A new congressional bill could shape the way open-source intelligence is utilized.

President Biden is expected to sign the recently passed fiscal year 2023 National Defense Authorization Act (NDAA), authorizing $858 billion in spending and policy for the Department of Defense (DoD) and intelligence community (IC) via the FY23 Intelligence Authorization Act (IAA). 

The NDAA is seen as “must-pass” legislation, and while it doesn’t appropriate funding, it provides oversight and sets policy for the DoD. The IAA is a separate bill, but this year is attached to the NDAA, while in previous years it’s been attached to year-end omnibus funding legislation. 

The provisions included below cover a variety of national security issues with an open-source intelligence nexus. 

DIVISION F - FY23 Intelligence Authorization Act 

Section 6311. Assessing intelligence community open-source support for export controls and foreign investment screening

This section requires the Office of the Director of National Intelligence (ODNI) to implement an intelligence sharing pilot program with the Departments of Commerce and Homeland Security and report to Congress on the value of utilizing open-source, publicly and commercially available information. 

The Director of National Intelligence shall carry out a pilot program to assess the feasibility and advisability of providing enhanced intelligence support, including intelligence derived from open source, publicly and commercially available information..

The Report shall include the following:

An assessment of the value of open source, publicly and commercially available information to the export control and investment screening missions.

Identification of opportunities for and barriers to more effective use of open source, publicly and commercially available information by the intelligence community.

Sec. 6318. Measures To Mitigate Counterintelligence Threats From Proliferation And Use Of Foreign Commercial Spyware. 

The bill recognizes the threat foreign commercial spyware poses both to U.S. national security interests and the digital privacy of U.S. citizens. In response to the unique counterintelligence threat to national security and intelligence personnel, the intelligence community is directed to report to Congress on the foreign commercial spyware threat landscape, utilizing both classified and open-source information to inform their analysis. 

...the Director of National Intelligence, in coordination with the Director of the Central Intelligence Agency, the Director of the National Security Agency, and the Director of the Federal Bureau of Investigation, shall submit to the congressional intelligence committees a report containing an assessment of the counterintelligence threats and other risks to the national security of the United States posed by the proliferation of foreign commercial spyware. The assessment shall incorporate all credible data, including open-source information… 

Sec. 6503. Intelligence Community Working Group For Monitoring The Economic And Technological Capabilities Of The People’s Republic Of China. 

This provision would establish a cross-intelligence community working group to track the economic and technological capabilities of the PRC, utilizing open-source and commercially available information to prepare unclassified reports analyzing the extent to which those capabilities rely on U.S. or foreign investment, the links of those capabilities to the Chinese military industrial complex and the threats those capabilities pose to the U.S. 

“[T]he working group shall submit to Congress an assessment of the economic and technological strategy, efforts, and progress of the People’s Republic of China to become the dominant military, technological, and economic power in the world and undermine the rules-based world order.

In preparing each assessment…the working group shall use open source documents in Chinese language and commercial databases.

Sec. 6527. Sense Of Congress On Provision Of Support By Intelligence Community For Atrocity Prevention And Accountability. 

This provision recommends the DoD and intelligence community increase focus and support to the Atrocity Warning Task Force to prevent genocide and atrocities utilizing open-source data. 

Require each element of the intelligence community to support the Atrocity Warning Task Force in its mission to prevent genocide and atrocities through policy formulation and program development by- 

….preparing unclassified intelligence data and geospatial imagery products for coordination with appropriate domestic, foreign, and international courts and tribunals prosecuting persons responsible for crimes for which such imagery and intelligence may provide evidence (including genocide, crimes against humanity, and war crimes, including with respect to missing persons and suspected atrocity crime scenes); and…

Continue to make available inputs to the Atrocity Warning Task Force for the development of the Department of State Atrocity Early Warning Assessment and share open-source data to support pre-atrocity and genocide indicators and warnings to the Atrocity Warning Task Force…

Legislative provisions that recognize how open-source information enables a broad spectrum of national security missions, from export control to international war crimes, is critical to elevating the role of open-source intelligence. Continued Congressional leadership in this area will serve to enhance U.S. national security and advance U.S. interests today and in the future. 

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