[Federal Register Volume 73, Number 95 (Thursday, May 15, 2008)]
[Proposed Rules]
[Pages 28060-28062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10891]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 73, No. 95 / Thursday, May 15, 2008 / 
Proposed Rules  

[[Page 28060]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary; Privacy Office

6 CFR Part 5

[Docket No. DHS-2007-0018]


Privacy Act of 1974: Implementation of Exemptions: The Office of 
Intelligence and Analysis Enterprise Records System

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security is concurrently 
establishing a new system of records pursuant to the Privacy Act of 
1974 [5 U.S.C. 552a], as amended, to cover records maintained by the 
Office of Intelligence and Analysis. These records were previously 
covered by the Department of Homeland Security, Homeland Security 
Operations Center Database [DHS/IAIP-001], last published in full text 
on April 18, 2005 [70 FR 20156]. In this proposed rulemaking, the 
Department of Homeland Security proposes to exempt this new system of 
records, entitled the Office of Intelligence and Analysis Enterprise 
Records System (ERS) [DHS/IA-001], from subsections (c)(3), (d), 
(e)(1), (e)(4)(G), (H), and (I) and (f) of the Privacy Act pursuant to 
5 U.S.C. 552a(k). As explained in the proposed rule, the exemption is 
necessary to avoid interference with the intelligence, 
counterterrorism, and other homeland security responsibilities, and any 
related law enforcement functions of the Department of Homeland 
Security and its Office of Intelligence and Analysis. Public comment is 
invited.

DATES: Comments must be received on or before June 16, 2008.

ADDRESSES: You may submit comments, identified by DOCKET NUMBER DHS-
2007-0023 by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments via docket number DHS-
2007-0018.
     Fax: 1-866-466-5370.
     Mail: Hugo Teufel III, DHS Chief Privacy Officer, 
Department of Homeland Security, Washington, DC 20528.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal information provided.
     Docket: For access to the docket to read background 
documents or comments received go to http://www.regulations.gov.
     Hand Delivery/Courier: Hugo Teufel III, Chief Privacy 
Officer, Department of Homeland Security, 245 Murray Lane, SW., 
Building 410, Washington, DC 20528, 7:30 a.m. to 4 p.m.

FOR FURTHER INFORMATION CONTACT: For general questions, please contact 
the Director, Information Sharing and Knowledge Management Division, 
Office of Intelligence and Analysis, Department of Homeland Security, 
Washington, DC 20528, at (202) 282-8248. For privacy issues, please 
contact: Hugo Teufel III (571-227-3813), Chief Privacy Officer, Privacy 
Office, U.S. Department of Homeland Security, Washington, DC 20528, E-
mail: [email protected].

SUPPLEMENTARY INFORMATION:

Background

    Elsewhere in today's Federal Register, the Department of Homeland 
Security (DHS) is publishing a Privacy Act system of records notice 
describing records in the ``Office of Intelligence and Analysis 
Enterprise Records System, DHS/IA-001'' (ERS). These records were 
previously covered by the Department of Homeland Security, Homeland 
Security Operations Center (HSOC) Database [DHS/IAIP-001], last 
published on April 18, 2005 [70 FR 20156]. The DHS/IAIP-001 SORN 
originally addressed the treatment of Privacy Act records under the 
administrative and organizational framework of the former DHS 
Information Analysis and Infrastructure Protection (IAIP) Directorate.
    After successive organizational realignments of the Department by 
the Secretary and Congress, in 2005 and 2006 respectively, the IAIP 
Directorate was effectively eliminated and the functional 
responsibilities and organization of what was then IAIP's Office of 
Information Analysis, today the Office of Intelligence and Analysis 
(I&A), were elevated when I&A became a stand alone organization within 
the Department, headed by what is now the position of Under Secretary 
for I&A, with direct-report responsibilities to the Secretary. Thus, 
ERS replaces those aspects of the HSOC Database [DHS/IAIP-001] SORN 
insofar as they previously applied to I&A records, but does not 
rescind, revoke, or supersede any portion of the previously published 
HSOC Database SORN, itself, insofar as it continues to apply to other 
components of DHS who maintain records within and consistent with that 
system.
    ERS is a system of records established pursuant to the Homeland 
Security Act of 2002 (Pub. L. 107-296), as amended, and subject to the 
Privacy Act of 1974, 5 U.S.C. 552a, to support both the mission of I&A 
in providing intelligence and analysis support directly to DHS 
leadership; to all DHS operational components, elements, and other 
offices and activities; and to the Under Secretary for I&A, as Chief 
Intelligence Officer of the Department, in his role of effectively 
integrating and managing DHS's Intelligence Programs. I&A is the DHS-
wide analytic entity and unified intelligence office which directly 
supports the Under Secretary for I&A, other DHS elements responsible 
for carrying out the mission of the Department under the Homeland 
Security Act of 2002, as amended, and other federal, State, local, 
tribal, and private sector DHS partners with responsibilities for 
securing the homeland from natural and manmade threats. As a member of 
the National Intelligence Community, I&A is also obligated to conduct 
its mission in conformance with the requirements of Executive Order 
12333, as amended, ``United States Intelligence Activities,'' dated 
December 4, 1981. Amongst other requirements, Section 2.3 of Executive 
Order 12333 requires that each agency head within the IC establish 
procedures to govern the collection, retention, and dissemination of 
information concerning U.S. Persons, in a manner which protects the 
privacy and Constitutional rights of those U.S. Persons.

