[Federal Register Volume 82, Number 85 (Thursday, May 4, 2017)]
[Proposed Rules]
[Pages 20844-20846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09026]


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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.

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Federal Register / Vol. 82, No. 85 / Thursday, May 4, 2017 / Proposed 
Rules

[[Page 20844]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2017-0002]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/U.S. Immigration and Customs Enforcement-016 FALCON 
Search and Analysis System of Records

AGENCY: Privacy Office, Department of Homeland Security (DHS).

ACTION:  Notice of proposed rulemaking.

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SUMMARY:  The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/U.S. Immigration 
and Customs Enforcement-016 FALCON Search and Analysis 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 June 5, 2017.

ADDRESSES:  You may submit comments, identified by docket number DHS-
2017-0002 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: Jonathan R. Cantor, Acting 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 notice. 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: Amber Smith, Privacy Officer, (202-
732-3300), U.S. Immigration and Customs Enforcement, 500 12th Street 
SW., Mail Stop 5004, Washington, DC 20536, email: ICEPrivacy@dhs.gov, 
or Jonathan R. Cantor (202-343-1717), Acting Chief Privacy Officer, 
Privacy Office, Department of Homeland Security, Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    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 ``DHS/U.S. Immigration and Customs Enforcement 
(ICE)-016 FALCON Search and Analysis System of Records'' and this 
proposed rule. In this rule, 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.
    The FALCON Search and Analysis (FALCON-SA) System of Records 
describes the operation of an ICE information technology system of the 
same name, which is owned by ICE's Office of Homeland Security 
Investigations (HSI). This system contains a repository of data that is 
ingested on a routine or ad hoc basis from other existing sources, and 
an index created from that data. FALCON-SA incorporates tools that 
allow the data to be queried, analyzed, and presented in a variety of 
formats that can help illuminate relationships among the various data 
elements. The purpose of FALCON-SA is to help ICE HSI personnel conduct 
research and analysis using advanced analytic tools in support of their 
law enforcement mission.

FALCON Overview

    In 2012, ICE HSI created a new IT environment called ``FALCON'' to 
support ICE's law enforcement and criminal investigative missions. The 
FALCON environment is designed to permit ICE law enforcement and 
homeland security personnel to search and analyze data ingested from 
other Government applications and systems while employing appropriate 
user access restrictions at the data element level and robust user 
auditing controls.
    In February 2012, ICE deployed the first module of FALCON with the 
launch of FALCON-SA. FALCON-SA enables ICE law enforcement and homeland 
security personnel to search, analyze, and visualize volumes of 
existing information in support of ICE's mission to enforce and 
investigate violations of U.S. criminal, civil, and administrative 
laws. ICE agents, criminal research specialists, and intelligence 
analysts use FALCON-SA to conduct research that supports the production 
of law enforcement intelligence products; provides lead information for 
investigative inquiry and follow-up; assists in the conduct of ICE 
criminal, civil, and administrative investigations; assists in the 
disruption of terrorist or other criminal activity; and discovers 
previously unknown connections among existing ICE investigations. ICE's 
use of the system is always predicated on homeland security, law 
enforcement, and/or intelligence activities. FALCON-SA is an internal 
system used only by ICE.
    Since the launch of FALCON-SA, ICE has created other user 
interfaces, including FALCON-Tip Line, FALCON-DARTTS, and FALCON-
Roadrunner, under the FALCON umbrella. Like FALCON-SA, these other 
interfaces also use data maintained in the FALCON general data storage 
environment. This environment is where FALCON data is aggregated and 
user access is controlled through a combination of data tagging, access 
control lists, and other technologies. Using a central data store for 
FALCON data eliminates the need for multiple copies of the data and 
streamlines the application of many security and privacy controls. Only 
data accessed via FALCON-SA is covered by the DHS/ICE-016 FALCON-SA 
System of Records Notice (SORN). However, the other interfaces are 
covered by other ICE SORNs, as specified in the System Location section 
of the SORN. Separate SORNs are appropriate because the data, purposes, 
and routine uses differ for each FALCON interface.

FALCON-SA Data

    Information included in FALCON-SA is ingested either on a routine 
or ad hoc

[[Page 20845]]

basis. Routine ingests are regular updates to datasets that originate 
from other Government (typically ICE or DHS) data systems. A list of 
routine ingests into the FALCON general data storage environment that 
are accessible via FALCON-SA is available in the FALCON-SA Privacy 
Impact Assessment at www.dhs.gov/privacy.
    Ad hoc ingests are user-driven ingests of particular data that may 
be relevant to a given user or group's investigative or analytical 
project in FALCON-SA. The nature of the data in ad hoc ingests varies 
from data collected from a commercial or public source (e.g., Internet 
research or from a commercial data service such as CLEAR), to public 
reports of law enforcement violations or suspicious activity (tips), to 
digital records seized or subpoenaed during an investigation. All ad 
hoc ingests are tagged by the FALCON-SA user with the appropriate 
category description, and that tag drives the retention policy for that 
data. The ad hoc ingest category description list is included in the 
FALCON-SA Privacy Impact Assessment at www.dhs.gov/privacy.
    FALCON-SA records may include some or all of the following types of 
personally identifiable information: Identifying and biographical data 
such as name and date of birth, citizenship and immigration data, 
border crossing data, customs import-export history, criminal history, 
contact information, criminal associates, family relationships, 
photographs and other media, and employment and education information.
    FALCON-SA also contains an index, which is a numerical and 
alphabetical list of every word or string of numbers/characters found 
in the FALCON-SA database, with a reference to the electronic location 
where the corresponding source record is stored. FALCON-SA uses this 
index to conduct searches, identify relationships and links between 
records and data, and generate visualizations for analytic purposes. 
FALCON-SA also contains metadata that is created when ingesting data. 
The metadata is used to apply access controls and other system rules 
(such as retention policies) to the contents of FALCON-SA. The metadata 
also provides important contextual information about the date the 
information was added to FALCON-SA and the source system from where the 
data originated.
    The data sets in FALCON-SA include tips submitted to ICE either 
through an online form on the ICE Web site or by calling the HSI Tip 
Line. These tips are generally created electronically using the FALCON-
Tip Line interface. Alternatively, they may be manually entered by 
HSI's Cyber Crimes Center when the tips pertain to child exploitation 
crimes. Once HSI adjudicates the tips for action, they are then 
accessible to all HSI users via the FALCON-SA interface.

Uses of FALCON-SA

    ICE HSI agents, criminal research specialists, and intelligence 
analysts query FALCON-SA for a variety of purposes: To conduct research 
that supports the production of law enforcement intelligence products; 
to provide lead information for investigative inquiry and follow-up; to 
assist in the conduct of ICE criminal, civil, and administrative 
investigations; to assist in the disruption of terrorist or other 
criminal activity; and to discover previously unknown connections among 
existing ICE investigations. These queries can be saved in FALCON-SA to 
eliminate the need to recreate them each time a user logs on.
    Strong access controls and a robust audit function ensure that 
ICE's use of the system is predicated on homeland security, law 
enforcement, and intelligence activities. This requirement is enforced 
by a governance group composed of leadership from HSI with oversight by 
ICE's legal, privacy, and civil liberties offices.
    While ICE previously relied on the DHS/ICE-006 ICE Intelligence 
Records System (IIRS) SORN, last published at 75 FR 9233 (Mar. 1, 
2010), to maintain FALCON-SA records, ICE recently determined a 
separate system of records notice will provide greater transparency and 
allow ICE to more accurately describe the records accessible via 
FALCON-SA. FALCON-Tip Line records were previously covered by the DHS/
ICE-007 Alien Criminal Response Information Management (ACRIMe) SORN, 
but the FALCON-SA SORN will now cover those records instead. This 
change is due to Tip Line records having migrated out of the ACRIMe 
system into the FALCON environment and that once created, the official 
repository for FALCON-Tip Line records is the FALCON general data 
storage environment.
    This SORN will cover data that is accessible via FALCON-SA's user 
interface only, and does not cover data that is accessed via other 
FALCON interfaces, such as Roadrunner and DARTTS, which are covered by 
the DHS/ICE-005 Trade Transparency and Analysis Records (TTAR) SORN.
    Additional information about FALCON-SA can be found in the Privacy 
Impact Assessments published for FALCON-SA and FALCON-Tip Line, 
available at http://www.dhs.gov/privacy-documents-ice.
    Consistent with DHS's information sharing mission, information 
stored in the FALCON-SA SORN 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, information may be shared with 
appropriate Federal, State, local, tribal, territorial, foreign, or 
international government agencies consistent with the routine uses set 
forth in the system of records notice.

