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[Federal Register Volume 80, Number 17 (Tuesday, January 27, 2015)]
[Rules and Regulations]
[Pages 4201-4211]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-01262]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DOD-2013-OS-0023]
RIN 0790-AJ03

DoD Privacy Program

AGENCY: Deputy Chief Management Officer, DoD.

ACTION: Final rule; amendment.

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SUMMARY: This rule updates the established policies, guidance, and 
assigned responsibilities of the DoD Privacy Program pursuant to The 
Privacy Act and Office of Management and Budget (OMB) Circular No. A-
130; authorizes the Defense Privacy Board and the Defense Data 
Integrity Board; prescribes uniform procedures for implementation of 
and compliance with the DoD Privacy Program; and delegates authorities 
and responsibilities for the effective administration of the DoD 
Privacy Program.
    This rule is part of DoD's retrospective plan, completed in August 
2011, under Executive Order 13563, ``Improving Regulation and 
Regulatory Review.'' DoD's full plan and updates can be accessed at: 
http://exchange.regulations.gov/exchange/topic/eo-13563.

DATES: This rule is effective February 26, 2015.

FOR FURTHER INFORMATION CONTACT: Samuel P. Jenkins, 703-571-0070.

SUPPLEMENTARY INFORMATION:

Executive Summary

I. Purpose of the Regulatory Action

    a. The need for the regulatory action and how the action will meet 
that need.
    An individual's privacy is a fundamental legal right that must be 
respected and protected. This regulatory action ensures that DoD's need 
to collect, use, maintain, or disseminate personally identifiable 
information (PII) about individuals for purposes of discharging its 
statutory responsibilities will be balanced against their right to be 
protected against unwarranted privacy invasions. This regulatory action 
also describes the rules of conduct and responsibilities of DoD 
personnel, DoD contractors, and DoD contractor personnel to ensure that 
any PII contained in a system of records that they access and use to 
conduct official business will be protected so that the security and 
confidentiality of the information is preserved.
    b. Succinct statement of legal authority for the regulatory action 
(explaining, in brief, the legal authority laid out later in the 
preamble).

    Authority: 5 U.S.C. 552a, The Privacy Act of 1974, as amended, 
which requires the implementation of the Act by Federal agencies.

II. Summary of the Major Provisions of the Regulatory Action in 
Question

    This rule:
    a. Establishes rules of conduct for DoD personnel and DoD 
contractors involved in the design, development, operation, or 
maintenance of any system of records.
    b. Establishes appropriate administrative, technical, and physical 
safeguards to ensure the security and confidentiality of records and to 
protect against any anticipated threats or hazards to their security or 
integrity that could result in substantial harm, embarrassment, 
inconvenience, or unfairness to any individual about whom information 
is maintained.
    c. Ensures that guidance, assistance, and subject matter expert 
support are provided to the combatant command

[[Page 4202]]

privacy officers in the implementation and execution of and compliance 
with the DoD Privacy Program.
    d. Ensures that laws, policies, procedures, and systems for 
protecting individual privacy rights are implemented throughout DoD.

III. Costs and Benefits

    This regulatory action imposes no monetary costs to the Agency or 
public. The benefit to the public is the accurate reflection of the 
Agency's Privacy Program to ensure that policies and procedures are 
known to the public.

Public Comments

    The Department published a proposed rule on August 22, 2013 (78 FR 
52117), with a request for comments. The following comments were 
received and are addressed below:
    Comment 1: An argument against the elimination of the term (and 
position/role) ``System Manager''. Yes, it is every employee's 
responsibility to ensure PII is properly handled, but the System 
Manager is the `control valve' for each specific SOR and should 
continue to have a big say in determining `who' should have access to 
sensitive material. Much like the world of classified information, 
being trained and having the `clearance' to access the information is 
only part of the equation . . . the concept of ``need-to-know'' is 
equally important when determining access, and the System Manager is 
the POC that checks ``need-to-know''. In addition, the System Manager 
knows (or should know) which SORN authorizes the collection of their 
SOR, they know with whom the info can be shared, they know what should 
be in the SOR and they verify that info every year, they keep track of 
disclosure accounting, etc. The average user with access only knows to 
protect it, and they wouldn't know a SORN if they tripped over it. I 
would suggest returning the ``System Manager'' to this document.
    DoD Response: This Comment addresses the Rules of Conduct as 
described under 32 CFR 310.8(b)(1)-(3). These particular requirements 
have been revised and incorporated into 32 CFR 310.8(j)-(l), and are 
now applicable to all DoD personnel and DoD contractor personnel, 
including system mangers. This revision does not eliminate the 
position/role of system managers.
    Comment 2: 32 CFR 310.22. This comment is targeted to a part of 32 
CFR part 310 that DoD saw fit to not update, and it is a missed 
opportunity to clarify current DoD practices. The DoD has gone out of 
its way to establish that sharing lists of PII with non-DoD requestors 
is prohibited by FOIA. The DoD has requested that OPM not share DoD 
personnel information with requestors, and OPM has approved that 
request. DoD has gone to court (supporting OPM), and won, in its effort 
to ensure that requests for personnel information of DoD employees is 
exempt under the FOIA. (see Long v. OPM (Case 5:05-cv-01522-NAM-DEP)). 
And while the DPCLD continues to state that ``there is no DoD FOIA 
policy denying the release of names of DoD personnel below the 
Director, O-7, or SES levels. All such decisions to deny names that do 
not comprise a list must be made by using the Reporters Committee 
balancing test.'', in fact DoD has issued a policy memorandum (09 Nov 
2001) stating exactly that.
    Sidebarring whether it is ``actual'' DoD policy to withhold or not, 
I think it is fair to say that DoD will likely discourage or prevent 
release of personnel information (either in lists per the Nov. 2001 
memo or not-in-lists via FOIA exemptions). Therefore the contention 
expressed in 32 CFR 310.22(b)(5)(i)(A) that ``. . . personal 
information regarding DoD civilian employees that normally may be 
released without a clearly unwarranted invasion of personal privacy'' 
is misleading and disingenuous and should be reworded. As presently 
constituted, this wording gives the impression that this info is 
normally released, so either some DoD commands may release it without 
being aware that DoD, in practice, does exactly the opposite, or some 
citizens wishing to know how their government works may actually think 
they have a chance of getting that info from DoD without a court fight.
    If the policy memo written just after 9/11 is indeed the new 
permanent policy and not, as Michael Donley declared, that ``it was 
believed that this would only be a temporary policy'', please change 
the CFR to reflect that. 12 years of relying on a scrap of paper 
touting a `temporary policy' and not changing Federal Regulations seems 
to be circumventing the purpose of the CFR.
    DoD Response: This Comment addresses the release of ``personal 
information that is normally releasable'' as described in 32 CFR 
310.22(b)(5)(i)(A). The commentator objects to the wording ``personally 
information regarding DoD civilian employees that normally may be 
released without a clear unwarranted invasion of personal privacy,'' as 
``misleading and disingenuous.'' Attention should be drawn to the use 
of the word ``may,'' as in indicator that it is permissible to release 
this information, but not required.
    Comment 3: 32 CFR 310.4(h). The amendment to the definition of DoD 
Personnel should also include ``dependents of members of armed services 
registered in DEERS.'' Military dependents receive no protection under 
both the current and proposed versions of the Privacy Program. Aside 
from ongoing military operations, military dependents are just as 
likely to depend upon DoD services requiring the use of PII and/or PHI, 
but are afforded no protections.
    Currently, family members are only required to receive notice of 
PII spillage, but are not afforded any civil remedies, nor is their 
information protected by criminal action against its malicious use. See 
DoD 5400.11-R, sec. C10.6.1.2.2. The Federal Tort Claims Act (FTCA) 
also severely limits any torts arising out of PII spillage by parties 
to whom the Privacy Program applies. See 28 U.S.C. 2680(h). For 
military dependents stationed overseas, who are more likely to use 
federal contractor services and in so doing, place their confidential 
information in someone else's care, the FTCA might preclude any 
protections at tort law for military families whatsoever. See 28 U.S.C. 
2860(k).
    Protecting DEERS dependent information has the added benefits of 
enhancing national security, providing accountability for dependents' 
records, and increasing oversight over DoD dependents' data by 
government contractors. Protecting dependents' privacy enhances 
national security by preventing another avenue by which malicious 
actors can exploit service members. During a service member's 
deployment, DoD dependents on the homefront frequently contact family 
readiness groups and other on-base agencies for news on their military 
members, provide information to DoD agencies to qualify for benefits, 
and join military unit sponsored clubs to relieve the stress of their 
loved one's absence. While information on the military member would be 
protected under the Privacy Program, the DoD dependent's information 
would not be. Thus, a malicious actor could legally request information 
about a service member's family and use it to exploit a service 
member's actions in a forward area, or illegally gain it by hacking 
information that is currently not required to be protected.
    Adding this definition also creates accountability for DEERS 
dependent records. DoD dependents often become highly involved in on-
base activities that require sharing private information.

