[Federal Register Volume 81, Number 38 (Friday, February 26, 2016)]
[Proposed Rules]
[Pages 9789-9790]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03923]


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 Proposed Rules
                                                 Federal Register
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 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.
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  Federal Register / Vol. 81, No. 38 / Friday, February 26, 2016 / 
Proposed Rules  

[[Page 9789]]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2015-0050]


Privacy Act: Implementation of Exemptions; Department of Homeland 
Security/ALL-038 Insider Threat Program System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security (DHS) is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/ALL-038 Insider 
Threat Program System of Records'' 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 March 28, 2016.

ADDRESSES: You may submit comments, identified by docket number DHS-
2015-0050 or by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 202-343-4010.
     Mail: Karen L. Neuman, 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 document. 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: For questions please contact: Karen L. 
Neuman, (202-343-1717), Chief Privacy Officer, Privacy Office, 
Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department proposes to establish a new DHS system of records titled 
``DHS/ALL-038 Insider Threat Program System of Records.''
    DHS has created a Department-wide system, known as the Insider 
Threat Program system of records to manage insider threat matters 
within DHS. The Insider Threat Program was mandated by E.O. 13587, 
``Structural Reforms to Improve the Security of Classified Networks and 
the Responsible Sharing and Safeguarding of Classified Information,'' 
issued October 7, 2011, which requires Federal agencies to establish an 
insider threat detection and prevention program to ensure the security 
of classified networks and the responsible sharing and safeguarding of 
classified information with appropriate protections for privacy and 
civil liberties. Insider threats include: Attempted or actual 
espionage, subversion, sabotage, terrorism, or extremist activities 
directed against the Department and its personnel, facilities, 
resources, and activities; unauthorized use of or intrusion into 
automated information systems; unauthorized disclosure of classified, 
controlled unclassified, sensitive, or proprietary information or 
technology; and indicators of potential insider threats. The Insider 
Threat Program system may include information from any DHS Component, 
office, program, record, or source, and includes records from 
information security, personnel security, and systems security for both 
internal and external security threats.
    Consistent with DHS's information sharing mission, information 
stored in the DHS/ALL-038 Insider Threat Program system of records may 
be shared with other DHS components that have a need to know the 
information to carry out their national security, law enforcement, 
immigration, intelligence, or other homeland security functions. In 
addition, DHS may share information with appropriate Federal, State, 
local, tribal, territorial, foreign, or international government 
agencies consistent with the routine uses set forth in the DHS ALL-038 
system of records notice.
    DHS is issuing this Notice of Proposed Rulemaking to exempt this 
system of records from certain provisions of the Privacy Act. The 
system of records notice is published elsewhere in this Federal 
Register. This newly established system will be included in DHS's 
inventory of record systems.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which federal government 
agencies collect, maintain, use, and disseminate individuals' records. 
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 an individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual. In the Privacy Act, 
an individual is defined to encompass U.S. citizens and lawful 
permanent residents. As a matter of policy, DHS extends administrative 
Privacy Act protections to all individuals when systems of records 
maintain information on U.S. citizens, lawful permanent residents, and 
visitors.
    The Privacy Act 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 DHS/ALL-038 Insider Threat Program System of Records. Some 
information in DHS/ALL-038 Insider Threat Program System of Records 
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

[[Page 9790]]

processes; avoid disclosure of insider threat techniques; protect the 
identities and physical safety of confidential informants and law 
enforcement personnel; ensure DHS' ability to obtain information from 
third parties and other sources; protect the privacy of third parties; 
and safeguard classified information. Disclosure of information to the 
subject of the inquiry could also permit the subject to avoid detection 
or apprehension.
    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.
    A notice of system of records DHS/ALL-038 Insider Threat Program 
System of Records 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

0
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. 
Subpart B also issued under 5 U.S.C. 552a.

0
2. In appendix C to part 5, add paragraph 74 to read as follows:

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

* * * * *
    74. The DHS/ALL-038 Insider Threat Program System of Records 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/ALL-038 Insider Threat Program System of 
Records System of Records is a repository of information held by DHS 
in connection with various missions and functions, including, but 
not limited to the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings there under; and national 
security and intelligence activities. The DHS/ALL-038 Insider Threat 
Program System of Records contains information that is collected by, 
on behalf of, in support of, or in cooperation with DHS and its 
components and may contain personally identifiable information 
collected by other Federal, State, local, tribal, foreign, or 
international government agencies.
    The Secretary of Homeland Security, pursuant to 5 U.S.C. 
552a(j)(2), has exempted this system from the following provisions 
of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), 
(e)(12), (f), (g)(1), and (h). Additionally, the Secretary of 
Homeland Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and 
(k)(5), has exempted this system from the following provisions of 
the Privacy Act: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), 
(e)(4)(H), (e)(4)(I), and (f).
    Where a record received from another system has been exempted in 
that source system under 5 U.S.C. 552a(j)(2), DHS will claim the 
same exemptions for those records that are claimed for the original 
primary systems of records from which they originated and claims any 
additional exemptions set forth here.
    Exemptions from these particular subsections are justified on a 
case-by-case basis and 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 that 
investigation and reveal investigative interest on the part of DHS 
and 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 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 that 
investigation and reveal investigative interest on the part of DHS 
or another agency. Access to the records could permit 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 unreasonable 
administrative burden by requiring investigations to be continually 
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 the investigation, thereby interfering with 
that investigation and related law enforcement activities.
    (e) From subsection (e)(3) (Notice to Subjects) because 
providing such detailed information could impede law enforcement by 
compromising the existence of a confidential investigation or reveal 
the identity of witnesses or confidential informants.
    (f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (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 
with 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 subsection (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's 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)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: February 18, 2016.
Karen L. Neuman,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2016-03923 Filed 2-25-16; 8:45 am]
 BILLING CODE 9110-9B-P