WEST VIRGINIA LEGISLATURE
2024 REGULAR SESSION
Committee Substitute for House Bill 4758
By Delegates Jennings, Ridenour, Kimble and C. Pritt [Originating in the Committee on the Judiciary;
Reported on February 5, 2024]
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1 A BILL to amend and reenact §15A-12-1, §15A-12-2, §15A-12-3, §15A-12-4, §15A-12-5 and
2 §15A-12-7 of the Code of West Virginia,1931, as amended, all relating to the Fusion
3 Center; providing the creation of the Joint Oversight Committee on the Fusion Center and
4 defining the composition and duties associated with the Committee; exempting the Joint
5 Oversight Committee from the open meetings act; providing non-disclosure agreement
6 requirements; defining terrorism; clarifying the Fusion Center's duties, functions, reporting
7 requirements, prohibitions and restrictions when information or intelligence is gathered for
8 prohibited purposes; providing reporting requirements for information or intelligence
9 gathered regarding election fraud or tampering; requiring that an annual report be provided
10 to the Committee and clarifying the information required in the report; and creating criminal
11 penalties for violations of prohibitions and restrictions applicable to the West Virginia
12 Fusion Center.
Be it enacted by the Legislature of West Virginia:
ARTICLE 12. WEST VIRGINIA FUSION CENTER.
§15A-12-1. West Virginia Fusion Center Established.
1 (a) The Governor shall establish, organize, equip, staff, and maintain a multiagency
2 information fusion center ("Fusion Center") to receive, analyze, and disseminate all hazard, crime,
3 and threat information. The Department of Homeland Security shall operate the facility, as directed
4 by the Governor, with oversight auditing and accountability to the select committee of the
5 Legislature Joint Oversight Committee on the Fusion Center as set forth herein, and in
6 collaboration among federal, state, and local agencies, as well as private sector persons,
7 organizations, entities, or agencies, including, but not limited to, those with the primary purposes
8 of homeland security, counter-terrorism, public safety, public protection, and identification of
9 threats to critical infrastructure: Provided, That the Fusion Center shall not knowingly participate in
10 activity, or knowingly cooperate, with any federal agency, or a contractor for any federal agency,
11 when that participation or cooperation involves illegal or improper actions any action prohibited or
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12 restricted under this article or by federal or state law prohibiting intelligence gathering activities
13 upon persons lawfully in the United States. The Fusion Center will exercise due diligence to
14 ensure the services and capabilities of the Fusion Center are only used for legitimate law
15 enforcement purposes. Further, the Fusion Center shall not allow a federal agency or contractor
16 for a federal agency to work inside the Fusion Center when it knows or has reason to know that
17 such federal agency or federal contractor is presently engaged or intends to engage in unlawful
18 intelligence-gathering activity against a citizen of West Virginia persons lawfully in the United
19 States.
20 (b) The Fusion Center shall collect, integrate, analyze, disseminate, and maintain such
21 information to support local, state, and federal law-enforcement agencies, other governmental
22 agencies, and private persons, organizations, entities, or agencies in detecting, preventing,
23 investigating, preparing for, responding to, mitigating and or recovering from any possible or actual
24 criminal or terrorist activity, as well as any hazard or threat, including to the state’s critical
25 infrastructure, in compliance with applicable state and federal laws and regulations, including 28
26 CFR 23 and 6 U.S.C. §485: Provided, That as used in this article, "terrorism" shall mean only
27 foreign or international terrorist groups or individuals, or domestic groups or individuals involved in
28 transnational international or domestic terrorism as defined in 6 U.S.C. §485 18 U. S. Code
29 §2331: Provided, however, That under no circumstance shall the Fusion Center or its officers,
30 directors, agents, or employees engage in, or be ordered or directed to engage in prohibited non-
31 law enforcement intelligence gathering activities on citizens of the United States persons lawfully
32 in the United States as set forth in any federal or state law or in contravention of the Constitution of
33 the United States, nor shall the Fusion Center engage in or collaborate with any other entity on any
34 information or intelligence gathering for any political purpose nor be solicited for, or cooperate in,
35 any investigation of a public official or candidate for elected office, unless reasonable grounds
36 exist to suspect the subject of the investigation is, or may be, involved in criminal conduct. Any
37 prohibited intelligence gathering will be reported to the United States Attorney for the Southern
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38 District of West Virginia, the Office of the Kanawha County Prosecuting Attorney, and the
39 leadership of the Joint Oversight Committee on the Fusion Center within 72 hours of discovery by
40 the Director. This provision shall not prohibit the Fusion Center from participating investigating in
41 matters dealing with election fraud, election tampering, or other issues designed to provide the
42 citizens of the state with which impede or impair state citizens of the right to tamper-free elections
43 and shall not restrict the Fusion Center from assisting in security matters involving political or
44 dignitary visits to or within the State of West Virginia. Any information or intelligence gathered
45 regarding election fraud, election tampering, or other issues designed to provide the citizens of the
46 state with which impede or impair state citizens of the right to tamper-free elections will be reported
47 to the West Virginia Secretary of State's Office within 72 hours of discovery by the Director.