[[Page 4203]]

When that DoD dependent changes duty stations with their DoD member, 
there is no accounting for the disposition of the records the DEERS 
member left behind. On-base agencies are often the same from one base 
to the next. A Privacy Program mandated recordkeeping program would 
allow for more easier integrations of service members and their 
families from one duty location to the next, by allowing a 
standardization of the sharing and safekeeping of records between 
``franchises'' at different bases. This in turn allows service members 
to more rapidly begin work at a new duty station.
    Admittedly, such an amendment possibly triggers an economic impact 
analysis under E.O. 12866, and an unfunded mandates analysis under the 
Unfunded Mandates Reform Act, due to the increase in costs in archiving 
additional data and requiring contractor compliance.
    However, the benefit to the welfare of our armed services, the 
eventual elimination of replication of efforts in data collection at 
different bases, and the savings to DoD family members' lost time and 
wages in fighting possible identity theft due to PII spillage, will 
outweigh the burden of such an amendment.
    DoD Response: This Comment addresses the classification of DoD 
Personnel in 32 CFR 310.4(h) and suggests the inclusion of ``dependents 
of members of the armed services registered in DEERS'' in this 
classification. Although military dependents do carry many of the same 
attributes of military service members, they are not DoD employees and 
therefore cannot be classified as ``DoD Personnel.'' The commentator 
also suggests that military dependents ``are afforded no protections'' 
under the Privacy Program. Information concerning dependents of members 
of the armed services registered in DEERS is maintained by DoD in 
accordance with the Privacy Act of 1974, as amended, which does provide 
protection to military dependents. Within the DoD Privacy Program, 
``family members'' are specifically mentioned in 32 CFR 310.14(a)(1) 
and 32 CFR 310.50(a)(2)(ii) with respect to breach notification and 
Privacy Act violations.
    Comment 4: The Brennan Center is a nonpartisan law and policy 
institute that seeks to improve our systems of democracy and justice. 
The Brennan Center's Liberty and National Security Program works to 
further national security policies that respect constitutional values 
and the rule of law while protecting our people. Specifically, the 
Center seeks to restore the proper flow of information between the 
government and the people, ensure that domestic counterterrorism 
policies effectively target the terrorist threat, and secure 
appropriate mechanisms for oversight and accountability.
    The Brennan Center recently published a report, What the Government 
Does with Americans' Data, that explores the federal government's 
retention of non-criminal information about Americans. The report 
recommends specific reforms, including reforms to the Privacy Act and 
limits on the retention of information reflecting the exercise of 
rights protected by the First Amendment.
    With respect to the DoD proposed regulation, we note that a 
coalition of organizations is submitting a letter urging the DoD to 
require the National Security Agency, a component of the DoD, to 
publish System of Records Notices for three NSA databases: (1) A system 
containing ``telephone numbers and electronic communications accounts/
addresses/identifiers that NSA has reason to believe are being used by 
United States persons,'' used to distinguish U.S. persons from 
foreigners in the source of targeting persons for the purpose of 
surveillance under Section 702 of the Foreign Intelligence Surveillance 
Act; (2) a database of email address lists and instant messaging 
``buddy lists'' belonging to U.S. citizens and residents; and (3) a 
database with information about social networks, including data 
relating to U.S. persons. We endorse this recommendation, and believe 
it is critically important that the NSA comply with its obligations to 
provide the notices required by the Privacy Act regarding searchable 
databases containing information about Americans and legal residents.
    DoD Response: This Comment addresses System of Records Notices 
(SORNs) with respect to the DoD, and with the National Security Agency 
(NSA) in particular. It is DoD policy to ``publish in the Federal 
Register upon establishment or revision a notice of the existence and 
character of the system of records . . .'' 5 U.S.C. 552a(e)(4). A SORN 
is required when (1) information about an individual is collected and 
stored by a DoD Component; and (2) that information is retrievable by a 
unique personal identifier. 32 CFR 310.10. NSA has twenty-five active 
SORNS that are publicly available for review. NSA generates SORNs as 
require by the Privacy Act of 1974 and applicable DoD regulation, 32 
CFR 310.10. One NSA SORN, GNSA 18, concerns NSA ``collection of 
operations records.'' GNSA 18 covers all individuals, as that term is 
defined within the Privacy Act to encompass citizens of the United 
States and lawful permanent residents. The purpose of GNSA 18 is to 
allow NSA to maintain, as that term is defined by the Privacy Act, 
records on foreign intelligence, counterintelligence, and information 
systems security matters relating to the missions of NSA. Specifically, 
GNSA 18 covers all individuals, as that term is defined by the Privacy 
Act, who are identified in NSA foreign intelligence, 
counterintelligence, or information system security reports, including 
supportive materials. As such, the DoD Privacy Program complies with 
the Privacy Act of 1974, as amended, and as codified at 5 U.S.C. 552a.
    Comment 5: The Policy section of the DoD's Privacy Program 
currently states that ``No record shall be maintained on how an 
individual exercises rights guaranteed by the First Amendment to the 
constitution. . . .'' There are three enumerated exceptions: When 
retention is authorized by statute, where the individual has authorized 
it, or ``when the record is pertinent to and within the scope of an 
authorized law enforcement activity.'' Under the proposed rule, the 
analogous section would expand the third exception to allow information 
relating to First Amendment-protected speech to be maintained when the 
records is ``pertinent to and within the scope of an authorized 
intelligence or administrative investigation.'' (This same change is 
reflected in the proposed changes to the Privacy Program's Rules of 
Conduct as well.)
    This exception--both as it stands and as revised--is simultaneously 
overly broad and vague. To begin with, it is not clear what matters are 
encompassed by ``law enforcement activities''; it seems likely that 
those activities could include more than an authorized investigation, 
but it is unknown what other actions might qualify as an ``activity'' 
and thus trigger the ability to maintain First Amendment-protected 
information. The new terms are even more ambiguous. ``Intelligence 
activities'' are not defined, and the meaning of ``administrative 
activities'' is particularly uncertain; it appears susceptible to being 
used as a catch-all to permit the retention of First Amendment-
protected information in almost any circumstances.
    Furthermore, the requirement that the record be ``pertinent to and 
within the scope of'' one of the above matters is an extremely low 
standard, as nearly any record could be found to be ``pertinent to'' a 
particular activity. This is particularly true in light of the 
assertions by the NSA and the DOJ that databases containing nearly all

[[Page 4204]]