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. Additionally, and similarly, the Judicial Redress 
Act (JRA) provides a statutory right to covered persons to make 
requests for access and amendment to covered records, as defined by the 
JRA, along with judicial review for denials of such requests. In 
addition, the JRA prohibits disclosures of covered records, except as 
otherwise permitted by the Privacy Act.
    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/ICE-016 FALCON-SA System of Records. Some information this 
system of records relates to official DHS national security, law 
enforcement, immigration, 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 
activity techniques; to protect the identities and physical safety

[[Page 20846]]

of confidential informants and law enforcement personnel; to ensure DHS 
retains the ability to obtain information from third parties and other 
sources; and to protect the privacy of third parties. Disclosure of 
information to the subject of the inquiry could also permit the subject 
to avoid detection or apprehension.
    In appropriate circumstances, when 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 system of records notice for DHS/ICE-016 FALCON-SA 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: 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 301; 6 U.S.C. 
101 et seq.; E.O. 13392.

0
2. Add new paragraph 77 at the end of appendix C to read as follows:

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

* * * * *
    77. The DHS/ICE-016 FALCON Search and Analysis (FALCON-SA) 
System of Records consists of electronic and paper records and will 
be used by ICE law enforcement and homeland security personnel. The 
DHS/ICE-016 FALCON-SA System of Records contains aggregated data 
from ICE and DHS law enforcement and homeland security IT systems, 
as well as data uploaded by ICE personnel for analysis from various 
public, private, and commercial sources during the course of an 
investigation or analytical project. This information may include 
some or all of the following types of personally identifiable 
information: Identifying and biographic data such as name and date 
of birth; citizenship and immigration data; border crossing data; 
customs import-export history; criminal history; contact 
information; criminal associates; family relationships; photographs 
and other media; and employment and education information. The 
records also include tips received by ICE from the public concerning 
suspicious or potentially illegal activity, as well as telephone 
call detail records, which contain call transactions and subscriber 
data, obtained via lawful process during the course of an 
investigation. This information is maintained by ICE for analytical 
and investigative purposes and is made accessible to ICE personnel 
via the FALCON-SA system interface. The system is used to conduct 
research that supports the production of law enforcement 
intelligence products; provide lead information for investigative 
inquiry and follow-up; assist in the conduct of ICE criminal and 
administrative investigations; assist in the disruption of terrorist 
or other criminal activity; and discover previously unknown 
connections among existing ICE investigations.
    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); 
(f); and (g). Additionally, the Secretary of Homeland Security, 
pursuant to 5 U.S.C. 552a(k)(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); and (g). When a record received from 
another system has been exempted in that source system under 5 
U.S.C. 552a(j)(2) or (k)(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 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 administrative violation to the existence of that 
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 administrative 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 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 
unreasonable administrative burden by requiring investigations to be 
continually reinvestigated. In addition, permitting access and 
amendment to such information could disclose classified and other 
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 
and/or threaten individuals' safety 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: May 1, 2017.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2017-09026 Filed 5-3-17; 8:45 am]
 BILLING CODE 9111-28-P