[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]



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.


[[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.


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 
    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:


    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 

* * * * *
    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 
    (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 
    (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 
    (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]