American's phone records are ``relevant'' to the NSA's activities 
because some minute percentage may be germane in the future. A higher 
standard would be the ``relevant and necessary'' standard, which is 
reflected in a proposed change to the Rules of Conduct requiring all 
users to ``minimize the collection of [personally identifiable 
information] to that which is relevant and necessary to accomplish a 
purpose of the DoD.''
    In short, the exception as proposed would allow First Amendment-
related information to remain in an individual's file under almost any 
circumstances, as long as there is a colorable argument that it is 
related in some way, or might be related in the future, to some law 
enforcement, intelligence, or ``administrative'' matter. Because of the 
ambiguity of these terms, American citizens are left with little 
guidance about the actual circumstances under which information about 
their protected speech or associations may be maintained in DoD files.
    Accordingly, we urge the DoD to reject the proposed changes and to 
significantly narrow this exception. Appropriate steps would include: 
(1) Adding definitions for ``law enforcement activities,'' 
``intelligence activities,'' and ``administrative activities to 32 CFR 
310.4, Definitions; (2) Limiting the retention of information 
reflecting the exercise of First Amendment-protected rights to 
circumstances in which it is relevant and necessary to an authorized 
investigation; (3) Ensuring that at the close of any investigation, 
First Amendment-protected information is purged. (All information 
gathered about U.S. persons should be purged if no reasonable suspicion 
of criminal activity is developed.) If this information must be 
retained as part of an investigative file that is reasonably maintained 
in the ordinary course of business, it should be masked to ensure that 
it is accessible in the future only if strictly relevant and necessary 
to another authorized investigation; and (4) Specifying the 
circumstances under which any PII about Americans, including records 
reflecting First Amendment-protected activities, may be shared with 
other local, state, or federal agencies, foreign governments, or 
private parties or entities.
    DoD Response: This Comment addresses the terms ``law enforcement 
activities,'' ``intelligence activities,'' and ``administrative 
activities,'' and raises First Amendment concerns. The proposed 
revision to the DoD policy includes that ``no record will be maintained 
on how an individual exercises rights guaranteed by the First Amendment 
. . . , except (1) when expressly authorized by statute; (2) when 
expressly authorized by the individual that the record is about; or (3) 
when the record is pertinent to and within the scope of an authorized 
law enforcement activity, including an authorized intelligence or 
administrative investigation.'' 32 CFR 310.5(f) (proposed). The Privacy 
Act of 1974 permits ``exception from such requirements with respect to 
records provided in this Act only in those cases where there is an 
important public policy need for such exemption as has been determined 
by specific statutory authority.'' Public Law 93-579, Section 2(b)(5). 
General and Specific Exemptions are provided in 5 U.S.C. 552a(j) and 
(k). As such, the DoD Privacy Program complies with the Privacy Act of 
1974, as amended, and as codified at 5 U.S.C. 552a.
    Comment 6: By notice published August 22, 2013, the Department of 
Defense (``DoD'') proposes to amend its Privacy Program implementing 
the Privacy Act of 1974. Specifically, DoD proposes to change its 
``policies, guidance, and assigned responsibilities of the DoD Privacy 
Program . . . ; authoriz[e] the Defense Privacy Board and the Defense 
Data Integrity Board; prescrib[e] uniform procedures for implementation 
of and compliance with the DoD Privacy Program; and delegat[e] 
authorities and responsibilities for the effective administrative of 
the DoD Privacy Program.''
    The proposed amendments apply to all organizational entities within 
the DoD, including the Office of the Secretary of Defense, the Military 
Departments, and the DoD Office of the Inspector General, which the DoD 
refers to collectively as the ``DoD Components.'' The National Security 
Agency (``NSA'') is an organizational entity and agency component 
within the DoD. Therefore, the DoD's proposal applies to the NSA.
    As discussed below, NSA currently maintains at least three unlawful 
Privacy Act systems of records pertaining to US citizens and permanent 
residents. These systems of records violate both the Privacy Act and 
current DoD Privacy Program regulations. Accordingly, pursuant to DoD's 
notice of proposed rulemaking (``NPRM''), the undersigned privacy, 
consumer rights, and civil rights organizations [hereinafter ``Privacy 
Commentators''] hereby submit these comments to urge DoD to enjoin the 
NSA--a DoD component subject to the DoD Privacy Program--from violating 
the Privacy Act and current DoD Privacy Program regulations.
    Although the DoD's Privacy Program NPRM is generally favorable to 
individual privacy and First Amendment rights and adheres to the 
Privacy Act, the NSA's current collection, maintenance, and disclosure 
of records violate the Privacy Act and current DoD Privacy Program 
regulations. The NSA's activity would also violate DoD's proposal.
    Because the NSA is under the purview of the DoD Privacy Program, 
the DoD must ensure NSA implements ``information privacy protections, 
including full compliance with federal laws, regulations, and policies 
relating to information privacy'' before issuing a final rule. 
Specifically, the DoD must ensure that the NSA complies with the 
Privacy Act by publishing additional system of records notices and 
otherwise adhering to the Privacy Act.
I. The Privacy Act Grants Individuals Judicially Enforceable Rights and 
Imposes Obligations on Federal Agencies
    The Privacy Act of 1974 governs federal agency maintenance, 
collection, use, and dissemination of U.S. citizen and lawful permanent 
resident ``records'' contained in a ``system of records.'' The Act 
broadly defines ``record'' to include: Any item, collection, or 
grouping of information about an individual that is maintained by an 
agency, including, but not limited to, his education, financial 
transactions, medical history, and criminal or employment history and 
that contains his name, or the identifying number, symbol, or other 
identifying particular assigned to the individual, such as a finger or 
voice print or a photograph[.]
    A ``system of records'' is: A group of any records under the 
control of any 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[.]
    When it enacted the Privacy Act of 1974, Congress sought to 
restrict the amount of personal information that federal agencies could 
collect and required transparency in agency information practices. 
Privacy Act legislative history reveals that the Act is intended ``to 
promote accountability, responsibility, legislative oversight, and open 
government with respect to the use of computer technology in the 
personal information systems data of the Federal Government [.]'' The 
Act is also intended to guard the privacy interests of citizens and 
lawful permanent residents against government intrusion.

[[Page 4205]]

Congress found that ``the privacy of an individual is directly affected 
by the collection, maintenance, use, and dissemination of personal 
information by Federal agencies,'' and recognized that ``the right to 
privacy is a personal and fundamental right to protected by the 
Constitution of the United States.'' Congress thus sought to ``provide 
certain protections for an individual against an invasion of personal 
privacy'' by establishing a set of procedural and substantive rights 
These rights, for example, guarantee that individuals:
     May request access to records an agency maintains about 
him or her, as well as have copies made;
     may amend a record about him or her; and
     must be informed whom the agency asks to supply 
information;
    Importantly, the Privacy Act grants individuals a private right of 
action and individuals may sue federal agencies for violating the 
Privacy Act.
    In addition to granting individual rights, the Privacy Act also 
imposes several obligations on federal agencies, including obligations 
that agencies must:
     At least 30 days prior to publication of each record 
routine, ``publish in the Federal Register notice of any new use or 
intended use of the information in the system, and provide an 
opportunity for interested persons to submit written data, views, or 
arguments to the agency'';
     not maintain records ``describing how any individual 
exercises rights guaranteed by the First Amendment unless expressly 
authorized by statute or by the individual about whom the record is 
maintained or unless pertinent to and within the scope of an authorized 
law enforcement activity'';
     give individuals access to the accounting of disclosure of 
their records;
     make notes of requested amendments within the records;
     collect records ``about an individual as is relevant and 
necessary to accomplish a purpose of the agency required to be 
accomplished by statute or by executive order of the President'';
     ``collect information to the greatest extent practicable 
directly from the subject individual when the information may result in 
adverse determinations about an individual's rights, benefits, and 
privileges under Federal programs'';
     assure that all records used by the agency in making 
determinations about an individual are accurate, relevant, timely and 
complete as reasonably necessary to maintain fairness;
     make a reasonable effort to notify an individual when a 
record about him or her is made available to another individual when it 
is a matter of public record;
     promulgate rules establishing procedures that notify an 
individual in response to record requests pertaining to him or her, 
including ``reasonable times, places, and requirements for identifying 
an individual'', institute disclosure procedures for medical and 
psychological records, create procedures to review amendment requests, 
as well as determine the request, the status of appeals to denial of 
requests, and establish fees for record duplication, excluding the cost 
for search and review of the record;
    In addition to assessing ``reasonable attorney fees and other 
litigation costs'' for noncompliant agencies, courts may order agencies 
to amend individuals records, as well as ``enjoin the agency from 
withholding records.'' The Act also imposes criminal penalties for 
officers and agency employees who willfully disclose agency records in 
violation of the Privacy Act or Privacy Act regulations.
II. NSA Record Maintenance, Collection, Use, and Dissemination Are 
Subject to the Privacy Act and DoD Privacy Program Regulations
    The NSA is an ``agency'' as defined in the Privacy Act. The NSA is 
also a DoD organizational entity within the DoD. Accordingly, NSA is 
subject to the Privacy Act, current DoD Privacy Program regulations, 
and the NPRM. Pursuant to the Privacy Act and DoD Privacy Program 
regulations, the NSA has published twenty-six systems of records. These 
are as follows:

----------------------------------------------------------------------------------------------------------------
            Identifier                      Notices                           Exemptions claimed
----------------------------------------------------------------------------------------------------------------
Preamble:
    GNSA 02......................  NSA/CSS Applicants (June   (k)(1) and (k)(5).
                                    5, 2008, 73 FR 31997).
    GNSA 03......................  NSA/CSS Correspondence,    (k)(1), (k)(2), (k)(4), (k)(5).
                                    Cases, Complaints,
                                    Visitors, Requests
                                    (February 22, 1993, 58
                                    FR 10531).
    GNSA 05......................  NSA/CSS Equal Employment   (k)(1), (k)(2), (k)(4).
                                    Opportunity Data
                                    Statistical Data
                                    (December 30, 2008, 73
                                    FR 79851).
    GNSA 06......................  NSA/CSS Health, Medical    (k)(1), (k)(4), (k)(5), (k)(6).
                                    and Safety Files (March
                                    15, 2012, 77 FR 15360).
    GNSA 07......................  NSA/CSS Motor Vehicles     (k)(1).
                                    and Carpools (July 25,
                                    2008, 73 FR 43411).
    GNSA 08......................  NSA/CSS Payroll            (k)(1) and (k)(2).
                                    Processing File (October
                                    3, 2012, 77 FR 60401).
    GNSA 09......................  NSA/CSS Personnel File     (k)(1), (k)(4), (k)(5), (k)(6).
                                    (December 30, 2011, 76
                                    FR 82283).
    GNSA 10......................  NSA/CSS Personnel          (k)(1), (k)(2), (k)(5), (k)(6).
                                    Security File (June 16,
                                    2009, 74 FR 28483).
    GNSA 11......................  NSA/CSS Key                (k)(2).
                                    Accountability Records
                                    (June 28, 2010, 75 FR
                                    36642).
    GNSA 12......................  NSA/CSS Education,         (k)(1), (k)(2), (k)(5), (k)(6).
                                    Training and Workforce
                                    Development (March 24,
                                    2009, 74 FR 12116).
    GNSA 14......................  NSA/CSS Library Patron     (k)(1) and (k)(4).
                                    File Control System
                                    (July 30, 2013, 78 FR
                                    45913).
    GNSA 15......................  NSA/CSS Computer Users     (k)(1) and (k)(2).
                                    Control System (February
                                    5, 2010, 75 FR 6000).
    GNSA 16......................  NSA/CSS Drug Testing
                                    Program (September 22,
                                    2011, 76 FR 58787).
    GNSA 17......................  NSA/CSS Employee           (j)(2), (k)(1), (k)(2), (k)(4), and (k)(5).
                                    Assistance Service Case
                                    Records (November 14,
                                    2011, 76 FR 70427).
    GNSA 18......................  Operations Records         (k)(1), (k)(2), and (k)(5).
                                    (November 30, 2010, 75
                                    FR 74019)..
    GNSA 19......................  NSA/CSS Child Development
                                    Services (December 4,
                                    2009, 74 FR 63732).
    GNSA 20......................  NSA Police Operational     (k)(2), (k)(4), and (k)(5).
                                    Files (April 23, 2010,
                                    75 FR 21250).
    GNSA 21......................  NSA/CSS Morale, Welfare,
                                    and Recreation (MWR) and
                                    Non-appropriated Fund
                                    Instrumentality (NAFI)
                                    Files (May 7, 2010, 75
                                    FR 25215).
    GNSA 22......................  Garnishment Processing
                                    Files, (October 25,
                                    2010, 75 FR 65457).
    GNSA 24......................  NSA/CSS Pre-Publication
                                    Review Records
                                    (September 15, 2010, 75
                                    FR 56079).
    GNSA 25......................  NSA/CSS Travel Records     (k)(2), (k)(4).
                                    (September 13, 2012, 77
                                    FR 56626).
    GNSA 26......................  NSA/CSS Accounts           (k)(4).
                                    Receivable, Indebtedness
                                    and Claims ( August 19,
                                    2009, 74 FR 41872).
    GNSA 27......................  Information Assurance
                                    Scholarship Program
                                    (October 5, 2011, 76 FR
                                    61679).

[[Page 4206]]

 
    GNSA 28......................  Freedom of Information     (k)(1) through (k)(7).
                                    Act, Privacy Act and
                                    Mandatory
                                    Declassification Review
                                    Records (January 19,
                                    2011, 76 FR 3098).
    GNSA 29......................  NSA/CSS Office of          (j)(2),(k)(2), (k)(5).
                                    Inspector General
                                    Investigations and
                                    Complaints (May 3, 2012,
                                    77 FR 26254).
    GNSA 30......................  Congressional, Executive,
                                    and Political Inquiry
                                    Records (September 13,
                                    2012, 77 FR 56628).
----------------------------------------------------------------------------------------------------------------

