[Senate Report 115-382]
[From the U.S. Government Publishing Office]

                                                      Calendar No. 668
115th Congress  }                                          {     Report
2d Session      }                                          {     115-382





                              R E P O R T

                                 of the


                          GOVERNMENTAL AFFAIRS

                          UNITED STATES SENATE

                              to accompany

                                S. 3208



               November 26, 2018.--Ordered to be printed
 89-010                      WASHINGTON : 2018                

                    RON JOHNSON, Wisconsin Chairman
JOHN McCAIN, Arizona                 CLAIRE McCASKILL, Missouri
ROB PORTMAN, Ohio                    THOMAS R. CARPER, Delaware
RAND PAUL, Kentucky                  HEIDI HEITKAMP, North Dakota
JAMES LANKFORD, Oklahoma             GARY C. PETERS, Michigan
MICHAEL B. ENZI, Wyoming             MAGGIE HASSAN, New Hampshire
JOHN HOEVEN, North Dakota            KAMALA D. HARRIS, California
STEVE DAINES, Montana                DOUG JONES, Alabama

                  Christopher R. Hixon, Staff Director
                Gabrielle D'Adamo Singer, Chief Counsel
              Elliott A. Walden, Professional Staff Member
               Margaret E. Daum, Minority Staff Director
       Charles A. Moskowitz, Minority Senior Legislative Counsel
                 Katherine C. Sybenga, Minority Counsel
                     Laura W. Kilbride, Chief Clerk
                                                       Calendar No. 668
115th Congress   }                                           {   Report
 2d Session      }                                           {  115-382


                              ACT OF 2018


               November 26, 2018.--Ordered to be printed


 Mr. Johnson, from the Committee on Homeland Security and Governmental 
                    Affairs, submitted the following

                              R E P O R T

                         [To accompany S. 3208]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Homeland Security and Governmental 
Affairs, to which was referred the bill (S. 3208) to provide 
agencies with discretion in securing information technology and 
information systems, having considered the same, reports 
favorably thereon with an amendment in the nature of a 
substitute and recommends that the bill, as amended, do pass.


  I. Purpose and Summary..............................................1
 II. Background and Need for the Legislation..........................2
III. Legislative History..............................................4
 IV. Section-by-Section Analysis......................................4
  V. Evaluation of Regulatory Impact..................................5
 VI.  Congressional Budget Office Cost Estimate.......................5
VII. Changes in Existing Law Made by the Bill, as Reported............6

                         I. PURPOSE AND SUMMARY

    S. 3208, the Federal Information Systems Safeguards Act of 
2018, allows executive agencies to take action to protect their 
information technology (IT) systems, such as restricting access 
to websites the agencies have deemed a security risk, without 
regard to Federal employee labor-management relationship 
    \1\On May 25, 2016, the Committee approved S. 2975, the Federal 
Information Systems Safeguards Act of 2016. That bill is substantially 
similar to S. 3208, which has been modified only slightly. Accordingly, 
this committee report is in large part a reproduction of Chairman 
Johnson's committee report for S. 2975, S. Rep. No. 114-361 (2016).


    Information security is a significant and persistent 
challenge for the Federal Government. The Government 
Accountability Office (GAO) has repeatedly identified 
weaknesses in Federal agencies' information security programs 
and compliance with Federal information security policies and 
practices. In September 2015, GAO reported that information 
security remains a persistent weakness at twenty-four Federal 
agencies.\2\ In February 2015, GAO reported that ``federal 
cyber assets'' have been identified as high-risk since 1997.\3\ 
The current cybersecurity threat is increased due, in part, to 
the proliferation of increasingly sophisticated threat actors 
who have expertise and resources to defeat cyber defenses.\4\ 
In 2016, the Office of Management and Budget alerted Congress 
that Federal agencies reported more than 77,000 security 
incidents during fiscal year (FY) 2015, an increase of ten 
percent over the prior year.\5\
    \2\Gov't Accountability Office, GAO-15-714, Federal Information 
Security: Agencies Need to Correct Weaknesses and Fully Implement 
Security Programs (Sept. 2015), http://www.gao.gov/assets/680/
    \5\Office of Management and Budget, Annual Report to Congress: 
Federal Information Security Modernization Act (Mar. 18, 2016).
    Federal agencies identify nation-state actors as the most 
serious cybersecurity threat they face. In May 2016, GAO 
reported that 18 agencies with high impact systems--those where 
the loss of information can have severe impact on the nation or 
affected individuals--identified foreign nations as the most 
serious and frequently occurring threat.\6\
    \6\Gov't Accountability Office, GAO-16-501, Information Security: 
Agencies Need to Improve Controls Over Selected High-Impact Systems 
(May 2016), http://www.gao.gov/products/GAO-16-501.
    In 2015, the nation learned that a sophisticated threat 
actor had penetrated the information systems of the Office of 
Personnel Management (OPM), exfiltrating data that included 
22.1 million records about Federal employees, including 
employee personnel and background investigation files.\7\ An 
additional 5.6 million individuals had their fingerprint data 
stolen.\8\ In the aftermath of the breach, OPM instituted a new 
policy to prohibit its employees from accessing certain 
websites, including Gmail and Facebook, from their work 
computers.\9\ An OPM spokesperson described the change as a 
response to the breach and cybersecurity threats:
    \7\See Under Attack: Cybersecurity and the OPM Data Breach: Hearing 
Before the S. Comm. on Homeland Sec. & Governmental Affairs, 114th 
Cong. (2015).
    \8\See Majority staff report, Cmte. on Oversight and Gov't. Reform, 
U.S. House of Reps., The OPM Data Breach: How the Government 
Jeopardized Our National Security for More than a Generation, Sept. 7, 
2016, https://oversight.house.gov/wp-content/uploads/2016/09/The-OPM-
    \9\Statement of Samuel Schumach, Press Secretary, Office of 
Personnel Management, July 2, 2015.

          As is the case throughout the Federal government, 
        agencies monitor the use of official computers and 
        other devices. In addition, at OPM, we provide guidance 
        on the use of computers and conduct yearly training. 
        Out of caution, and in light of the recent breaches, 
        OPM has recently tightened restrictions on internet 
        access using web security technology. As we move 
        forward with security measures which will ensure both 
        agency and individual security, OPM will continue to 
        monitor and make adjustments to our web security 

    Seven months later during her February 2016 confirmation 
hearing, OPM Acting Director Beth Cobert explained the 
reasoning behind OPM's decision to limit employees' access to 
certain websites:

          As the world of cybersecurity is changing, as we 
        recognize the nature of these threats, we all need to 
        change the way we interact, the way we use systems at 
        work and at home. What we have done at OPM, and I think 
        what is important for every agency to do, is to 
        recognize what needs to change in the way they operate, 
        what needs to change in the way their employees operate 
        to make sure systems are secure. At OPM, for example, I 
        cannot access my personal Gmail account from my OPM 
        computer. That is the way a lot of threats come in.\11\
    \11\Nomination of the Honorable Beth F. Cobert to be Director, 
Office of Personnel Management: Hearing Before S. Comm. on Homeland 
Sec; & Governmental Affairs, 114th Cong. (2016).

    However, Federal employee labor unions have raised concerns 
that such measures could have an adverse impact on Federal 
employees. In 2011, U.S. Immigration and Customs Enforcement 
(ICE) imposed a similar policy to limit employees' access to 
personal email from their workstations to improve 
cybersecurity. The American Federation of Government Employees 
(AFGE) filed a grievance against ICE with the Federal Labor 
Relations Authority (FLRA).\12\ The AFGE's grievance alleged 
that the agency's decision to block access to certain websites 
on employees' computers unlawfully bypassed the collective 
bargaining process.\13\
    \12\U.S. Department of Homeland Security, Immigration and Customs 
Enforcement (Agency) and American Federation of Government Employees, 
National Immigration and Customs Enforcement Council (Union), 67 
F.L.R.A. 126 (July 8, 2014), available at https://www.flra.gov/
    On July 8, 2014, the FLRA ruled that the agency was 
required to bargain with the union before changing the 
cybersecurity policy in this case.\14\ The FLRA held that 
Federal employees' legal requirement to protect Federal 
information under the Federal Information Security Management 
Act (FISMA) did not provide the agency with sole and exclusive 
discretion to implement network-access policies affecting 
employees without first satisfying its bargaining obligations 
with the union.\15\
    Although the remedy provided by the arbitrator and affirmed 
by the FLRA in this case directed bargaining over only the 
``impact and implementation'' of the agency's decision to block 
webmail access, concerns have been raised by this decision that 
the remedy in a future case could include the requirement that 
an agency restore access and engage in pre-implementation 
bargaining.\16\ Agency heads and their chief information 
officers must have the ability to act quickly to respond to 
threats and address perceived weaknesses and vulnerabilities in 
their information systems. Failure to successfully defend 
against cyberattacks can have significant consequences for the 
nation and, in cases such as the OPM breach, millions of 
Federal employees.
    \16\Id. (dissent by Member Pizzella).
    The Federal Information Systems Safeguards Act of 2018 
clarifies that an agency head may limit, restrict, or prohibit 
access to a website if the agency head determines such action 
is necessary to carry out his or her responsibilities as head 
of the agency. Although such a decision by the agency head is 
not subject to collective bargaining, after an agency head 
takes such an action, the bill as amended requires the agency 
head to seek guidance and take into consideration the personal 
communication needs of agency employees, upon the employees' 
request. However, the bill further clarifies that this 
requirement does not establish a right to collective 
    This bill accurately captures the congressional intent of 
FISMA to permit agencies authority over securing their 
networks. Giving agency heads the authority to act swiftly to 
protect Federal information systems will improve Federal 
cybersecurity and, thus, national security.

