Committee. The Committee shall be composed of an odd number of members of not less than 15 and not more than 23 members appointed by the Secretary as follows: 2 members shall be the Civil Rights and Civil Liberties Officer of the Department and a representative from a nonprofit organization, academia, or civil society, who shall serve as Co-Chairs of the Committee. Not less than 1 member shall be appointed from each of the following components of the Department: The Transportation Security Administration. U.S. Customs and Border Protection; The Privacy Office. The Office of Strategy, Policy, and Plans. The Office of Intelligence and Analysis. Any other relevant component germane to Department screening, inspections, and redress, as determined appropriate by the Secretary. 3 members shall be the following agency heads or their representatives: The Director of the Federal Bureau of Investigation. The Director of the Terrorist Screening Center. The Director of the National Counterterrorism Center. Members of the nonprofit, academia, or civil society sectors representing the following: Individuals of diverse backgrounds in race, ethnicity, religion, and gender. Individuals from various geographic regions within the United States. National organizations that represent diverse racial, ethnic, and religious communities. Individuals with expertise in law, transparency, technology, privacy, civil rights, and civil liberties. Any other individuals as the Secretary determines appropriate. There shall be not less than 1 more member of the Committee appointed under paragraph (1)(D) than the total number of members appointed under subparagraphs (A), (B), (C), and (E) of paragraph (1). The appointments of members of the Committee shall be made not later than 120 days after the date of enactment of this Act. The members of the Committee shall serve on the Committee on a voluntary basis. The Committee shall publish an updated list of members of the Committee on a publicly available website before each meeting of the Committee. The term of a member of the Committee shall be 3 years, except that a member may continue to serve until a successor is appointed. A vacancy in the Committee— shall not affect the powers of the Committee; and shall be filled in the same manner as the original appointment. A member of the Advisory Committee may be reappointed for not more than 1 term. Not later than 30 days after the date on which all members of the Committee have been appointed, the Committee shall hold the first meeting of the Committee. The Committee— shall meet— not less frequently than quarterly; and at the call of the Co-Chairs of the Committee or the Secretary; and may meet remotely. The Committee shall— advise, consult with, and make recommendations to the Secretary, as appropriate, on the development, refinement, implementation, and evaluation of policies, programs, and planning pertaining to covered processes of the Department, including— all covered processes implemented by the Transportation Security Administration; all covered processes implemented by U.S. Customs and Border Protection at ports of entry and their equivalents; trainings associated with these covered processes; the intelligence used to support these covered processes; how data related to these covered processes is used, collected, retained, analyzed, and shared; internal Department oversight over these covered processes; metrics to assess the effectiveness of covered processes, including any metrics outlined in policy documents; redress processes related to these covered processes; and any other matter related to covered processes as the Committee may determine relevant; disclose to the public and Congress information about the covered processes described in subparagraph (A), and the data and analytical system related to those processes, including materials explaining how those processes work and legal and policy analyses of the processes; provide recommendations for the plan required under section 4(a), including— all recommendations agreed upon by a simple majority of members of the Committee; and an identification of each of the members of the Committee that agreed on each recommendation; and consider, when providing recommendations for the plan required under section 4(a)— the use of external advocates who are granted security clearances and may access classified information to assist passengers; the establishment of a Federal office to serve as advocates for passengers; the establishment of an independent ombudsman office to assist passengers with the redress process; expanding the enhanced redress process to include United States persons who wish to contest their placement on the Selectee List, the Expanded Selectee List, or the consolidated terrorist watchlist; how to provide United States persons subject to the enhanced redress process with a significant amount of information about the placement of the person on the No Fly List and what a reasonable amount of time for this disclosure should be; whether it is advisable to create a system that would allow an individual to demonstrate that the individual does not pose a threat to aviation or border security, and if advisable, the options for developing such a system; the extent to which an applicant for redress can be notified about placement on any other lists maintained by the Department or other Federal agencies aside from those described in clause (iv), and a summary of the basis for that placement; which policies, procedures, and guidelines related to covered processes and redress can be made available to the public and, for those policies, procedures, and guidelines that are required to be withheld in part or in full, how the Department and other Federal agencies can release summaries of those policies, procedures, and guidelines to the public; notifying applicants for redress of whether any records have changed as a result of the application; and the potential for redress for an applicant who opts in to receive an expedited or discounted review of an application for a trusted traveler program of the