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Engrossed Version House Bill 4176 History

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Key: Green = existing Code. Red = new code to be enacted

WEST virginia legislature

2020 regular session

ENGROSSED

Committee Substitute

for

House Bill 4176

By Delegates Miller, Hanshaw (Mr. Speaker), Miley, Shott, D. Kelly, Kessinger, Canestraro and Lovejoy

[Introduced January 14, 2020; Referred to the Committee on Veterans’ Affairs and Homeland Security then the Judiciary.]




Be it enacted by the Legislature of West Virginia:


 ARTICLE 9. WEST VIRGINIA FUSION CENTER.

§15A-9-1. West Virginia Fusion Center Established.


(a) The Governor shall establish, organize, equip, staff, and maintain a multiagency information fusion center (“Fusion Center”) to receive, analyze, and disseminate all hazards, all crimes, and all threat information. The Department of Homeland Security shall operate the facility, as directed by the Governor, with oversight auditing and accountability to the select committee of the legislature as set forth herein,  and in collaboration among federal, state, and local agencies, as well as private sector persons, organizations, entities or agencies, including, but not limited to, those with the primary purposes of homeland security, counter-terrorism, public safety, public protection and critical infrastructure: Provided, That the Fusion Center shall not knowingly allow a contractor for a federal intelligence agency work inside of the Fusion Center. The Fusion Center shall collect, integrate, analyze, disseminate, and maintain such information to support local, state, and federal law-enforcement agencies, other governmental agencies, and private persons, organizations, entities or agencies in detecting, preventing, investigating, preparing for, responding to, and recovering from any possible or actual criminal and/or terrorist activity, as well as any hazard,  including the state’s critical infrastructure, in compliance with applicable state and federal laws and regulations, including 28 CFR 23: Provided, That as used in this article, “terrorism” shall mean only foreign or international terrorist groups or individuals, or of domestic groups or individuals involved in transnational or domestic terrorism as defined in 6 U.S.C. §485(a)(5): Provided further, That under no circumstances whatsoever shall the Fusion Center or its officers, directors, agents or employees engage in, or be ordered or directed to engage in prohibited non-law enforcement  intelligence gathering activities on citizens of the United States as set forth in any federal or state law or in contravention of the Constitution of the United States, nor shall the Fusion Center in any way be utilized, engage in, or be directed to be utilized or engaged in any information or intelligence gathering or intelligence operation of any kind for any political purpose whatsoever.

(b)  The West Virginia Fusion Center shall be housed within secure facilities in order to access sensitive information, as permitted by state and federal law. Within the secure facilities, the Fusion Center shall house a Homeland Secure Data Network (HDSN) in order to access classified information, as permitted by state and federal law and ensure that appropriate security measures are in place for: (1) The secure facilities; (2) data collected or stored at the secure facilities; and (3) personnel working at the secure facilities.

(c) The West Virginia Fusion Center shall do all acts necessary and proper to carry out the powers granted to the board State Resiliency Office.

§15A-9-2. Operation of center.


(a) The West Virginia Department of Homeland Security shall operate the West Virginia Fusion Center under the direction of the Governor, with oversight auditing and accountability to select committee of the legislature as set forth herein,  and shall cooperate with the United States Department of Homeland Security, local, county, state, or federal government agencies, and private organizations: Provided, That under no circumstance shall any private sector persons, organizations, entities or agencies utilizing or collaborating with the Fusion Center be a contract operator for any federal intelligence agency: Provided further, That all Fusion Center operations shall be subject to applicable state and federal laws and regulations, including, but not limited to, 28 CFR Part 23 and shall at all times strictly abide by all restrictions and prohibitions against conducting non-law enforcement  intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States, including but not limited to, 50 U.S.C. §3036(d).

(b) The West Virginia Fusion Center shall:  (1) Be the primary clearing house for the State of West Virginia for the collection, the analysis of and the proper distribution of information and actionable intelligence as defined in this section; (2) generate intelligence analysis critical for homeland security policy and relevant threat warning in order to protect life, liberty and property in West Virginia; (3) promote and improve intelligence sharing among public safety and public service agencies at the federal, state, and local levels, and with critical infrastructure and key resource entities within the private sector subject to all restrictions and prohibitions recited in Chapter 15A, Article 9 of this code; (4) receive and integrate intelligence and information related to terrorism and other homeland security threats; (5) collect, analyze, produce, disseminate, and maintain such intelligence and information, as allowed by law, to support local, state, and federal law enforcement agencies, other governmental agencies and private organizations in: preventing, preparing for, responding to, and recovering from any possible or actual terrorist attack or other homeland security threat; and (6) maximize intelligence and information sharing in strict accordance with all applicable state and federal laws, restrictions and prohibitions: Provided, That the Fusion Center shall not knowingly allow a contractor for a federal intelligence agency work inside of the Fusion Center.

