[House Report 111-406]
[From the U.S. Government Publishing Office]


111th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     111-406

======================================================================



 
                  ELECTRONIC MESSAGE PRESERVATION ACT

                                _______
                                

January 27, 2010.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Towns, from the Committee on Oversight and Government Reform, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                        [To accompany H.R. 1387]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred 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, having considered the same, report favorably thereon 
with an amendment and recommend that the bill as amended do 
pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for Legislation..............................     2
Legislative History..............................................     3
Section-by-Section...............................................     4
Explanation of Amendments........................................     6
Committee Consideration..........................................     6
Roll Call Votes..................................................     6
Application of Law to the Legislative Branch.....................     6
Statement of Oversight Findings and Recommendations of the 
  Committee......................................................     6
Statement of General Performance Goals and Objectives............     7
Constitutional Authority Statement...............................     7
Federal Advisory Committee Act...................................     7
Unfunded Mandates Statement......................................     7
Earmark Identification...........................................     7
Committee Estimate...............................................     7
Budget Authority and Congressional Budget Office Cost Estimate...     7
Changes in Existing Law Made by the Bill, as Reported............    10
Minority Views...................................................    14
  The amendment is as follows:
  At the end of the bill, add the following new sections:

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 include the 
following prohibitions:
  (1) No person, other than personnel of the National Archives and 
Records Administration (in this section hereafter referred to as ``NARA 
personnel''), shall view classified records in any room that is not 
secure except in the presence of NARA personnel or under video 
surveillance.
  (2) No person, other than NARA personnel, shall at any time be left 
alone with classified records, unless that person is under video 
surveillance.
  (3) No person, other than NARA personnel, shall conduct any review of 
documents while in the possession of any cell phone or other personal 
communication device.
  (4) All persons seeking access to 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 during the 
course of a review of classified records shall be retained by the 
National Archives and Records Administration in a secure facility.
  (b) Definition of Records.--In this section, the term ``records'' has 
the meaning provided in section 3301 of title 44, United States Code.

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.''.

                          Purpose and Summary

    H.R. 1387, the Electronic Message Preservation Act, was 
introduced by Rep. Paul Hodes, Rep. Edolphus Towns, and Rep. 
Wm. Lacy Clay on March 9, 2009. H.R. 1387 modernizes the 
requirements of the Federal Records Act and the Presidential 
Records Act to ensure the preservation of e-mails and other 
electronic messages.

                  Background and Need for Legislation

    The Federal Records Act requires federal agencies to make 
and preserve records that document ``the organization, 
functions, policies, decisions, procedures, and essential 
transactions of the agency'' and provide the ``information 
necessary to protect the legal and financial rights of the 
government and of persons directly affected by the agency's 
activities.''\1\ The Federal Records Act requires that all 
records be preserved, regardless of format. But agencies have 
broad discretion to determine how to preserve electronic 
communications and other electronic records.
---------------------------------------------------------------------------
    \1\44 U.S.C. Sec. 3101.
---------------------------------------------------------------------------
    Committee investigations and the Government Accountability 
Office (GAO) have found that many agencies rely on unreliable 
``print and file'' systems for preserving electronic records, 
including e-mails.\2\ As a result, many e-mails that should be 
saved as federal records may be lost. A witness from GAO 
testified at a Committee hearing that if federal records, 
including e-mail records, are not adequately managed, 
``individuals might lose access to benefits for which they are 
entitled, the government could be exposed to unwarranted legal 
liabilities, and historical records of vital interest could be 
lost forever.''\3\
---------------------------------------------------------------------------
    \2\See Government Accountability Office, Federal Records: National 
Archives and Selected Agencies Need to Strengthen E-Mail Management 
(June 2008) (GAO-08-742).
    \3\Government Accountability Office, Federal Records: Agencies Face 
Challenges in Managing E-Mail (Apr. 23, 2008) (GAO-08-699T).
---------------------------------------------------------------------------
    H.R. 1387 directs the Archivist to issue regulations 
requiring agencies to preserve electronic messages that are 
records in an electronic format. These regulations must cover, 
at a minimum, the capture, management, preservation, and 
electronic retrieval of electronic records, and must be 
implemented within four years of enactment.
    The Federal Records Act applies to federal agencies while 
the Presidential Records Act applies to the President, the Vice 
President, and certain entities within the Executive Office of 
the President. The Presidential Records Act requires the 
President to:

          Take all steps as may be necessary to assure that the 
        activities, deliberations, decisions, and policies that 
        reflect the performance of his constitutional, 
        statutory or other official or ceremonial duties are 
        adequately documented and that such records are 
        maintained as presidential records pursuant to the 
        requirements of this section and other provisions of 
        law.\4\

    \4\44 U.S.C. Sec. 2203.

