[Federal Register Volume 88, Number 99 (Tuesday, May 23, 2023)]
[Proposed Rules]
[Pages 33013-33016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-10525]


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DEPARTMENT OF JUSTICE

28 CFR Part 16

[CPCLO Order No. 002-2023]


Privacy Act of 1974; Implementation

AGENCY: Office of Privacy and Civil Liberties, United States Department 
of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In the notice section of today's Federal Register, the Office 
of Privacy and Civil Liberties (hereinafter OPCL), a component within 
the United States Department of Justice (DOJ or Department), has 
published a notice of a new system of records, Data Protection Review 
Court Records System, JUSTICE/OPCL-001. In this notice of proposed 
rulemaking, the OPCL proposes to exempt this system of records from 
certain provisions of the Privacy Act to protect national security and 
law enforcement sensitive information, preserve judicial independence, 
and ensure the integrity of adjudicatory records in cases before the 
Data Protection Review Court (``DPRC''). For the reasons provided 
below, the Department proposes to amend its Privacy Act regulations by 
establishing an exemption for records in this system from certain 
provisions of the Privacy Act. Public comment is invited.

DATES: Comments must be received by June 22, 2023.

ADDRESSES: You may send comments by any of the following methods:
     Email: [email protected]. To ensure proper 
handling, please reference the CPCLO Order No. in the subject line of 
the message.
     Fax: 202-307-0693.
     Mail: United States Department of Justice, Office of 
Privacy and Civil Liberties, ATTN: Privacy Analyst, 145 N St. NE, 
Washington, DC 20530. All comments sent via regular or express mail 
will be considered timely if postmarked on the day the comment period 
closes. To ensure proper handling, please reference the CPCLO Order No. 
in your correspondence.
     Federal eRulemaking Portal: https://www.regulations.gov. 
When submitting comments electronically, you must include the CPCLO 
Order No. in the subject box. Please note that the Department is 
requesting that electronic comments be submitted before midnight 
Eastern Time on the day the comment period closes because https://www.regulations.gov terminates the public's ability to submit comments 
at that time. Commenters in time zones other than Eastern Time may want 
to consider this so that their electronic comments are received.
    Posting of Public Comments: Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at https://www.regulations.gov and in the 
Department's public docket. Such information includes personally 
identifying information (such as your name, address, etc.) voluntarily 
submitted by the commenter. If you want to submit personal identifying 
information (such as your name, address, etc.) as part of your comment, 
but do not want it to be posted online or made available in the public 
docket, you must include the phrase ``PERSONALLY IDENTIFIABLE 
INFORMATION'' in the first paragraph of your comment. You must also 
place all personally identifiable information that you do not want 
posted online or made available in the public docket in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment, but do not want it to be posted online or made available 
in the public docket, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You must 
also prominently identify confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted online or made available in the 
public docket.
    Personally identifiable information and confidential business 
information identified and located as set forth above will be redacted 
and the comment, in redacted form, may be posted online and placed in 
the Department's public docket file. Please note that the Freedom of 
Information Act applies to all comments received. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the FOR FURTHER INFORMATION CONTACT section.

FOR FURTHER INFORMATION CONTACT: Katherine Harman-Stokes, Director 
(Acting), Office of Privacy and Civil Liberties, U.S. Department of 
Justice, Two Constitution Square, 145 N St. NE, Suite 8W-300, 
Washington, DC 20530; email: [email protected]; telephone: 
(202) 514-0208; facsimile: (202) 307-0693.

SUPPLEMENTARY INFORMATION: 

[[Page 33014]]

