[Federal Register Volume 84, Number 169 (Friday, August 30, 2019)]
[Rules and Regulations]
[Pages 45641-45644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-18749]


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DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. DHS-2019-0031]


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: U.S. Immigration and Customs Enforcement, U.S. Department of 
Homeland Security.

ACTION: Final rule.

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SUMMARY: The Department of Homeland Security (DHS) is issuing a final 
rule to amend its regulations to exempt portions of an updated and 
reissued system of records titled, ``Department of Homeland Security/
U.S. Immigration and Customs Enforcement-016 FALCON Search and Analysis 
System of Records'' from certain provisions of the Privacy Act. 
Specifically, the Department exempts portions of this system of records 
from one or more provisions of the Privacy Act because of criminal, 
civil, and administrative enforcement requirements.

DATES: This final rule is effective August 30, 2019.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Jordan Holz, (202) 732-3300, Acting Privacy Officer, Immigration and 
Customs Enforcement, Washington, DC 20536. For privacy issues please 
contact: Jonathan R. Cantor (202)-343-1717, Acting Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528.

SUPPLEMENTARY INFORMATION: 

I. Background

    DHS U.S. Immigration and Customs Enforcement (ICE) published a 
notice of proposed rulemaking (NPRM) in the Federal Register (82 FR 
20844, May 4, 2017) proposing to exempt portions of DHS/ICE-016 FALCON 
Search and Analysis (FALCON-SA) System of Records from one or more 
provisions of the Privacy Act because of criminal, civil, and 
administrative enforcement requirements. This system of records was 
published concurrently in the Federal Register (82 FR 20905, May 4, 
2017), and DHS sought comments on both the NPRM and System of Records 
Notice (SORN). It should be noted that the NPRM was over-inclusive 
regarding Privacy Act exemptions. This final rule appropriately limits 
the exemptions to what is permitted under the Privacy Act.

[[Page 45642]]

Basis and Purpose of Regulatory Action

    In finalizing this rule, DHS exempts portions of the updated and 
reissued FALCON Search and Analysis (FALCON-SA) system of records from 
one or more provisions of the Privacy Act. ICE Homeland Security 
Investigations (HSI) personnel use FALCON-SA to conduct research and 
analysis using advanced analytic tools in support of ICE's law 
enforcement mission. Providing an individual access to FALCON-SA 
records pertaining to that individual could inform the subject of an 
ongoing or potential criminal, civil, or regulatory investigation, or 
reveal investigative interest on the part of DHS or another agency. For 
these reasons, DHS will exempt portions of the FALCON-SA system of 
records from certain provisions of the Privacy Act of 1974.

II. Public Comments

    DHS received two substantive comments on the NPRM and one 
substantive comment on the SORN.

NPRM

    Both commenters stated that exempting the portions of the FALCON-SA 
system of records from 5 U.S.C. 552a(e)(1), which ensures that all 
information collected about an individual ``is relevant and 
necessary,'' risks violating an individual's Fourth Amendment 
protection from unreasonable search and seizure. Further, one commenter 
expressed concern that ``collection'' systems like FALCON-SA could be 
considered warrantless investigations and raise reasonable expectation 
of privacy considerations. The relevance of this objection is unclear 
as generally there is no warrant requirement for an investigation. 
Also, 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.
    Moreover, FALCON-SA is used for storing, searching, analyzing, and 
visualizing volumes of existing information gathered under processes 
that are covered by their own standard operating procedures, policies, 
and rules of behavior where applicable. It does not directly collect 
information from any individuals.\1\ Further, to ensure that all 
information ingested into FALCON-SA is collected appropriately, all 
users complete FALCON-SA training that includes rules of behavior, 
appropriate use of system data, uploading and tagging records, 
disclosure and dissemination of records, and system security. Users 
must complete training in order to receive authorization to access 
FALCON-SA. All personnel who have access to the ICE Network are also 
required to take annual privacy and security training, which emphasizes 
the DHS Rules of Behavior and other legal and policy restrictions on 
user behavior.
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    \1\ For more information on ingests, including an explanation of 
sources of information ingested into FALCON-SA, see: DHS/ICE/PIA-032 
FALCON Search & Analysis System.
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    One commenter indicated that FALCON-SA collects individuals' 
information without their consent, and therefore objected generally to 
Privacy Act exemptions for the FALCON-SA system of records. As noted 
above, FALCON-SA does not directly gather information from the 
individual, but rather ingests information collected through existing 
legal processes. DHS, in exempting portions of the FALCON-SA system of 
records from particular provisions of the Privacy Act, is not engaging 
in a search of any individual. To the extent comments address potential 
impacts or concerns with collection of information by other systems, 
DHS and ICE publish SORNs and rules for all systems of records that can 
be found at https://www.dhs.gov/system-records-notices-sorns.
    Another commenter stated that the FALCON-SA System of Records 
allows ICE personnel to collect ``any information [he or she] wants 
without disclosing where it came from or even acknowledging its 
existence.'' While DHS notes this concern, law enforcement exemptions 
allow ICE personnel to retain evidentiary information in the 
appropriate system(s) without public disclosure. When law enforcement 
agencies share information they collect with ICE, appropriate ICE 
personnel determine whether it should be ingested into FALCON-SA. If 
information is ingested, ICE personnel do not make any changes to the 
data, in order to preserve data accuracy and integrity. Under this 
final rule, information that is or will be stored in FALCON-SA will be 
exempt from disclosure so that law enforcement investigations are not 
negatively impacted. DHS ensures that all FALCON-SA users are trained 
on the proper uses of the system. All ingests performed by a FALCON-SA 
user require ICE supervisory approval. FALCON-SA also implements 
extensive auditing of user actions in the system. The system 
automatically maintains an audit log, and any attempt to access 
information outside of the user's permissions will be automatically 
flagged throughout the enterprise. User actions are recorded and stored 
in audit logs accessible to supervisors and ICE IT security personnel, 
which are searched and analyzed to ensure proper use of the system. 
Audit data is also available to ICE Office of Professional 
Responsibility (OPR) investigators if there is an investigation into 
possible wrongdoing by a FALCON-SA user. Additional information on 
auditing and technical controls and safeguards can be found in the 
FALCON-SA Privacy Impact Assessment (PIA), available at https://www.dhs.gov/privacy-impact-assessments. While ICE cannot disclose the 
specific information collected by FALCON-SA without compromising 
individual cases, the FALCON-SA PIA was published to transparently 
explain how information is collected, stored, protected, shared, and 
managed by the system..

SORN

    The comment received in regard to the SORN can be broken down into 
two main topics:
    (1) The system collects too broadly, and
    (2) The routine uses for disclosure circumvent Privacy Act 
safeguards and contravene legislative intent.
    Regarding the first point, the comment suggested that FALCON-SA 
collects ``virtually unlimited'' categories of records. ICE developed 
FALCON-SA to enhance ICE's ability to identify, apprehend, and initiate 
appropriate legal proceedings against individuals who violate criminal, 
civil, and administrative laws enforced by ICE. FALCON-SA supports the 
investigative work of ICE HSI agents and criminal research specialists 
by allowing them to search, review, upload, and analyze data pertinent 
to an investigative lead or an ongoing case. While ``collection'' is 
not an applicable concept in the context of actions that are undertaken 
through FALCON-SA directly, DHS acknowledges a general risk of over-
collection of information. In circumstances when ICE directly collects 
information, ICE only collects the minimum amount relevant and 
necessary to further ICE's law enforcement mission. To that end, ICE 
maintains information about DHS personnel, other law enforcement 
personnel, victims, witnesses, and other

