b'Appointment of Members of the Board of Directors of the\nCommission on National and Community Service\nT h e u n c o n s titu tio n a l re s tric tio n s o n th e P r e s id e n t\xe2\x80\x99s a p p o in tm e n t p o w e r c o n ta in e d in th e N a tio n a l\na n d C o m m u n ity S e rv ic e A c t o f 1990 a re s e v e ra b le fro m th e re m a in d e r o f the A c t.\n\nW ith o n e e x c e p tio n , th e p ro g ra m s e sta b lis h e d u n d e r title I o f the A c t m a y n o t b e im p le m e n te d\nb e fo re th e P re s id e n t h a s a p p o in te d m e m b e rs o f th e B o a rd o f D ire c to rs o f the C o m m is s io n o n\nN a tio n a l a n d C o m m u n ity S e rv ic e .\n\nT h e re is n o s ta tu to ry p ro h ib itio n a g a in st o ffic e rs c u rre n tly h o ld in g o th e r a d v ic e - a n d - c o n s e n t\np o s itio n s s e rv in g o n th e B o a rd , so lo n g as th e p e rso n re c e iv e s o n ly o n e sala ry , th e p o s itio n s\na re n o t \xe2\x80\x9c in c o m p a tib le \xe2\x80\x9d fro m th e s ta n d p o in t o f p u b lic p o lic y , a n d th e re is no a u g m e n ta tio n o f\nre le v a n t a p p ro p ria tio n s .\n\nDecember 28, 1990\nM e m o r a n d u m O p in io n f o r\nth e\n\nA s s o c ia t e C o u n s e l t o t h e P r e s id e n t\n\nThis responds to your request for an opinion concerning the appointment\no f members of the Board of Directors of the newly-established Commission\non National and Community Service (the \xe2\x80\x9cCommission\xe2\x80\x9d). See M emoran\xc2\xad\ndum for John O. McGinnis, Deputy Assistant Attorney General, Office of\nLegal Counsel, from Nelson Lund, Associate Counsel to the President (Dec.\n14, 1990). The National and Community Service Act of 1990, Pub. L. No.\n101-610, 104 Stat. 3127 (codified at 42 U.S.C. \xc2\xa7\xc2\xa7 12501-12862 (Supp. II\n1990)) (the \xe2\x80\x9cAct\xe2\x80\x9d), which creates the Commission, contains a number of\nunconstitutional restrictions on the President\xe2\x80\x99s power to appoint such mem\xc2\xad\nbers. See Statement on Signing the National and Community Service Act of\n1990, Pub. Papers of George Bush 1613 (Nov. 16, 1990). You have asked\nwhether these restrictions are severable from the remainder of the Act. In\naddition, you have asked whether the programs established under title I of\nthe Act may be implemented before the President has appointed members of\nthe Board, and whether officers currently holding other advice-and-consent\npositions may serve on the Board.\nWe believe that the unconstitutional provisions are severable from the\nremainder of the Act, and that, with one exception, the programs established\n157\n\n\x0cby title I may not be implemented before the President appoints members of\nthe Board. With regard to your third question, there is no problem in prin\xc2\xad\nciple with persons having tw o simultaneous appointments in the executive\nbranch. Nevertheless, dual appointments must be examined on an individual\nbasis to assure that the offices are not incompatible from the standpoint of\npublic policy. We would be pleased to consider the legality of any particular\nnominations you wish us to review.\nTitle I of the Act establishes several grant programs to be administered by\nthe Commission. \xc2\xa7 190. The purpose of the grants is to enable recipients\n\xe2\x80\x9cto carry out\xe2\x80\x9d specified \xe2\x80\x9cnational or community service programs.\xe2\x80\x9d \xc2\xa7 102.\nSubtitle B authorizes the Commission, in consultation with the Secretary of\nEducation, to make grants to States or local applicants in connection with\nschool-aged service programs, \xc2\xa7 111, and \xe2\x80\x9cto make grants to, and enter into\ncontracts with, institutions of higher education\xe2\x80\x9d and other parties in connec\xc2\xad\ntion with community service projects. \xc2\xa7 118. Subtitle C gives the Commission\npower to make grants to States, local applicants, and certain federal agencies\n\xe2\x80\x9cfor the creation or expansion of full-time or summer youth corps programs.\xe2\x80\x9d\n\xc2\xa7 121. Under subtitle D, the Commission may make grants to States \xe2\x80\x9cfor the\ncreation of full- and part-time national and community service programs.