The Homeland Security Act (HSA) of 2002 was enacted in response to the September 11, 2001 attacks in the U.S. HSA was enacted by the Senate and House of Representatives on November 25, 2002. HSA is a sweeping anti-terrorism bill giving federal law enforcement agencies broad powers to prevent terrorist attacks within the U.S. HSA provided for the establishment of the U.S. Department of Homeland Security (DHS) as an executive department of the U.S. Within the DHS, a new cabinet-level position of secretary of homeland security was created.
HSA has a large number of data-related provisions. HSA also contains provisions for the consolidation of several federal groups, their IT systems and data into a single agency. HSA requires the agency to create strong communications and IT infrastructure and advanced capabilities to access, receive, and analyze data and information. HSA also covers privacy, access to information, and research on technologies.
According to the provisions contained in HSA, unless it is specifically provided by law, the primary responsibility for investigating and prosecuting acts of terrorism shall be vested not in the DHS, but rather in federal, state, and local law enforcement agencies with jurisdiction over the acts in question.
Section 211 of HSA is cited as the Critical Infrastructure Information Act of 2002. According to this section, the president or the secretary of homeland security can designate a critical infrastructure protection program to receive critical infrastructure information[i]. HSA, further provides for the establishment of uniform procedures for the receipt, care, and storage by federal agencies of critical infrastructure information that is voluntarily submitted to the government[ii].
Pursuant to Section 221 of HSA, the secretary of homeland security shall establish procedures[iii]:
- to limit the re-dissemination of such information to ensure that it is not used for an unauthorized purpose;
- to ensure the security and confidentiality of such information;
- to protect the constitutional and statutory rights of any individuals who are subjects of such information; and
- to provide data integrity through the timely removal and destruction of obsolete or erroneous names and information.
Further, to assist local communities to respond and recover from attacks on information systems and communications networks, a national technology guard, commonly referred as ‘NET Guard’’ was established under HSA. NET Guard is comprised of local teams of volunteers with expertise in relevant areas of science and technology[iv].
Section 225 of HSA is referred to as the Cyber Security Enhancement Act of 2002 (Cyber Act)[v]. According to the Cyber Act, the U.S. sentencing commission shall ensure that the sentencing guidelines and policy statements reflect the serious nature of the offense of fraud and related activity in connection with computers, the growing incidence of such offenses, and the need for an effective deterrent and appropriate punishment to prevent such offenses. The U.S. sentencing commission must also consider the potential and actual loss resulting from the offense, the level of sophistication and planning involved in the offense, whether the offense was committed for purposes of commercial advantage or private financial benefit, whether the defendant acted with malicious intent to cause harm in committing the offense, the extent to which the offense violated the privacy rights of individuals harmed, whether the offense involved a computer used by the government in furtherance of national defense, national security, or the administration of justice, whether the violation was intended to or had the effect of significantly interfering with or disrupting a critical infrastructure, and whether the violation was intended to or had the effect of creating a threat to public health or safety, or injury to any person. In addition to these functions, the U.S. sentencing commission must:
- assure reasonable consistency with other relevant directives and with other sentencing guidelines;
- account for any additional aggravating or mitigating circumstances that might justify exceptions to the generally applicable sentencing ranges; and
- make any necessary conforming changes to the sentencing guidelines.
Section 861 of HSA is cited as the Support Anti-terrorism by Fostering Effective Technologies Act of 2002 or the Safety Act. In accordance with the Safety Act, the secretary to homeland security may designate anti-terrorism technologies that qualify for protection under the system of risk management. Section 891 of HSA is cited as the Homeland Security Information Sharing Act. Under this section the federal government is required by the Constitution to provide for the common defense which includes terrorist attack. Further, Section 1001 of HSA is cited as the Federal Information Security Management Act of 2002, section 1121 of HSA is cited as Safe Explosives Act, section 1301 of HSA is cited as the Chief Human Capital Officers Act of 2002, and section 1401 of HSA is cited as the Arming Pilots Against Terrorism Act.
The different directorates, bureaus, and offices constituted under DHS by the HSA are:
- Directorate of Science and Technology headed by an under secretary for Science and Technology to adopt and implement research and development efforts and priorities in support of the DHS’s missions[vi];
- Directorate of Border and Transportation Security headed by an under secretary for Border and Transportation Security to prevent and secure U.S. borders from the entry of terrorists and the instruments of terrorism into the U.S;
- Directorate of Emergency Preparedness and Response headed by an under secretary for Emergency Preparedness and Response to ensure the effectiveness of emergency response providers to terrorist attacks, major disasters, and other emergencies;
- Bureau of Border Security headed by the assistant secretary of the Bureau of Border Security to establish policies for performing functions transferred to the under secretary for Border and Transportation Security. The bureau shall also oversee and advise the under secretary on such policies;
- Bureau of Citizenship and Immigration Services headed by the director of the Bureau of Citizenship and Immigration Services to establish policies on functions that are transferred to the director from the commissioner of immigration and naturalization;
- Office for Domestic Preparedness headed by the director of the Office for Domestic Preparedness to ensure the preparedness of the U.S for acts of terrorism. The office is constituted within the Directorate of Border and Transportation Security;
- Office for State and Local Government Coordination to oversee and coordinate departmental programs for and relationships with state and local governments. The office is established within the office of the secretary;
- Office of International Affairs headed by the director to promote information and education exchange with nations friendly to the U.S in order to promote sharing of best practices and technologies relating to homeland security;
- Office of the Secretary the Office of National Capital Region Coordination headed by the director to oversee and coordinate federal programs for and relationships with state, local, and regional authorities in the National Capital Region;
- U.S. Customs Service headed by the commissioner of customs to carry out the several customs revenue functions; and
- Homeland Security Council to advise the President on homeland security matters.
[i] 6 USCS § 132.
[ii] 6 USCS § 133.
[iii] 6 USCS § 141.
[iv] 6 USCS § 144.
[v] 6 USCS § 145.
[vi] 6 USCS § 181.