(c) The Governor shall provide facilities, budget, and administrative support for the West Virginia Fusion Center and its employees and participants. The cabinet secretary for the West Virginia Department of Homeland Security shall be the custodian of all records collected and maintained at the West Virginia Fusion Center, and also shall serve as security manager for the West Virginia Fusion Center.

(d) Private sector persons, organizations, entities or agencies participating in the West Virginia Fusion Center shall not be considered governmental entities, nor shall employees or agents of private sector persons, organizations, entities or agencies assigned to the West Virginia Fusion Center be considered state employees; however, private sector entities and their employees or agents are subject to the same confidentiality requirements and held to the same standards as an employee of the West Virginia Fusion Center; including but not limited to, any and all restrictions and prohibitions against conducting non-law enforcement intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States, including but not limited to, 50 U.S.C. §3036(d): Provided, That under no circumstance shall any private sector persons, organizations, entities or agencies utilizing or collaborating with the Fusion Center be a contract operator for any federal intelligence agency.

(e) The operations of the West Virginia Fusion Center shall be overseen by cabinet secretary and deputy cabinet secretary of the West Virginia Department of Homeland Security, with oversight auditing and accountability to select committees of the legislature as set forth herein.

(f) The cabinet secretary and deputy cabinet secretary shall have a current, valid federal security clearance at the appropriate level.

(g) The cabinet secretary and deputy cabinet secretary may adopt policies and procedures for the operation of the West Virginia Fusion Center. The cabinet secretary and deputy cabinet secretary may adopt rules and regulations as may be necessary to carry out the provisions of this act, including rules and regulations concerning the operations of the West Virginia Fusion Center: Provided, That all policies, procedures, rules and regulations shall be subject to any and all restrictions and prohibitions against conducting non-law enforcement intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States, including but not limited to, 50 U.S.C. §3036(d).

(h) Subject to appropriations, the West Virginia Fusion Center shall have the following employees, all in the unclassified service of the civil service act:

(1) A director, who shall be appointed by and serve at the pleasure of the cabinet secretary. The director shall have a current, valid federal security clearance at the appropriate level and training and certifications commensurate with the position and shall:

(A) Be responsible for all operations of the West Virginia Fusion Center and shall report to the cabinet secretary or deputy cabinet secretary;

(B) Be responsible for:

(2) Facilitating and implementing applicable federal standards and programs by the West Virginia Fusion Center;

(3) Ensuring compliance with all applicable laws and federal requirements, including but not limited to, any and all restrictions and prohibitions against conducting non-law enforcement  intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States, including but not limited to, 50 U.S.C. §3036(d); and

(4) Maintaining proper separation between military and civilian capacities;

(C) Provide support, as needed, to the cabinet secretary and deputy cabinet secretary; and

(D) Other duties and responsibilities as may be assigned by the cabinet secretary and deputy cabinet secretary, subject to all restrictions and prohibitions described in Chapter 15A, Article 9 of this code;

(5) A deputy director shall have a current, valid federal security clearance at the appropriate level, training and certifications commensurate with the position who shall be responsible for assisting the director in: (A) Facilitating and implementing applicable federal standards and programs by the West Virginia Fusion Center; (B) ensuring compliance with all applicable laws and federal requirements; (C) maintaining proper separation between military and civilian capacities; (D) providing support, as needed, to the cabinet secretary and deputy cabinet secretary; and (E) other duties and responsibilities as may be assigned by the Fusion Center director, other employees as may be authorized by cabinet secretary and deputy cabinet secretary to administer properly the provisions of this act.

§15A-9-3. Joint Oversight Committee.


