[Senate Report 115-419]
[From the U.S. Government Publishing Office]
Calendar No. 724
115th Congress } { Report
SENATE
2d Session } { 115-419
_______________________________________________________________________
BIOMETRIC IDENTIFICATION
TRANSNATIONAL MIGRATION ALERT PROGRAM AUTHORIZATION ACT OF 2018
__________
R E P O R T
of the
COMMITTEE ON HOMELAND SECURITY AND
GOVERNMENTAL AFFAIRS
UNITED STATES SENATE
to accompany
H.R. 6439
TO AMEND THE HOMELAND SECURITY ACT OF 2002 TO
ESTABLISH IN THE DEPARTMENT OF HOMELAND SECURITY THE
BIOMETRIC IDENTIFICATION TRANSNATIONAL MIGRATION ALERT PROGRAM, AND FOR
OTHER PURPOSES
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
December 5, 2018.--Ordered to be printed
______
U.S. GOVERNMENT PUBLISHING OFFICE
89-010 WASHINGTON : 2018
COMMITTEE ON HOMELAND SECURITY AND GOVERNMENTAL AFFAIRS
RON JOHNSON, Wisconsin, Chairman
ROB PORTMAN, Ohio CLAIRE McCASKILL, Missouri
RAND PAUL, Kentucky THOMAS R. CARPER, Delaware
JAMES LANKFORD, Oklahoma HEIDI HEITKAMP, North Dakota
MICHAEL B. ENZI, Wyoming GARY C. PETERS, Michigan
JOHN HOEVEN, North Dakota MAGGIE HASSAN, New Hampshire
STEVE DAINES, Montana KAMALA D. HARRIS, California
JON KYL, Arizona DOUG JONES, Alabama
Christopher R. Hixon, Staff Director
Gabrielle D'Adamo Singer, Chief Counsel
Brian P. Kennedy, Senior Professional Staff Member
Margaret E. Daum, Minority Staff Director
Charles A. Moskowitz, Minority Senior Legislative Counsel
Subhasri Ramanathan, Minority Counsel
Laura W. Kilbride, Chief Clerk
Calendar No. 724
115th Congress } { Report
SENATE
2d Session } { 115-419
======================================================================
BIOMETRIC IDENTIFICATION TRANSNATIONAL MIGRATION ALERT PROGRAM
AUTHORIZATION ACT OF 2018
_______
December 5, 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 H.R. 6439]
[Including cost estimate of the Congressional Budget Office]
The Committee on Homeland Security and Governmental
Affairs, to which was referred the bill (H.R. 6439) to amend
the Homeland Security Act of 2002 to establish in the
Department of Homeland Security the Biometric Identification
Transnational Migration Alert Program, and for other purposes,
having considered the same, reports favorably thereon with
amendments and recommends that the bill, as amended, do pass.
CONTENTS
Page
I. Purpose and Summary..............................................1
II. Background and Need for the Legislation..........................2
III. Legislative History..............................................3
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 Act, as Reported.............6
I. Purpose and Summary
The purpose of H.R. 6439, the Biometric Identification
Transnational Migration Alert Program Authorization Act of
2018, is to authorize the Biometric Identification
Transnational Migration Alert Program (BITMAP) within the
Department of Homeland Security (DHS or the Department). This
Act codifies a program that already exists within U.S.
Immigration and Customs Enforcement-Homeland Security
Investigations (ICE-HSI). This Act instructs the Secretary of
Homeland Security (Secretary) to establish partnerships with
foreign governments for the voluntary collection and sharing of
biometric and biographic information. It also requires the
Secretary to train partner countries' law enforcement officials
to properly collect and disseminate biometric and biographic
information, and to compare collected information with certain
U.S. data sources. The goal of BITMAP is to reduce and address
national security, border security, and terrorism threats
before those threats reach U.S. borders.
II. Background and the Need for Legislation
The U.S. Government is responsible for ``securing
approximately 7,000 miles of land border, 95,000 miles of
shoreline, 328 ports of entry, and the associated air and
maritime space.''\1\ Millions of foreign nationals enter the
U.S. every year.\2\ The vast majority of those entering the
United States are entering legally for business and tourism.