Department. To ensure input and coordination from relevant components of the Department and the public, the Secretary shall regularly consult and work with the Committee on the administration of Department covered processes and redress policies and procedures. The Committee may consult with applicable Federal agencies other than the Department to ensure a holistic review of covered processes. The Committee shall have access to all materials necessary to implement its responsibilities, including all materials marked as for official use only, law enforcement sensitive, or sensitive security information. The Committee shall periodically submit to the Secretary reports on screening, inspections, and redress matters identified by the Secretary and on matters of concern identified by a majority of the members of the Committee. Not later than September 30 of each year, the Co-Chairs of the Committee shall submit to the homeland security congressional committees and the Secretary a report on the activities of the Committee for the preceding year, which shall include— information from the periodic reports submitted under subparagraph (A) during the year covered by the report; and the activities of any subcommittees established under subsection (f)(5). Not more than 30 days after the date on which the Secretary receives a report under clause (i), the Secretary shall publish a public version of the report. Not more than 10 days after the date on which the Co-Chairs of the Committee submit to the Secretary the report required under paragraph (3)(B)(i), the Co-Chairs of the Committee shall provide a briefing to the homeland security congressional committees on the work, recommendations, and dissenting opinions of the Committee and any actions taken as the result of the work, recommendations, and dissenting opinions. The Committee may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Committee considers advisable to carry out this Act. The Committee may secure directly from a Federal department or agency such information as the Committee considers necessary to carry out this Act. On request of the Co-Chairs of the Committee, the head of the department or agency shall furnish the information to the Committee. The Committee may use the United States mail in the same manner and under the same conditions as other departments and agencies of the Federal Government. The Committee may accept, use, and dispose of gifts or donations of services or property. The Co-Chairs of the Committee may establish subcommittees to accomplish the duties of the Committee. The Co-Chairs of the Committee shall establish a subcommittee on intelligence matters related to covered processes. The subcommittee described in clause (i) shall include the Co-Chairs of the Committee and may include other members of the Committee who are not Federal employees. The Department shall expeditiously provide the Committee members and staff of the subcommittee established under clause (i) with appropriate security clearances to the extent possible under existing procedures and requirements to perform oversight of intelligence matters relating to covered processes. To the greatest extent possible, all meetings of a subcommittee described in this paragraph shall be open to the public. No non-Federal member of the Committee may receive pay or benefits from the United States Government by reason of service on the Committee. All members of the Committee may be paid travel, per diem, and other necessary expenses while traveling away from such member’s home or regular place of business in the performance of the duties of the Committee. The Committee shall terminate on December 31, 2030.

4. Revising Department redress processes Not later than 2 years after the date of enactment of this Act, the Secretary shall submit to the homeland security congressional committees a plan, to be known as the DHS Plan to Improve Redress, to improve and expand the implementation by the Department of the appeal and redress process required under section 44926 of title 49, United States Code. The plan required under paragraph (1) shall include— the needs and intended outcomes of the redress process, including— protecting national security and upholding transparency, privacy, civil rights, and civil liberties principles; an implementation schedule with key milestones; and delegation of responsibilities; improved processes to seek redress for individuals who believe they have been delayed, prohibited from boarding a commercial aircraft, denied or delayed entry into the United States, subjected to electronic device searches, or denied Department credentials because they were wrongly identified as a risk under the regimes utilized by the Transportation Security Administration, U.S. Customs and Border Protection, or any other office or component of the Department; efforts to ensure the redress process is timely, fair, and provides for sufficient constitutional protections and corrective actions to minimize misidentifications and wrongful placements; opportunities for the public to provide feedback before and after implementation of the plan; a description of concrete steps the Department will take to strengthen the redress process and make the redress process more transparent and readily available for people of all backgrounds, including individuals who lack access to technology or familiarity with the Federal government; and a list of policies, procedures, and guidelines related to redress and covered processes of the Department that the Department will make available to the public and, for those policies, procedures, and guidelines that must be withheld in part or in full, how the Department and other Federal agencies can release summaries of those policies, procedures, and guidelines to the public. The Secretary shall consider any recommendations made by the Committee under section 3(e)(1) when developing the plan required under paragraph (1) and provide an explanation for any rejected recommendations. The plan required under paragraph (1) shall be submitted in unclassified form, but may include a