(a) The Speaker of the House of Delegates and President of the Senate shall establish a select committee which shall have oversight of the information collected by the West Virginia Fusion Center to ensure the proper collection, dissemination, storage, and destruction of information or intelligence. The committee shall be comprised of: (i)  the Speaker of the House of Delegates and four members of the House of Delegates, to be appointed by the Speaker of the House of Delegates, no more than two of whom shall be appointed from the same political party;  (ii) the President of the Senate and four members of the Senate, to be appointed by the President of the Senate, no more than two of whom shall be from the same political party; and counsel and staff to the Speaker and the Senate President: Provided, That in the event the membership of a political party is less than 15 percent in the House of Delegates or Senate, then the membership of that political party from the legislative house with less than 15 percent membership may be one from that house. The committee shall be chaired by the President of the Senate and the Speaker of the House of Delegates. All members appointed to the Select Committee by the Select Committee chairs serve until their successors are appointed as provided in this section. The Select Committee members counsel, and staff must have the appropriate security clearance in order to obtain information that is classified and shall be subject to the same rules, regulations, and laws as the employees of the West Virginia Fusion Center for safeguarding both classified and law enforcement sensitive information or intelligence.  These Select Committee members counsel, and staff shall be advised of the restrictions and protocol for handling such information or intelligence and shall sign a statement of understanding as well as a confidentiality agreement.

(b) Members of the Select Committee may enter and inspect the West Virginia Fusion Center at any time, during normal business hours, with Select Committee counsel, and staff with or without notice to the West Virginia Fusion Center.

(c) Meetings of the Select Committee shall be confidential and the information, materials, in any medium, including hard copy and electronic, coming to the knowledge of or placed in the custody of the Select Committee and shall not be subject to the West Virginia Freedom of Information Act (§29B-1-1 et seq. of this code).

(d) The Select Committee may conduct proceedings in a confidential executive session for the purpose of establishing business, establishing policy, reviewing investigations, and interrogating a witness or witnesses.

(e) All witnesses appearing before the Select Committee shall testify under oath or affirmation, and any member of the Select Committee or its counsel may administer oaths or affirmations to such witnesses. To compel witnesses to attend a hearing or produce any books, records, documents, or papers, or any other tangible thing except where the records, documents, data, or items are protected from disclosure by privilege recognized by state or federal courts, the Select Committee may issue subpoenas, signed by one of the cochairs: Provided, That the Select Committee may specifically authorize or delegate the power to any member of the Select Committee to sign subpoenas on its behalf. The subpoenas shall be served by any person authorized by law to serve and execute legal process, and service shall be made without charge. Witnesses subpoenaed to attend hearings shall be allowed the same mileage and per diem as is allowed witnesses before any petit jury in this state.

(f) If any person subpoenaed to appear at any hearing shall refuse to appear or to answer inquiries there propounded, or shall fail or refuse to produce books, records, documents, papers, or any other tangible thing within his or her control when the same are demanded, the Select Committee shall report the facts to the circuit court of Kanawha County or any other court of competent jurisdiction and such court may compel obedience to the subpoena as though such subpoena had been issued by such court in the first instance: Provided, That prior to seeking circuit court relief, the Select Committee may, in its discretion, first demand the Secretary Homeland Security and/or the Director of the West Virginia Fusion Center under whom an employee has failed to appear or which has failed to produce requested or subpoenaed material to appear before the Select Committee and address the basis for the failure to comply and whether compliance will be forthcoming.

(g) The Select Committee may direct the West Virginia Fusion Center to send its budgetary accounting to the State Auditor: Provided, That if budgetary expenditures are classified, or security, or law enforcement sensitive that would compromise an investigation, those entry descriptions, but not the expenditure amounts, may be redacted from the West Virginia Fusion Center accounting provided to the State Auditor: Provided further, That the State Auditor shall bring any accounting issues of concern to the attention of the Select Committee, upon which the Select Committee shall subpoena the West Virginia Fusion Center for unredacted copies of the accounting items to be presented for explanation and justification of the necessity and legality of the concerns raised by the State Auditor.  The Select Committee shall take whatever action it deems necessary, if any, after review and analysis of the subpoenaed unredacted materials.   

§15A-9-4. Memorandum of understanding required.


(a) Each governmental and nongovernmental entity participating in the West Virginia Fusion Center shall enter a memorandum of understanding between the West Virginia Fusion Center and the participating entity. Said memorandum of understanding shall at a minimum:

(1) Provide a framework and working mechanism for the organization of the West Virginia Fusion Center to address issues that are common to city, county, state, and federal governments’ obligations to protect the safety and well-being of  citizens and to enhance the success of the Fusion Center in responding to criminal, terrorist, and other threats to public safety through the achievement of coordination and cooperation;

(2) Clarify the working relationships between the governmental and nongovernmental entities and use limitations of shared information; and

(3) Outline the intent of the parties regarding the information provided by the non- governmental entities to the West Virginia Fusion Center.

(b) Nothing in any agreement shall obligate any nongovernmental entity to provide information nor establish any duty for any nongovernmental entity to assume any police or law enforcement responsibilities.