[[Page 28061]]

    The Privacy Act embodies fair information principles in a statutory 
framework governing the means by which the United States Government 
collects, maintains, uses and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. 
Individuals may request their own records that are maintained in a 
system of records in the possession or under the control of DHS by 
complying with DHS Privacy Act regulations, 6 CFR part 5. The Privacy 
Act requires each agency to publish in the Federal Register a 
description of the type and character of each system of records that 
the agency maintains, and the routine uses that are contained in each 
system in order to make agency recordkeeping practices transparent, to 
notify individuals regarding the uses to which personally identifiable 
information is put, and to assist individuals to more easily find such 
files within the agency. Pursuant to his statutory authorities under 
section 222 of the Homeland Security Act of 2002, Public Law 107-296, 
section 222, 116 Stat. 2135, 2155, the DHS Chief Privacy Officer is the 
senior DHS official appointed by the Secretary to oversee 
implementation of the Privacy Act within the Department and to 
undertake other privacy-related activities. Accordingly, the DHS Chief 
Privacy Officer published the system of records notice which 
corresponds with this proposed rule.
    The Privacy Act also allows government agencies, as appropriate, to 
exempt certain records from the access and amendment provisions. Where 
an agency seeks to claim an exemption, however, it must issue a Notice 
of Proposed Rulemaking to make clear to the public the reasons why a 
particular exemption is claimed. DHS is claiming exemptions from 
certain requirements of the Privacy Act by publication of this proposed 
rule.
    Accordingly, DHS proposes to exempt this system, in part, from 
certain provisions of the Privacy Act and to add that exemption to 
Appendix C to Part 5, DHS Systems of Records Exempt from the Privacy 
Act. I&A needs these exemptions in order to protect information 
relating to authorized intelligence, counterterrorism, homeland 
security, and related law enforcement activities from disclosure to 
subjects of investigations and others who, by accessing or knowing this 
information, could interfere with those activities or otherwise place 
in jeopardy the national or homeland security. Specifically, the 
exemptions are necessary in order to prevent revealing information 
concerning intelligence, counterterrorism, homeland security, or 
related investigative efforts. Revealing such information to the 
subject or other individual could reasonably be expected to compromise 
ongoing efforts of the Department to identify, understand, analyze, 
investigate, and counter the activities that threaten national or 
homeland security; compromise classified or other sensitive 
information; identify a confidential source or disclose information 
which would constitute an unwarranted invasion of another individual's 
personal privacy; reveal a sensitive intelligence or investigative 
technique or method, and interfere with intelligence or law enforcement 
analytic or investigative processes; or constitute a potential danger 
to the health or safety of intelligence, counterterrorism, homeland 
security, and law enforcement personnel, confidential sources and 
informants, or potential witnesses.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where compliance would not appear to interfere with or adversely affect 
the national or homeland security of the United States, or the law 
enforcement purposes of any investigatory material contained within 
this system, the applicable exemptions may be waived.

List of Subjects in 6 CFR Part 5

    Classified information, Privacy, Courts; Freedom of information; 
Government employees.

    For the reasons stated in the preamble and pursuant to the 
authority vested in the Department of Homeland Security by 5 U.S.C. 
552a, and assigned to me under Section 222 of the Homeland Security Act 
of 2002, DHS proposes to amend Chapter I of Title 6, Code of Federal 
Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

    1. The authority citation for Part 5 continues to read as follows:

    Authority: Pub. L. 107-296, 116 Stat. 2135, 6 U.S.C. 101 et 
seq.; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552.
    2. At the end of Appendix C to Part 5, add the following new 
section 8:

Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy 
Act

* * * * *
    8. DHS/IA-001, Enterprise Records System.
    (a) Pursuant to 5 U.S.C. 552a(k)(1), (2), (3), and (5), this 
system of records is exempt from 5 U.S.C. 552a(c)(3), (d)(1), (2), 
(3), (4), and (5), (e)(1), (e)(4)(G), (H), and (I), and (f). These 
exemptions apply only to the extent that information in this system 
is subject to exemption. Where compliance would not appear to 
interfere with or adversely affect the intelligence, 
counterterrorism, homeland security, and related law enforcement 
purposes of this system, the applicable exemption may be waived by 
DHS.
    (b) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From subsection (c)(3) (Accounting for Disclosures) because 
making available to a record subject the accounting of disclosures 
from records concerning him/her would specifically reveal any 
interest in the individual of an intelligence, counterterrorism, 
homeland security, or related investigative nature. Revealing this 
information could reasonably be expected to compromise ongoing 
efforts of the Department to identify, understand, analyze, 
investigate, and counter the activities of:
    (i) Known or suspected terrorists and terrorist groups;
    (ii) Groups or individuals known or believed to be assisting or 
associated with known or suspected terrorists or terrorist groups;
    (iii) Individuals known, believed to be, or suspected of being 
engaged in activities constituting a threat to homeland security, 
including (1) Activities which impact or concern the security, 
safety, and integrity of our international borders, including any 
illegal activities that either cross our borders or are otherwise in 
violation of the immigration or customs laws and regulations of the 
United States; (2) activities which could reasonably be expected to 
assist in the development or use of a weapon of mass effect; (3) 
activities meant to identify, create, or exploit the vulnerabilities 
of, or undermine, the ``key resources'' (as defined in section 2(9) 
of the Homeland Security Act of 2002) and ``critical 
infrastructure'' (as defined in 42 U.S.C. 5195c(c)) of the United 
States, including the cyber and national telecommunications 
infrastructure and the availability of a viable national security 
and emergency preparedness communications infrastructure; (4) 
activities detrimental to the security of transportation and 
transportation systems; (5) activities which violate or are 
suspected of violating the laws relating to counterfeiting of 
obligations and securities of the United States and other financial 
crimes, including access device fraud, financial institution fraud, 
identity theft, computer fraud; and computer-based attacks on our 
nation's financial, banking, and telecommunications infrastructure; 
(6) activities, not wholly conducted within the United States, which 
violate or are suspected of violating the laws which prohibit the 
production, transfer, or sale of narcotics or

[[Page 28062]]

substances controlled in accordance with Title 21 of the United 
States Code, or those associated activities otherwise prohibited by 
Titles 21 and 46 of the United States Code; (7) activities which 
impact, concern, or otherwise threaten the safety and security of 
the President and Vice President, their families, heads of state, 
and other designated individuals; the White House, Vice President's 
residence, foreign missions, and other designated buildings within 
the United States; (8) activities which impact, concern, or 
otherwise threaten domestic maritime safety and security, maritime 
mobility and navigation, or the integrity of the domestic maritime 
environment; (9) activities which impact, concern, or otherwise 
threaten the national operational capability of the Department to 
respond to natural and manmade major disasters and emergencies, 
including acts of terrorism; (10) activities involving the 
importation, possession, storage, development, or transportation of 
nuclear or radiological material without authorization or for use 
against the United States;
    (iv) Foreign governments, organizations, or persons (foreign 
powers); and
    (v) Individuals engaging in intelligence activities on behalf of 
a foreign power or terrorist group.

Thus, by notifying the record subject that he/she is the focus of 
such efforts or interest on the part of DHS, or other agencies with 
whom DHS is cooperating and to whom the disclosures were made, this 
information could permit the record subject to take measures to 
impede or evade such efforts, including the taking of steps to 
deceive DHS personnel and deny them the ability to adequately assess 
relevant information and activities, and could inappropriately 
disclose to the record subject the sensitive methods and/or 
confidential sources used to acquire the relevant information 
against him/her. Moreover, where the record subject is the actual 
target of a law enforcement investigation, this information could 
permit him/her to take measures to impede the investigation, for 
example, by destroying evidence, intimidating potential witnesses, 
or avoiding detection or apprehension.
    (2) From subsections (d)(1), (2), (3), and (4) (Access to 
Records) because these provisions concern individual rights of 
access to and amendment of records (including the review of agency 
denials of either) contained in this system, which consists of 
intelligence, counterterrorism, homeland security, and related 
investigatory records concerning efforts of the Department, as 
described more fully in subsection (b)(1), above. Compliance with 
these provisions could inform or alert the subject of an 
intelligence, counterterrorism, homeland security, or investigatory 
effort undertaken on behalf of the Department, or by another agency 
with whom DHS is cooperating, of the fact and nature of such 
efforts, and/or the relevant intelligence, counterterrorism, 
homeland security, or investigatory interest of DHS and/or other 
intelligence, counterterrorism, or law enforcement agencies. 
Moreover, compliance could also compromise sensitive information 
either classified in the interest of national security, or which 
otherwise requires, as appropriate, safeguarding and protection from 
unauthorized disclosure; identify a confidential source or disclose 
information which would constitute an unwarranted invasion of 
another individual's personal privacy; reveal a sensitive 
intelligence or investigative technique or method, including 
interfering with intelligence or law enforcement investigative 
processes by permitting the destruction of evidence, improper 
influencing or intimidation of witnesses, fabrication of statements 
or testimony, and flight from detection or apprehension; or 
constitute a potential danger to the health or safety of 
intelligence, counterterrorism, homeland security, and law 
enforcement personnel, confidential sources and informants, and 
potential witnesses. Amendment of the records would interfere with 
ongoing intelligence, counterterrorism, homeland security, and law 
enforcement investigations and activities, including incident 
reporting and analysis activities, and impose an impossible 
administrative burden by requiring investigations, reports, and 
analyses to be continuously reinvestigated and revised.
    (3) From subsection (e)(1) (Relevant and Necessary) because it 
is not always possible for DHS to know in advance of its receipt the 
relevance and necessity of each piece of information it acquires in 
the course of an intelligence, counterterrorism, or investigatory 
effort undertaken on behalf of the Department, or by another agency 
with whom DHS is cooperating. In the context of the authorized 
intelligence, counterterrorism, and investigatory activities 
undertaken by DHS personnel, relevance and necessity are questions 
of analytic judgment and timing, such that what may appear relevant 
and necessary when acquired ultimately may be deemed unnecessary 
upon further analysis and evaluation. Similarly, in some situations, 
it is only after acquired information is collated, analyzed, and 
evaluated in light of other available evidence and information that 
its relevance and necessity can be established or made clear. 
Constraining the initial acquisition of information included within 
the ERS in accordance with the relevant and necessary requirement of 
subsection (e)(1) could discourage the appropriate receipt of and 
access to information which DHS and I&A are otherwise authorized to 
receive and possess under law, and thereby impede efforts to detect, 
deter, prevent, disrupt, or apprehend terrorists or terrorist 
groups, and/or respond to terrorist or other activities which 
threaten homeland security. Notwithstanding this claimed exemption, 
which would permit the acquisition and temporary maintenance of 
records whose relevance to the purpose of the ERS may be less than 
fully clear, DHS will only disclose such records after determining 
whether such disclosures are themselves consistent with the 
published ERS routine uses. Moreover, it should be noted that, as 
concerns the receipt by I&A, for intelligence purposes, of 
information in any record which identifies a U.S. Person, as defined 
in Executive Order 12333, as amended, such receipt, and any 
subsequent use or dissemination of that identifying information, is 
undertaken consistent with the procedures established and adhered to 
by I&A pursuant to that Executive Order. Specifically, I&A 
intelligence personnel may acquire information which identifies a 
particular U.S. Person, retain it within or disseminate it from ERS, 
as appropriate, only when it is determined that the personally 
identifying information is necessary for the conduct of I&A's 
functions, and otherwise falls into one of a limited number of 
authorized categories, each of which reflects discrete activities 
for which information on individuals would be utilized by the 
Department in the overall execution of its statutory mission.
    (4) From subsections (e)(4) (G), (H) and (I) (Access), and (f) 
(Agency Rules), inasmuch as it is unnecessary for the publication of 
rules and procedures contemplated therein since the ERS, pursuant to 
subsections (1) and (2), above, will be exempt from the underlying 
duties to provide to individuals notification about, access to, and 
the ability to amend or correct the information pertaining to them 
in, this system of records. Furthermore, to the extent that 
subsection (e)(4)(I) is construed to require more detailed 
disclosure than the information accompanying the system notice for 
ERS, as published in today's Federal Register, exemption from it is 
also necessary to protect the confidentiality, privacy, and physical 
safety of sources of information, as well as the methods for 
acquiring it. Finally, greater specificity concerning the 
description of categories of sources of properly classified records 
could also compromise or otherwise cause damage to the national or 
homeland security.

Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.

 [FR Doc. E8-10891 Filed 5-14-08; 8:45 am]
BILLING CODE 4410-10-P