However, some foreign nationals entering the United States pose
a potential threat to national security or public safety. Human
traffickers, drug smugglers, and potential terrorists attempt
to enter the U.S.--both legally and illegally.\3\
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\1\The Implications of the Reinterpretation of the Flores
Settlement Agreement for Border Security and Illegal Immigration
Incentives: Hearing Before the S. Comm. on Homeland Sec. & Governmental
Affairs, 115th Cong. (2018) (statement of Robert E. Perez, Acting
Deputy Comm'r , Dep't of Homeland Sec.), available at https://
www.hsgac.senate.gov/imo/media/doc/Testimony-Perez-2018-09-18.pdf.
\2\Int'l Trade Admin., Nat'l Travel & Tourism Office, Fast Facts:
United States Travel and Tourism Industry (2017), available at http://
tinet.ita.doc.gov/outreachpages/download_data_table/
Fast_Facts_2017.pdf; see also Lori Robertson, Illegal Immigration
Statistics, Fact Check (June 28, 2018), https://www.factcheck.org/2018/
06/illegal-immigration-statistics/.
\3\See generally U.S. Gov't Accountability Office, GAO-17-170, DHS
Has Made Progress in Planning for a Biometric Air Exit System and
Reporting Overstays, but Challenges Remain (2017), available at https:/
/www.gao.gov/assets/690/683036.pdf (``[visa] overstays could pose
significant homeland security risks. 5 of the 19 September 11, 2001,
hijackers were overstays''); Securing the Border: Biometric Entry and
Exit at our Ports of Entry: Roundtable Before the S. Comm. on Homeland
Sec. & Governmental Affairs, 114th Cong. (2015); see generally U.S.
Immigration & Customs Enforcement, Human Trafficking and Smuggling,
available at https://www.ice.gov/factsheets/human-trafficking
(highlighting specific instances where people are trafficked into the
U.S. illegally or with legal visas for the purpose of exploitation).
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One way that the United States works to prevent the entry
of potential threat actors is to form partnerships with foreign
governments to prevent them from ever reaching the U.S.
border.\4\ The BITMAP is an extension of these partnerships and
security operations that go beyond U.S. borders. Participating
BITMAP countries collect biographical and biometric data from
individuals they have identified as being a potential
threat.\5\
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\4\U.S. Immigration and Customs Enforcement, International
Operations (2018), available at https://www.ice.gov/international-
operations.
\5\Dep't of Homeland Sec., Operations Analysis--Biometric
Identification Transnational Migration Alert Program (BITMAP) Project,
(2016), available at https://www.dhs.gov/sites/default/files/
publications/BITMAP_2016%2009%2027.pdf.
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The data collected through BITMAP is shared with U.S. and
partner countries' law enforcement and intelligence community
members to assess and monitor potential threats.\6\ These
threats include human traffickers, drug smugglers, and
terrorists who are bound for the U.S. border or port of
entry.\7\ This data is used to assess migration trends of
special interest individuals and assist DHS in developing more
refined strategies for preventing threats from reaching U.S.
borders.\8\ In 2018, more than a dozen countries are
participating in BITMAP, with additional countries regularly
joining.\9\
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\6\Id.
\7\Marc R. Rosenblum et al., Cong. Research Serv., R42969, Border
Security: Understanding Threats at U.S. Borders (Feb 21, 2013),
available at https://fas.org/sgp/crs/row/R41349.pdf.
\8\Dep't of Homeland Sec., supra note 5.
\9\Combatting Transnational Gangs Through Information Sharing:
Hearing Before the H. Comm. on Homeland Sec., Subcomm. on Counterterror
and Intelligence, 115th Cong. (2018) (statement of Raymond Villanueva,
Ass. Dir. of Int'l Operations, U.S. Immigration and Customs
Enforcement), available at https://www.ice.gov/sites/default/files/
docum5nts/Speech/2018/180523villanueva.pdf.
