[Congressional Record Volume 156, Number 39 (Wednesday, March 17, 2010)]
[House]
[Pages H1540-H1542]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  ELECTRONIC MESSAGE PRESERVATION ACT

  Mr. CLAY. Madam Speaker, I move to suspend the rules and pass the 
bill (H.R. 1387) to amend title 44, United States Code, to require 
preservation of certain electronic records by Federal agencies, to 
require a certification and reports relating to Presidential records, 
and for other purposes, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 1387

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Electronic Message 
     Preservation Act''.

     SEC. 2. PRESERVATION OF ELECTRONIC MESSAGES.

       (a) Requirement for Preservation of Electronic Messages.--
       (1) In general.--Chapter 29 of title 44, United States 
     Code, is amended by adding at the end the following new 
     section:

     ``Sec. 2911. Electronic messages

       ``(a) Regulations Required.--Not later than 18 months after 
     the date of the enactment of this section, the Archivist 
     shall promulgate regulations governing agency preservation of 
     electronic messages that are records. Such regulations shall, 
     at a minimum--
       ``(1) require the electronic capture, management, and 
     preservation of such electronic records in accordance with 
     the records disposition requirements of chapter 33 of this 
     title;
       ``(2) require that such electronic records are readily 
     accessible for retrieval through electronic searches;
       ``(3) establish mandatory minimum functional requirements 
     for electronic records

[[Page H1541]]

     management systems to ensure compliance with the requirements 
     in paragraphs (1) and (2);
       ``(4) establish a process to certify that Federal agencies' 
     electronic records management systems meet the functional 
     requirements established under paragraph (3); and
       ``(5) include timelines for agency compliance with the 
     regulations that ensure compliance as expeditiously as 
     practicable but not later than four years after the date of 
     the enactment of this section.
       ``(b) Coverage of Other Electronic Records.--To the extent 
     practicable, the regulations promulgated under subsection (a) 
     shall also include requirements for the capture, management, 
     and preservation of other electronic records.
       ``(c) Compliance by Federal Agencies.--Each Federal agency 
     shall comply with the regulations promulgated under 
     subsection (a).
       ``(d) Review of Regulations Required.--The Archivist shall 
     periodically review and, as necessary, amend the regulations 
     promulgated under this section.
       ``(e) Reports on Implementation of Regulations.--
       ``(1) Agency report to archivist.--Not later than four 
     years after the date of the enactment of this section, the 
     head of each Federal agency shall submit to the Archivist a 
     report on the agency's compliance with the regulations 
     promulgated under this section.
       ``(2) Archivist report to congress.--Not later than 90 days 
     after receipt of all reports required by paragraph (1), the 
     Archivist shall submit to the Committee on Homeland Security 
     and Governmental Affairs of the Senate and the Committee on 
     Oversight and Government Reform of the House of 
     Representatives a report on Federal agency compliance with 
     the regulations promulgated under this section.''.
       (2) Clerical amendment.--The table of sections for chapter 
     29 of title 44, United States Code, is amended by adding 
     after the item relating to section 2910 the following new 
     item:

``2911. Electronic messages.''.

       (b) Definitions.--Section 2901 of title 44, United States 
     Code, is amended--
       (1) by striking ``and'' at the end of paragraph (14);
       (2) by striking the period at the end of paragraph (15) and 
     inserting a semicolon; and
       (3) by adding at the end the following new paragraphs:
       ``(16) the term `electronic messages' means electronic mail 
     and other electronic messaging systems that are used for 
     purposes of communicating between individuals; and
       ``(17) the term `electronic records management system' 
     means software designed to manage electronic records, 
     including by--
       ``(A) categorizing and locating records;
       ``(B) ensuring that records are retained as long as 
     necessary;
       ``(C) identifying records that are due for disposition; and
       ``(D) ensuring the storage, retrieval, and disposition of 
     records.''.

     SEC. 3. PRESIDENTIAL RECORDS.

