81 FR 9789 - Privacy Act: Implementation of Exemptions; Department of Homeland Security/ALL-038 Insider Threat Program System of Records

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 81, Issue 38 (February 26, 2016)

Page Range		9789-9790
FR Document		2016-03923

The 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 ``Department of Homeland Security/ALL-038 Insider Threat 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 criminal, civil, and administrative enforcement requirements.

Federal Register, Volume 81 Issue 38 (Friday, February 26, 2016)

[Federal Register Volume 81, Number 38 (Friday, February 26, 2016)]
[Proposed Rules]
[Pages 9789-9790]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-03923]


========================================================================
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.

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Federal Register / Vol. 81, No. 38 / Friday, February 26, 2016 / 
Proposed Rules

[[Page 9789]]


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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2015-0050]


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

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The 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 ``Department of Homeland Security/ALL-038 Insider 
Threat 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 criminal, civil, and administrative enforcement 
requirements.

DATES: Comments must be received on or before March 28, 2016.

ADDRESSES: You may submit comments, identified by docket number DHS-
2015-0050 or 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 document. 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: 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 proposes to establish a new DHS system of records titled 
``DHS/ALL-038 Insider Threat Program System of Records.''
    DHS has created a Department-wide system, known as the Insider 
Threat Program system of records to manage insider threat matters 
within DHS. The Insider Threat Program was mandated by E.O. 13587, 
``Structural Reforms to Improve the Security of Classified Networks and 
the Responsible Sharing and Safeguarding of Classified Information,'' 
issued October 7, 2011, which requires Federal agencies to establish an 
insider threat detection and prevention program to ensure the security 
of classified networks and the responsible sharing and safeguarding of 
classified information with appropriate protections for privacy and 
civil liberties. Insider threats include: Attempted or actual 
espionage, subversion, sabotage, terrorism, or extremist activities 
directed against the Department and its personnel, facilities, 
resources, and activities; unauthorized use of or intrusion into 
automated information systems; unauthorized disclosure of classified, 
controlled unclassified, sensitive, or proprietary information or 
technology; and indicators of potential insider threats. The Insider 
Threat Program system may include information from any DHS Component, 
office, program, record, or source, and includes records from 
information security, personnel security, and systems security for both 
internal and external security threats.
    Consistent with DHS's information sharing mission, information 
stored in the DHS/ALL-038 Insider Threat Program system of records may 
be shared with other DHS components that have a need to know the 
information to carry out their national security, law enforcement, 
immigration, intelligence, or other homeland security functions. In 
addition, DHS may share information with appropriate Federal, State, 
local, tribal, territorial, foreign, or international government 
agencies consistent with the routine uses set forth in the DHS ALL-038 
system of records notice.
    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 an 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 when 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-038 Insider Threat Program System of Records. Some 
information in DHS/ALL-038 Insider Threat Program System of Records 
relates to official DHS national security, law enforcement, 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

[[Page 9790]]

processes; avoid disclosure of insider threat techniques; protect the 
identities and physical safety of confidential informants and law 
enforcement personnel; ensure DHS' ability to obtain information from 
third parties and other sources; protect the privacy of third parties; 
and 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, where 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 DHS/ALL-038 Insider Threat Program 
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: Pub. L. 107-296, 116 Stat. 2135; (6 U.S.C. 101 et 
seq.); 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, add paragraph 74 to read as follows:

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

* * * * *
    74. The 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 System of Records is a repository of 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 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 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), (g)(1), and (h). 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), 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/or 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.
    (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 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 (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.

    Dated: February 18, 2016.
Karen L. Neuman,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2016-03923 Filed 2-25-16; 8:45 am]
 BILLING CODE 9110-9B-P

