[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
________________________________________________________________________

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

[[Page 80667]]


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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:
    <bullet> Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Fax: 202-343-4010.
    <bullet> 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

[[Page 80668]]

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.
* * * * *
0
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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