       (a) Additional Regulations Relating to Presidential 
     Records.--
       (1) In general.--Section 2206 of title 44, United States 
     Code, is amended--
       (A) by striking ``and'' at the end of paragraph (3);
       (B) by striking the period at the end of paragraph (4) and 
     inserting ``; and''; and
       (C) by adding at the end the following:
       ``(5) provisions for establishing standards necessary for 
     the economical and efficient management of electronic 
     Presidential records during the President's term of office, 
     including--
       ``(A) records management controls necessary for the 
     capture, management, and preservation of electronic messages;
       ``(B) records management controls necessary to ensure that 
     electronic messages are readily accessible for retrieval 
     through electronic searches; and
       ``(C) a process to certify the electronic records 
     management system to be used by the President for the 
     purposes of complying with the requirements in subparagraphs 
     (A) and (B).''.
       (2) Definition.--Section 2201 of title 44, United States 
     Code, is amended by adding at the end the following new 
     paragraphs:
       ``(5) The term `electronic messages' has the meaning 
     provided in section 2901(16) of this title.
       ``(6) The term `electronic records management system' has 
     the meaning provided in section 2901(17) of this title.''.
       (b) Certification of President's Management of Presidential 
     Records.--
       (1) Certification required.--Chapter 22 of title 44, United 
     States Code, is amended by adding at the end the following 
     new section:

     ``Sec. 2208. Certification of the President's management of 
       Presidential records

       ``(a) Annual Certification.--The Archivist shall annually 
     certify whether the electronic records management controls 
     established by the President meet requirements under sections 
     2203(a) and 2206(5) of this title.
       ``(b) Report to Congress.--The Archivist shall report 
     annually to the Committee on Homeland Security and 
     Governmental Affairs of the Senate and the Committee on 
     Oversight and Government Reform of the House of 
     Representatives on the status of the certification.''.
       (2) Clerical amendment.--The table of sections for chapter 
     22 of title 44, United States Code, is amended by adding at 
     the end the following new item:

``2208. Certification of the President's management of Presidential 
              records.''.

       (c) Report to Congress.--Section 2203(f) of title 44, 
     United States Code, is amended by adding at the end the 
     following:
       ``(4) One year following the conclusion of a President's 
     term of office, or if a President serves consecutive terms 
     one year following the conclusion of the last term, the 
     Archivist shall submit to the Committee on Homeland Security 
     and Governmental Affairs of the Senate and the Committee on 
     Oversight and Government Reform of the House of 
     Representatives a report on--
       ``(A) the volume and format of electronic Presidential 
     records deposited into that President's Presidential archival 
     depository; and
       ``(B) whether the electronic records management controls of 
     that President met the requirements under sections 2203(a) 
     and 2206(5) of this title.''.
       (d) Effective Date.--The amendments made by this section 
     shall take effect one year after the date of the enactment of 
     this Act.

     SEC. 4. PROCEDURES TO PREVENT UNAUTHORIZED REMOVAL OF 
                   CLASSIFIED RECORDS FROM NATIONAL ARCHIVES.

       (a) In General.--The Archivist of the United States shall 
     prescribe internal procedures to prevent the unauthorized 
     removal of classified records from the National Archives and 
     Records Administration or the destruction or damage of such 
     records, including when such records are accessed or searched 
     electronically. The procedures shall apply to all National 
     Archives and Records Administration facilities authorized to 
     store classified records and include the following 
     prohibitions:
       (1) No person, other than covered personnel, shall view 
     classified records in any room that is not secure except in 
     the presence of National Archives and Records Administration 
     personnel or under video surveillance.
       (2) No person, other than covered personnel, shall at any 
     time be left alone with classified records, unless that 
     person is under video surveillance.
       (3) No person, other than covered personnel, shall conduct 
     any review of classified records while in the possession of 
     any cell phone or other personal communication device.
       (4) All persons seeking access to review classified 
     records, as a precondition to such access, must consent to a 
     search of their belongings upon conclusion of their records 
     review.
       (5) All notes and other writings prepared by persons other 
     than covered personnel during the course of a review of 
     classified records shall be retained by the National Archives 
     and Records Administration in a secure facility until such 
     notes and other writings are determined to be unclassified, 
     are declassified, or are securely transferred to another 
     secure facility.
       (b) Definitions.--In this section:
       (1) The term ``records'' has the meaning provided in 
     section 3301 of title 44, United States Code.
       (2) The term ``covered personnel'' means any individual--
       (A) who has an appropriate and necessary reason for 
     accessing classified records, as determined by the Archivist; 
     and
       (B) who is either--
       (i) an officer or employee of the Federal Government with 
     appropriate security clearances; or
       (ii) any personnel with appropriate security clearances of 
     a Federal contractor authorized in writing to act for 
     purposes of this section by an officer or employee of the 
     Federal Government.