9790 Federal Register / Vol. 81, No. 38 / Friday, February 26, 2016 / Proposed Rules

processes; avoid disclosure of insider (e)(4)(I), (e)(5), (e)(8), (e)(12), (f), (g)(1), and (e) From subsection (e)(3) (Notice to
threat techniques; protect the identities (h). Additionally, the Secretary of Homeland Subjects) because providing such detailed
and physical safety of confidential Security, pursuant to 5 U.S.C. 552a(k)(1), information could impede law enforcement
(k)(2), and (k)(5), has exempted this system by compromising the existence of a
informants and law enforcement from the following provisions of the Privacy confidential investigation or reveal the
personnel; ensure DHS’ ability to obtain Act: 5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), identity of witnesses or confidential
information from third parties and other (e)(4)(H), (e)(4)(I), and (f). informants.
sources; protect the privacy of third Where a record received from another (f) From subsections (e)(4)(G), (e)(4)(H),
parties; and safeguard classified system has been exempted in that source and (e)(4)(I) (Agency Requirements) and (f)
information. Disclosure of information system under 5 U.S.C. 552a(j)(2), DHS will (Agency Rules), because portions of this
to the subject of the inquiry could also claim the same exemptions for those records system are exempt from the individual access
that are claimed for the original primary provisions of subsection (d) for the reasons
permit the subject to avoid detection or
systems of records from which they noted above, and therefore DHS is not
apprehension. originated and claims any additional
In appropriate circumstances, where required to establish requirements, rules, or
exemptions set forth here. procedures with respect to such access.
compliance would not appear to Exemptions from these particular Providing notice to individuals with respect
interfere with or adversely affect the law subsections are justified on a case-by-case to existence of records pertaining to them in
enforcement purposes of this system basis and determined at the time a request is the system of records or otherwise setting up
and the overall law enforcement made, for the following reasons: procedures pursuant to which individuals
process, the applicable exemptions may (a) From subsection (c)(3) and (4) may access and view records pertaining to
(Accounting for Disclosures) because release
be waived on a case by case basis. of the accounting of disclosures could alert
themselves in the system would undermine
A notice of system of records DHS/ investigative efforts and reveal the identities
the subject of an investigation of an actual or
ALL–038 Insider Threat Program of witnesses, and potential witnesses, and
potential criminal, civil, or regulatory
System of Records is also published in confidential informants.
violation to the existence of that investigation
(g) From subsection (e)(5) (Collection of
this issue of the Federal Register. and reveal investigative interest on the part
of DHS and the recipient agency. Disclosure Information) because with the collection of
List of Subjects in 6 CFR Part 5 of the accounting would therefore present a information for law enforcement purposes, it
serious impediment to law enforcement is impossible to determine in advance what
Freedom of information, Privacy. information is accurate, relevant, timely, and
efforts and/or efforts to preserve national
For the reasons stated in the security. Disclosure of the accounting would complete. Compliance with subsection (e)(5)
preamble, DHS proposes to amend also permit the subject of a record to impede would preclude DHS agents from using their
chapter I of title 6, Code of Federal the investigation, to tamper with witnesses or investigative training and exercise of good
Regulations, as follows: evidence, and to avoid detection or judgment to both conduct and report on
apprehension, which would undermine the investigations.
PART 5—DISCLOSURE OF RECORDS entire investigative process. (h) From subsection (e)(8) (Notice on
AND INFORMATION (b) From subsection (d) (Access to Records) Individuals) because compliance would
because access to the records contained in interfere with DHS’s ability to obtain, serve,
■ 1. The authority citation for part 5 this system of records could inform the and issue subpoenas, warrants, and other law
continues to read as follows: subject of an investigation of an actual or enforcement mechanisms that may be filed
potential criminal, civil, or regulatory under seal and could result in disclosure of
Authority: Pub. L. 107–296, 116 Stat. 2135; violation to the existence of that investigation investigative techniques, procedures, and
(6 U.S.C. 101 et seq.); 5 U.S.C. 301. Subpart and reveal investigative interest on the part evidence.
A also issued under 5 U.S.C. 552. Subpart B of DHS or another agency. Access to the (i) From subsection (g)(1) (Civil Remedies)
also issued under 5 U.S.C. 552a. records could permit the subject of a record to the extent that the system is exempt from
■ 2. In appendix C to part 5, add to impede the investigation, to tamper with other specific subsections of the Privacy Act.
paragraph 74 to read as follows: witnesses or evidence, and to avoid detection Dated: February 18, 2016.
or apprehension. Amendment of the records Karen L. Neuman,
Appendix C to Part 5—DHS Systems of could interfere with ongoing investigations
and law enforcement activities and would Chief Privacy Officer, Department of
Records Exempt From the Privacy Act Homeland Security.
impose an unreasonable administrative
* * * * * burden by requiring investigations to be [FR Doc. 2016–03923 Filed 2–25–16; 8:45 am]
74. The DHS/ALL–038 Insider Threat continually reinvestigated. In addition, BILLING CODE 9110–9B–P
Program System of Records consists of permitting access and amendment to such
electronic and paper records and will be used information could disclose security-sensitive
by DHS and its components. The DHS/ALL– information that could be detrimental to
038 Insider Threat Program System of homeland security. DEPARTMENT OF TRANSPORTATION
Records System of Records is a repository of (c) From subsection (e)(1) (Relevancy and
information held by DHS in connection with Necessity of Information) because in the Federal Aviation Administration
various missions and functions, including, course of investigations into potential
but not limited to the enforcement of civil violations of Federal law, the accuracy of 14 CFR Part 39
and criminal laws; investigations, inquiries, information obtained or introduced
and proceedings there under; and national occasionally may be unclear, or the [Docket No. FAA–2016–3705; Directorate
security and intelligence activities. The DHS/ information may not be strictly relevant or Identifier 2015–NM–168–AD]
ALL–038 Insider Threat Program System of necessary to a specific investigation. In the
Records contains information that is interests of effective law enforcement, it is RIN 2120–AA64
collected by, on behalf of, in support of, or appropriate to retain all information that may
in cooperation with DHS and its components aid in establishing patterns of unlawful Airworthiness Directives; Textron
Aviation Inc. (Type Certificate
Lhorne on DSK5TPTVN1PROD with PROPOSALS

and may contain personally identifiable activity.
information collected by other Federal, State, (d) From subsection (e)(2) (Collection of Previously Held by Cessna Aircraft
local, tribal, foreign, or international Information from Individuals) because Company) Airplanes
government agencies. requiring that information be collected from
The Secretary of Homeland Security, the subject of an investigation would alert the AGENCY: Federal Aviation
pursuant to 5 U.S.C. 552a(j)(2), has exempted subject to the nature or existence of the Administration (FAA), DOT.
this system from the following provisions of investigation, thereby interfering with that ACTION: Notice of proposed rulemaking
the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4), investigation and related law enforcement (NPRM).
(d), (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), activities.

VerDate Sep<11>2014 16:58 Feb 25, 2016 Jkt 238001 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 E:\FR\FM\26FEP1.SGM 26FEP1

Document Created: 2018-02-02 14:37:00
Document Modified: 2018-02-02 14:37:00

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking.
Dates		Comments must be received on or before March 28, 2016.
Contact		For questions please contact: Karen L. Neuman, (202-343-1717), Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.
FR Citation		81 FR 9789
CFR Associated		Freedom of Information and Privacy

81 FR 9789 - Privacy Act: Implementation of Exemptions; Department of Homeland Security/ALL-038 Insider Threat Program System of Records

DEPARTMENT OF HOMELAND SECURITYOffice of the Secretary

Federal Register Volume 81, Issue 38 (February 26, 2016)

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary