Bill Text: WV HCR86 | 2023 | Regular Session | Introduced
Bill Title: Requesting study to assess the need for and best practices by which to achieve legislative oversight of the West Virginia Fusion Center
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2023-03-11 - Originating in House Judiciary [HCR86 Detail]
Download: West_Virginia-2023-HCR86-Introduced.html
HOUSE CONCURRENT RESOLUTION 86
(By Delegate Ridenour)
[Originating in the Committee on Judiciary; Reported on March 11, 2023]
Requesting That the Joint Committee on Government and Finance commission a study by designated representatives of the West Virginia Legislature and the West Virginia Supreme Court of Appeals to assess the need for and best practices by which to achieve legislative oversight of the West Virginia Fusion Center, including but not limited to classified oversight of any and all operations, activities and investigations being conducted by, with or through federal agencies, other state agencies, or individuals or contractors of any kind, interfaced and/or working in conjunction in any way with the systems, personnel, or capabilities, classified or otherwise of the West Virginia Fusion Center, and, to identify for recommendations for legislation to address same by the West Virginia Legislature during the 2024 Regular Session.
Whereas, The West Virginia Fusion Center, located in Kanawha County, is one of the “The National Network of Fusion Centers” consisting of at least 79 interlinked federal/state domestic surveillance nodes across the United States; and
Whereas, Although the West Virginia Fusion Center was placed into operation in 2008 and continued by executive fiat for over a decade, it was not until 2020 that actual statutory authority for its operations was codified (RS2020, HB4176); and
Whereas, According to the federal Department of Homeland Security (hereafter “DHS”), these facilities “are state-owned and operated centers that serve as focal points in states and major urban areas for the receipt, analysis, gathering and sharing of threat-related information between State, Local, Tribal and Territorial (SLTT), federal and private sector partners” ; and
Whereas, DHS states that “The National Network of Fusion Centers … brings critical context and value to Homeland Security and Law Enforcement that no other federal or local organization can replicate [by] sharing information, providing partners with a unique perspective on threats to their state or locality and being the primary contact between frontline personnel, state and local leadership and the rest of the Homeland Security Enterprise” ; and
Whereas, According to DHS, “The enhanced collaboration between the federal government, SLTT and private sector partners represents the new standard through which we view homeland security.”; and
Whereas, The existence and operations of The National Network of Fusion Centers, and the West Virginia Fusion Center, have not been without controversy both among civil libertarian advocates and others. See e.g., https://www.aclu.org/report/whats-wrong-fusion-centers-executive-summary; https://www.brennancenter.org/our-work/policy-solutions/ending-fusion-center-abuses; https://wvpublic.org/aclu-citizens-request-lawmakers-work-more-on-bill-for-data-gathering-fusion-center/; https://reason.com/2023/01/06/government-snoops-in-maine-caught-spying-on-peaceful-americans/; and https://wvpress.org/breaking-news/social-media-spying-become-focus-of-public-hearing-on-fusion-center/; and
Whereas, Certain aspects of the operations of Fusion Centers, including the one here in West Virginia, are classified; and
Whereas, The ability to conduct legislative oversight of classified operations was one of several key concerns among legislators during the 2020 Regular Session which took up the bill introducing actual statutory authority for the West Virginia Fusion Center approximately twelve years after it had been in operation by executive fiat. One of the key compromises to passing that legislation (RA2020,HB4176) was a provision, agreed to by the executive branch, that the legislative oversight committee members and staff must have appropriate security clearances for classified oversight; and
Whereas, Despite the executive branch’s agreement with this provision, subsequent to the passage of the 2020 Fusion Center legislation, the executive branch informed the House Speaker and Senate President that clearances would not be provide by the requisite federal authorities. Consequently, since passage in 2020, no Joint Oversight Committee on the Fusion Center meetings of chairs, committee members and staff, classified or unclassified, have been convened or held over the past three years since statutory authority for the Fusion Center was codified; and