\xe2\x80\x9d \xc2\xa7\n141. Finally, subtitle E authorizes the Commission to make grants to States,\nIndian tribes, specified federal agencies, and other parties in connection with\ncertain \xe2\x80\x9cinnovative\xe2\x80\x9d and demonstration programs. \xc2\xa7\xc2\xa7 157, 160, 165-167.\nThe Act provides that the Commission is to be administered by a Board of\nDirectors (the \xe2\x80\x9cBoard\xe2\x80\x9d) consisting of twenty-one members appointed by the\nPresident with the advice and consent of the Senate. \xc2\xa7 190(a), (b)(1)(A).1\nSection 190(b) imposes several restrictions upon the President\xe2\x80\x99s authority to\nmake such appointments. It provides, for instance, that the Board must \xe2\x80\x9cbe\nbalanced according to the race, ethnicity[,] age and gender of its members,\xe2\x80\x9d\n\xc2\xa7 190(b)(1)(A); must contain \xe2\x80\x9c [n]ot more than [eleven] members of . . . the\nsame political party,\xe2\x80\x9d \xc2\xa7 190(b)(2); and must include seven members chosen\nfrom among persons nominated by the Speaker of the House of Representa\xc2\xad\ntives, and seven from among persons nominated by the Majority Leader of\nthe Senate. \xc2\xa7 190(b)(3).\nAs the President explained in signing the Act, requirements such as these\nare unconstitutional restrictions on his authority to appoint officers of the\nUnited States. See Pub. Papers of George Bush at 1613-14. See also Public\nCitizen v. United States D ep\xe2\x80\x99t o f Justice, 491 U.S. 440, 482 (1989) (Kennedy,\nJ., concurring); Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). We\nbelieve, however, that these unconstitutional provisions may be severed from\nthe remainder of the Act.\nThe Act contains no severability clause. Nonetheless, even in the absence\n\n1In a d d itio n , th e S e c re ta ry o f Education, the S ecretary o f H ealth and H um an S ervices, the S e c re ta ry o f\nL a b o r, th e S e c re ta ry o f th e Interior, th e Secretary o f A g ricu lture, and the D ire c to r o f th e A C T IO N\na g e n c y serv e as e x -o fficio mem bers o f th e Board. \xc2\xa7 19 0 (b )( 1)(B).\n\n158\n\n\x0cof such a clause, there exists a presumption in favor of the severability of\nunconstitutional provisions so long as what remains of the statute is capable\nof functioning independently. See Regan v. Time, Inc., 468 U.S. 641, 653\n(1984) (plurality opinion); Alaska Airlines v. Donovan, 766 F.2d 1550, 1560\n(D.C. Cir. 1985), aff\'d sub nom. Alaska Airlines v. Brock, 480 U.S. 678\n(1987). As the Supreme Court has explained on numerous occasions,\n\xe2\x80\x9c \xe2\x80\x98[u]nless it is evident that the Legislature would not have enacted those\nprovisions which are within its power, independently o f that which is not,\nthe invalid part may be dropped if what is left is fully operative as a law.\xe2\x80\x99\xe2\x80\x9d\nAlaska Airlines v. Brock, 480 U.S. 678, 684 (1987) (quoting Buckley, 424\nU.S. at 108). This presumption may be overcome by evidence that, absent\nthe unconstitutional provisions, the statute will not function \xe2\x80\x9cin a m anner\nconsistent with the intent of Congress,\xe2\x80\x9d id. at 685, that is, by evidence that\nCongress would not have enacted the statute without the unconstitutional\nprovisions. Such evidence may be gleaned from the language and structure\nof the statute as well as its legislative history. Id. at 687.\nWe do not believe that the presumption of severability may be overcome\nin this case. The Commission and the grant programs it administers would\nremain fully operative in the absence of the unconstitutional provisions. In\naddition, the Act does not suggest that the provisions were so important to\nCongress that it would not have passed the Act without them. Manifestly,\nCongress thought it necessary to have a federal entity administer the title I\nprograms. There is no evidence, however, that the precise composition of\nthe board administering that entity was also essential to Congress\xe2\x80\x99 plan.