     SEC. 5. RESTRICTIONS ON ACCESS TO PRESIDENTIAL RECORDS.

       Section 2204 of title 44, United States Code (relating to 
     restrictions on access to presidential records) is amended by 
     adding at the end the following new subsection:
       ``(f) The Archivist shall not make available any original 
     presidential records to any individual claiming access to any 
     presidential record as a designated representative under 
     section 2205(3) of this title if that individual has been 
     convicted of a crime relating to the review, retention, 
     removal, or destruction of records of the Archives.''.

     SEC. 6. BUDGETARY EFFECTS OF PAYGO LEGISLATION FOR THIS ACT.

        The budgetary effects of this Act, for the purpose of 
     complying with the Statutory Pay-As-You-Go-Act of 2010, shall 
     be determined by reference to the latest statement titled 
     ``Budgetary Effects of PAYGO Legislation'' for this Act, 
     submitted for printing in the Congressional Record by the 
     Chairman of the House Budget Committee, provided that such 
     statement has been submitted prior to the vote on passage.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Missouri (Mr. Clay) and the gentleman from California (Mr. Bilbray) 
each will control 20 minutes.
  The Chair recognizes the gentleman from Missouri.


                             General Leave

  Mr. CLAY. Madam Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their 
remarks.

[[Page H1542]]

  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Missouri?
  There was no objection.
  Mr. CLAY. Madam Speaker, I yield myself such time as I may consume.
  H.R. 1387, the Electronic Message Preservation Act, is another open-
government bill that we are considering in celebration of Sunshine 
Week. This bill modernizes the requirements of the Federal Records Act 
and the Presidential Records Act to ensure that Federal agencies and 
the White House preserve emails and other electronic messages. H.R. 
1387 was introduced by Representative Holt, and it is substantially 
similar to H.R. 5811, a bill that passed the House last year with 
bipartisan support.
  This bill requires agencies and the White House to adopt and maintain 
records management and retention policies that are consistent with 
modern technology. Under current law, Federal agencies have broad 
discretion to determine how electronic messages are preserved.
  In a 2008 report, the Government Accountability Office found that 
many agencies rely on unreliable ``print and file'' systems for 
preserving electronic records, including email. GAO reviewed the 
practices of senior agency officials and determined that emails were 
not retained in adequate recordkeeping systems, making the email 
records easier to lose or delete and harder to find and use.
  Last week, the National Security Archive awarded its sixth annual 
Rosemary Award for worst open-government performance to the Chief 
Information Officers Council. The council was chosen because it has 
never addressed the failure of the government to save its email 
electronically.
  H.R. 1387 directs the Archivist of the United States to issue 
regulations requiring agencies to preserve emails in an electronic 
format. These regulations must cover, at a minimum, the capture, 
management, preservation, and electronic retrieval of electronic 
messages.

