[House Report 115-512]
[From the U.S. Government Publishing Office]





115th Congress    }                                 {         Report
                        HOUSE OF REPRESENTATIVES
 2d Session       }                                 {         115-512
======================================================================



 
        SOCIAL MEDIA USE IN CLEARANCE INVESTIGATIONS ACT OF 2017

                                _______
                                

January 11, 2018.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                        [To accompany H.R. 3737]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Oversight and Government Reform, to whom 
was referred the bill (H.R. 3737) to provide for a study on the 
use of social media in security clearance investigations, 
having considered the same, report favorably thereon without 
amendment and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Committee Statement and Views....................................     1
Section-by-Section...............................................     3
Explanation of Amendments........................................     3
Committee Consideration..........................................     3
Roll Call Votes..................................................     3
Application of Law to the Legislative Branch.....................     3
Statement of General Performance Goals and Objectives............     4
Duplication of Federal Programs..................................     4
Disclosure of Directed Rule Makings..............................     4
Federal Advisory Committee Act...................................     4
Unfunded Mandates Statement......................................     4
Earmark Identification...........................................     4
Committee Estimate...............................................     4
Budget Authority and Congressional Budget Office Cost Estimate...     4

                     Committee Statement and Views


                          PURPOSE AND SUMMARY

    H.R. 3737, The Social Media Use in Clearance Investigations 
Act of 2017 requires the Office of Management and Budget (OMB) 
to provide pertinent data on the current and potential use of 
social media for clearance investigation purposes. 
Specifically, the bill requires OMB to submit a one-time report 
describing the current use of social media for investigative 
purposes, the legal impediments related to the use of social 
media for that purpose, and the results of any pilot programs 
conducted to incorporate social media into background 
investigations. Additionally, the report will include the 
available options for broader implementation of social media 
checks and the cost estimates for such a program.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 3737 is a much needed first step in modernizing 
federal security clearance background investigations. In recent 
years, there have been several cases in which federal 
contractor employees with security clearances leaked classified 
information after previously sharing suspicious posts on 
publicly available social media sites. Two high profile 
examples are the cases of Edward Snowden and Reality Winner, 
both of whom were National Security Agency (NSA) insiders with 
access to very sensitive information.\1\
---------------------------------------------------------------------------
    \1\See Donie O'Sullivan and David Shortell, Accused leaker Reality 
Winner called Trump an `orange fascist' on Twitter, CNN, June 6, 2017, 
http://www.cnn.com/2017/06/06/politics/reality-winner-twitter-account/
index.html; Joe Mullin, NSA leaker Ed Snowden's life on Ars Technica, 
Ars Technica, Jun. 12, 2013, https://arstechnica.com/tech-policy/2013/
06/nsa-leaker-ed-snowdens-life-on-ars-technica/.
---------------------------------------------------------------------------
    Examining the options available to implement these social 
media investigations will help inform and expedite security 
clearance reform. A preliminary check of a subject's social 
media could prove more effective than many current parts of 
clearance investigations.
    Over roughly the past decade, other agencies have created 
similar programs including the Army,\2\ the Office of the 
Director of National Intelligence (ODNI),\3\ and the NSA.\4\ 
Only some of the results of these programs are publicly 
available, and what is available does not contain clear 
analyses or conclusions.
---------------------------------------------------------------------------
    \2\Defense Personnel And Security Research Center, TR 13-04, Army 
G2 Continuous Evaluation Pilot, (June 2013).
    \3\Corporate Risk International, Final Report & Analysis, Open 
Source Research Project, (June 10, 2009), https://www.eff.org/files/
20100514_odni_socialnetworking.pdf.
    \4\Aliya Sternstein, What's your `insider threat score?' It could 
determine if you keep your clearance, NextGov, Apr. 29, 2016, http://
www.nextgov.com/cybersecurity/2016/04/cleared-personnel-fico-score-
will-decide-what-secrets-you-can-see/127903/.
---------------------------------------------------------------------------
    OMB oversees the security clearance system as a whole 
through its delegation of responsibility to the Suitability and 
Security Executive Agents (the Office of Personnel Management 
[OPM] and ODNI, respectively). OMB is thus well positioned to 
analyze and report on the results of the disparate pilot 
programs, allowing Congress to understand what worked 
previously and what needs improvement.

