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[Federal Register: September 10, 2010 (Volume 75, Number 175)]
[Proposed Rules]               
[Page 55290-55292]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr10se10-15]                         

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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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[[Page 55290]]

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

[Docket No. DHS-2010-0076]

 
Privacy Act of 1974: Implementation of Exemptions; Department of 
Homeland Security/ALL-031 Information Sharing Environment Suspicious 
Activity Reporting Initiative System of Records

AGENCY: Privacy Office, DHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Homeland Security is giving concurrent 
notice of a newly established system of records pursuant to the Privacy 
Act of 1974 for the ``Department of Homeland Security/ALL-031 
Information Sharing Environment Suspicious Activity Reporting 
Initiative System of Records'' and this proposed rulemaking. In this 
proposed rulemaking, the Department proposes to exempt portions of the 
system of records from one or more provisions of the Privacy Act 
because of criminal, civil, and administrative enforcement 
requirements.

DATES: Comments must be received on or before October 12, 2010.

ADDRESSES: You may submit comments, identified by docket number DHS-
2010-0076, by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Fax: 703-483-2999.
     Mail: Mary Ellen Callahan, Chief Privacy Officer, Privacy 
Office, Department of Homeland Security, Washington, DC 20528.
     Instructions: All submissions received must include the 
agency name and docket number for this rulemaking. All comments 
received will be posted without change to 
http:[sol][sol]www.regulations.gov, including any personal information 
provided.
     Docket: For access to the docket to read background 
documents or comments received go to 
http:[sol][sol]www.regulations.gov.
    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:[sol][sol]www.regulations.gov, including any 
personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to http:[sol][sol]www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: For general questions please contact: 
Ronald Athmann (202-447-4332), Office of Intelligence and Analysis, 
Department of Homeland Security, Washington, DC 20528. For privacy 
issues please contact: Mary Ellen Callahan (703-235-0780), Chief 
Privacy Officer, Privacy Office, Department of Homeland Security, 
Washington, DC 20528.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the 
Department of Homeland Security (DHS) proposes to establish a new DHS 
system of records titled, ``DHS/ALL-031 Information Sharing Environment 
(ISE) Suspicious Activity Reporting (SAR) Initiative System of 
Records.''
    This system of records will allow DHS components that produce, 
receive, and store suspicious activity reports (SARs) pursuant to their 
existing authorities, responsibilities, platforms, and programs to 
compile and share report data that also meet the ISE-SAR Functional 
Standard with authorized participants in the Nationwide SAR Initiative 
(NSI) including, federal departments and agencies, state, local and 
tribal law enforcement agencies, and the private sector. The NSI is one 
of a number of government-wide efforts designed to implement guidelines 
first issued by the President on December 16, 2005, for establishing 
the ISE pursuant to section 1016 of the Intelligence Reform and 
Terrorism Prevention Act of 2004 (IRTPA), as amended. The NSI 
establishes a nationwide capability to gather, document, process, 
analyze and share information about suspicious activity, incidents, or 
behavior reasonably indicative of terrorist activities (hereafter 
collectively referred to as suspicious activity or activities) to 
enable rapid identification and mitigation of potential terrorist 
threats.
    There is a long history of documenting of suspicious activity, 
particularly in the law enforcement community; these reports are 
sometimes referred to as suspicious activity reports, tips and leads, 
or other similar terms. Federal, state, local and tribal agencies, and 
private sector currently collect and document suspicious activities in 
support of their responsibilities to investigate and prevent potential 
crimes, protect citizens, and apprehend and prosecute criminals. Since 
some of these documented activities may bear a nexus to terrorism, the 
Program Manager for the Information Sharing Environment (PM-ISE) has 
developed a standardized process for identifying, documenting, and 
sharing terrorism-related SAR data (hereinafter referred to an ``ISE-
SAR''), which meet the definition and criteria set forth in the ISE 
Functional Standard Suspicious Activity Reporting, (Version 1.5, May 
2009) to the maximum extent possible consistent with the protection of 
individual privacy, civil rights, and civil liberties. The Functional 
Standard defines an ISE-SAR as official documentation of observed 
behavior determined to have a potential nexus to terrorism (i.e., to be 
reasonably indicative of criminal activity associated with terrorism).
    Several operational components within DHS regularly observe or 
otherwise encounter suspicious activities while executing their 
authorized missions and performing operational duties. Components 
document those observations or encounters in SARs. Across the 
Department the operational setting or context for activities reported 
in SARs are as varied as the Department's mission responsibilities. 
Engagement with the NSI will alter neither those underlying mission 
functions nor upset the current methodologies employed by DHS 
components collecting information on suspicious activities and issuing 
SARs. Rather, the NSI will facilitate the more effective sharing and 
discovery--both internally and between DHS and external NSI 
participants--by incorporating a standardized technological and 
functional approach for recording and storing ISE-SARs throughout DHS. 
Once training in the NSI program and the application of

[[Page 55291]]

these technical and functional standards, DHS personnel will review 
component SARs and submit the data only from those that meet the ISE-
SAR Functional Standard into the NSI Shared Space.

II. Privacy Act

    The Privacy Act embodies fair information practice principles in a 
statutory framework governing the means by which the U.S. Government 
collects, maintains, uses, and disseminates personally identifiable 
information. The Privacy Act applies to information that is maintained 
in a ``system of records.'' A ``system of records'' is a group of any 
records under the control of an agency from which information is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. In 
the Privacy Act, an individual is defined to encompass U.S. citizens 
and lawful permanent residents. As a matter of policy, DHS extends 
administrative Privacy Act protections to all individuals where systems 
of records maintain information on U.S. citizens, lawful permanent 
residents, and visitors.
    The Privacy Act allows government agencies to exempt certain 
records from the access and amendment provisions. If an agency claims 
an exemption, however, it must issue a Notice of Proposed Rulemaking to 
make clear to the public the reasons why a particular exemption is 
claimed.
    DHS is claiming exemptions from certain requirements of the Privacy 
Act for DHS/ALL-031 ISE SAR Program System of Records. Some information 
in the DHS/ALL-031 ISE SAR Program System of Records relates to 
official DHS national security, law enforcement, immigration, 
intelligence activities, and protective services to the President of 
the U.S. or other individuals pursuant to Section 3056 and 3056A of 
Title 18. 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; to avoid 
disclosure of activity techniques; to protect the identities and 
physical safety of confidential informants and law enforcement 
personnel; to ensure DHS' ability to obtain information from third 
parties and other sources; to protect the privacy of third parties; to 
safeguard classified information; and to safeguard records in 
connection with providing protective services to the President of the 
U.S. or other individuals pursuant to Section 3056 and 3056A of Title 
18. Disclosure of information to the subject of the inquiry could also 
permit the subject to avoid detection or apprehension.
    The exemptions proposed here are standard law enforcement and 
national security exemptions exercised by a large number of federal law 
enforcement and intelligence agencies. In appropriate circumstances, 
where compliance would not appear to interfere with or adversely affect 
the law enforcement purposes of this system and the overall law 
enforcement process, the applicable exemptions may be waived on a case 
by case basis.
    A notice of system of records for DHS/ALL-031 ISE SAR Initiative 
System of Records is also published in this issue of the Federal 
Register.

List of Subjects in 6 CFR Part 5

    Freedom of information; Privacy.

    For the reasons stated in the preamble, DHS proposes to amend 
Chapter I of Title 6, Code of Federal Regulations, as follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

    1. The authority citation for Part 5 continues to read as follows:

    Authority: 6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 
2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. 
Subpart B also issued under 5 U.S.C. 552a.