I. Background

    In accordance with the Privacy Act of 1974, OPCL is establishing a 
new system of records, Data Protection Review Court Records System, 
JUSTICE/OPCL-001, to maintain an accurate record of the Data Protection 
Review Court (DPRC) review of determinations made by the Civil 
Liberties Protection Officer of the Office of the Director of National 
Intelligence (ODNI CLPO) in response to complaints that allege certain 
violations of United States law in the conduct of United States signals 
intelligence activities.
    On October 7, 2022, the President of the United States issued 
Executive Order (E.O.) 14086, Enhancing Safeguards for United States 
Signals Intelligence Activities, 87 FR 62283 (Oct. 14, 2022), which 
directed the Attorney General to establish the Data Protection Review 
Court (DPRC) as the second level of a two-level redress mechanism for 
alleged violations of law regarding signals intelligence activities. 
The Attorney General issued the regulation on October 7, 2022, now at 
28 CFR 201, ``Data Protection Review Court.'' 87 FR 628303 (Oct. 14, 
2022).
    The first level of the new redress mechanism established by E.O. 
14086 is the investigation, review, and determination by the ODNI CLPO 
of whether a covered violation occurred and, where necessary, the 
appropriate remediation in response to a complaint. The complainant or 
an element of the Intelligence Community may seek review by the DPRC of 
the ODNI CLPO's determination.
    Exercising the Attorney General's authority under 28 U.S.C. 511 and 
512 to provide his advice and opinion on questions of law and the 
authority delegated to the Attorney General under E.O. 14086, the DPRC 
will review whether the ODNI CLPO's determination regarding the 
occurrence of a covered violation was legally correct and supported by 
substantial evidence and whether, in the event of a covered violation, 
the ODNI CLPO's determination as to the appropriate remediation was 
consistent with E.O. 14086.
    The regulations require the DPRC, and OPCL in support of the DPRC, 
to maintain all records relating to the DPRC's review. For each 
application for review, OPCL shall maintain records of the information 
reviewed or created by the DPRC and the decision of the DPRC panel, 
which records shall be made available for consideration as non-binding 
precedent to future DPRC panels considering applications for review. 28 
CFR 201.9(j), see also 28 CFR 201.5, et seq. Records of the DPRC's 
review will include material created by the complainant, the public 
authority of a designated state, ODNI CLPO, elements of the 
Intelligence Community, DPRC Judges and Special Advocates, and 
Department of Justice personnel. Most of the information in this system 
consists of records that are classified, including the record of review 
received from the ODNI CLPO.
    Pursuant to 28 CFR 201.9(i), certain classified information in the 
system indicating a violation of any authority subject to the oversight 
of the Foreign Intelligence Surveillance Court (``FISC'') will be 
shared with the Assistant Attorney General for National Security, who 
shall report violations to the FISC as required by law and in 
accordance with its rules of procedure. Similarly, information in the 
system will be provided to the Privacy and Civil Liberties Oversight 
Board (``PCLOB'') as necessary to conduct the annual review of the 
redress process described in Section 3(e) of E.O. 14086, consistent 
with the protection of intelligence sources and methods.

II. Privacy Act Exemption

    The Privacy Act allows Federal agencies to exempt eligible records 
in a system of records from certain provisions of the Act, including 
those that provide individuals with a right to request access to and 
amendment of records about the individual. If an agency intends to 
exempt a particular system of records, it must first issue a rulemaking 
pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e). This proposed rule 
explains why an exemption is being claimed for this system of records 
and invites public comment, which the Department will consider before 
the issuance of a final rule implementing the exemptions.
    The Department proposes to modify 28 CFR part 16 to add a new 
Privacy Act exemption for the new system of records, Data Protection 
Review Court Records System, JUSTICE/OPCL-001. The Department proposes 
this exemption because most of the records in this system will contain 
classified national security information, and as a result, notice, 
access, amendment, and disclosure (to include accounting for those 
records) to an individual, as well as certain record-keeping 
requirements, may cause damage to national security. The Privacy Act, 
pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an 
exemption for systems of records that contain information properly 
classified pursuant to applicable law. The Department is proposing to 
claim an exemption from several provisions of the Privacy Act, 
including various access, amendment, disclosure of accounting, and 
certain record-keeping and notice requirements pursuant to 5 U.S.C. 
552a(k)(1), to prevent disclosure of any information properly 
classified pursuant to applicable law.
    The Department also proposes to exempt this system of records 
because these records relate to criminal law enforcement activities, 
and certain requirements of the Privacy Act may interfere with the 
effective execution of these activities and undermine good order and 
discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), 
authorizes agencies with a principal law enforcement function 
pertaining to the enforcement of criminal laws (including activities of 
prosecutors, courts, etc.) to claim an exemption for systems of records 
that contain information identifying criminal offenders and alleged 
offenders, information compiled for the purpose of criminal 
investigation, or reports compiled for the purpose of criminal law 
enforcement proceedings. Additionally, pursuant to 5 U.S.C. 552a(k)(2), 
agencies may exempt a system of records from certain provisions of the 
Privacy Act if it contains investigatory material compiled for law 
enforcement purposes, other than materials within the scope of 5 U.S.C. 
552a(j)(2). The Department is proposing to claim exemptions from 
several provisions of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2) 
and 552a(k)(2), to prevent the harms articulated in this rule from 
occurring. Records in this system of records are only exempt from the 
Privacy Act to the extent the purposes underlying the exemption pertain 
to the record. A notice of a new system of records, Data Protection 
Review Court Records System, JUSTICE/OPCL-001, is published in this 
issue of the Federal Register.

