[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.
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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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