    2. Add at the end of Appendix C to Part 5, the following new 
paragraph ``52'':

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

* * * * *
    52. The DHS/ALL-031 ISE SAR Initiative System of Records 
consists of electronic records and will be used by DHS and its 
components. The DHS/ALL-031 ISE SAR Initiative System of Records is 
a repository of information held by DHS in connection with its 
several and varied missions and functions, including, but not 
limited to the enforcement of civil and criminal laws; 
investigations, inquiries, and proceedings there under; national 
security and intelligence activities; and protection of the 
President of the U.S. or other individuals pursuant to Section 3056 
and 3056A of Title 18. The DHS/ALL-031 ISE SAR Initiative System of 
Records contains information that is collected by, on behalf of, in 
support of, or in cooperation with DHS, its components, as well as 
other federal, state, local, tribal, or foreign agencies or private 
sector organization and may contain personally identifiable 
information collected by other federal, state, local, tribal, 
foreign, or international government agencies. The Secretary of 
Homeland Security has exempted this system from the following 
provisions of the Privacy Act, subject to the limitations set forth 
in 5 U.S.C. 552a(c)(3) and (4); (d); (e)(1), (e)(2), (e)(3), 
(e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8), and (e)(12); (f); 
(g)(1); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2). 
Additionally, the Secretary of Homeland Security has exempted this 
system from the following provisions of the Privacy Act, subject to 
the limitation set forth in 5 U.S.C. 552a(c)(3); (d); (e)(1), 
(e)(4)(G), (e)(4)(H), (e)(4)(I); and (f) of the Privacy Act pursuant 
to 5 U.S.C. 552a(k)(2), and (k)(3). Exemptions from these particular 
subsections are justified, on a case-by-case basis to be determined 
at the time a request is made, for the following reasons:
    (a) From subsection (c)(3) and (c)(4) (Accounting for 
Disclosures) because release of the accounting of disclosures could 
alert the subject of an investigation of an actual or potential 
criminal, civil, or regulatory violation to the existence of that 
investigation and reveal investigative interest on the part of DHS 
as well as the recipient agency. Disclosure of the accounting would 
therefore present a serious impediment to law enforcement efforts 
and/or efforts to preserve national security. Disclosure of the 
accounting would also permit the individual who is the subject of a 
record to impede the investigation, to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which would 
undermine the entire investigative process.
    (b) From subsection (d) (Access to Records) because access to 
the records contained in this system of records could inform the 
subject of an investigation of an actual or potential criminal, 
civil, or regulatory violation to the existence of that 
investigation and reveal investigative interest on the part of DHS 
or another agency. Access to the records could permit the individual 
who is the subject of a record to impede the investigation, to 
tamper with witnesses or evidence, and to avoid detection or 
apprehension. Amendment of the records could interfere with ongoing 
investigations and law enforcement activities and would impose an 
unreasonable administrative burden by requiring investigations to be 
continually reinvestigated. In addition, permitting access and 
amendment to such information could disclose security-sensitive 
information that could be detrimental to homeland security.
    (c) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of federal law, the accuracy of information obtained or 
introduced 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

[[Page 55292]]

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) (Computer Matching) if the agency is 
a recipient agency or a source agency in a matching program with a 
non-Federal agency, with respect to any establishment or revision of 
a matching program, at least 30 days prior to conducting such 
program, publish in the Federal Register notice of such 
establishment or revision.
    (j) From subsection (g)(1) (Civil Remedies) to the extent that 
the system is exempt from other specific subsections of the Privacy 
Act.
    (k) From subsection (h) (Legal Guardians) the parent of any 
minor, or the legal guardian of any individual who has been declared 
to be incompetent due to physical or mental incapacity or age by a 
court of competent jurisdiction, may act on behalf of the 
individual.

    Dated: September 7, 2010.
Mary Ellen Callahan,
Chief Privacy Officer, Department of Homeland Security.

[FR Doc. 2010-22639 Filed 9-9-10; 8:45 am]
BILLING CODE 9110-9B-P
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