    Like the Federal Records Act, the Presidential Records Act 
requires that records be preserved and maintained regardless of 
whether the records are in paper or electronic form. But 
standards are needed to ensure that each administration has the 
controls needed to effectively manage the unique challenges of 
e-mails and other electronic messages that are presidential 
records.
    Investigations by the Oversight Committee revealed 
significant deficiencies in the preservation of e-mail by the 
White House during the Bush Administration. Committee 
investigations revealed that numerous White House officials 
used e-mail accounts maintained by the Republican National 
Committee, which regularly deleted the e-mails from its 
servers. E-mails sent by White House officials over these RNC 
accounts included e-mails concerning official government 
business. In addition, the White House could not account for 
some official White House e-mails. Other administrations, 
including President Clinton's, also encountered problems 
preserving e-mail records.
    H.R. 1387 directs the Archivist to establish standards for 
the capture, management, and preservation of electronic 
messages that are presidential records. The bill requires the 
Archivist to annually certify whether the records management 
controls established by the President meet these standards.

                          Legislative History

    H.R. 1387 is substantially similar to H.R. 5811 which 
passed the House on July 9, 2008.
    The Subcommittee on Information Policy, Census, and 
National Archives held a hearing on H.R. 5811 on April 23, 
2008. The witnesses were Linda Koontz, Director, Information 
Management Issues, Government Accountability Office; Gary M. 
Stern, General Counsel, National Archives and Records 
Administration; Paul M. Wester, Director, Modern Records 
Program, National Archives and Records Administration; and 
Patrice McDermott, Director, OpentheGovernment.org. The 
Subcommittee also received written testimony from Dr. Anna 
Nelson, Distinguished Historian in Residence at American 
University representing the National Coalition for History.
    The Committee on Oversight and Government Reform held a 
business meeting on May 1, 2008, to consider H.R. 5811 and 
ordered the bill to be reported, as amended, by voice vote. 
H.R. 5811 passed the House on July 9, 2008, by a vote of 286-
137.
    H.R. 1387 was introduced by Reps. Hodes, Towns, and Clay on 
March 9, 2009, and referred to the Committee on Oversight and 
Government Reform. The Committee held abusiness meeting on 
March 10, 2009, and ordered the bill to be reported, as amended, by 
voice vote.

                           Section-by-Section


Section 1. Short title

    The short title of the bill is the Electronic Message 
Preservation Act.

Section 2. Preservation of electronic messages

    Subsection (a) mandates the electronic preservation of 
electronic messages that are federal records. This subsection 
directs the Archivist to promulgate regulations governing 
agency preservation of these records within 18 months after 
enactment. The bill requires that the regulations include, at a 
minimum, the electronic capture, management, and preservation 
of electronic messages that are records in accordance with the 
requirements of the Federal Records Act. The regulations must 
require that electronic records are accessible through 
electronic searches.
    The Archivist's regulations must establish mandatory 
minimum functional requirements for electronic records 
management systems to be used by federal agencies for these 
purposes and must establish a process to certify that agency 
systems meet these functional requirements. The Committee's 
intent is that the National Archives and Records Administration 
(NARA) could conduct this certification on its own, or work 
with other entities that have developed expertise in this area. 
The regulations would need to establish timelines requiring 
agency compliance no later than four years from enactment.
    The Archivist is also directed, to the extent practicable, 
to include requirements for the capture, management, and 
preservation of other electronic records in these regulations. 
The Committee recognizes that, at some future date, federal 
agencies will be managing all of their electronic records 
electronically. While this legislation focuses on electronic 
messages, agencies should be encouraged to implement records 
management systems that encompass a broader range of records 
where appropriate.
    This subsection requires federal agencies to comply with 
the regulations promulgated by the Archivist. The Archivist 
must periodically review and amend the required regulations.
    The head of each federal agency is required under this 
subsection to report to the Archivist on the agency's 
compliance with the required regulations within four years of 
enactment. The Archivist must in turn report to the House 
Committee on Oversight and Government Reform and the Senate 
Committee on Homeland Security and Governmental Affairs on 
agency compliance within 90 days of receiving the reports from 
agencies.
    Section 2(b) defines ``electronic messages'' as electronic 
mail and other electronic messaging systems that are used for 
purposes of communicating between individuals. This subsection 
defines ``electronic records management system'' as a software 
system designed to manage electronic records within an 
information technology system, including by categorizing and 
locating records, ensuring that records are retained as long as 
necessary, identifying records that are due for disposition, 
and providing for the storage, retrieval, and disposition of 
records.