\nIndeed, in order to assure that the Commission would administer the various\ngrant programs in accordance with congressional intent, Congress placed\nsubstantive limitations on the Commission\xe2\x80\x99s discretion.2 In comparison with\nthese substantive limitations, restrictions on the composition o f the Board\nare of only minor significance. There is nothing in the legislative history of\nthe Act to support a different conclusion.3\n\xe2\x80\x98 See, e.g , \xc2\xa7 115(a), (b ) (sp ecify in g priorities fo r certain grants under su b title B); \xc2\xa7 122 (sp ecify in g\nrequirem en ts fo r allo catio n o f funds for grants un d er subtitle C ); \xc2\xa7 129 (d irec tin g that th e C om m issio n\ngive p referen ce to c ertain program s under subtitle C); \xc2\xa7 142 (specifying c rite ria for a w ard in g o f g ra n ts\nunder su b title D); \xc2\xa7 157 (sp ecify in g criteria fo r aw arding o f g rants for certa in program s under su b title\nE); \xc2\xa7 171 (placing lim it on num ber o f grants to be m ade by the C om m ission during e ac h fiscal y e a r); \xc2\xa7\n179 (sp ecify in g criteria fo r ev alu atio n o f program s by the C om m ission).\n\xe2\x80\x99 The relev an t leg islativ e history m ay be su m m arized b riefly as follow s. A s in tro d u ce d by S e n a to r\nK ennedy, the Act in itially provided for a nonprofit \xe2\x80\x98\xe2\x80\x9c C orp o ratio n for N atio n al S e rv ic e \'\xe2\x80\x9d to be d ire c te d\nby an e le v en -m em b e r \xe2\x80\x9cN ational S erv ice B oard" appointed by the P resident w ith the a d v ic e and c o n se n t\no f the Senate. S. 1430, 101st C ong., 1st Sess. \xc2\xa7\xc2\xa7 402(a), 40 3 (a), 135 C ong. R ec. 16,708 (1989). T h is\nversion o f the A ct a lso co n tain ed u n constitutional restrictions on the P re sid e n t\xe2\x80\x99s a u th o rity to a p p o in t\nofficers o f the U nited States. Id. See also S. R ep. No. 176, 101st C ong., 1st S ess 64 (1 9 8 9 ) (d iscussing\nm em bersh ip o f the p ro p o sed N ational Service B oard). On the S enate floor, Senator K e nnedy s u b sti\xc2\xad\ntuted a n o th e r version o f the Act th at replaced the C orp o ratio n w ith the C om m ission, ex p la in in g that the\nsu bstitu te co n tain ed \xe2\x80\x9c som e tech n ical changes\xe2\x80\x9d m ade at the b eh est o f the A d m inistration. 136 C ong.\nR ec. 2731 (1990) (statem en t o f Sen. K ennedy). See also id. at 2732 (statem en ts o f S e n s. H atch and\nK ennedy). Section 190 took its final form in conference; the only relevant statem ent in the C o n feren ce\nR eport in d icates that the H ouse in sisted on a provision adding the secretaries o f certa in d ep artm en ts\nand the D irecto r o f A C T IO N to the B oard as ex-officio m em bers. See H .R . C onf. R ep. N o. 893, 101st\nC ong., 2d Sess. 69 (1990).\n\n159\n\n\x0cYou also ask whether the grant programs established by title I may be\nimplemented before the President appoints members of the Board. We do\nnot believe so. Section 190 makes clear that the Commission, or more pre\xc2\xad\ncisely the Board, is responsible for administering such programs, or for\ndelegating that responsibility to other federal agencies. See \xc2\xa7 190(c)(2), (4).\nIn addition, section 190 provides that the Board must appoint an \xe2\x80\x9cExecutive\nDirector,\xe2\x80\x9d who in turn may appoint up to ten \xe2\x80\x9ctechnical employees to admin\xc2\xad\nister the Committee [sic].\xe2\x80\x9d \xc2\xa7 190(d)(1), (e). Until the President appoints\nmembers of the Board, then, the Commission is inoperative, and the grant\nprograms cannot be implemented.4\nFinally, you ask whether the President may appoint as Board members\npersons who currently serve as full-time federal employees. As we have\nexplained in the past, there is no statutory prohibition against a person hold\xc2\xad\ning two offices within the executive branch, so long as the person receives\nonly one salary, the positions are not \xe2\x80\x9cincompatible\xe2\x80\x9d from the standpoint of\npublic policy,3 and there is no augmentation of relevant appropriations. See\nD ual Office o f C hief Judge o f Court o f Veterans Appeals and D irector o f the\nOffice o f G overnm ent Ethics, 13 Op. O.L.C. 241 (1989); Intrater Memoran\xc2\xad\n\ndum. Nonetheless, determinations of the legality of dual appointments must\nbe made on an individual basis. Of course, we would be pleased to consider\nthe propriety of any specific nominations you wish us to review.