Whereas, In the fall of 2020, the first year of the statutory authority in code for the West Virginia Fusion Center, the national 2020 election took place. The results of that elections were contested, with allegations of anomalous and/or illegal voter and election fraud having taken place in several jurisdictions. Some allegations in this regard have alleged that electronic voting machines were compromised and/or illegally connected to the internet and vote tabulations manipulated thereby. Since at least January of 2017, election systems infrastructure has been considered critical infrastructure under DHS regulation. See https://sgp.fas.org/crs/misc/IF10677.pdf ; and
Whereas, According to DHS’s Cyber & Infrastructure Security Agency (or “CISA”), “President Trump issued Executive Order 13800, Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure on May 11, 2017, to improve the Nation’s cyber posture and capabilities in the face of intensifying cybersecurity threats.” CISA in turn is connected to the National Network of Fusion Centers and has run exercises with them. See e.g., http://arrl-wtx.org/cisa-fusion-center-drill-exercise/.; and
Whereas, Since the ability to conduct classified review of West Virginia Fusion Center operations has been unavailable, it is not known what CISA interface exists or has been exercised, whether for election integrity purposes or otherwise. Regardless, CISA deemed the 2020 elections the “most secure in history”. Given the interface with CISA and the fact that election infrastructure in considered critical by DHS, the House Homeland Security Committee Chairman felt the role of the West Virginia Fusion Center in protecting elections from fraudulent activity needed to be better defined and proposed such changes in HB3157 in the RS2023; and
Whereas, Certain other federal activities and initiatives by DHS, DOJ and the FBI have raised concerns with the Chairman of House Homeland Security Committee and other members of the House of Delegates, including but not limited to those sponsoring HB3157. These concerns include but are not limited to: drug issues related to border insecurity (https://www.uscc.gov/research/illicit-fentanyl-china-evolving-global-operation); targeting of parents exercising their 1st Amendment rights over curriculum at school board meetings (https://www.justice.gov/ag/page/file/1438986/download); social media censorship (https://www.rasmussenreports.com/public_content/politics/biden_administration/censorship_voters_want_investigation_of_social_media_sites), and suspected entrapment operations by federal law enforcement (https://reason.com/2022/01/26/gretchen-whitmer-kidnapping-plot-entrapment-fbi-trial/); and
Whereas, a public hearing was held on HB3157 in the House Chamber on February 28, 2023 and three West Virginia citizens spoke in favor of the bill’s passage and no citizens or witnesses voiced opposition to HB3157; and
Whereas, On March 8, 2023, it was revealed that the “Federal Bureau of Investigation ha[d] acknowledged for the first time that it purchased US cellular location data rather than obtaining a warrant. While the practice of buying people’s location data has grown increasingly common since the US Supreme Court reined in the government’s ability to warrantlessly track Americans’ phones nearly five years ago, the FBI had not previously revealed ever making such purchases.”; and
Whereas, the executive branch’s opposition to HB3157 caused that bill not to be run and a truncated version (HB3562) was run in place of HB3157 originated out of the House Government Organization Committee; but HB3562, although passed from the House and communicated to the Senate on March 1, 2023 and referred to the Senate Committee on Government Organization on March 2, 2023 where it was not taken up and died in committee, thus leaving the issue of legislative oversight of the West Virginia Fusion Center completely unresolved for yet another year; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance commission a study by designated representatives of the West Virginia Legislature and the West Virginia Supreme Court of Appeals to assess the need for and best practices by which to achieve legislative oversight of the West Virginia Fusion Center, including but not limited to classified oversight of any and all operations, activities and investigations being conducted by, with or through federal agencies, other state agencies, or individuals or contractors of any kind, interfaced and/or working in conjunction in any way with the systems, personnel, or capabilities, classified or otherwise of the West Virginia Fusion Center, and, to identify for recommendations for legislation to address same by the West Virginia Legislature during the 2024 Regular Session.
Further Resolved, That the study panel made up of designated representatives of the West Virginia Legislature, its staff, and the West Virginia Supreme Court of Appeals shall report its findings in writing to the Joint Committee on Government and Finance not later than the interim session of December 2023, for the purposes of preparing legislation for the 2024 Regular Session; and be it
Further Resolved, That the expenses necessary to conduct this study, prepare a report, and draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
