[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Proposed Rules]
[Pages 15134-15136]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05643]


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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. 86, No. 53 / Monday, March 22, 2021 / 
Proposed Rules  

[[Page 15134]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. ICEB-2020-0007]


Privacy Act of 1974: Implementation of Exemptions; U.S. 
Department of Homeland Security/Immigration and Customs Enforcement-018 
Analytical Records System of Records

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

ACTION:  Notice of proposed rulemaking.

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

SUMMARY:  The U.S. 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)-018 Analytical Records 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 April 21, 2021.

ADDRESSES: You may submit comments, identified by docket number ICEB-
2020-0007, 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: James Holzer, Acting Chief Privacy Officer, Privacy 
Office, U.S. 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: For general questions please contact: 
Jordan Holz, [email protected], Privacy Officer, 
U.S. Immigration and Customs Enforcement (ICE), 500 12th Street SW, 
Mail Stop 5004, Washington, DC 20536. For privacy questions, please 
contact: James Holzer, [email protected], (202) 343-1717, Acting 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), U.S. Immigration and Customs 
Enforcement (ICE) proposes to issue a new system of records notice 
(SORN) titled, ``DHS/ICE-018 Analytical Records.'' DHS/ICE is creating 
a new system of records to better reflect and clarify the nature of all 
records collected, maintained, processed, and shared by ICE in large 
analytical data environments. A fuller description of this SORN can be 
found herein the Federal Register.
    The DHS/ICE-018 Analytical Records system of records consolidates 
the following two notices, DHS/ICE-005 Trade Transparency Analysis and 
Research (TTAR) System of Records, 79 FR 71112, (December 1, 2014), and 
DHS/ICE-016 FALCON Search and Analysis (FALCON-SA) System of Records, 
82 FR 20905, (May 4, 2017), into one new system of records. This new 
system of records reflects the types of information and records ICE 
collects and maintains in analytical systems to support its law 
enforcement and investigative mission, rather than linking the SORN to 
specific IT system(s).
    ICE analytical systems help ICE personnel conduct research and 
analysis using advanced analytic tools in support of their law 
enforcement and investigative mission. These tools allow ICE to query, 
analyze, and present large amounts of data in a variety of formats that 
can help illuminate relationships among the various data elements. Some 
analytical tools may incorporate the use of artificial intelligence and 
machine learning to assist ICE personnel in examining large and complex 
datasets. All analytical systems and tools under this system of records 
use a central data store to eliminate the need for multiple copies of 
the data.
    This system of records ingests and aggregates data from a number of 
system and database interfaces that collects data for ICE's law 
enforcement, national security, immigration enforcement, and customs 
enforcement missions. The analytical data store also contains metadata 
that is created by an ICE analytical system when it ingests data. ICE 
uses the metadata to apply access controls and other system rules (such 
as retention policies) to the contents of the central data store. The 
metadata also provides important contextual information about the date 
the information was added to the data store and the source system where 
the data originated. ICE analytical systems also ingest external 
information from non-federal entities, including state and local law 
enforcement authorities, private corporations, or foreign governments.
    The DHS/ICE-018 Analytical Records SORN also covers tips submitted 
to ICE via email, an online form on the ICE website, or by calling an 
ICE tip line phone number. These tips are created electronically using 
an ICE-wide tip line interface or may be manually entered by ICE 
analysts. Once ICE analysts adjudicate the tips for action, the tips 
will then be accessible to authorized users to conduct further 
investigation.
    Users of an analytical tool or system may create visualizations, 
match records, or create analyses of large volumes of data through 
algorithmic processes. The end result of user efforts with an 
analytical tool, such as a map or list, is an analytical work product. 
Analytical products, information sharing, and user collaboration made 
possible in analytical systems may result in the creation of a lead to 
the field.
    Consistent with DHS's information sharing mission, information 
stored in the DHS/ICE-018 Analytical Records system of records may be 
shared with other DHS Components components that have a need to know 
the information to carry out their national

[[Page 15135]]

security, law enforcement, immigration, intelligence, or other homeland 
security functions. In addition, DHS/ICE may share information with 
appropriate federal, state, local, tribal, territorial, foreign, or 
international government agencies consistent with the routine uses set 
forth in this 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 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 and provide an opportunity for public comment.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/ICE-018 Analytical Records System of Records. Some 
information in DHS/ICE-018 Analytical Records 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 of confidential informants and law 
enforcement personnel; to ensure DHS' ability to obtain information 
from third parties and other sources; to protect the privacy of third 
parties; and to safeguard classified information. 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-018 Analytical Records 
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:  6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301.

0
2. In appendix C to part 5, add paragraph 85 to read as follows:

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

* * * * *
    85. The DHS/ICE-018 Analytical Records System of Records 
consists of electronic and paper records and will be used by DHS and 
its components. The DHS/ICE-018 Analytical Records System of Records 
is a repository of information held by DHS in connection with its 
several and varied missions and functions, including, but not 
limited to the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings thereunder; and national 
security and intelligence activities. The DHS/ICE-018 Analytical 
Records 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, 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), (d), 
(e)(1), (e)(4)(G), (e)(4)(H), and (f). Where a record received from 
another system has been exempted in that source system under 5 
U.S.C. 552a(j)(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 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 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 Directly 
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

[[Page 15136]]

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.

James Holzer,
Acting Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2021-05643 Filed 3-19-21; 8:45 am]
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