Executive Orders 12866 and 13563--Regulatory Review

    In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed 
action is subject to formal rulemaking procedures by giving interested 
persons an opportunity to participate in the rulemaking process 
``through submission of written data, views, or arguments,'' pursuant 
to 5 U.S.C. 553. This proposed rulemaking proposes to exempt this 
system of records from certain provisions of the Privacy Act to protect 
national security and law enforcement sensitive information, preserve 
judicial independence and to ensure the integrity of adjudicatory 
records in cases before the Data Protection Review Court (``DPRC''). 
This

[[Page 33015]]

proposed rule is not a ``significant'' regulatory action under section 
3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the 
Office of Management and Budget (OMB) under E.O. 12866. OPCL 
anticipates no costs or benefits accruing from this proposal.

Regulatory Flexibility Act

    This proposed rule will impact records related to or reviewed in 
handling complaints in accordance with E.O. 14086 and DOJ regulation, 
28 CFR 201, which are personal and generally do not apply to an 
individual's entrepreneurial capacity, subject to limited exceptions. 
Even though this system will contain records that are not covered by 
the Privacy Act, the Chief Privacy and Civil Liberties Officer has 
nevertheless reviewed this regulation in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), and by approving it certifies that 
this regulation will not have a significant economic impact on a 
substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle 
E--Congressional Review Act)

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996, 5 U.S.C. 801 et seq., requires the Department to comply with 
small entity requests for information and advice about compliance with 
statutes and regulations within the Department's jurisdiction. Any 
small entity that has a question regarding this document may contact 
the person listed in FOR FURTHER INFORMATION CONTACT. Persons can 
obtain further information regarding SBREFA on the Small Business 
Administration's web page at https://www.sba.gov/advocacy. This 
proposed rule is not a major rule as defined by 5 U.S.C. 804 of the 
Congressional Review Act.

Executive Order 13132--Federalism

    This proposed rule will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant the preparation of a Federalism 
Assessment.

Executive Order 12988--Civil Justice Reform

    This proposed regulation meets the applicable standards set forth 
in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate 
drafting errors and ambiguity, minimize litigation, provide a clear 
legal standard for affected conduct, and promote simplification and 
burden reduction.

Executive Order 13175--Consultation and Coordination With Indian Tribal 
Governments

    This proposed rule will have no implications for Indian Tribal 
governments. More specifically, it does not have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal Government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal Government and Indian tribes. 
Therefore, the consultation requirements of Executive Order 13175 do 
not apply.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000, as adjusted for inflation, or more in any one 
year, and it will not significantly or uniquely affect small 
governments. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires 
the Department to consider the impact of paperwork and other 
information collection burdens imposed on the public. There are no 
current or new information collection requirements associated with this 
proposed rule.

List of Subjects in 28 CFR Part 16

    Administrative Practices and Procedures, Courts, Freedom of 
Information, and the Privacy Act.

    Pursuant to the authority vested in the Attorney General by 5 
U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, 
the Department of Justice proposes to amend 28 CFR part 16 as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for part 16 continues to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 
534; 31 U.S.C. 3717.

Subpart E--Exemption of Records Systems Under the Privacy Act

0
2. Add Sec.  16.139 to subpart E to read as follows:


Sec.  16.139  Exemption of the Department of Justice Data Protection 
Review Court Records System, JUSTICE/OPCL-001.

    (a) The Department of Justice Data Protection Review Court system 
of records JUSTICE/OPCL-001 is exempted from subsections 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2) and (3); 
(e)(4)(G), (H) and (I); (e)(5) and (8); (f) and (g) of the Privacy Act. 
These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(j) or (k). 
Where DOJ determines that compliance would not appear to interfere with 
or adversely affect the purpose of this system to address certain 
violations of United States law in the conduct of United States signals 
intelligence activities, and not interfere with national security or 
law enforcement operations, the applicable exemption may be waived by 
the DOJ in its sole discretion.
    (b) Exemptions from the particular subsections are justified for 
the following reasons:
    (1) From the subsection (c)(3) (accounting of disclosures) 
requirement that an accounting be made available to the named subject 
of a record, because this system is exempt from the access provisions 
of subsection (d). Where the individual is the subject of intelligence 
activities, to provide that individual with the disclosure accounting 
records would hinder authorized United States intelligence activities 
by informing that individual of the existence, nature, or scope of 
information that is properly classified pursuant to Executive Order 
12958, as amended, and thereby cause damage to the national security. 
Revealing this information would also be contrary to Executive Order 
14086 and could compromise ongoing, authorized law enforcement and 
intelligence efforts, particularly efforts to identify and/or mitigate 
national security threats.
    (2) From subsection (c)(4) (notice of amendment to record 
recipients) notification requirements because this system is exempt 
from the access and amendment provisions of subsection (d) as well as 
the provision for making the accounting of disclosures available to an 
individual in subsection (c)(3). The DOJ takes seriously its obligation 
to maintain accurate records despite its assertion of this exemption, 
and to the extent it, in its sole discretion, agrees to permit 
amendment or correction of DOJ

