[Federal Register Volume 73, Number 237 (Tuesday, December 9, 2008)]
[Proposed Rules]
[Pages 74633-74635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29060]
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2008-0187]
Privacy Act of 1974: Implementation of Exemptions; U.S.
Immigration and Customs Enforcement Intelligence Records System (IIRS)
AGENCY: Privacy Office, DHS.
ACTION: Notice of proposed rulemaking.
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[[Page 74634]]
SUMMARY: The Department of Homeland Security (DHS), U.S. Immigration
and Customs Enforcement, is giving concurrent notice of a new system of
records pursuant to the Privacy Act of 1974 for the U.S. Immigration
and Customs Enforcement Intelligence Records System (IIRS) and this
proposed rulemaking. In this proposed rulemaking, the Department
proposes to exempt portions of the system of records from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements.
DATES: Comments must be received on or before January 8, 2009.
ADDRESSES: You may submit comments, identified by DHS-2008-0187 by one
of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 1-866-466-5370.
Mail: Hugo Teufel III, Chief Privacy Officer, Privacy
Office, 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.
FOR FURTHER INFORMATION CONTACT: Lyn Rahilly, Privacy Officer, U.S.
Immigration and Customs Enforcement, 425 I Street, NW., Washington, DC
20536, e-mail: [email protected], or Hugo Teufel III (703-235-0780),
Chief Privacy Officer, Privacy Office, U.S. Department of Homeland
Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The U.S. Immigration and Customs Enforcement (ICE) Intelligence
Records System (IIRS) system of records contains information generated
or received by the ICE Office of Intelligence, or other offices within
ICE that support the law enforcement intelligence mission, that is
analyzed and disseminated to ICE executive management and operational
units for law enforcement, intelligence, counterterrorism, and other
homeland security purposes. Using various databases and tools, ICE
produces formal law-enforcement intelligence reports that are the end-
result of the intelligence process. These reports, the underlying data
on which they are based, and the work papers used or created by the
analysts and agents, are all included within the IIRS system of
records.
IIRS also contains data maintained in the Office of Intelligence's
Intelligence Fusion System (IFS), a software application and data
repository that supports research and analysis of information from a
variety of sources within and outside of DHS to support law enforcement
investigations, administration of immigration and naturalization laws
and other laws administered or enforced by DHS, and production of DHS
intelligence products. IFS is specifically designed to make the
intelligence research and analysis process more efficient by allowing
searches of a broad range of data through a single interface. IFS can
also identify links (relationships) between individuals or entities
based on commonalities, such as identification numbers, addresses, or
other information. These commonalities in and of themselves are not
suspicious, but in the context of additional information they sometimes
help DHS agents and analysts to identify potentially criminal activity
and identify other suspicious activities. These commonalities can also
form the basis for a DHS-generated intelligence product that may lead
to further investigation or other appropriate follow-up action by ICE,
DHS, or other Federal, State, or local agencies.
DHS personnel may access IFS only if they hold positions that
involve the execution of law enforcement responsibilities, the
administration of immigration and naturalization laws and other laws
enforced by DHS, or the production of DHS intelligence products. While
IFS does increase the efficiency of data research and analysis, it does
not allow DHS personnel to obtain any data they could not otherwise
access in the course of their job responsibilities. IFS does not seek
to predict future behavior or ``profile'' individuals, i.e., look for
individuals who meet a certain pattern of behavior that has been pre-
determined to be suspect.
II. Privacy Act
In this notice of proposed rulemaking, DHS now is proposing to
exempt IIRS, in part, from certain provisions of the Privacy Act. 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 in finding such files within the agency. The Privacy Act
also allows Government agencies to exempt certain records from the
access and amendment provisions. If an agency claims 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 for IIRS. Some information in IIRS relates to official DHS national
security, law enforcement, and intelligence activities. These
exemptions are needed to protect information relating to DHS activities
from disclosure to subjects or others related to these activities.
Specifically, the exemptions are required to preclude subjects of these
activities from frustrating these processes; to avoid disclosure of law
enforcement intelligence and investigative techniques; to protect the
identities and physical safety of confidential informants and of border
management and law enforcement personnel; to ensure DHS's ability to
obtain information from third parties and other sources; to protect the
privacy of third parties; and to safeguard classified information.
