81 FR 3748 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-030 Use of the Terrorist Screening Database System of Records

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 81, Issue 14 (January 22, 2016)

The Department of Homeland Security is giving concurrent notice of an updated and reissued system of records pursuant to the Privacy Act of 1974 for the ``Department of Homeland Security/ALL-030 Use of the Terrorist Screening Database 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.

[Federal Register Volume 81, Number 14 (Friday, January 22, 2016)]
[Proposed Rules]
[Pages 3748-3750]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-01169]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

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.

========================================================================


Federal Register / Vol. 81, No. 14 / Friday, January 22, 2016 / 
Proposed Rules

[[Page 3748]]



DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2016-0001]


Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-030 Use of the Terrorist Screening Database 
System of Records

AGENCY: Privacy Office, Department of Homeland Security.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Department of Homeland Security is giving concurrent 
notice of an updated and reissued system of records pursuant to the 
Privacy Act of 1974 for the ``Department of Homeland Security/ALL-030 
Use of the Terrorist Screening Database 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 February 22, 2016.

ADDRESSES: You may submit comments, identified by docket number DHS-
2016-0001 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: Karen L. Neuman, Chief Privacy Officer, Privacy 
Office, 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 or privacy 
issues please contact: Karen L. Neuman, (202-343-1717), Chief Privacy 
Officer, Privacy Office, Department of Homeland Security, Washington, 
DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) is giving notice of a proposed 
rule to accompany an updated system of records notice titled, ``DHS/
ALL-030 Use of the Terrorist Screening Database (TSDB) System of 
Records.''
    DHS maintains a synchronized copy of the Department of Justice 
(DOJ)/Federal Bureau of Investigation (FBI)-019 Terrorist Screening 
Records System of Records (August 22, 2007, 72 FR 47073) via a 
technological mechanism called DHS Watchlist Service (WLS) that 
disseminates the feed to authorized DHS components. The WLS supports an 
automated and centralized data transmission of TSDB data to DHS. The 
WLS replaced multiple data feeds from the FBI/TSC to DHS and its 
components, as documented by information sharing agreements. The WLS is 
a system to system secure connection with no direct user interface.
    DHS is publishing this notice of proposed rulemaking to account for 
the expansion of the current system of records notice to clarify one 
category of individuals and add two new categories of individuals whose 
information is currently included in, or is contemplated for inclusion 
in, the TSDB. These categories of information have been included in the 
TSDB to in support of the White House's ``Strategy to Combat 
Transnational Organized Crime'' (July 19, 2011), and National Security 
Presidential Directive-59/Homeland Security Presidential Directive-24, 
``Biometrics for Identification and Screening to Enhance National 
Security'' (June 5, 2008). These executive strategies are relevant to 
DHS's vetting and screening operations.
    DHS is clarifying the category of individuals to explicitly include 
relatives, associates, or others closely connected with a known or 
suspected terrorist who are excludable from the United States based on 
these relationships by virtue of sec. 212(a)(3)(B) of the Immigration 
and Nationality Act, as amended, and do not otherwise satisfy the 
requirements for inclusion in the TSDB.
    DHS is adding two new categories of individuals to include: (1) 
Individuals who were officially detained during military operations, 
but not as enemy prisoners of war, and who have been identified as 
possibly posing a threat to national security, and who do not otherwise 
satisfy the requirements for inclusion in the TSDB (``military 
detainees''), consistent with E.O. 12333 (or successor order) and the 
DOJ/FBI-019; and (2) individuals who may pose a threat to national 
security because they are (a) known or suspected to be or have been 
engaged in conduct constituting, in aid of, or related to transnational 
organized crime, thereby posing a possible threat to national security, 
and (b) do not otherwise satisfy the requirements for inclusion in the 
TSDB (``transnational organized crime actors''), consistent with E.O. 
12333 (or successor order) (``national security threats'') and in 
support of the White House's ``Strategy to Combat Transnational 
Organized Crime'' (July 19, 2011), and National Security Presidential 
Directive-59/Homeland Security Presidential Directive-24, ``Biometrics 
for Identification and Screening to Enhance National Security'' (June 
5, 2008).
    DHS is also publishing this notice of proposed rulemaking to 
account for the expansion of the current system of records to clarify 
and expand the categories of records maintained by the Department. 
These categories of records are types of data elements included in the 
TSDB and are shared with DHS and have been deemed relevant to 
supporting DHS's vetting and screening operations.
    1. Identifying biographic information, such as name, date of birth, 
place of birth, passport or driver's license information, and any other 
available identifying particulars used to compare the identity of an 
individual being screened with a subject in the TSDB;
    2. Biometric information, such as photographs, fingerprints, or 
iris images, and associated biographic and contextual information;
    3. References to, or information from, other government law 
enforcement and intelligence databases, or other relevant

[[Page 3749]]

databases that may contain terrorism and/or national security 
information, such as unique identification numbers used in other 
systems;
    4. Information collected and compiled to maintain an audit trail of 
the activity of authorized users of WLS information systems; and
    5. System-generated information, including metadata, archived 
records and record histories from WLS.
    DHS is planning future enhancements to the WLS that will provide 
for a central mechanism to receive information from DHS components when 
they encounter a potential match to the TSDB and send this information 
to the FBI/TSC. DHS will update this SORN to reflect such enhancements 
to the WLS once that capability is implemented. All encounter-related 
information sharing from DHS to the FBI/TSC will be conducted pursuant 
to the programmatic system of records notices outlined above.
    DHS previously published a Final Rule in the Federal Register to 
exempt this system of records from certain provisions of the Privacy 
Act at 75 FR 55335, Dec. 29, 2011. DHS is publishing a new notice of 
proposed rulemaking to cover the exemptions that will now be applied to 
these new categories of individuals covered within this system of 
records. The existing Final Rule for Privacy Act exemptions continues 
to apply until the new Final Rule is published. This updated 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 personally 
identifiable information. 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. As a matter of 
policy, DHS extends administrative Privacy Act protections to all 
individuals where systems of records maintain information on U.S. 
citizens, lawful permanent residents, and visitors.
    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-030 Use of the Terrorist Screening Database System of 
Records. Some information in DHS/ALL-030 Use of the Terrorist Screening 
Database System of Records relates to official DHS national security 
and law enforcement 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. 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 notice of system of records for DHS/ALL-030 Use of the Terrorist 
Screening Database System of Records is also published 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 is revised 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 66 to read as follows:

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

* * * * *
    66. The DHS/ALL-030 Use of the Terrorist Screening Database 
System of Records consists of electronic and paper records and will 
be used by DHS and its components. The DHS/ALL-030 Use of the 
Terrorist Screening Database 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; and national security and intelligence activities. The DHS/
ALL-030 Use of the Terrorist Screening Database 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)(1) and (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), (e)(4)(I), and (f). When 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/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.
    (b) From subsection (d) (Access 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

[[Page 3750]]

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 (g) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.
* * * * *

    Dated: January 12, 2016.
Karen L. Neuman
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2016-01169 Filed 1-21-16; 8:45 am]
 BILLING CODE 9110-9B-P