(c) Failure of any governmental or nongovernmental entity to abide by the restrictions and use limitations set forth by the West Virginia Fusion Center may result in the suspension or termination of use privileges, discipline sanctions imposed by the user’s employing agency, or criminal prosecution.

(d) Any and all interagency Memorandums of Understanding and participating public or private persons, organizations, entities or agencies described in this section shall be subject to all restrictions and prohibitions described in this section.

§15A-9-5. Confidentiality and immunity from service of process; penalties.


(a) Except as set forth in subsection (d) below, papers, records, documents, reports, materials, databases, or other evidence or information relative to criminal intelligence or any terrorism investigation in the possession of the West Virginia Fusion Center shall be confidential and shall not be subject to the West Virginia Freedom of Information Act (§29B-1-1 et seq. of this code): Provided, That this exemption from the West Virginia Freedom of Information Act may be lifted in the event of that a court determines in a state or federal Whistleblower action that unlawful or unauthorized activity has taken place, and shall in no way restrict the legislature’s oversight committee from access to all such information.  Every five years, the West Virginia Fusion Center shall conduct a review of information contained in any database maintained by the West Virginia Fusion Center. Data that has been determined to not have a nexus to criminal or terrorist activity shall be removed from such database. A reasonable suspicion standard shall be applied when determining whether or not information has a nexus to terrorist activity for non-U.S. citizens, but a probable cause standards shall apply for U.S. citizens: Provided, That all such determinations shall be reported to the legislature’s oversight committee at regularly scheduled oversight audit and committee meetings.

(b) No person, having access to information maintained by the West Virginia Fusion Center, shall be subject to subpoena in a civil action in any court of the state to testify concerning a matter of which he has knowledge pursuant to his access to criminal intelligence information maintained by the West Virginia Fusion Center.

(c)  No person or agency receiving information from the West Virginia Fusion Center shall release or disseminate that information without prior authorization from the West Virginia Fusion Center.

(d) Intelligence data in the possession of a criminal or juvenile justice agency, state or federal regulatory agency, or peace officer, or disseminated by such agency or peace officer, are confidential records under §29B-1-1 et seq. of this code.

(e) Any person who knowingly disseminates information in violation of this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than $200 nor more than $1,000, or be confined for not more than 20 days, or both fined and confined. If such unauthorized dissemination results in death or serious bodily injury to another person, such person is guilty of a felony and, upon conviction, shall be imprisoned in a state correctional facility not less than one nor more than five years: Provided, That all state and federal Whistleblower Protection Act protections shall apply to any person whose disclosures are found to have been made to report or protect against violation or attempted violation of any and all restrictions and prohibitions against conducting non-law enforcement  intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States, including but not limited to, 50 U.S.C. §3036(d).

(f) Any person, being an officer or employee of the United States, the State of West Virginia  or of any department, agency or political subdivision thereof, or any person from the private sector or industry assigned to or working with the West Virginia Fusion Center in any capacity, who knowingly publishes, divulges, discloses, or makes known in any manner, or to any extent not authorized by law, any critical infrastructure or national intelligence information protected from disclosure by this section coming to him or her in the course of their employment, affiliation or official duties with the West Virginia Fusion Center, or by reason of any examination or investigation made by, return, report, or record made to or filed with, such department or agency, officer or employee thereof, shall, upon conviction, be imprisoned not less than one year, and shall be removed from office or employment and affiliation with the West Virginia Fusion Center: Provided, That all state and federal Whistleblower Protection Act protections shall apply to any person whose disclosures are found to have been made to report or protect against violation or attempted violation of any and all restrictions and prohibitions against conducting non-law enforcement  intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States, including but not limited to, 50 U.S.C. §3036(d).

(g) The West Virginia Department of Homeland Security shall provide legal counsel to the West Virginia Fusion Center to serve as privacy and civil liberties counsel to the West Virginia Fusion Center. Such attorney shall advise the West Virginia Fusion Center, director, and deputy director on all matters necessary to ensure compliance with all applicable federal and state privacy or civil liberties laws, obligations, restrictions and prohibitions as set forth herein.

(h) For purposes of this chapter:

(1) “Criminal intelligence information” means data or information that has been evaluated and determined to be relevant to the identification and criminal activity of individuals or organizations that are reasonably suspected of involvement in criminal activity.

(2) “Critical Infrastructure” means systems and assets as defined in 42 U.S.C. § 5195c(e).

(3) “National Intelligence” means data or information determined to meet the definition as defined in 50 U.S.C. §3003 (5): Provided, That Fusion Center activities and operations relating to National Intelligence shall at all times strictly abide by all restrictions and prohibitions against conducting non-law enforcement intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States, including but not limited to, 50 U.S.C. §3036(d). Any use of Fusion Center assets or personnel for political or other unlawful or improper purposes is strictly prohibited.