                        III. LEGISLATIVE HISTORY

    Chairman Ron Johnson (R-WI) introduced S. 3208, the Federal 
Information Systems Safeguards Act of 2018, on July 12, 2018. 
The bill was referred to the Committee on Homeland Security and 
Governmental Affairs. Senator Joni Ernst (R-IA) joined as a 
cosponsor on August 15, 2018.
    The Committee considered S. 3208 at a business meeting on 
September 26, 2018. During the meeting, Chairman Johnson 
offered an amendment in the nature of a substitute to include 
language allowing for consideration of employee communication 
needs. The bill, as amended by the Johnson Substitute 
Amendment, was ordered reported favorably by voice vote. 
Senators present were Johnson, Portman, Lankford, Enzi, Hoeven, 
Daines, McCaskill, Carper, Heitkamp, Peters, Hassan, Harris, 
and Jones. Senators Peters, Hassan, and Harris were recorded as 
voting ``no'' for the record.


Section 1. Short title

    This section provides that the bill may be referred to as 
the ``Federal Information Systems Safeguards Act of 2018.''

Sec. 2. Agency discretion to secure information technology and 
        information systems

    Section 2 establishes that agencies have discretion in 
securing their IT and information systems.
    New subsection (a) states that the authority described in 
new subsection (b) may not be limited by a collective 
bargaining agreement, memorandum of agreement, any other 
agreement, or negotiated under section 7106(b) or any other 
section of chapter 71.
    New subsection (b) gives the head of an agency the 
authority to take any action to limit, restrict, or prohibit 
access to a website or to test, deploy, or update a 
cybersecurity measure if the agency head determines it 
    New subsection (c) states that, after having taken an 
action under this section and upon the request of employees of 
the agency, the agency head will take into consideration and 
seek guidance on the personal communication needs of the 
agency's employees. This does not establish a right to 
collective bargaining.
    New subsection (d) states that the term ``agency'' has the 
same meaning as in section 3502 of title 44, United States 


    Pursuant to the requirements of paragraph 11(b) of rule 
XXVI of the Standing Rules of the Senate, the Committee has 
considered the regulatory impact of this bill and determined 
that the bill will have no regulatory impact within the meaning 
of the rules. The Committee agrees with the Congressional 
Budget Office's statement that the bill contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act (UMRA) and would impose no costs 
on state, local, or tribal governments.


                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, October 3, 2018.
Hon. Ron Johnson,
Chairman, Committee on Homeland Security and Governmental Affairs, U.S. 
        Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 3208, the Federal 
Information Systems Safeguards Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Matthew 
                                                        Keith Hall.

S. 3208--Federal Information Systems Safeguards Act of 2018

    The Federal Information Security Management Act (FISMA) 
provides a framework to protect government information 
operations against security threats. S. 3208 would clarify 
that, under FISMA, federal agencies have the sole and exclusive 
authority to take appropriate and timely actions to secure 
their information technology and information systems. CBO 
estimates that implementing S. 3208 would clarify Congressional 
intent, but it would have no significant effect on the federal 
budget because it would not expand the duties of executive 
    Enacting the bill could affect direct spending by agencies 
not funded through annual appropriations; therefore, pay-as-
you-go procedures apply. CBO estimates, however, that any net 
change in spending by those agencies would be negligible. S. 
3208 would not affect revenues.
    CBO estimates that enacting S. 3208 would not significantly 
increase net direct spending or on-budget deficits in any of 
the four consecutive 10-year periods beginning in 2029.
    S. 3208 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On August 10, 2018, CBO transmitted a cost estimate for 
H.R. 5300, the Federal Information Safeguards Act of 2018, as 
ordered reported by the House Committee on Oversight and 
Government Reform on July 17, 2018. The two pieces of 
legislation are similar and the estimated budgetary effects are 
the same.
    The CBO staff contact for this estimate is Matthew 
Pickford. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Assistant Director for Budget Analysis.


    Because S. 3208 would not repeal or amend any provision of 
current law, it would make no changes in existing law within 
the meaning of clauses (a) and (b) of paragraph 12 of rule XXVI 
of the Standing Rules of the Senate.