[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Proposed Rules]
[Pages 80667-80668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-27314]
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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. 85, No. 240 / Monday, December 14, 2020 /
Proposed Rules
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2020-0014]
RIN 1601-AA98
Privacy Act of 1974: Implementation of Exemptions; U.S.
Department of Homeland Security/ALL-046 Counterintelligence Program
System of Records
AGENCY: Office of the Secretary, U.S. Department of Homeland Security.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The U.S. Department of Homeland Security is giving concurrent
notice of a new system of records pursuant to the Privacy Act of 1974
for the ``U.S. Department of Homeland Security/ALL-046
Counterintelligence 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 counterintelligence, criminal, civil, and
administrative investigative and enforcement requirements.
DATES: Comments must be received on or before January 13, 2021.
ADDRESSES: You may submit comments, identified by docket number DHS-
2020-0014 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: Constantina Kozanas, Chief Privacy Officer, Privacy
Office, U.S. Department of Homeland Security, Washington, DC 20528-
0655.
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: For questions please contact:
Constantina Kozanas, (202-343-1717), Chief Privacy Officer, Privacy
Office, U.S. Department of Homeland Security, Washington, DC 20528-
0655.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the U.S.
Department of Homeland Security (DHS) proposes to create a new DHS
system of records titled ``DHS/ALL-046 Counterintelligence Program
System of Records.''
DHS developed the Counterintelligence (CI) Program to identify,
deceive, exploit, disrupt, or protect against espionage, other
intelligence activities, sabotage, or assassinations conducted for or
on behalf of Foreign Intelligence Entities (FIE). FIEs are known or
suspected foreign state or non-state organizations or persons that
conduct intelligence activities to acquire information about the United
States, block or impair intelligence collection by the United States
Government, influence United States policy, or disrupt systems and
programs owned or operated by or within the United States, all of which
may impact or influence DHS operations and missions. The term includes
foreign intelligence and security services, international terrorists,
transnational criminal organizations, and drug trafficking
organizations conducting intelligence-related activities.
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 the 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/ALL-046 Counterintelligence Program System of Records. Some
information in this system relates to official DHS national security,
law enforcement, counterintelligence, 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; avoid
disclosure of counterintelligence sources, assets and methods,
inquiries and investigations; protect the identities and physical
safety of confidential informants and law enforcement personnel; ensure
DHS's ability to obtain information from third parties and other
sources; protect the privacy of third parties; and safeguard classified
information. Disclosure of a counterintelligence inquiry or
investigation, to the subject of said inquiry or investigation, could
have an adverse effect on the outcome of the inquiry or investigation.
In appropriate circumstances, when compliance would not appear to
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interfere with or adversely affect the law enforcement and
counterintelligence 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-046 Counterintelligence
Program System of Records is also publishing elsewhere 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 in part as
follows:
Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat.
2135; 5 U.S.C. 301.
* * * * *
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2. In appendix C to part 5, add paragraph 83 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
83. The DHS/ALL-046 Counterintelligence Program System of
Records consists of electronic and paper records and will be used by
DHS and its components. The DHS/ALL-046 Counterintelligence Program
System of Records covers 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 system of records covers 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); 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 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 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. 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 providing access or permitting amendment 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 (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, U.S. Department of Homeland Security.
[FR Doc. 2020-27314 Filed 12-11-20; 8:45 am]
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