Section 3. Presidential records

    Subsection (a) directs the Archivist to establish standards 
for the management of presidential records during the 
President's term of office, including specific standards to 
ensure electronic messages are properly captured, managed and 
preserved and accessible through electronic searches. The 
Archivist is directed to annually certify the electronic 
records management system used by the President for managing 
electronic messages.
    Subsection (b) requires the Archivist to annually certify 
that the records management controls put in place by the 
President meet existing requirements of the Presidential 
Records Act as well as the standards developed by the 
Archivist. This subsection calls on the Archivist to report 
annually to the House Committee on Oversight and Government 
Reform and the Senate Committee on Homeland Security and 
Governmental Affairs on the status of the certification.
    Under subsection (c), one year after a President leaves 
office, the Archivist must report to the House Committee on 
Oversight and Government Reform and the Senate Committee on 
Homeland Security and Governmental Affairs on the volume and 
format of presidential records provided by that President to 
NARA, and whether the records management controls of the 
President met the requirements of the Presidential Records Act 
as well as the standards developed by the Archivist. The one 
year delay in filing this report is intended to give the 
Archivist the opportunity to review the records received and 
make an independent determination of whether the law and the 
standards governing records preservation were met.
    Subsection (d) provides that the amendments made by this 
section will take effect one year after enactment.

Section 4. Procedures to prevent unauthorized removal of classified 
        records from National Archives

    Subsection (a) requires the Archivist to prescribe internal 
procedures to prevent the unauthorized removal of classified 
records from NARA or the destruction or damage of such records, 
including when such records are accessed or searched 
electronically. The procedures are required to include the 
following prohibitions: (1) no person, other than NARA 
personnel, shall view classified records in any room that is 
not secure except in the presence of NARA personnel or under 
video surveillance; (2) no person, other than NARA personnel, 
shall at any time be left alone with classified records without 
video surveillance; (3) no person, other than NARA personnel 
shall conduct any review of documents while in the possession 
of any cell phone or other personal communication device; (4) 
all persons seeking access to 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 during the course 
of a review of classified records shall be retained by the NARA 
in a secure facility.
    Subsection (b) defines the term ``records'' as the meaning 
provided in the Federal Records Act.

Section 5. Restrictions on access to presidential records

    This section prohibits the Archivist from making available 
any original presidential records to any individual claiming 
access to any presidential record as a designated 
representative of the President if that individual has been 
convicted of a crime relating to the review, retention, 
removal, or destruction of records of the Archives.

                       Explanation of Amendments

    Mr. Issa offered an amendment, which was adopted by 
unanimous consent, which added sections four and five discussed 
above.

                        Committee Consideration

    On Tuesday, March 10, 2009, the Committee met in open 
session and favorably ordered H.R. 1387, as amended, to be 
reported to the House by a voice vote.

                            Roll Call Votes

    No roll call votes were held.

              Application of Law to the Legislative Branch

    Section 102(b)(3) of Public Law 104-1 requires a 
description of the application of this bill to the legislative 
branch where the bill relates to terms and conditions of 
employment or access to public services and accommodations. The 
bill does not relate to employment or access to public services 
and accommodations.

  Statement of Oversight Findings and Recommendations of the Committee

    In compliance with clause 3(c)(1) of rule XIII and clause 
(2)(b)(1) of rule X of the Rules of the House of 
Representatives, the Committee's oversight findings and 
recommendations are reflected in the descriptive portions of 
this report, including inconsistencies by the executive branch 
in preserving e-mails that are federal and presidential 
records.

         Statement of General Performance Goals and Objectives

    In accordance with clause 3(c)(4) of rule XIII of the Rules 
of the House of Representatives, the Committee's performance 
goals and objectives are reflected in the descriptive portions 
of this report, including the need to ensure the preservation 
of government e-mails and other electronic records.