48 (c) Any improperly or inadvertently collected or gathered information by an employee or
49 participant of the Fusion Center must be reported to the Director of the Fusion Center within 72
50 hours. The Director will investigate the causes of the improper or inadvertent collection and will
51 take corrective measures. No improperly or inadvertently collected or gathered information may
52 be shared with any other entity outside the Fusion Center other than a law enforcement agency in
53 the course of an official and active investigation to determine whether the collection or gathering of
54 such information constitutes a crime under federal or state law. The Director will include any
55 incidents of improper or inadvertent collection, together with corrective actions in his or her annual
56 report to the Joint Oversight Committee on the Fusion Center.
57 (c) (d) The West Virginia Fusion Center shall be housed within secure facilities in order to
58 access sensitive information, as permitted by state and federal law. Within the secure facilities, the
59 Fusion Center shall house a Homeland Secure Data Network (HSDN) appropriate systems and
60 networks in order to access both classified and criminal justice information as permitted by state
61 and federal law and ensure that appropriate security measures are in place for: (1) the secure
62 facilities; (2) data collected or stored at the secure facilities; and (3) personnel working at the
63 secure facilities.
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64 (d) (e) The West Virginia Fusion Center shall do all acts necessary and proper to carry out
65 the powers granted to the board of the State Resiliency Office.
§15A-12-2. Operation of center.
1 (a) The West Virginia Department of Homeland Security shall operate the West Virginia
2 Fusion Center under the direction of the Governor, with oversight auditing and accountability to the
3 select committee of the Legislature Joint Oversight Committee on the Fusion Center as set forth
4 herein, and shall cooperate with the United States Department of Homeland Security, local,
5 county, state, or federal government agencies, and private organizations: Provided, That the
6 Fusion Center shall not knowingly participate in activity, or knowingly cooperate, with any federal
7 agency, or a contractor for any federal agency, when that participation or cooperation involves
8 illegal or improper actions. Further, the Fusion Center shall not allow a federal agency or
9 contractor for a federal agency to work inside the Fusion Center when it knows or has reason to
10 know that such federal agency or federal contractor is presently engaged or intends to engage in
11 unlawful intelligence-gathering activity against a citizen of West Virginia persons lawfully in the
12 United States: Provided, however, That all Fusion Center operations shall be subject to applicable
13 state and federal laws and regulations, including, but not limited to, 28 CFR Part 23, and shall at all
14 times strictly abide by all restrictions and prohibitions against conducting non-law enforcement
15 intelligence operations against U.S. citizens persons lawfully in the United States as set forth in
16 any federal or state law or in contravention of the Constitution of the United States, including, but
17 not limited to, 50 U.S.C. §3036(d)(1).
18 (b) The West Virginia Fusion Center shall: (1) Be the primary clearinghouse for the State of
19 West Virginia for the collection, analysis, and proper distribution of information and actionable
20 intelligence as defined in this section; (2) generate intelligence analyses critical for homeland
21 security policy and relevant threat warning in order to protect life, liberty, and property in West
22 Virginia; (3) promote and improve intelligence sharing among public safety and public service
23 agencies at the federal, state, and local levels, and with critical infrastructure and key resource
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24 entities within the private sector subject to all restrictions and prohibitions recited in this article; (4)
25 receive and integrate intelligence and information related to terrorism and other homeland security
26 threats; (5) collect, analyze, produce, disseminate, and maintain such intelligence and
27 information, as allowed by law, to support local, state, and federal law enforcement agencies,
28 other governmental agencies, and private organizations in: preventing, preparing for, responding
29 to, and recovering from any possible or actual terrorist attack or other homeland security threat;
30 and (6) maximize intelligence and information sharing in strict accordance with all applicable state
31 and federal laws, restrictions, and prohibitions: Provided, That the Fusion Center shall not
32 knowingly participate in activity, or knowingly cooperate, with any federal agency, or a contractor
33 for any federal agency, when that participation or cooperation involves illegal or improper actions
34 any action prohibited or restricted in §15A-12-1(a) of this code. Further, the Fusion Center shall not
35 allow a federal agency or contractor for a federal agency to work inside the Fusion Center when it
36 knows or has reason to know that such federal agency or federal contractor is presently engaged
37 or intends to engage in unlawful intelligence-gathering activity against a citizen of West Virginia
38 persons lawfully in the United States.
39 (c) The Governor shall provide facilities, budget, and administrative support for the West
40 Virginia Fusion Center and its employees and participants. The cabinet secretary shall serve as
41 security manager for the West Virginia Fusion Center.