III. NSA's Maintenance, Collection, Use, and Dissemination of Records 
From Unpublished System of Records Violate the Privacy Act and DoD 
Privacy Program Regulations
    Recent Administration admissions and NSA documents reveal that over 
the last several years, NSA has maintained at least three unpublished 
system of records that allow the agency to retrieve information by 
``identifying number[s], symbol[s], or other identifying particular[s] 
assigned to . . . individual[s].'' These groups of records violate the 
Privacy Act and DoD Privacy Program regulations because they were 
collected without individual consent, public notice, and other Privacy 
Act procedural requirements.
    The first unlawful NSA system of records contains ``telephone 
numbers and electronic communications accounts/addresses/identifiers 
that NSA has reason to believe are being used by United States 
persons.'' The NSA uses these ``identifying numbers, symbols, and other 
particulars'' to retrieve information to identify if an individual whom 
the NSA intends to monitor is a U.S. person.
    The second unlawful NSA system of records is comprised of contact 
lists that the NSA retrieves from email address books and instant 
message ``buddy lists.'' In this system of records, the NSA gathers 
email contact lists and instant message buddy lists that traverse 
global data links. The contact lists and buddy lists include those 
belonging to U.S. citizens. The lists are maintained within a 
searchable contact list database that permits the NSA to retrieve 
information by an ``identifying number, symbol, or other identifying 
particular,''--i.e., email addresses and instant message accounts.
    Furthermore, email contact lists, in particular, can contain other 
identifying information beyond the email address of the contact, such 
as name, address, business association, and relationship to the 
contact.
    The third unlawful NSA system of records is a database containing 
information relating to social networks. Within this system of records, 
the NSA maintains information on social connections (e.g. associates or 
travel companions), location information, email addresses, phone 
numbers, and publicly available information from commercial entities, 
as well as location at certain times among other personal information. 
The NSA retrieves information in this system of records to perform 
social network analysis. General Keith Alexander confirmed the social 
networking analysis, stating that the Supplemental Procedures allow the 
NSA ``to use metadata that [it has] acquired under Executive Order 12-
333 and chain, whether it's phone records or emails, it through U.S. 
selectors to figure out social networks abroad.'' General Alexander 
confirmed that the 2009 Supplemental Procedures are still being used.
    All three of the aforementioned NSA systems of records violate the 
Privacy Act and DoD Privacy Program regulations because the NSA has 
failed to publish system of records notices for each of the system of 
records. None of the NSA's twenty-six published SORNs listed above 
describes the type of data collection or dissemination that the NSA is 
conducting with these systems of records. Moreover, they violate the 
Privacy Act and DoD Privacy Program regulations because the records 
were collected without individual notice, consent, or other Privacy Act 
rights.
    Finally, each of the three unpublished systems of records maintains 
records describing how individuals exercise their First Amendment 
rights, including press freedoms, and the rights to freely associate 
and assemble. The Privacy Act forbids agencies from maintaining these 
types of records ``unless expressly authorized by statute or by the 
individual about whom the record is maintained or unless pertinent to 
and within the scope of an authorized law enforcement activity.'' In 
addition to the aforementioned Privacy Act violations, the NSA has 
violated and continues to violate the Privacy Act by maintaining 
records describing how individuals exercise their First Amendment 
rights.
    Conclusion. The NSA is currently in violation of the Privacy Act 
and DoD Privacy Program regulations. The DoD must ensure that the NSA 
complies with the Privacy Act by publishing additional system of 
records notices and otherwise adhering to the Privacy Act before it can 
adopt its current proposal.
    DoD Response: This Comment addresses System of Records Notices 
(SORNs) with respect to the DoD, and with the National Security Agency 
(NSA) in particular. It is DoD policy to ``publish in the Federal 
Register upon establishment or revision a notice of the existence and 
character of the system of records . . .'' 5 U.S.C. 552a(e)(4). A SORN 
is required when (1) information about an individual is collected and 
stored by a DoD Component; and (2) that information is retrievable by a 
unique personal identifier. 32 CFR 310.10 NSA has twenty-five active 
SORNS that are publicly available for review. NSA generates SORNs as 
require by the Privacy Act of 1974 and applicable DoD regulation, 32 
CFR 310.10. One NSA SORN, GNSA 18, concerns NSA ``collection of 
operations records.'' GNSA 18 covers all individuals, as that term is 
defined within the Privacy Act to encompass citizens of the United 
States and lawful permanent residents. The purpose of GNSA 18 is to 
allow NSA to maintain, as that term is defined by the Privacy Act, 
records on foreign intelligence, counterintelligence, and information 
systems security matters relating to the missions of NSA. Specifically, 
GNSA 18 covers all individuals, as that term is defined by the Privacy 
Act, who are identified in NSA foreign intelligence, 
counterintelligence, or information system security reports, including 
supportive materials. As such, the DoD Privacy Program complies with 
the Privacy Act of 1974, as amended, and as codified at 5 U.S.C. 552a.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs

[[Page 4207]]

and benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. This rule has been designated a ``substantive non-
significant regulatory action.''

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that 32 CFR part 310 does not contain a 
Federal mandate that may result in expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 310 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that 32 CFR part 310 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    It has been determined that 32 CFR part 310 does not have 
federalism implications, as set forth in Executive Order 13132. This 
rule does not have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly 32 CFR part 310 is amended as follows:

PART 310--[AMENDED]

0
1. The authority citation for 32 CFR part 310 is revised to read as 
follows:

    Authority:  5 U.S.C. 552a.

Subpart A--[Amended]

0
2. Section 310.2 is revised to read as follows:

Sec.  310.2  Purpose.

    This part:
    (a) Updates the established policies and assigned responsibilities 
of the DoD Privacy Program pursuant to 5 U.S.C. 552a (also known and 
referred to in this part as ``The Privacy Act'') and Office of 
Management and Budget (OMB) Circular No. A-130.
    (b) Authorizes the Defense Privacy Board and the Defense Data 
Integrity Board.
    (c) Prescribes uniform procedures for implementation of and 
compliance with the DoD Privacy Program.
    (d) Delegates authorities and responsibilities for the effective 
administration of the DoD Privacy Program.

0
3. Section 310.3 is revised to read as follows:

Sec.  310.3  Applicability and scope.

    (a) This part applies to the Office of the Secretary of Defense 
(OSD), the Military Departments, the Office of the Chairman of the 
Joint Chiefs of Staff and the Joint Staff, the Combatant Commands, the 
Office of the Inspector General of the Department of Defense, the 
Defense Agencies, the DoD Field Activities, and all other 
organizational entities within the DoD (referred to collectively in 
this part as the ``DoD Components'').
    (b) For the purposes of subsection (i), ``Criminal penalties,'' of 
The Privacy Act, any DoD contractor and any employee of such a 
contractor will be considered to be an employee of DoD when DoD 
provides by a contract for the operation by or on behalf of DoD of a 
system of records to accomplish a DoD function. DoD will, consistent 
with its authority, cause the requirements of section (m) of The 
Privacy Act to be applied to such systems.

0
4. Section 310.4 is revised to read as follows:

Sec.  310.4  Definitions.

    The following definitions apply to this part:
    Access. The review of a record or a copy of a record or parts 
thereof in a system of records by any individual.
    Agency. For the purposes of disclosing records subject to the 
Privacy Act among the DoD Components, the Department of Defense is 
considered a single agency. For all other purposes to include requests 
for access and amendment, denial of access or amendment, appeals from 
denials, and record keeping as relating to release of records to non-
DoD Agencies, each DoD Component is considered an agency within the 
meaning of the Privacy Act.
    Breach. A loss of control, compromise, unauthorized disclosure, 
unauthorized acquisition, unauthorized access, or any similar term 
referring to situations where persons other than authorized users and 
for an other than authorized purpose have access or potential access to 
personally identifiable information (PII), whether physical or 
electronic.
    Computer matching. The computerized comparison of two or more 
automated systems of records or a system of records with non-federal 
records. Manual comparisons are not covered.
    Confidential source. A person or organization who has furnished 
information to the Federal Government under an express promise, if made 
on or after September 27, 1975, that the person's or the organization's 
identity shall be held in confidence or under an implied promise of 
such confidentiality if this implied promise was made on or before 
September 26, 1975.
    Disclosure. The information sharing or transfer of any PII from a 
system of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review) to any person, government 
agency, or private entity other than the subject of the record, the 
subject's designated agent, or the subject's legal guardian.
    DoD contractor. Any individual or other legal entity that:
    (1) Directly or indirectly (e.g., through an affiliate) submits 
offers for or is awarded, or reasonably may be expected to submit 
offers for or be awarded, a government contract, including a contract 
for carriage under government or commercial bills of lading, or a 
subcontract under a government contract; or
    (2) Conducts business, or reasonably may be expected to conduct 
business, with the federal government as an agent or representative of 
another contractor.
    DoD personnel. Service members and federal civilian employees.
    Federal benefit program. A program administered or funded by the 
Federal Government, or by any agent or State on behalf of the Federal 
Government, providing cash or in-kind assistance in the form of 
payments, grants, loans, or loan guarantees to individuals.
    Federal personnel. Officers and employees of the Government of the 
United States, members of the uniformed services (including members of 
the Reserve Components), individuals entitled to receive immediate or 
deferred retirement benefits under any retirement program of the United 
States (including survivor benefits).
    Individual. A living person who is a U.S. citizen or an alien 
lawfully admitted for permanent residence. The parent of a minor or the 
legal guardian of any individual also may act on behalf of an 
individual, except as otherwise provided in this part. Members of the 
Military Services are ``individuals.'' Corporations, partnerships, sole 
proprietorships, professional groups, businesses, whether incorporated 
or