                   Constitutional Authority Statement

    Under clause 3(d)(1) of rule XIII of the Rules of the House 
of Representatives, the Committee must include a statement 
citing the specific powers granted to Congress to enact the law 
proposed by H.R. 1387. Article I, Section 8, Clause 18 of the 
Constitution of the United States grants the Congress the power 
to enact this law.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the meaning of 5 U.S.C. App., Section 5(b).

                      Unfunded Mandates Statement

    Section 423 of the Congressional Budget and Impoundment 
Control Act (as amended by Section 101(a)(2) of the Unfunded 
Mandates Reform Act, P.L. 104-4) requires a statement on 
whether the provisions of the report include unfunded mandates. 
In compliance with this requirement the Committee has received 
a letter from the Congressional Budget Office included herein.

                         Earmark Identification

    H.R. 1387 does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(e), 9(f), or 9(g) of rule XXI.

                           Committee Estimate

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs that would be incurred in carrying out 
H.R. 1387. However, clause 3(d)(3)(B) of that rule provides 
that this requirement does not apply when the Committee has 
included in its report a timely submitted cost estimate of the 
bill prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act.

     Budget Authority and Congressional Budget Office Cost Estimate

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause 3(c)(3) of rule XIII of the Rules of 
the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has received 
the following cost estimate for H.R. 1387 from the Director of 
the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, March 13, 2009.
Hon. Edolphus Towns,
Chairman, Committee on Oversight and Government Affairs,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 1387, the 
Electronic Message Preservation Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 1387--Electronic Message Preservation Act

    Summary: H.R. 1387 would amend federal law regarding the 
preservation and storage of electronic communications. The 
legislation would direct the National Archives and Records 
Administration (NARA) to issue regulations governing the 
preservation of e-mail and other electronic records in 
electronic format and establish procedures to prevent the 
unauthorized removal of classified records from NARA 
facilities. The bill also would require federal agencies to 
manage and preserve their e-mail records electronically. 
Finally, H.R. 1387 would amend the Presidential Records Act to 
give NARA additional authority to oversee management of 
electronic records of the President, including the authority to 
restrict access to those records.
    CBO estimates that implementing H.R. 1387 would cost $156 
million over the 2010-2014 period, assuming appropriation of 
the necessary amounts. The legislation could also affect direct 
spending by agencies not funded through annual appropriations 
(such as the Tennessee Valley Authority) or by agencies 
considered to be off-budget (such as the U.S. Postal Service). 
CBO estimates, however, that any net increase in spending by 
those agencies would not be significant.
    H.R. 1387 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of state, local, or tribal 
governments.
    Estimated cost to the federal government: The estimated 
budgetary impact of H.R. 1387 is shown in the following table. 
The costs of this legislation fall within most budget functions 
that contain salaries and expenses.

----------------------------------------------------------------------------------------------------------------
                                                                 By fiscal year, in millions of dollars--
                                                         -------------------------------------------------------
                                                            2010     2011     2012     2013     2014   2010-2014
----------------------------------------------------------------------------------------------------------------
                                  CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level...........................       15       25       35       45       40       160
Estimated Outlays.......................................       14       24       34       44       41       156
----------------------------------------------------------------------------------------------------------------