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The 9/11 Commission Report and the Implementing
Recommendations of the 9/11 Commission Act of 2007 stressed the
importance and value of collecting biometric data at U.S.
border entry locations to keep the nation safe.\10\ BITMAP has
taken the very same principles of the biometric data collection
in the U.S. and expanded those capabilities to partner
countries.\11\
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\10\Dep't of Homeland Sec., Privacy Impact Assessment Update for
the Biometric Exit Mobile Program (2018), available at https://
www.dhs.gov/sites/default/files/publications/privacy-pia-cbp026a-
bemobile-june2018.pdf.
\11\Threats to the Homeland: Hearing Before the S. Comm. on
Homeland Sec. & Governmental Affairs, 115th Cong. (2018) (statement of
Elaine C. Duke, Acting Sec'y of Homeland Sec., Dep't of Homeland Sec.)
available at https://www.hsgac.senate.gov/imo/media/doc/Testimony-Duke-
2017-09-27.pdf.
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The BITMAP program is a vital component of DHS's ability to
detect potential threats beyond our borders. H.R. 6439 codifies
the program to solidify the role BITMAP is already playing in
identifying and tracking members of transnational criminal
organizations, smugglers, and terrorists.\12\ To ensure
appropriate congressional oversight, the bill requires the DHS
Secretary to submit reports and brief the appropriate
congressional committees on BITMAP's progress and
implementation.\13\
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\12\See Combatting Transnational Gangs Through Information Sharing,
supra note 9.
\13\H.R. 6439, 115th Cong. (2018).
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III. Legislative History
Rep. Michael McCaul, (R-TX-10) introduced H.R. 6439 on July
19, 2018, with Representatives Don Bacon (R-NE-2), John Katko
(R-NY-24), Debbie Lesko (R-AZ-8), Brian K. Fitzpatrick (R-PA-
8), Clay Higgins (R-LA-3), Mike Rogers (R-AL-3), Peter T. King
(R-NY-2), Martha McSally (R-AZ-2), William R. Keating (D-MA-9),
and Daniel M. Donovan Jr. (R-NY-11). Representatives John
Ratcliffe (R-TX-4), and Mike Gallagher (R-WI-8) joined as
cosponsors on July 23, 2018.
The Act passed the House Committee on Homeland Security on
July 24, 2018. The Act passed the House on September 4, 2018 by
a vote of 272 to 119.
The Act was referred to the Committee on Homeland Security
and Governmental Affairs on September 5, 2018. The Committee
considered H.R. 6439 at a business meeting on September 26,
2018. During the business meeting, Senators Doug Jones and Tom
Carper offered an amendment that made several changes,
including requiring: (1) the program to expunge erroneously-
captured U.S. citizen data from the BITMAP database; (2) a
Government Accountability Office (GAO) audit; (3) detailed
information for the written report the Secretary must provide
to Congress; and (4) a six-year sunset on the authorization.
Senators Jones and Carper offered a modification to the
amendment. The modification made the following changes: (1)
created an exception in the expungement provision that allows
law enforcement to retain U.S. citizen data that is captured
for a specific law enforcement purpose; (2) consolidated the
details required in the written report the Secretary must
provide to Congress; (3) requires the Secretary to brief the
appropriate congressional committees; and (4) changed the GAO
audit requirement from every two years to every three years.
The amendment as modified was adopted by voice vote with
Senators Johnson, Portman, Lankford, Enzi, Hoeven, McCaskill,
Carper, Heitkamp, Peters, Hassan, Harris, and Jones present.
The Act, as amended, was ordered reported favorably by a
voice vote en bloc. The Senators present for voice vote were
Johnson, Portman, Lankford, Enzi, Hoeven, McCaskill, Carper,
Heitkamp, Peters, Hassan, Harris, and Jones. Senator Kamala
Harris asked to be recorded as voting ``no'' for the record.
IV. Section-by-Section Analysis of the Act, as Reported
Section 1. Short title
This section established that the Act may be cited as the
``Biometric Identification Transnational Migration Alert
Program Authorization Act of 2018.''