[[Page 4208]]

unincorporated, and other commercial entities are not ``individuals'' 
when acting in an entrepreneurial capacity with the DoD, but persons 
employed by such organizations or entities are ``individuals'' when 
acting in a personal capacity (e.g., security clearances, entitlement 
to DoD privileges or benefits).
    Individual access. Access to information pertaining to the 
individual by the individual or his or her designated agent or legal 
guardian.
    Information sharing environment. Defined in Public Law 108-458, 
``The Intelligence Reform and Terrorism Prevention Act of 2004''.
    Lost, stolen, or compromised information. Actual or possible loss 
of control, unauthorized disclosure, or unauthorized access of personal 
information where persons other than authorized users gain access or 
potential access to such information for an other than authorized 
purpose where one or more individuals will be adversely affected. Such 
incidents also are known as breaches.
    Maintain. The collection, maintenance, use, or dissemination of 
records contained in a system of records.
    Member of the public. Any individual or party acting in a private 
capacity to include Federal employees or military personnel.
    Mixed system of records. Any system of records that contains 
information about individuals as defined by the Privacy Act and non-
U.S. citizens and/or aliens not lawfully admitted for permanent 
residence.
    Non-Federal agency. Any state or local government, or agency 
thereof, which receives records contained in a system of records from a 
source agency for use in a computer matching program.
    Official use. Within the context of this part, this term is used 
when officials and employees of a DoD Component have a demonstrated a 
need for the record or the information contained therein in the 
performance of their official duties, subject to DoD 5200.1-R.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 to Sec.  310.1
---------------------------------------------------------------------------

    Personally identifiable information (PII). Information used to 
distinguish or trace an individual's identity, such as name, social 
security number, date and place of birth, mother's maiden name, 
biometric records, home phone numbers, other demographic, personnel, 
medical, and financial information. PII includes any information that 
is linked or linkable to a specified individual, alone, or when 
combined with other personal or identifying information. For purposes 
of this part, the term PII also includes personal information and 
information in identifiable form.
    Privacy Act request. A request from an individual for notification 
as to the existence of, access to, or amendment of records pertaining 
to that individual. These records must be maintained in a system of 
records.
    Protected health information (PHI). Defined in DoD 6025.18-R, ``DoD 
Health Information Privacy Regulation'' (available at http://www.dtic.mil/whs/directives/corres/pdf/602518r.pdf).
    Recipient agency. Any agency, or contractor thereof, receiving 
records contained in a system of records from a source agency for use 
in a computer matching program.
    Record. Any item, collection, or grouping of information in any 
media (e.g., paper, electronic), about an individual that is maintained 
by a DoD Component, including, but not limited to, education, financial 
transactions, medical history, criminal or employment history, and that 
contains the name, or identifying number, symbol, or other identifying 
particular assigned to the individual, such as a fingerprint, a voice 
print, or a photograph.
    Risk assessment. An analysis considering information sensitivity, 
vulnerabilities, and cost in safeguarding personal information 
processed or stored in the facility or activity.
    Routine use. The disclosure of a record outside the Department of 
Defense for a use that is compatible with the purpose for which the 
information was collected and maintained by the Department of Defense. 
The routine use must be included in the published system notice for the 
system of records involved.
    Source agency. Any agency which discloses records contained in a 
system of records to be used in a computer matching program, or any 
state or local government, or agency thereof, which discloses records 
to be used in a computer matching program.
    Statistical record. A record maintained only for statistical 
research or reporting purposes and not used in whole or in part in 
making determinations about specific individuals.
    System of records. A group of records under the control of a DoD 
Component from which PII is retrieved by the individual's name or by 
some identifying number, symbol, or other identifying particular 
uniquely assigned to an individual.
    System of records notice (SORN). A notice published in the Federal 
Register that constitutes official notification to the public of the 
existence of a system of records.

0
5. Section 310.5 is revised to read as follows:

Sec.  310.5  Policy.

    It is DoD policy that:
    (a) An individual's privacy is a fundamental legal right that must 
be respected and protected.
    (1) The DoD's need to collect, use, maintain, or disseminate (also 
known and referred to in this part as ``maintain'') PII about 
individuals for purposes of discharging its statutory responsibilities 
will be balanced against their right to be protected against 
unwarranted privacy invasions.
    (2) The DoD protects individuals' rights, consistent with federal 
laws, regulations, and policies, when maintaining their PII.
    (3) DoD personnel and DoD contractors have an affirmative 
responsibility to protect an individual's privacy when maintaining his 
or her PII.
    (4) Consistent with section 1016(d) of Public Law 108-458 and 
section 1 of Executive Order 13388, ``Further Strengthening the Sharing 
of Terrorism Information to Protect Americans'', the DoD will protect 
information privacy and provide other protections relating to civil 
liberties and legal rights in the development and use of the 
information sharing environment.
    (b) The DoD establishes rules of conduct for DoD personnel and DoD 
contractors involved in the design, development, operation, or 
maintenance of any system of records. DoD personnel and DoD contractors 
will be trained with respect to such rules and the requirements of this 
section and any other rules and procedures adopted pursuant to this 
section and the penalties for noncompliance. The DoD Rules of Conduct 
are established in Sec.  310.8.
    (c) DoD personnel and DoD contractors conduct themselves consistent 
with the established rules of conduct in Sec.  310.8, so that records 
maintained in a system of records will only be maintained as authorized 
by 5 U.S.C. 552a and this part.
    (d) DoD legislative, regulatory, or other policy proposals will be 
evaluated to ensure consistency with the information privacy 
requirements of this part.
    (e) Pursuant to The Privacy Act, no record will be maintained on 
how an individual exercises rights guaranteed by the First Amendment to 
the Constitution of the United States (referred to in this part as 
``the First Amendment''), except:

[[Page 4209]]

    (1) When specifically authorized by statute.
    (2) When expressly authorized by the individual that the record is 
about.
    (3) When the record is pertinent to and within the scope of an 
authorized law enforcement activity, including an authorized 
intelligence or administrative investigation.
    (f) Disclosure of records pertaining to an individual from a system 
of records is prohibited except with his or her consent or as otherwise 
authorized by 5 U.S.C. 552a and this part or 32 CFR part 286. When DoD 
Components make such disclosures, the individual may, to the extent 
authorized by 5 U.S.C. 552a and this part, obtain a description of such 
disclosures from the Component concerned.
    (g) Disclosure of records pertaining to personnel of the National 
Security Agency, the Defense Intelligence Agency, the National 
Reconnaissance Office, and the National Geospatial-Intelligence Agency 
is prohibited to the extent authorized by Public Law 86-36, ``National 
Security Agency-Officers and Employees'' and 10 U.S.C. 424. Disclosure 
of records pertaining to personnel of overseas, sensitive, or routinely 
deployable units is prohibited to the extent authorized by 10 U.S.C. 
130b.
    (h) The DoD establishes appropriate administrative, technical, and 
physical safeguards to ensure the security and confidentiality of 
records and to protect against any anticipated threats or hazards to 
their security or integrity that could result in substantial harm, 
embarrassment, inconvenience, or unfairness to any individual about 
whom information is maintained.
    (i) Disclosure of PHI will be consistent with DoD 6025.18-R.
    (j) All DoD personnel and DoD contractors will be provided training 
pursuant to 5 U.S.C. 552a and OMB Circular No. A-130.
    (k) PII collected, used, maintained, or disseminated will be:
    (1) Relevant and necessary to accomplish a lawful DoD purpose 
required by statute or Executive Order.
    (2) Collected to the greatest extent practicable directly from the 
individual. He or she will be informed as to why the information is 
being collected, the authority for collection, how it will be used, 
whether disclosure is mandatory or voluntary, and the consequences of 
not providing that information.
    (3) Relevant, timely, complete, and accurate for its intended use.
    (4) Protected using appropriate administrative, technical, and 
physical safeguards based on the media (e.g., paper, electronic) 
involved. Protection will ensure the security of the records and 
prevent compromise or misuse during maintenance, including working at 
authorized alternative worksites.
    (l) Individuals are permitted, to the extent authorized by 5 U.S.C. 
552a and this part, to:
    (1) Upon request by an individual, gain access to records or to any 
information pertaining to the individual which is contained in a system 
of records.
    (2) Obtain a copy of such records, in whole or in part.
    (3) Correct or amend such records once it has been determined that 
the records are not accurate, relevant, timely, or complete.
    (4) Appeal a denial for a request to access or a request to amend a 
record.
    (m) Non-U.S. citizens and aliens not lawfully admitted for 
permanent residence may request access to and amendment of records 
pertaining to them; however, this part does not create or extend any 
right pursuant to The Privacy Act to them.
    (n) SORNs and notices of proposed or final rulemaking are published 
in the Federal Register (FR), and reports are submitted to Congress and 
OMB, in accordance with 5 U.S.C. 552a, OMB Circular No. A-130, and this 
part, Volume 1 of DoD Manual 8910.01, ``DoD Information Collections 
Manual: Procedures for DoD Internal Information Collections'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/891001m_vol1.pdf), and DoD Instruction 5545.02, ``DoD Policy for 
Congressional Authorization and Appropriations Reporting Requirements'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/554502p.pdf). Information about an individual maintained in a new 
system of records will not be collected until the required SORN 
publication and review requirements are satisfied.
    (o) All DoD personnel must make reasonable efforts to inform an 
individual, at their last known address, when any record about him or 
her is disclosed:
    (1) Due to a compulsory legal process.
    (2) In a manner that will become a matter of public record.
    (p) Individuals must be notified in a timely manner, consistent 
with the requirements of this part, if there is a breach of their PII.
    (q) At least 30 days prior to disclosure of information pursuant to 
subparagraph (e)(4)(D) (routine uses) of The Privacy Act, the DoD will 
publish an FR notice of any new use or intended use of the information 
in the system, and provide an opportunity for interested people to 
submit written data, views, or arguments to the agency.
    (r) Computer matching programs between the DoD Components and 
federal, state, or local governmental agencies are conducted in 
accordance with the requirements of 5 U.S.C. 552a, OMB Circular No. A-
130, and this part.
    (s) The DoD will publish in the FR notice any establishment or 
revision of a matching program at least 30 days prior to conducting 
such program of such establishment or revision if any DoD Component is 
a recipient agency or a source agency in a matching program with a non-
federal agency.

0
6. Revise Sec.  310.6 to read as follows:

Sec.  310.6  Responsibilities.

    (a) The Deputy Chief Management Officer of the Department of 
Defense (DCMO):
    (1) Serves as the Senior Agency Official for Privacy (SAOP) for the 
DoD. These duties, in accordance with OMB Memorandum M-05-08, 
``Designation of Senior Agency Officials for Privacy'' (available at 
http://www.whitehouse.gov/sites/default/files/omb/assets/omb/memoranda/fy2005/m05-08.pdf), include:
    (i) Ensuring DoD implementation of information privacy protections, 
including full compliance with federal laws, regulations, and policies 
relating to information privacy.
    (ii) Overseeing, coordinating, and facilitating DoD privacy 
compliance efforts.
    (iii) Ensuring that DoD personnel and DoD contractors receive 
appropriate training and education programs regarding the information 
privacy laws, regulations, policies, and procedures governing DoD-
specific procedures for handling of PII.
    (2) Provides rules of conduct and policy for, and coordinates and 
oversees administration of, the DoD Privacy Program to ensure 
compliance with policies and procedures in 5 U.S.C. 552a and OMB 
Circular No. A-130.
    (3) Publishes this part and other guidance to ensure timely and 
uniform implementation of the DoD Privacy Program.
    (4) Serves as the chair of the Defense Privacy Board and the 
Defense Data Integrity Board.
    (5) As requested, ensures that guidance, assistance, and subject 
matter expert support are provided to the Combatant Command privacy 
officers in the implementation and execution of and compliance with the 
DoD Privacy Program.
    (6) Acts as The Privacy Act Access and Amendment appellate 
authority for OSD and the Office of the Chairman of

[[Page 4210]]

the Joint Chiefs of Staff when an individual is denied access to or 
amendment of records pursuant to The Privacy Act, DoD Directive 
5105.53, ``Director of Administration and Management (DA&M)'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/510553p.pdf), and Deputy Secretary of Defense Memorandum, 
``Reorganization of the Office of the Deputy Chief Management 
Officer.''
    (b) Under the authority, direction, and control of the DCMO, 
through the Director for Oversight and Compliance, the Chief, Defense 
Privacy and Civil Liberties Division (DPCLD):
    (1) Ensures that laws, policies, procedures, and systems for 
protecting individual privacy rights are implemented throughout DoD.
    (2) Oversees and provides strategic direction for the DoD Privacy 
Program.
    (3) Assists the DCMO in performing the responsibilities in 
paragraphs (a)(1)-(a)(6) of this section.
    (4) Reviews DoD legislative, regulatory, and other policy proposals 
that contain information on privacy issues relating to how the DoD 
keeps its PII. These reviews must include any proposed legislation, 
testimony, and comments having privacy implications in accordance with 
DoD Directive 5500.01, ``Preparing, Processing, and Coordinating 
Legislation, Executive Orders, Proclamations, Views Letters, and 
Testimony'' (available at http://www.dtic.mil/whs/directives/corres/pdf/550001p.pdf).
    (5) Reviews proposed new, altered, and amended systems of records. 
Submits required SORNs for publication in the FR and, when required, 
provides advance notification to OMB and Congress consistent with 5 
U.S.C. 552a, OMB Circular No. A-130, and this part.
    (6) Reviews proposed DoD Component privacy exemption rules. Submits 
the exemption rules for publication in the FR, and submits reports to 
OMB and Congress consistent with 5 U.S.C. 552a, OMB Circular No. A-130, 
and this part.
    (7) Develops, coordinates, and maintains all DoD computer matching 
agreements. Submits required match notices for publication in the FR 
and provides advance notification to OMB and Congress consistent with 5 
U.S.C. 552a, OMB Circular No. A-130, and this part.
    (8) Provides guidance, assistance, and support to the DoD 
Components in their implementation of the DoD Privacy Program to ensure 
that:
    (i) All requirements developed to maintain PII conform to the DoD 
Privacy Program standards.
    (ii) Appropriate procedures and safeguards are developed and 
implemented to protect PII when it is collected, used, maintained, or 
disseminated in any media.
    (iii) Specific procedures and safeguards are developed and 
implemented when PII is collected and maintained for research purposes.
    (9) Compiles data in support of the DoD Chief Information Officer 
(DoD CIO) submission of the Federal Information Security Management Act 
(FISMA) Privacy Reports, pursuant to OMB Memorandum M-06-15, 
``Safeguarding Personally Identifiable Information'' (available at 
http://www.whitehouse.gov/sites/default/files/omb/memoranda/fy2006/m-06-15.pdf); the Biennial Matching Activity Report to OMB, in accordance 
with OMB Circular No. A-130 and this part; the semiannual Section 803 
report in accordance with 42 U.S.C. 2000ee and 2000ee-1; and other 
reports as required.
    (10) Reviews and coordinates on DoD Component privacy program 
implementation rules to ensure they are in compliance with the DoD-
level guidance.
    (11) Provides operational and administrative support to the Defense 
Privacy Board and the Defense Data Integrity Board.
    (c) The General Counsel of the Department of Defense (GC DoD):
    (1) Provides advice and assistance on all legal matters related to 
the administration of the DoD Privacy Program.
    (2) Appoints a designee to serve as a member of the Defense Privacy 
Board and the Defense Data Integrity Board.
    (3) When a DoD Privacy Program group is created, appoints a 
designee to serve as a member.
    (d) The DoD Component heads:
    (1) Provide adequate funding and personnel to establish and support 
an effective DoD Privacy Program.
    (2) Establish DoD Component-specific procedures in compliance with 
this part and publish these procedures as well as rules of conduct in 
the FR.
    (3) Establish and implement appropriate administrative, physical, 
and technical safeguards and procedures prescribed in this part and 
other DoD Privacy Program guidance.
    (4) Ensure Component compliance with supplemental guidance and 
procedures in accordance with all applicable federal laws, regulations, 
policies, and procedures.
    (5) Appoint a Component senior official for privacy (CSOP) to 
support the SAOP in carrying out the SAOP's duties identified in OMB 
Memorandum M-05-08.
    (6) Appoint a Component privacy officer to administer the DoD 
Privacy Program, on behalf of the CSOP.
    (7) Ensure DoD personnel and DoD contractors having primary 
responsibility for implementing the DoD Privacy Program receive 
appropriate privacy training. This training must be consistent with the 
requirements of this part and will address the provisions of 5 U.S.C. 
552a, OMB Circular No. A-130, and this part.
    (8) Ensure that all DoD Component legislative, regulatory, or other 
policy proposals are evaluated to ensure consistency with the 
information privacy requirements of this part.
    (9) Assess the impact of technology on the privacy of PII and, when 
feasible, adopt privacy-enhancing technology to:
    (i) Preserve and protect PII contained in a DoD Component system of 
records.
    (ii) Audit compliance with the requirements of this part.
    (10) Ensure that officials who have specialized knowledge of the 
DoD Privacy Program periodically review Component implementation of and 
compliance with the DoD Privacy Program.
    (11) Submit reports, consistent with the requirements of this part, 
in accordance with 5 U.S.C. 552a and OMB Circular No. A-130, and as 
otherwise directed by the Chief, DPCLD.
    (e) In addition to the responsibilities in paragraph (d), the 
Secretaries of the Military Departments provide program and financial 
support to the Combatant Commands as identified in DoD Directive 
5100.03, ``Support to the Headquarters of Combatant and Subordinate 
Unified Commands'' (available at http://www.dtic.mil/whs/directives/corres/pdf/510003p.pdf) to fund, without reimbursement, the 
administrative and logistic support required by combatant and 
subordinate unified command headquarters to perform their assigned 
missions effectively.

Sec.  310.7  [Removed and Reserved]

0
7. Section 310.7 is removed and reserved.

0
8. Section 310.8 is revised to read as follows:

Sec.  310.8  Rules of conduct.

    In accordance with section (e)(9) of The Privacy Act, this section 
provides DoD rules of conduct for the development, operation, and 
maintenance of systems of records. DoD personnel and DoD contractor 
personnel will:
    (a) Take action to ensure that any PII contained in a system of 
records that they access and use to conduct official

[[Page 4211]]

business will be protected so that the security and confidentiality of 
the information is preserved.
    (b) Not disclose any PII contained in any system of records, except 
as authorized by The Privacy Act, or other applicable statute, 
Executive order, regulation, or policy. Those willfully making any 
unlawful or unauthorized disclosure, knowing that disclosure is 
prohibited, may be subject to criminal penalties and/or administrative 
sanctions.
    (c) Report any unauthorized disclosures of PII from a system of 
records to the applicable Privacy point of contact (POC) for the 
respective DoD Component.
    (d) Report the maintenance of any system of records not authorized 
by this part to the applicable Privacy POC for the respective DoD 
Component.
    (e) Minimize the collection of PII to that which is relevant and 
necessary to accomplish a purpose of the DoD.
    (f) Not maintain records describing how any individual exercises 
rights guaranteed by the First Amendment, except:
    (1) When specifically authorized by statute.
    (2) When expressly authorized by the individual that the record is 
about.
    (3) When the record is pertinent to and within the scope of an 
authorized law enforcement activity, including authorized intelligence 
or administrative activities.
    (g) Safeguard the privacy of all individuals and the 
confidentiality of all PII.
    (h) Limit the availability of records containing PII to DoD 
personnel and DoD contractors who have a need to know in order to 
perform their duties.
    (i) Prohibit unlawful possession, collection, or disclosure of PII, 
whether or not it is within a system of records.
    (j) Ensure that all DoD personnel and DoD contractors who either 
have access to a system of records or develop or supervise procedures 
for handling records in a system of records are aware of their 
responsibilities and are properly trained to safeguard PII being 
maintained under the DoD Privacy Program.
    (k) Prepare any required new, amended, or altered SORN for a given 
system of records and submit the SORN through their DoD Component 
Privacy POC to the Chief, DPCLD, for coordination and submission for 
publication in the FR.
    (l) Not maintain any official files on individuals, which are 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual, 
also known as a system of records, without first ensuring that a notice 
has been published in the FR. Any official who willfully maintains a 
system of records without meeting the publication requirements as 
prescribed by this part and The Privacy Act may be subject to criminal 
penalties and/or administrative sanctions.
    (m) Maintain all records in a mixed system of records as if all the 
records in such a system are subject to The Privacy Act.

0
9. Amend Sec.  310.9 to revise paragraphs (a) and (b) to read as 
follows:

Sec.  310.9  Privacy boards and office, composition and 
responsibilities.

    (a) The Defense Privacy Board--(1) Membership. The Board consists 
of:
    (i) Voting members. Representatives designated by the Secretaries 
of the Military Departments and the following officials or their 
designees:
    (A) The DCMO, who serves as the chair.
    (B) The Chief, DPCLD, who serves as the Executive Secretary and as 
a member.
    (C) The Under Secretary of Defense for Personnel and Readiness.
    (D) The Assistant Secretary of Defense for Health Affairs.
    (E) The DoD CIO.
    (F) The Director, Defense Manpower Data Center.
    (G) The Director, Executive Services Directorate, Washington 
Headquarters Services (WHS).
    (H) The GC DoD.
    (I) The Chief of the National Guard Bureau.
    (ii) Non-voting members. Non-voting members are the Director, 
Enterprise Information Technology Services Directorate (EITSD), WHS; 
and the representatives designated by Defense Agency and DoD Field 
Activity directors.
    (2) Responsibilities. The Board:
    (i) Serves as the primary DoD policy forum for matters involving 
the DoD Privacy Program, meeting as necessary to address issues of 
common concern to ensure that consistent policy is adopted and followed 
by the DoD Components. The Board issues advisory opinions, as 
necessary, on the DoD Privacy Program to promote uniform and consistent 
application of 5 U.S.C. 552a, OMB Circular No. A-130, and this part.
    (ii) Establishes and convenes committees as necessary.
    (iii) Establishes working groups whose membership is composed of 
DoD Component privacy officers and others as necessary.
    (b) The Defense Data Integrity Board--(1) Membership. The Board 
consists of:
    (i) The DCMO, who serves as the chair.
    (ii) The Chief, DPCLD, who serves as the Executive Secretary.
    (iii) The representatives designated by the Secretaries of the 
Military Departments; the DoD CIO; the GC DoD; the Inspector General of 
the Department of Defense, who is a non-voting advisory member; the 
Director, EITSD; and the Director, Defense Manpower Data Center.
    (2) Responsibilities. The Board:
    (i) Oversees and coordinates, consistent with the requirements of 5 
U.S.C. 552a, OMB Circular No. A-130, and this part, all computer 
matching agreements involving personal records contained in systems of 
records maintained by the DoD Components.
    (ii) Reviews and approves all computer matching agreements between 
the DoD and other federal, state, or local governmental agencies, as 
well as any memorandums of understanding, when the match is internal to 
the DoD. This review ensures that, in accordance with 5 U.S.C. 552a, 
OMB Circular No. A-130, and this part, appropriate procedural and due 
process requirements are established before engaging in computer 
matching activities.
* * * * *

    Dated: January 21, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-01262 Filed 1-26-15; 8:45 am]
BILLING CODE 5001-06-P
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