[Federal Register Volume 85, Number 194 (Tuesday, October 6, 2020)]
[Rules and Regulations]
[Pages 62933-62934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18857]



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 Rules and Regulations
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  Federal Register / Vol. 85, No. 194 / Tuesday, October 6, 2020 / 
Rules and Regulations  

[[Page 62933]]



DEPARTMENT OF HOMELAND SECURITY

6 CFR Part 5

[Docket No. DHS-2020-0032]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-038 Insider Threat Program System of Records

AGENCY: Department of Homeland Security.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Department of Homeland Security (DHS) is issuing a final 
rule to amend its regulations to exempt portions of a newly updated 
system of records titled, ``DHS/ALL-038 Insider Threat Program 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 October 6, 2020.

FOR FURTHER INFORMATION CONTACT: For privacy questions, please contact: 
Constantina Kozanas, (202) 343-1717, [email protected], Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528-0655.

SUPPLEMENTARY INFORMATION:

I. Background

    The Department of Homeland Security (DHS) published a notice of 
proposed rulemaking in the Federal Register, 85 FR 13831, March 10, 
2020, proposing 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. In concert with that 
rulemaking, DHS issued a modified system of records notice, ``DHS/ALL-
038 Insider Threat Program System of Records'' in the Federal Register, 
85 FR 13914, March 10, 2020, to the public (1) outlining that DHS is 
expanding the categories of individuals to all individuals who have or 
had access to the Department's facilities, information, equipment, 
networks, or systems; (2) to clarify that the categories of records in 
this SORN will be modified to cover records from any DHS Component, 
office, program, record, or source, including records from information 
security, personnel security, and systems security for both internal 
and external security threats; and (3) to clarify and expand several 
previously issued routine uses.
    DHS invited comments on both the System of Records Notice (SORN) 
and Notice of Proposed Rulemaking (NPRM).

II. Public Comments

    DHS received five comments on the NPRM and one comment on the SORN.

NPRM

    DHS received four comments on the published NPRM regarding the 
collection of information by DHS generally, and not specific to the 
Insider Threat Program system of records. DHS received one comment on 
the published NPRM regarding DHS's proposed exemptions covered by the 
associated Insider Threat Program system of records. In short, the 
comment argues that DHS's proposed use of these exemptions would 
circumvent Privacy Act safeguards and contravene legislative intent by 
permitting DHS to collect records that are not relevant and necessary, 
failing to disclose its sources of records, and preventing individuals 
from accessing and amending their records. DHS believes the 
explanations and justifications provided in the NPRM and this final 
rule fully support DHS's uses of these exemptions. In summary, DHS 
appreciates the public comments and strives to be transparent regarding 
all Insider Threat collections and uses. After consideration of the 
public comments, DHS has determined that the exemptions should remain 
in place and will implement the rulemaking as proposed.

SORN

    DHS received one comment on the SORN proposing to (1) minimize the 
scope of information collected because of the surge of federal 
government data breaches and general cybersecurity weaknesses that 
allegedly federal agencies, including DHS, may incur as part of their 
systems; (2) exclude category of individuals and relevant personal 
associations, including those not under investigation by DHS; and (3) 
eliminate the use of routine uses that are incompatible with the 
purpose for which the data was collected, including those that relate 
to disclosures for: Employment, licensing, and other benefit 
eligibility decisions; to the news media and public for a legitimate 
public interest; and to foreign entities. DHS appreciates the public 
comment and strives to be transparent regarding all Insider Threat 
collections. After consideration of the public comment, DHS has 
determined that the SORN should remain in place.

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: 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. In appendix C to part 5, revise paragraph ``20'' to read as follows:

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

* * * * *
    20. The Department of Homeland Security (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 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 there 
under; national security and intelligence activities; and protection 
of the President of the U.S. or other individuals pursuant to 
Section 3056 and 3056A of Title 18. 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

[[Page 62934]]

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); and (g)(1). 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), 5 U.S.C. 
552a(k)(1), (k)(2), and (k)(5), 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 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. When an investigation 
has been completed, information on disclosures made may continue to 
be exempted 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 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 (e)(12) (Matching Agreements) because 
requiring DHS to provide notice of a new or revised matching 
agreement with a non-Federal agency, if one existed, would impair 
DHS operations by indicating which data elements and information are 
valuable to DHS's analytical functions, thereby providing harmful 
disclosure of information to individuals who would seek to 
circumvent or interfere with DHS's missions.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
* * * * *

Constantina Kozanas,
Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2020-18857 Filed 10-5-20; 8:45 am]
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