Disclosure of information to the subject of the inquiry could also
permit the subject to avoid detection or apprehension.
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 law enforcement purposes of this system and the overall law
enforcement process, the applicable exemptions may be waived on a case
by case basis.
[[Page 74635]]
A notice of system of records for the Department's IIRS System is
also published in this issue of the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the preamble, 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: Public Law 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
paragraph 14 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
14. The ICE Intelligence Records System (IIRS) consists of
electronic and paper records and will be used by the Department of
Homeland Security (DHS). IIRS is a repository of information held by
DHS in connection with its several and varied missions and
functions, including, but not limited to: The enforcement of civil
and criminal laws; investigations, inquiries, and proceedings
thereunder; and national security and intelligence activities. IIRS
contains information that is collected by other federal and foreign
government agencies and may contain personally identifiable
information. Pursuant to exemption 5 U.S.C. 552a(j)(2) of the
Privacy Act, portions of this system are exempt from 5 U.S.C.
552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G),
(e)(4)(H), (e)(5) and (e)(8); (f), and (g). Pursuant to 5 U.S.C.
552a(k)(2), this system is exempt from the following provisions of
the Privacy Act, subject to the limitations set forth in those
subsections: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H),
and (f). Exemptions from these particular subsections are justified,
on a case-by-case basis to be determined at the time a request is
made, for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of the
investigation, and reveal investigative interest on the part of DHS
as well as the recipient agency. Disclosure of the accounting would
therefore present a serious impediment to law enforcement efforts
and/or efforts to preserve national security. Disclosure of the
accounting would also permit the individual who is the subject of a
record to impede the investigation, to tamper with witnesses or
evidence, and to avoid detection or apprehension, which would
undermine the entire investigative process.
(b) From subsection (d) (Access to Records) because access to
the records contained in this system of records could inform the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation, to the existence of the
investigation, and reveal investigative interest on the part of DHS
or another agency. Access to the records could permit the individual
who is the subject of a record to impede the investigation, to
tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
impossible administrative burden by requiring investigations to be
continuously reinvestigated. In addition, permitting access and
amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of Federal law, the accuracy of information obtained or
introduced occasionally may be unclear or the information may not be
strictly relevant or necessary to a specific investigation. In the
interests of effective law enforcement, it is appropriate to retain
all information that may aid in establishing patterns of unlawful
activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of an investigation, thereby interfering with
the related investigation and law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information would impede law enforcement in
that it could compromise investigations by: Revealing the existence
of an otherwise confidential investigation and thereby provide an
opportunity for the subject of an investigation to conceal evidence,
alter patterns of behavior, or take other actions that could thwart
investigative efforts; reveal the identity of witnesses in
investigations, thereby providing an opportunity for the subjects of
the investigations or others to harass, intimidate, or otherwise
interfere with the collection of evidence or other information from
such witnesses; or reveal the identity of confidential informants,
which would negatively affect the informant's usefulness in any
ongoing or future investigations and discourage members of the
public from cooperating as confidential informants in any future
investigations.
(f) From subsections (e)(4)(G) and (H) (Agency Requirements),
and (f) (Agency Rules) because portions of this system are exempt
from the individual access provisions of subsection (d) for the
reasons noted above, and therefore DHS is not required to establish
requirements, rules, or procedures with respect to such access.
Providing notice to individuals with respect to existence of records
pertaining to them in the system of records or otherwise setting up
procedures pursuant to which individuals may access and view records
pertaining to themselves in the system would undermine investigative
efforts and reveal the identities of witnesses, and potential
witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
in the collection of information for law enforcement purposes it is
impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with (e)(5) would
preclude DHS agents from using their investigative training and
exercise of good judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS' ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal, and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (g) (Civil Remedies) to the extent that the
system is exempt from other specific subsections of the Privacy Act
relating to individuals' rights to access and amend their records
contained in the system. Therefore DHS is not required to establish
rules or procedures pursuant to which individuals may seek a civil
remedy for the agency's refusal to amend a record; refusal to comply
with a request for access to records; failure to maintain accurate,
relevant, timely and complete records; or failure to otherwise
comply with an individual's right to access or amend records.
Dated: December 1, 2008.
Hugo Teufel III,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. E8-29060 Filed 12-8-08; 8:45 am]
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