classified annex. Not later than 30 days after the date on which the Secretary submits the plan required under paragraph (1), the Secretary shall publish a public version of the plan. Not later than 10 days after the Secretary publishes a public version of the plan under paragraph (5), the Secretary shall brief the homeland security congressional committees on the plan. Section 44926(b)(1) of title 49, United States Code, is amended— by striking The Secretary shall and inserting the following: The Secretary shall by striking The Office shall include representatives and inserting the following: The Office shall include— representatives in subparagraph (B), as so designated— in clause (i), by striking the period at the end and inserting a semicolon; and by adding at the end the following: the Privacy Officer of the Department; and the Officer for Civil Rights and Civil Liberties of the Department. Not later than 180 days after the date of enactment of this Act, and annually thereafter until December 31, 2030, the Attorney General, in consultation with the Secretary, the Director of National Intelligence, the Secretary of State, and the Secretary of Defense, shall submit to appropriate congressional committees a report on the consolidated terrorist watchlist, which shall include— the criteria and guidance used by Federal agencies for placing the name of an individual on the consolidated terrorist watchlist, by category, including a summary of any changes made in the 1-year period preceding submission of the report; the total number of identities on the consolidated terrorist watchlist, and the number of identities by each category, including the number of United States person identities in each category; the minimum standards for reliability and accuracy of identifying information; the degree of information certainty, including all audits conducted in the 1-year period preceding submission of the report; a list of policies and programs for which the consolidated terrorist watchlist is used and the range of applicable consequences that are to apply to an individual, including screening and inspection activities that may apply as a result; the types of records contained within the consolidated terrorist watchlist; the list of government and nongovernment entities with whom the consolidated terrorist watchlist information is shared, including foreign government entities, the way those entities use consolidated terrorist watchlist information, and the categories from the consolidated terrorist watchlist that those entities receive; and the number of records added, removed, and changed in the consolidated terrorist watchlist, including, for each removal, the number of such records by reason for the removal, in the 1-year period preceding submission of the report. any additional information maintained by the Terrorist Screening Center. Each report required under paragraph (1) shall be submitted in unclassified form, but may include a classified annex. Not later than 10 days after the date on which the Attorney General submits the first report under paragraph (1), the Attorney General shall brief the appropriate congressional committees on the report. (A)In generalThe Secretary shall; (B)CompositionThe Office shall include—(i)representatives; (ii)the Privacy Officer of the Department; and(iii)the Officer for Civil Rights and Civil Liberties of the Department..

5. Report on effectiveness of enhanced screening programs In this section: The term DHS TRIP means the Traveler Redress Inquiry Program of the Department. The term enhanced screening means enhanced or additional screening by the Transportation Security Administration of a passenger at an airport or secondary inspection by U.S. Customs and Border Protection of an individual at a port of entry or the equivalent. The term reporting period, with respect to a report required by subsection (b), means the one-year period preceding submission of the report. Not later than 1 year after the date of the enactment of this Act, and annually thereafter for the next 10 years, the Secretary shall submit to the Committee on Homeland Security and Governmental Affairs and the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Homeland Security of the House of Representatives a report evaluating the effectiveness, during the reporting period, of the mechanisms of the Transportation Security Administration and U.S. Customs and Border Protection for performing enhanced screening of passengers at airports and individuals at ports of entry or the equivalent. Each report required by subsection (b) shall include, at a minimum, the following, for the reporting period: The number of individuals who underwent at least 1 enhanced screening, the number of enhanced screenings conducted, and the number of enhanced screenings disaggregated by the following reasons for screening, as appropriate: The individual being on the Selectee List. The individual being on the Expanded Selectee List. A rules-based screening, disaggregated by whether the screening was conducted under the Silent Partner or Quiet Skies program of the Transportation Security Administration or pursuant to a rule of U.S. Customs and Border Protection. Identification of the individual by the Transportation Security Administration under section 114(h)(2) of title 49, United States Code. Agricultural inspection. Customs inspection. At the discretion of an employee of U.S. Customs and Border Protection or Transportation Security Administration, including by a member of a Tactical Terrorism Response Team. Random selection, disaggregated by whether enhanced screening was conducted— under the Secure Flight program of the Transportation Security Administration; or at a port of entry or at an airport security checkpoint, including for participants in trusted traveler programs or the Registered Traveler program. In response to a flag from another Federal agency, disaggregated by which agency and what that flag was for, including because the individual is on the Do Not Board List or the Public Health Lookout List of the Centers for Disease Control