§15A-9-6. Receipt of information; immunity from liability.


(a) No cause of action for defamation, invasion of privacy, or negligence shall arise against any person for reason of that person’s furnishing of information concerning any suspected, anticipated, or completed criminal violation or terrorist activity when the information is provided to or received from the West Virginia Fusion Center or any federal, state, or local governmental or private sector entity established for the purposes of detecting and preventing acts of criminal activity or terrorism: Provided, That with regard to any Fusion Center intelligence or information gathering activity or operation against a U.S. Citizen related to alleged terrorism or violation of a law, such allegation must be vetted and confirmed by procedures substantially in compliance with those set forth in laws, rules, and regulations, developed in accordance with 50 U.S.C. §3036(d). 

(b) No person shall be subject to such cause of action for cooperating with or furnishing evidence or information regarding any suspected criminal violation to, the West Virginia Fusion Center.

(c) This section shall not provide immunity for those disclosing or furnishing false information with malice or willful intent to injure any person, nor for any person who does not comply with the procedures set forth in §15A-9-6(a) above.

(d) This section does not abrogate or modify in any way common law or statutory privilege or immunity heretofore enjoyed by any person or entity.

§15A-9-7. Costs.


(a) The director, with approval of the cabinet secretary or deputy cabinet secretary, may enter into agreements with participating agencies or organizations, whether public or private, for their participation in the West Virginia Fusion Center. Such agreements: (1) Shall define the duties and responsibilities of each participating agency or organization; (2) may provide for payment by the participating agency or organization of a reasonable share of the cost to establish, maintain and operate the West Virginia Fusion Center, and (3) shall require compliance with all requirements, restrictions and prohibitions set forth in Chapter 15A Article 9 of this code.

(b) (1) The West Virginia Fusion Center, with approval of the cabinet secretary or deputy cabinet secretary, may accept any gift, grant, payment, moneys or assets seized by forfeiture as a result of collaborative efforts or contribution from any source, public or private, for the purpose of paying the costs to establish, maintain or operate the West Virginia Fusion Center. Such gift, grant, payment, moneys or assets seized by forfeiture as a result of collaborative works or contribution may be in the form of services, equipment, supplies, materials or funds. All amounts received under this section shall be remitted to the State Treasurer in accordance with chapter 12 of this code, and the amendments thereto. Upon receipt of each such remittance, the State Treasurer shall deposit the entire amount in the State Treasury to the credit of the West Virginia Fusion Center Fund, that is hereby created in the State Treasury and shall be administered by the West Virginia Department of Homeland Security in accordance with this article and subject to regular auditing and oversight by the legislature’s select oversight committee.

(2) Moneys in the West Virginia Fusion Center Fund may be used by the director to pay any costs associated with establishing, maintaining or operating the West Virginia Fusion Center. The director of the West Virginia Fusion Center Fund shall develop policy and procedures for purchasing, and expenditures shall be made in accordance with vouchers approved by the director or the director’s designee. Any gift, grant, payment, moneys, or any assets seized by forfeiture as a result of collaborative efforts, or contribution in any form, other than funds may be accepted by the director, with approval of the cabinet secretary, and utilized and expended in any manner authorized by law to establish, maintain or operate the West Virginia Fusion Center: Provided, That all moneys used by the director shall be subject to all restrictions and prohibitions set forth in Chapter 15A Article 9, and also to regular auditing and oversight by the legislature’s select oversight committee. 

(3) The moneys credited to the fund created in subsection (b) shall be used for the purposes set forth in this section and for no other governmental purposes. It is the intent of the Legislature that the moneys deposited in this fund shall remain intact and inviolate for the purposes set forth in this act.

§15A-9-8. Registration plates to official vehicles; used in agency activities.


Notwithstanding any provision of this code to the contrary, the Commissioner of the Division of Motor Vehicles is authorized to issue Class A license plates to authorized state-owned vehicles operated by the West Virginia Fusion Center when the director signs a written affidavit stating that the vehicle or vehicles for which the plates are being requested will be used by the West Virginia Fusion Center in fulfilling its mission.

 

NOTE: The purpose of this bill is to establish the West Virginia Fusion Center, operation of center, confidentiality and immunity from service of process; penalties, receipt of information, immunity from liability, costs, and protection of civil liberties from unlawful intelligence gathering activity and relating to Class A registration plates for official use.

Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.

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