[[Page 33016]]

records, it will share that information in appropriate cases.
    (3) From subsection (d)(1), (2), (3) and (4) (record subject's 
right to access and amend records), (e)(4)(G) and (H) (publication of 
procedures for notifying subjects of the existence of records about 
them and how they may access records and contest contents), (e)(8) 
(notice of compelled disclosures), (f) (agency rules for notifying 
subjects to the existence of records about them, for accessing and 
amending records, and for assessing fees) and (g) (civil remedies) 
because these provisions concern individual access to and amendment of 
records containing national security, law enforcement, intelligence, 
counterintelligence and counterterrorism sensitive information that 
could alert the subject of an authorized law enforcement or 
intelligence activity about that particular activity and the interest 
of the DOJ and/or other law enforcement or intelligence agencies in the 
subject. Providing access could compromise information classified to 
protect national security; disclose information that would constitute 
an unwarranted invasion of another's personal privacy; reveal a 
sensitive investigative or intelligence technique; provide information 
that would allow a subject to avoid detection or apprehension; or 
constitute a potential danger to the health or safety of law 
enforcement personnel, confidential sources, witnesses, or other 
individuals. Nevertheless, DOJ has published notice concerning 
notification, access, and contest procedures because it may in certain 
circumstances determine it appropriate to provide subjects access to 
all or a portion of the records about them in a system of records, 
particularly if information pertaining to the individual has been 
declassified.
    (4) From subsection (e)(1) (maintain only relevant and necessary 
records) because the DPRC in the course of receiving information 
pursuant to an application for review, including the ODNI CLPO's record 
of review, may receive records that are ultimately deemed irrelevant or 
unnecessary for the adjudication of the matter. Relevance and necessity 
are questions of judgment and timing; what appears relevant and 
necessary when collected ultimately may be deemed unnecessary. It is 
only after the information is assessed that its relevancy and necessity 
can be established. Even if the records received are ultimately 
determined to be irrelevant or unnecessary to the adjudication of an 
application for review, the OPCL generally must nevertheless retain 
such records to maintain an accurate and complete record of the 
information reviewed by the DPRC.
    (5) From subsection (e)(2) (collection directly from the 
individual) and (3) (provide Privacy Act Statement to subjects 
furnishing information). The DPRC will rely on records received from 
the ODNI CLPO, including records that the ODNI CLPO received from other 
elements of the Intelligence Community. The collection efforts of 
agencies that supply information ultimately received by the DPRC would 
be thwarted if the agencies were required to collect information with 
the subject's knowledge. Application of these provisions would put the 
subject of United States signals intelligence activities on notice of 
the signals intelligence activities and allow the subject an 
opportunity to engage in conduct intended to impede the investigative 
activity or avoid apprehension.
    (6) From subsection (e)(4)(I) (identifying sources of records in 
the system of records), to the extent that this subsection is 
interpreted to require more detail regarding the record sources in this 
system than has been published in the Federal Register. Should the 
subsection be so interpreted, exemption from this provision is 
necessary to protect disclosure of properly classified national 
security and law enforcement sensitive information. Further, greater 
specificity of sources of properly classified records could compromise 
national security.
    (7) From subsection (e)(5) (maintain timely, accurate, complete and 
up-to-date records) because many of the records in the system were 
derived from other domestic and foreign agency record systems over 
which DOJ exercises no control. It is often impossible to determine in 
advance if intelligence records contained in this system are accurate, 
relevant, timely and complete, but in the interest of maintaining a 
complete record of the information reviewed by the DPRC in each case, 
it is necessary to retain this information. The restrictions imposed by 
paragraphs (e)(5) would impede development of the record for review and 
limit the DPRC's ability to exercise independent judgment in the 
adjudication of applications for review.
    (8) Continue in effect and assert all exemptions claimed under 5 
U.S.C. 552a(j) or (k) by an originating agency from which DOJ obtains 
records where the purposes underlying the original exemption remain 
valid and necessary to protect the contents of the record.

    Dated: May 10, 2023.
Peter Winn,
Chief Privacy and Civil Liberties Officer (Acting), United States 
Department of Justice.
[FR Doc. 2023-10525 Filed 5-22-23; 8:45 am]
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