Section 2. Biometric Identification Transnational Migration Alert
Program
Subsection (a) codifies BITMAP. BITMAP is established to
identify, track, and reduce national security, terrorist, or
border security threats before they reach the U.S.
international border.
The subsection establishes the Secretary's obligations,
acting through the Director of Immigration and Customs
Enforcement, to carry out BITMAP. The Secretary must work with
the Secretary of State, the heads of other Federal agencies,
and foreign government officials to encourage voluntary sharing
of biometric and biographic data to help determine which
foreign nationals pose a security threat. Under this
subsection, the Secretary must also provide training and
equipment to partner countries so that they can voluntarily
collect the necessary BITMAP data and learn to collect the data
properly. Partner countries must also be trained and equipped
to compare BITMAP data to U.S. databases. The subsection also
requires the Secretary to ensure that the data collected for
BITMAP is in compliance with policies established by the
Privacy Officer.
The subsection establishes that the Secretary is required
to include relevant parts of the Department in BITMAP and seek
out participation from other Federal agencies. It also
establishes the requirements for the Secretary to follow when
incorporating a new partner country into BITMAP. When entering
into new BITMAP agreements with foreign countries the
agreements must include specific information, objectives, and
training. The new agreements must also be made in consultation
with the Secretary of State.
There are congressional reporting requirements for BITMAP.
Sixty days prior to entering into a new agreement, the
Secretary must provide the appropriate congressional committees
a copy of the agreement.
The subsection also requires that all data collected on
U.S. citizens for BITMAP be expunged from all databases unless
the information was gathered for law enforcement purposes.
Subsection (b) requires the Secretary to provide a report
to the appropriate congressional committees and specifies what
information must be provided in that report. The report must be
provided within the first 180 days of the Act's enactment and
then annually for the following five years.
Subsection (c) requires the Secretary to brief the
appropriate congressional committees promptly after providing
the reports required by subsection (b). The briefing must
specify the individuals enrolled in BITMAP who were arrested
and of any asylum claims made by individuals enrolled in
BITMAP.
Subsection (d) requires GAO to conduct an audit of BITMAP
no later than six months after the enactment of this Act and
every three years thereafter. The audit must study the
effectiveness of BITMAP.
Subsection (e) sunsets the authorization of the program six
years after it is enacted.
Subsection (f) amends the table of contents of the Homeland
Security Act of 2002.
V. Evaluation of Regulatory Impact
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 Act and determined
that the Act will have no regulatory impact within the meaning
of the rules. The Committee agrees with the Congressional
Budget Office's statement that the Act 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.
VI. Congressional Budget Office Cost Estimate
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 Department of Homeland
Security legislation ordered reported by the Committee on
Homeland Security and Governmental Affairs on September 26,
2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall,
Director.
Enclosure.
Department of Homeland Security Legislation
On September 26, the Senate Committee on Homeland Security
and Governmental Affairs ordered two pieces of legislation to
be reported:
H.R. 5206, the Office of Biometric Identity
Management Authorization Act of 2018; and
H.R. 6439, the Biometric Identification
Transnational Migration Alert Program Authorization Act
of 2018.
Each act would mostly codify a current program in the
Department of Homeland Security (DHS). CBO estimates that
enacting the legislation would not significantly affect
spending by DHS.
Enacting the legislation would not affect direct spending
or revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting the legislation would not
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2029.
Neither act contains intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On June 28, 2018, CBO transmitted a cost estimate for H.R.
5206 as reported by the House Committee on Homeland Security on
June 21, 2018. On August 6, 2018, CBO transmitted a cost
estimate for H.R. 6439 as ordered reported by the House
Committee on Homeland Security on July 24, 2018. CBO's
estimates of the two versions for each piece of legislation are
the same.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
VII. Changes in Existing Law Made by the Act, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the Act, as reported, are shown as follows: (existing law
proposed to be omitted is enclosed in brackets, new matter is
printed in italic, and existing law in which no change is
proposed is shown in roman):
HOMELAND SECURITY ACT OF 2002
* * * * * * *
SEC. 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Homeland
Security Act of 2002.''
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. * * *
* * * * * * *
TITLE IV--BORDER, MARITIME, AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle D--Immigration Enforcement Functions.