[[Page 45643]]

associated individuals who may be relevant in the course of an 
investigation. ICE does not use FALCON-SA to collect any information 
directly from an individual or about an individual, but rather ingests 
information collected by other systems pursuant to the limitations in 
their own privacy compliance documentation. HSI personnel determine 
whether the information from other systems should be ingested into 
FALCON-SA. ICE has established system safeguards to prevent the 
inclusion of data that does not serve FALCON-SA's intended purpose, 
which is to support ICE HSI law enforcement investigations and 
analytical activities. As stated above, before being able to access 
FALCON-SA, users must first complete privacy and information security 
training that includes appropriate uses of system data, uploading and 
tagging records, disclosure and dissemination of records, and system 
security to mitigate any risk resulting from the collection of this 
information. Further, as stated above, ICE also implements extensive 
auditing of user actions in the system.
    The commenter expressed concerns about disclosures pursuant to 
routine uses proposed in the FALCON-SA SORN. First, disclosures 
pursuant to the routine use exception are never mandatory, but instead 
are at the discretion of the agency. Second, FALCON-SA users have a 
requirement to document all disclosures made per these routine use 
exceptions as well as disclosures made under any other authority.
    Specifically, the commenter expressed concerns about Routine Uses 
H, J, and O. Routine Use H authorizes disclosure to federal, state, 
local, tribal, territorial, foreign, or international agencies for 
background investigations. Under this Routine Use, DHS only shares 
information about individuals' criminal, civil, and administrative law 
violations in response to other agencies' background investigations. 
This type of disclosure is limited to information that was collected 
for law enforcement purposes. Limited sharing to assist in law 
enforcement investigations is consistent with the purpose for 
collection.
    Routine Use J authorizes disclosure to international and foreign 
partners in accordance with law and formal or informal international 
arrangements. DHS enters into formal or informal information sharing 
agreements that are consistent with the system's law enforcement 
purposes. Further, information sharing partners must execute a 
Memorandum of Understanding (MOU), Memorandum of Agreement (MOA), or an 
equivalent agreement stipulating that they will only use DHS 
information consistent with the purposes for which the information was 
collected.
    Routine Use O authorizes disclosure to the media and members of the 
public with the prior approval of the Chief Privacy Officer, if the 
disclosure is a matter of legitimate public interest. Like all Routine 
Uses, disclosures are not mandatory. Media disclosures are limited in 
scope and subject to restrictions and procedures located in the DHS 
Privacy Policy Guidance Memorandum 2017-01 \2\ and other laws, 
regulations, and policies. Absent a waiver by the subject of the 
record, ICE may only release information to the media in those specific 
situations detailed in the Routine Use. Similar to other law 
enforcement agencies, for example, ICE may release the name, age, 
gender, and the summary of a criminal charge if the subject of a record 
has been charged with a crime and that information falls within ICE's 
purview. ICE may also release limited fugitive information, which would 
be beneficial to public safety.
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    \2\ Available at https://www.dhs.gov/publication/dhs-privacy-policy-guidance-memorandum-2017-01.
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    After consideration of public comments, the Department will 
implement the rulemaking as proposed.

List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    For the reasons stated in the preamble, DHS amends 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: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 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. Amend appendix C to part 5 by adding paragraph 81 to read as 
follows:

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

* * * * *
    81. The DHS/ICE-016 FALCON Search and Analysis (FALCON-SA) 
System of Records consists of electronic and paper records and will 
be used by DHS and its components. The FALCON-SA System of Records 
is a repository of information held by DHS in connection with its 
several and varied missions and functions, including the enforcement 
of civil and criminal laws; investigations, inquiries, and 
proceedings thereunder; and national security and intelligence 
activities. The FALCON-SA 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 has exempted this system from the following 
provisions of the Privacy Act, subject to limitations set forth in 5 
U.S.C. 552a(c)(3) and (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) 
pursuant to 5 U.S.C. 552a(j)(2). Additionally, the Secretary of 
Homeland Security has exempted this system from the following 
provisions of the Privacy Act, subject to limitations set forth in 5 
U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and 
(f) pursuant to 5 U.S.C. 552a(k)(2). 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 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. Information on a 
completed investigation may be withheld and exempt from disclosure 
if the fact that an investigation occurred remains sensitive after 
completion.
    (b) From subsection (d) (Access and Amendment 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 
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 
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

[[Page 45644]]

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.
    (j) From subsection (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2019-18749 Filed 8-29-19; 8:45 am]
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