42 (d) Private sector persons, organizations, entities, or agencies participating in the West
43 Virginia Fusion Center shall not be considered governmental entities, nor shall employees or
44 agents of private sector persons, organizations, entities, or agencies assigned to the West Virginia
45 Fusion Center be considered state employees; however, private sector entities and their
46 employees or agents are subject to the same confidentiality requirements and held to the same
47 standards as an employee of the West Virginia Fusion Center, including, but not limited to, any and
48 all restrictions and prohibitions against conducting non-law enforcement intelligence operations
49 against U.S. citizens persons lawfully in the United States as set forth in federal or state law or in
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50 contravention of the Constitution of the United States, including, but not limited to, 50 U.S.C.
51 §3036(d)(1): Provided, That the Fusion Center shall not knowingly participate in any activity, or
52 knowingly cooperate, with any federal agency, or a contractor for or any person or entity utilizing or
53 collaborating with any federal agency, when that participation or cooperation involves illegal or
54 improper actions: Provided, however, That the Fusion Center shall not allow a federal agency or
55 contractor for a federal agency to work inside the Fusion Center when it knows or has reason to
56 know that such federal agency or federal contractor is presently engaged or intends to engage in
57 unlawful intelligence-gathering activity against a citizen of West Virginia persons lawfully in the
58 United States.
59 (e) The operations of the West Virginia Fusion Center shall be overseen by the cabinet
60 secretary and deputy cabinet secretary of the West Virginia Department of Homeland Security,
61 with oversight auditing and accountability to the select committee of the Legislature Joint
62 Oversight Committee on the Fusion Center as set forth herein.
63 (f) The cabinet secretary and deputy cabinet secretary shall either have a current, valid
64 federal security clearance at the appropriate level, and training and certifications commensurate
65 with the position, or be eligible for that clearance, and be in the process of obtaining the
66 appropriate clearance.
67 (g) The cabinet secretary and deputy cabinet secretary may adopt policies and
68 procedures for the operation of the West Virginia Fusion Center. All such policies and procedures
69 shall be subject to the full and unlimited inspection and review of the Joint Oversight Committee on
70 the Fusion Center as set forth in §15A-12-3 of this code. The cabinet secretary and deputy cabinet
71 secretary may adopt rules and regulations as may be necessary to carry out the provisions of this
72 act, including rules and regulations concerning the operations of the West Virginia Fusion Center:
73 Provided, That all policies, procedures, rules, and regulations, and use of the Fusion Center by
74 any party shall be subject to any and all restrictions and prohibitions against conducting non-law
75 enforcement intelligence operations against U.S. citizens persons lawfully in the United States as
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76 set forth in federal or state law or in contravention of the Constitution of the United States,
77 including but not limited to, 50 U.S.C. §3036(d)(1).
78 (h) Subject to appropriations, the West Virginia Fusion Center shall have the following
79 employees, all in the unclassified service of the civil service act:
80 (1) A director, who shall be appointed by and serve at the pleasure of the cabinet secretary.
81 The director shall either have a current, valid federal security clearance at the appropriate level,
82 and training and certifications commensurate with the position, or be eligible for that clearance,
83 and be in the process of obtaining the appropriate clearance, and shall:
84 (A) Be responsible for all operations of the West Virginia Fusion Center and shall report to
85 the cabinet secretary or deputy cabinet secretary;
86 (B) Be responsible for:
87 (i) Facilitating and implementing applicable federal standards and programs by the West
88 Virginia Fusion Center;
89 (ii) Ensuring compliance with all applicable laws and federal requirements, including, but
90 not limited to, any and all restrictions and prohibitions against conducting non-law enforcement
91 intelligence operations against U.S. citizens persons lawfully in the United States as set forth in
92 federal or state law or in contravention of the Constitution of the United States, including, but not
93 limited to, 50 U.S.C. §3036(d)(1);
94 (iii) Maintaining proper separation between military and civilian capacities;
95 (iv) Providing support, as needed, to the cabinet secretary and deputy cabinet secretary;
96 and
97 (v) Other duties and responsibilities as may be assigned by the cabinet secretary and
98 deputy cabinet secretary, subject to all restrictions and prohibitions described in this article.
99 (5) A deputy director, who shall be appointed by and serve at the pleasure of the director.
100 The deputy director shall either have a current, valid federal security clearance at the appropriate
101 level, and training and certifications commensurate with the position, or be eligible for that
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102 clearance, and be in the process of obtaining the appropriate clearance, and shall be responsible
103 for assisting the director in: (A) facilitating and implementing applicable federal standards and
104 programs by the West Virginia Fusion Center; (B) ensuring compliance with all applicable laws
105 and federal requirements; (C) maintaining proper separation between military and civilian
106 capacities; (D) providing support, as needed, to the cabinet secretary and deputy cabinet
107 secretary; and (E) other duties and responsibilities as may be assig