                          LEGISLATIVE HISTORY

    On May 13, 2016, the Committee on Oversight and Government 
Reform, Subcommittee on Government Operations held a hearing 
entitled, ``Incorporating Social Media into Federal Background 
Investigations.''\5\ The hearing largely discussed the legality 
of performing investigative practices such as examining 
someone's social media postings. The challenge of finding a 
balance between privacy and national security is one that still 
remains today.
---------------------------------------------------------------------------
    \5\H. Comm. on Oversight & Gov't Reform, Subcomm. on Gov't 
Operations, Hearing: Incorporating Social Media into Federal Background 
Investigations, Ser. No. 114-158, 114th Cong. (May 13, 2016).
---------------------------------------------------------------------------
    On September 13, 2017, Representative Ron DeSantis (R-FL) 
introduced H.R. 3737, the Social Media Use in Clearance 
Investigations Act of 2017, with Representative Stephen Lynch 
(D-MA). H.R. 3737 was referred to the Committee on Oversight 
and Government Reform. The Committee considered H.R. 3737 at a 
business meeting on September 13, 2017, and ordered the bill 
reported favorably, without amendment, by voice vote.

                           Section-by-Section


Section 1. Short title

    Section 1 establishes the short title of the bill as the 
``Social Media Use in Clearance Investigations Act of 2017.''

Section 2. Study on use of social media in security clearance 
        investigations

    Section 2 requires the Director of OMB to submit a report 
within six months of enactment regarding the examination of 
social media activity as part of the security clearance 
investigation process. The report must include information on: 
(1) the current use of publicly available social media in 
clearance investigations; (2) any legal impediments to 
examining the social media activity of clearance applicants; 
(3) the results of pilot programs for the incorporation of 
social media data into clearance investigations; (4) options 
for widespread implementation of social media checks in 
clearance investigations; and (5) cost estimates for some of 
those options.

                       Explanation of Amendments

    There were no amendments to H.R. 3737 offered or adopted 
during Committee consideration of the bill.

                        Committee Consideration

    On September 13, 2017, the Committee met in open session 
and, with a quorum being present, ordered the bill favorably 
reported by voice vote.

                            Roll Call Votes

    There were no roll call votes requested or conducted during 
Committee consideration of H.R. 3737.

              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 the terms and conditions of 
employment or access to public services and accommodations. 
This bill provides for a study on the use of social media in 
security clearance investigations. As such, this bill does not 
relate to employment or access to public services and 
accommodations.

         Statement of General Performance Goals and Objectives

    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.

                    Duplication of Federal Programs

    In accordance with clause 2(c)(5) of rule XIII no provision 
of this bill establishes or reauthorizes a program of the 
Federal Government known to be duplicative of another Federal 
program, a program that was included in any report from the 
Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

                  Disclosure of Directed Rule Makings

    This bill does not direct the completion of any specific 
rule makings within the meaning of section 551 of title 5, 
United States Code.

                     Federal Advisory Committee Act

    The Committee finds that the legislation does not establish 
or authorize the establishment of an advisory committee within 
the definition of Section 5(b) of the appendix to title 5, 
United States Code.

                      Unfunded Mandates Statement

    Pursuant to section 423 of the Congressional Budget and 
Impoundment Control Act (Pub. L. 113-67) the Committee has 
included a letter received from the Congressional Budget Office 
below.

                         Earmark Identification

    This bill does not include any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9 of rule XXI of the House of Representatives.

                           Committee Estimate

    Pursuant to clause 3(d)(2)(B) of rule XIII of the Rules of 
the House of Representatives, the Committee includes below a 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.

     Budget Authority and Congressional Budget Office Cost Estimate

    Pursuant to clause 3(c)(3) of rule XIII of the House of 
Representatives, the cost estimate prepared by the 
Congressional Budget Office and submitted pursuant to section 
402 of the Congressional Budget Act of 1974 is as follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                Washington, DC, September 22, 2017.
Hon. Trey Gowdy,
Chairman, Committee on Oversight and Government Reform,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3737, the Social 
Media Use in Clearance Investigations Act of 2017.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
Pickford.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 3737--Social Media Use in Clearance Investigations Act of 2017

    H.R. 3737 would require the Office of Management and Budget 
(OMB) to report to the Congress within six months on how social 
media activity is examined during security clearance 
investigations and related matters. Based on the cost of 
similar activities, CBO estimates that implementing the bill 
would cost less than $500,000; such spending would be subject 
to the availability of appropriated funds.
    Enacting H.R. 3737 would not affect direct spending or 
revenues; therefore, pay-as-you-go procedures do not apply.
    CBO estimates that enacting H.R. 3737 would not increase 
net direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2028.
    H.R. 3737 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was approved by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.

                                  [all]