    Basis of estimate: For this estimate, CBO assumes that the 
bill will be enacted near the end of fiscal year 2009 and that 
spending will follow historical patterns for similar 
activities.
    Most of the provisions of H.R. 1387 would expand current 
practices of the federal government. Under the Federal Records 
Act, each federal agency is required to make and preserve 
records of its activities. To accomplish this, agencies are 
required to develop programs to ensure that they have 
appropriate systems to manage and preserve their records. The 
act also gives NARA the responsibility to oversee and issue 
guidance on managing federal records, including e-mail 
messages. Although current NARA regulations specifically 
require that e-mails be stored electronically, NARA allows 
agencies to print and file paper copies of e-mail records. H.R. 
1387 would require agencies, over the next four years, to 
implement systems that would manage all e-mail records 
electronically.
    CBO is unaware of any comprehensive information on the 
current capabilities of the federal government to manage 
records electronically or the costs to create an e-mail records 
system. Information from the Office of Management and Budget 
(OMB), the Government Accountability Office (GAO), some federal 
agencies, and NARA suggests that very few federal agencies 
currently archive all e-mail messages electronically as the 
bill would require. Most agencies currently maintain a print 
and file system for e-mail records.
    While most government documents are created in a computer 
format, GAO has reported that financial constraints and 
technical challenges associated with electronic recordkeeping 
have hampered the development of electronic systems to archive 
records. GAO also reports that federal agencies generally have 
little experience with acquiring and operating an electronic 
filing system for e-mail records. The cost to create such a 
system would depend upon the specifications of each agency's 
system, the size of the agency, and the volume of work it 
performs.
    Currently the federal government spends about $24 billion a 
year on information technology, including mission support, 
infrastructure, enterprise architecture, and planning. Using 
information from selected federal agencies and private-sector 
vendors about the current status of government e-mail systems 
and the cost to enhance those systems to archive e-mail, CBO 
estimates that implementing H.R. 1387 would cost $14 million in 
2010 and about $156 million over the 2010-2014 period, assuming 
appropriation of the necessary amounts. Those amounts would 
cover the initial costs of training and purchasing software 
products for archiving and disk-storage. Those initial expenses 
would total $60 million and would be incurred over four years, 
beginning in 2010. Ongoing costs would total about $100 million 
over the 2011-2014 period, mostly for renewal of software 
licenses and additional data storage.
    Electronically archiving e-mail could reduce the 
administrative costs agencies incur to print and file paper 
copies and to perform other retrieval-based tasks, such as 
Freedom of Information Act requests. CBO expects that any such 
savings over the next five years would be small.
    Intergovernmental and private-sector impact: H.R. 1387 
contains no intergovernmental or private-sector mandates as 
defined in UMRA and would not affect the budgets of state, 
local, or tribal governments.
    Estimate prepared by: Federal Costs: Matthew Pickford; 
Impact on State, Local, and Tribal Governments: Elizabeth Cove 
Delisle; Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

                      TITLE 44, UNITED STATES CODE




           *       *       *       *       *       *       *
                    CHAPTER 22--PRESIDENTIAL RECORDS

Sec.
2201. Definitions.
     * * * * * * *
2208. Certification of the President's management of Presidential 
          records.

Sec. 2201. Definitions

  As used in this chapter--
          (1) * * *

           *       *       *       *       *       *       *

          (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.

           *       *       *       *       *       *       *


Sec. 2203. Management and custody of Presidential records

  (a) * * *

           *       *       *       *       *       *       *

  (f)(1) * * *

           *       *       *       *       *       *       *

  (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 Presidential records 
        deposited into that President's Presidential archival 
        depository; and
          (B) whether the records management controls of that 
        President met the requirements under sections 2203(a) 
        and 2206(5) of this title.

Sec. 2204. Restrictions on access to Presidential records

  (a) * * *

           *       *       *       *       *       *       *

  (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. 2206. Regulations

  The Archivist shall promulgate in accordance with section 553 
of title 5, United States Code, regulations necessary to carry 
out the provisions of this chapter. Such regulations shall 
include--
          (1) * * *

           *       *       *       *       *       *       *

          (3) provisions for notice by the Archivist to the 
        former President when the disclosure of particular 
        documents may adversely affect any rights and 
        privileges which the former President may have; [and]
          (4) provisions for establishing procedures for 
        consultation between the Archivist and appropriate 
        Federal agencies regarding materials which may be 
        subject to section 552(b)(7) of title 5, United States 
        Code[.]; and
          (5) provisions for establishing standards necessary 
        for the economical and efficient management of 
        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).

           *       *       *       *       *       *       *


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

  (a) Annual Certification.--The Archivist shall annually 
certify whether the 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.

           *       *       *       *       *       *       *


 CHAPTER 29--RECORDS MANAGEMENT BY THE ARCHIVIST OF THE UNITED STATES 
              AND BY THE ADMINISTRATOR OF GENERAL SERVICES

Sec.
2901. Definitions.
     * * * * * * *
2911. Electronic messages.

Sec. 2901. Definitions

  As used in this chapter, and chapters 21, 25, 31, and 33 of 
this title--
          (1) * * *

           *       *       *       *       *       *       *

          (14) the term ``Federal agency'' means any executive 
        agency or any establishment in the legislative or 
        judicial branch of the Government (except the Supreme 
        Court, the Senate, the House of Representatives, and 
        the Architect of the Capitol and any activities under 
        the direction of the Architect of the Capitol); [and]
          (15) the term ``Administrator'' means the 
        Administrator of General Services [.];
          (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 a software system designed to manage 
        electronic records within an information technology 
        system, 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) the storage, retrieval, and disposition 
                of records.

           *       *       *       *       *       *       *


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 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.

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                             MINORITY VIEWS

    The Electronic Message Preservation Act (H.R. 1387) is 
intended to modernize and improve the Federal Records Act and 
the Presidential Records Act to ensure the preservation of 
emails and other electronic messages. H.R. 1387 directs the 
Archivist to issue regulations requiring agencies to preserve 
electronic messages that are records in an electronic format. 
These regulations are intended to provide clear guidance to the 
agencies and the Executive Office of the President in 
establishing standards for the capture, management, 
preservation, and electronic retrieval of these electronic 
records.
    However, a series of recent losses at various National 
Archives and Records Administration (NARA) installations cast 
doubt on the agency's ability to manage the responsibilities 
that would be assigned by H.R. 1387. NARA has pledged to change 
the culture that allowed systemic asset management problems to 
develop and fostered an institutional disregard for security.
    Subsequent to the markup of this bill, the Committee's 
investigation of the loss of a drive from NARA's College Park 
facility in 2009 revealed troubling flaws. The missing hard 
drive contained one terabyte of record data from the Clinton 
presidency. One terabyte of data is the approximate equivalent 
of millions of books, according to the Inspector General. Data 
on the drive included more than 100,000 social security numbers 
(including Al Gore's daughter), contact information (including 
addresses) for various Clinton administration officials, Secret 
Service and White House operating procedures, event logs, 
social gathering logs, political records and other highly-
sensitive information. The full extent of the contents of the 
drive is still being investigated.
    The hard drive was moved from a ``secure'' storage area to 
a workspace while in use as part of the conversion of Clinton 
Administration records to digital files. The drive was left 
unsecured on a shelf above a workstation. NARA IG Paul 
Brachfeld characterized the personally-identifying information 
violation as ``the greatest loss ever and troubling and 
amazing.''
    The loss appears to stem from a systemic lack of internal 
controls at this NARA facility. At least 100 ``badge-holders'' 
had access to the area where the drive was left unsecured. In 
addition to those with official access to sensitive material, 
the IG claims that janitors, visitors, interns and others 
passed through the area where the drive was being kept. The IG 
described the workspace as an area that Archives employees pass 
through on their way to the restroom.
    This is just the most recent example of carelessness at the 
agency. In 2007, an annual inventory identified as missing 
approximately 559 equipment items with memory storage 
capability and the potential for storing sensitive personal 
identifying information. A report published in 2006 revealed 
the CIA and other federal agencies had to re-classify over 
55,000 pages of records taken from the open shelves at the 
Archives. In 2005, President Clinton's former National Security 
Advisor Sandy Berger pled guilty to unlawfully removing 
documents from the Archives. Ranking Member Issa offered an 
amendment to this bill, which was accepted by unanimous 
consent, to ensure this type of breach will not occur again.
    In addition, the Majority's stated rationale for H.R. 1387 
mischaracterizes the Committee's investigative record from the 
110th Congress relating to White House email records. Between 
2002 and 2004, the White House Office of Administration 
migrated the White House email system from Lotus Notes to 
Microsoft Exchange. During the course of this migration certain 
email records were temporarily archived. The arrangement under 
this temporary system led to some records being misfiled and 
otherwise difficult to access. These records were retrieved 
later using back up recovery tapes. The Committee has no 
evidence that any email records went missing.
    Electronic recordkeeping issues are not new to the 
Presidency. During the Clinton Administration this Committee 
held hearings on whether emails pertinent to the Lewinsky 
investigation had been intentionally destroyed. The Clinton-era 
inquiry involved allegations that White House staff were 
participating in a cover-up to destroy potentially 
incriminating emails.
    We are concerned that NARA, which has had difficulty 
preserving and protecting its own records, will be able to 
establish regulations for all federal agencies. The Committee 
must continue to closely oversee NARA as its new leadership 
works to remedy internal problems. Unless and until there are 
signs of improvement, however, we are reluctant to support any 
legislation imposing additional responsibilities on the agency.

                                              Darrell Issa,
                                                    Ranking Member.

                                  
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