United States: New Reporting Requirements For Foreign Travel And Foreign Contacts By Government Contractors

With the summer travel season underway, private sector government contractors and subcontractors should remember that the Director of National Intelligence (DNI) has established new reporting requirements regarding foreign travel and foreign contacts for those who have been granted access to classified information, or who occupy "a sensitive position."

Effective June 12, 2017, the DNI issued Security Executive Agent ("SecEA") Directive 3 ("Reporting Requirements for Personnel with Access to Classified Information or Who Hold a Sensitive Position"). The Directive establishes reporting requirements for "covered individuals" who have access to classified information or hold "a sensitive position."

  • "Covered individuals" include all government employees (with certain exceptions) and "contractors, subcontractors, licensees, certificate holders, grantees, experts, and consultants."
  • "Sensitive position" is defined as "any position within or in support of an agency in which the occupant could bring about, by virtue of the position, a material adverse effect on national security regardless of whether the occupant has access to classified information and regardless of whether the occupant is an employee, military service member, or contractor."
  • "Sensitive positions" are specifically designated by departments and agencies in accordance with 5 C.F.R. Part 1400. Note that, although there is a correlation between "sensitive position" designations and positions requiring a personnel security clearance ("PCL"), that may not always be the case. If it is unclear whether you hold a sensitive position or not, you should consult with your security officer.

The Directive requires covered individuals to report any planned or actual foreign travel or foreign contacts to the agency head or designee. Heads of agencies will retain authority to establish procedures regarding official foreign travel, but for unofficial travel, the Directive requires covered individuals to submit an itinerary to their agency and receive approval prior to engaging in the foreign travel. Deviations from approved travel itineraries are "discouraged," and must be reported within five business days of return. Permission for such travel may be denied if the agency determines that it presents an unacceptable security risk.

Regarding foreign contacts, agencies can determine requirements as part of a covered individual's official duties. Unofficial contacts with a known or suspected foreign intelligence entity must be reported, along with any "continuing association with known foreign nationals that involve[s] bonds of affection, personal obligation, or intimate contact; or any contact with a foreign national that involves the exchange of personal information."

Covered individuals also are required to report the activities of other covered individuals that may be of potential security or counterintelligence concern. Such activities include (i) an unwillingness to comply with rules, regulations, or security requirements, (ii) unexplained affluence or excessive indebtedness, (iii) alcohol abuse or illegal drug use/activity, (iv) apparent or suspected mental health issues, (v) criminal conduct, (vi) misuse of Government property or information systems, or (vii) any activity that raises doubt as to whether another covered individual's eligibility to access classified information or hold a sensitive position is "clearly consistent with the interests of national security."

Depending on the level of a covered individual's PCL, there are reporting requirements in addition to those described above. For persons with Secret PCLs and non-critical sensitive positions, additional requirements include, among others, (i) application for foreign citizenship or application for/use of foreign passports or identity cards, (ii) arrests, bankruptcies or drug- or alcohol-related treatment, (iii) attempts at blackmail or coercion to obtain classified information, or media attempts to obtain the same. For individuals with Top Secret PCLs or critical/special sensitive positions, there are additional requirements with respect to (i) foreign activities such as direct involvement in foreign businesses, bank accounts, property ownership, and adoption of foreign children, (ii) financial anomalies, such as those described above, as well as any "infusion of assets greater than $10,000" such as an inheritance or winnings, and (iii) marriage, co-habitation or having a foreign national as a roommate for more than 30 days.

Although SecEA Directive 3 is intended to combat insider threats, its effectiveness at the beginning of the peak travel season appears designed. It brings to mind other security considerations unique to travel.

Any individual holding a PCL, or with access to sensitive or proprietary information, should always remain aware of their surroundings as a traveler and as a local in areas with high levels of tourism. Economic espionage is a persistent threat that requires vigilance to resist. Also, any employees of cleared contractors are required to submit suspicious contact reports to their security officer anytime (1) an individual, regardless of nationality, tries to obtain access to classified information or compromise any employee holding a PCL; (2) an employee holding a PCL is contacted by a known or suspected foreign intelligence officer; or (3) any contact suggesting that an employee holding a PCL is the target of an exploitation attempt by foreign intelligence services.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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