                              {time}  1415

  The bill requires the Archivist to establish a process to certify the 
electronic records management systems used by the agencies.
  At this time, Madam Speaker, I would urge my colleagues to join in 
passage of this bill, and I reserve the balance of my time.
  Mr. BILBRAY. Madam Speaker, I rise in support of the bill. I yield 
myself such time as I may consume.
  Madam Speaker, this is a classic example of trying to work together 
to open up the system, allow the transparency that the American people 
are demanding, and I strongly support its intention and its execution.
  Madam Speaker, you may remember, when we got here in 1995, that there 
were Members of Congress who could not understand the concept of 
sending electronic emails between offices or outside. It was alien to 
Washington to be so technologically plugged in. It just shows you how 
times have changed. Now we're finally starting to address the 
technology. I think the gentleman from Missouri even recognized that we 
need to really push harder at opening up the system, embracing the new 
technologies that allow not only the public to know better, but also 
the representatives of the public to be able to function in a much more 
efficient manner.
  This bill is truly one that we have been trying to work on for years. 
It's one that was controversial in certain circles, but I think it's 
one that we need to move forward with. I hope, again, that this is 
another one of those steps that the Government Oversight Committee is 
looking to to set an example for the rest the Congress and the rest of 
Washington to find reasons to get to ``yes,'' to find reasons to work 
together, and to find reasons to do it better. I think that that is one 
thing we can do here.
  Madam Speaker, I have to say while speaking on this item that it's 
sad that, on the down side, we have been trying for over a decade to do 
something the new President has talked a lot about, and that's using e-
technology for electronic medical records. And the fact is, the Federal 
Government has been trying to develop that for our veterans and our 
active duty military for over a decade and still has not been able to 
implement it. So I hope this is one step towards becoming comfortable 
with reviving, restoring, and really redesigning the way we approach e-
technology and new technology and that we will embrace it rather than 
being terrified by it, like some people were in the nineties when we 
showed up.
  I reserve the balance of my time.
  Mr. CLAY. I couldn't agree more with my friend from California. We 
hope this is the impetus to spur the development--the successful 
development of electronic medical records, because we know what the 
savings would mean to our health care system and we know that it can 
possibly save lives by reducing errors.
  So at this time, Madam Speaker, I'd like to yield 2 minutes to the 
distinguished chairman of the Oversight and Government Reform 
Committee, the gentleman from New York (Mr. Towns).
  Mr. TOWNS. I thank the chair of the subcommittee for yielding and 
thank Congressman Bilbray from California for his work on this 
committee, and Congressman Hodes, and of course the ranking member of 
the full committee, Congressman Issa. I think that when you work 
together, you can come up with strong legislation that can truly make a 
difference. I also would like to thank the staff who worked on this 
legislation as well.
  I think that when we look at electronic records, when we look at 
information that needs to be preserved, I really feel that this 
legislation gets us to where we need to go. I think now, more than 
ever, we have to make certain that this information is held at least 
for a certain period of time so people can make an assessment to see in 
terms of where we might have made mistakes, they can now correct them.
  So I want to salute you for the work you have done, Chairman Clay, 
and of course Ranking Member Bilbray, and of course all the staff 
members who worked so hard to bring us to where we are today.
  Mr. BILBRAY. Madam Speaker, I would like to close by thanking the 
ranking member and full committee chairman for allowing the minority to 
participate in the formation of this bill. There are so many committees 
that aren't allowing the minority to participate. I think this is 
really a nice example of the cooperation that I think the American 
people want to see and don't see enough of. I want to thank the 
chairman and ranking member for allowing us to participate in the 
process.
  I yield back the balance of my time.
  Mr. CLAY. Let me also thank the ranking member for his participation. 
As we have stated earlier, this is Sunshine Week. It's time for 
openness and accountability. I appreciate participating with you in 
these series of bills.
  In closing, let me also mention that in this bill we are also 
considering an amendment that makes a number of drafting corrections 
suggested by the National Archives. For example, the amendment 
clarifies that the bill addresses electronic Presidential records 
rather than all Presidential records. H.R. 1387 will make the 
government more accountable by protecting an important part of the 
historical record, and I urge every Member to join me in supporting 
this legislation.
  Madam Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Missouri (Mr. Clay) that the House suspend the rules and 
pass the bill, H.R. 1387, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________