and Prevention. Air carrier designation. Other reasons, including information with respect to such other reasons. The enhanced screenings described in paragraph (1) that resulted in— the discovery of a violation of the law, disaggregated by violation; the revocation of a visa; the placement of an individual in detention; the addition of an individual to the Terrorist Screening Database; the levying of a fine or penalty; or no consequences. Whether there were individuals who underwent more than 1 enhanced screening, including— how many individuals underwent more than 1 enhanced screening; how often those individuals received enhanced screenings; whether there were common reasons for the multiple enhanced screenings; whether individuals who received enhanced screenings received those screenings because of a rules-based screening program matched to more than 1 rule and, if so, how many rules they matched to; whether there were any common trends or characteristics to the individuals who underwent more than 1 enhanced screening that the Department was able to identify, including nationality, gender, or another relevant characteristic; whether there were individuals who were previously removed from the Terrorist Screening Database who after that removal received an enhanced screening that was not related to the previous placement in the Database; and whether the individuals who underwent more than 1 enhanced screening, by either the Transportation Security Administration or U.S. Customs and Border Protection, had also undergone more than 1 enhanced screening in the previous 2 years. With respect to searches of electronic devices arising from enhanced screenings, the following: The number of electronic devices searched, disaggregated by agency and airport or port of entry and basic or advanced search, and the names of third-party tools used to conduct the search. The number of requests for technical assistance to search an electronic device or for assistance to conduct analysis of the findings of a search of a device, disaggregated by requesting agency, airport or port of entry, and assisting agency, and including the number of requests granted and a description of the result of each request. The total number of individuals whose electronic devices were searched during the reporting period. The number of those individuals who were, at the time of the search, included on the No Fly List, the Selectee List, the Terrorist Screening Database, or other subsidiary lists shared with the Department, disaggregated by list. The number of individuals who, as a result of the search in part or wholly, were newly added to a list described in subparagraph (D). With respect to each rules-based screening program, the following: A description of each rule that was in effect at any point during the reporting period. A statement of the following: The total number of rules and the number of rules added, changed, maintained, or archived. For the number of rules added or changed, a statement of— the number added or changed through standard rule review procedures; and the number added or changed through procedures designed for exigent circumstances. The total number of rules that rely in part or wholly on race, ethnicity, nationality, sex, age, or religion, a breakdown of the rules by each trait, and a description of how each rule uses that trait. With respect to DHS TRIP, a statement of the following: The number of applications to DHS TRIP. With respect to the No Fly List, the Selectee List, the Terrorist Screening Database, or other subsidiary lists shared with the Department, the following: The number of applicants that DHS TRIP determined were properly included on one of those lists, disaggregated by list. The number of applicants that DHS TRIP determined were incorrectly included on one of those lists, disaggregated by list. The number of applicants that DHS TRIP determined had no nexus to one of those lists. The number of applicants that DHS TRIP determined were mistakenly identified as an individual on one of those lists, disaggregated by list. The number of applicants that DHS TRIP determined were included as random selectees for enhanced screening under the Secure Flight program. The number of applicants for DHS TRIP who encountered travel incidents that fall into categories not described in any of subparagraphs (A) through (C), disaggregated by category. The number of applications to DHS TRIP that stated that an agency or officer relied upon race, ethnicity, nationality, sex, age, or religion to make any decision. Any other information the Secretary considers relevant to evaluating the effectiveness of the enhanced screening selection procedures of the Transportation Security Administration and U.S. Customs and Border Protection. Each report required by subsection (b) shall include an analysis of any impacts on civil rights or civil liberties of enhanced screening based on the data included in the report. The data to be included in each report required by subsection (b) shall— be provided by the Transportation Security Administration and U.S. Customs and Border Protection to the Office of Homeland Security Statistics; and be collected and analyzed— by the Office of Homeland Security Statistics, in coordination with the Transportation Security Administration, U.S. Customs and Border Protection, and other relevant agencies; and in a manner that— is consistent with the Constitution of the United States; complies with all applicable laws and policies, including laws and policies protecting privacy, civil rights, and civil liberties. Data that is aggregated for purposes of a report required by subsection (b)— may be used only for purposes of preparing the report, analyzing trends, making recommendations for improving the efficiency and effectiveness of enhanced screening at airports and ports of entry, or auditing enhanced screening programs; and may not be used for purposes of tracking, vetting, or screening individuals. Each report required by subsection (b) shall be submitted in unclassified form, but may include a classified appendix.