* * * * * * *
Sec. 447. Biometric Identification Transnational Migration Alert Program
* * * * * * *
TITLE IV--BORDER, MARITIME, AND TRANSPORTATION SECURITY
* * * * * * *
Subtitle D--Immigration Enforcement Functions
* * * * * * *
SEC. 447. BIOMETRIC IDENTIFICATION TRANSNATIONAL MIGRATION ALERT
PROGRAM.
(a) Establishment.--There is established in the Department
a program to be known as the Biometric Identification
Transnational Migration Alert Program (referred to in this
section as ``BITMAP'') to address and reduce national security,
border security, and terrorist threats before such threats
reach the international border of the United States.
(b) Duties.--In carrying out BITMAP operations, the
Secretary, acting through the Director of U.S. Immigration and
Customs Enforcement, shall--
(1) coordinate, in consultation with the Secretary of
State, appropriate representatives of foreign
governments, and the heads of other Federal agencies,
as appropriate, to facilitate the voluntary sharing of
biometric and biographic information collected from
foreign nationals for the purpose of identifying and
screening such nationals to identify those nationals
who may pose a terrorist threat or a threat to national
security or border security;
(2) provide capabilities, including training and
equipment, to partner countries to voluntarily collect
biometric and biographic identification data from
individuals to identify, prevent, detect, and interdict
high risk individuals identified as national security,
border security, or terrorist threats who may attempt
to enter the United States utilizing illicit pathways;
(3) provide capabilities, including training and
equipment, to partner countries to compare foreign data
against appropriate United States national security,
border security, terrorist, immigration, and counter-
terrorism data, including--
(A) the Federal Bureau of Investigation's
Terrorist Screening Database, or successor
database;
(B) the Federal Bureau of Investigation's
Next Generation Identification database, or
successor database;
(C) the Department of Defense Automated
Biometric Identification System (commonly known
as ``ABIS''), or successor database;
(D) the Department's Automated Biometric
Identification System (commonly known as
``IDENT''), or successor database; and
(E) any other database, notice, or means that
the Secretary, in consultation with the heads
of other Federal departments and agencies
responsible for such databases, notices, or
means, designates;
(4) provide partner countries with training,
guidance, and best practices recommendations regarding
the enrollment of individuals in BITMAP; and
(5) ensure biometric and biographic identification
data collected pursuant to BITMAP are incorporated into
appropriate United States Government databases, in
compliance with the policies and procedures established
by the Privacy Officer appointed under section 222.
(c) Collaboration.--The Secretary shall ensure that BITMAP
operations include participation from relevant components of
the Department, and request participation from other Federal
agencies, as appropriate.
(d) Agreements.--Before carrying out BITMAP operations in a
foreign country that, as of the date of the enactment of this
section, was not a partner country described in this section,
the Secretary, in consultation with the Secretary of State,
shall enter into agreement or arrangement with the government
of such country that sets forth program goals for such country,
includes training, guidance, and best practices recommendations
regarding the enrollment of individuals in BITMAP, and outlines
such operations in such country, including related departmental
operations. Such country shall be a partner country described
in this section pursuant to and for purposes of such agreement
or arrangement.
(e) Notification to Congress.--Not later than 60 days
before an agreement with the government of a foreign country to
carry out BITMAP operations in such foreign country enters into
force, the Secretary shall provide the Committee on Homeland
Security of the House of Representatives and the Committee on
Homeland Security and Governmental Affairs of the Senate with a
copy of the agreement to establish such operations, which shall
include--
(1) the identification of the foreign country with
which the Secretary intends to enter into such an
agreement;
(2) the location at which such operations will be
conducted;
(3) goals for BITMAP operations in the foreign
country; and
(4) the terms and conditions for Department personnel
operating at such location.
(f) Captured Information of United States Citizens.--The
Secretary shall ensure that any biometric and biographic
identification data of United States citizens that is captured
by BITMAP operations is expunged from all databases to which
such data was uploaded, unless the information is retained for
specific law enforcement or intelligence purposes.
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