\nJOHN O. McGINNIS\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\'T h e r e is an e x ce p tio n . Section 182(a) provides that \xe2\x80\x9c [tjh e head o f each F ederal agency and d e p a rt\xc2\xad\nm e n t sh all d e sig n a n d im plem ent a co m p reh en siv e strateg y to involve em ployees o f such ag en cies and\nd e p a rtm e n ts in p a rtn e rsh ip program s w ith elem entary sch o o ls and secondary sch o o ls." T hese \xe2\x80\x9c P a rtn e r\xc2\xad\ns h ip s W ith S c h o o ls\xe2\x80\x9d p ro g ram s may be im p lem en ted a b se n t the appointm ent o f B oard m em bers.\n5 "T h e o p e ra tiv e p rin c ip le is that tw o o ffic e s are in co m p atib le if pub lic policy w ou ld m ake it im proper\nfo r o n e p e rso n to p e rfo rm b o th functions. E xam ples o f in c o m p atibility are w here the official interests o f\nth e p o s itio n s c o n flic t, w h ere one o ffice adjudicates m a tte rs in w hich the o th e r is a party, o r w here\nC o n g re ss in te n d e d th a t o n e office se rv e as a ch eck on th e other. A pplication o f this stan d a rd thus\nd e p e n d s on th e statu to ry o r constitutional duties o f th e offices in v o lv e d .\xe2\x80\x9d M em orandum fo r A rnold\nIn tra te r, G e n eral C o u n se l, O ffice o f W h ite H ouse A d m in istration, from John O . M cG innis, D eputy\nA ss is ta n t A tto rn e y G e n eral, Office o f L e g a l C ounsel at 3 -4 (M arch 1, 1988) (citatio n om itted) (\xe2\x80\x9c Intrater\nM e m o ra n d u m \xe2\x80\x9d ).\n\n160\n\n\x0c\x0c\x0c'


b'Review of Final Order in Alien Employer Sanctions Cases\nThe Immigration and Naturalization Service cannot appeal to the Attorney General or seek\njudicial review o f a final order in an alien em ployer sanctions case under 8 U.S.C. \xc2\xa7 1324a.\n\nDecember 5, 1989\nM e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l\nI m m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e\n\nYour office has requested our advice on whether the Immigration and\nNaturalization Service (the \xe2\x80\x9cService\xe2\x80\x9d) can seek review o f a final order in\nan employer sanctions case under 8 U.S.C. \xc2\xa7 1324a. See Memorandum for\nWilliam P. Barr, Assistant Attorney General, Office o f Legal Counsel, from\nRaymond M. Momboisse, General Counsel, Immigration and Naturali\xc2\xad\nzation Service (June 21, 1989). For the reasons below, we conclude that\nthe Service can neither seek judicial review o f such an order nor appeal\nto the Attorney General.\nSection 1324a(a) makes it unlawful for a \xe2\x80\x9cperson or other entity\xe2\x80\x9d know\xc2\xad\ningly to hire, recruit or refer for a fee, or continue to employ an \xe2\x80\x9cunau\xc2\xad\nthorized alien.\xe2\x80\x9d Section 1324a(g)(l) prohibits a \xe2\x80\x9cperson or other entity\xe2\x80\x9d\nfrom requiring an individual to post a bond against any liability that might\narise with respect to hiring, recruiting, or referring for employment. The\nstatute also establishes an administrative scheme for prosecuting viola\xc2\xad\ntions o f these subsections. Under section 1324a(e), a \xe2\x80\x9cperson or entity\xe2\x80\x9d\ncharged with such a violation is entitled to a hearing before an adminis\xc2\xad\ntrative law judge (\xe2\x80\x9cALJ\xe2\x80\x9d), who may issue a cease and desist order and\nassess a civil penalty.1 The ALJ\xe2\x80\x99s order becomes the final order o f the\nAttorney General unless, within thirty days, the Attorney General modi\xc2\xad\nfies or vacates the order, in which case the Attorney General\xe2\x80\x99s order\nbecom es the final order. Id. \xc2\xa7 1324a(e)(7). The Attorney General has del\xc2\xad\negated his authority to review and revise an ALJ\xe2\x80\x99s order to the Chief\nAdministrative Hearing Officer (\xe2\x80\x9cCAHO\xe2\x80\x9d) in the Executive Office for\nImmigration Review, whose decision on the matter stands as the final\norder o f the Attorney General. See 28 C.F.R. \xc2\xa7\xc2\xa7 68.2(d); 68.52(a). Section\n1324a(e)(8) provides that \xe2\x80\x9c[a] person or entity adversely affected by a\n1 If the person or entity does not request a heanng before an AU , \xe2\x80\x9cthe Attorney General\xe2\x80\x99s imposition\no f the order shall constitute a final and unappealable order" 8 U S C. \xc2\xa7 1324a(e)(3)(B)\n\n370\n\n\x0cfinal order ... may, within 45 days after the date the final order is issued,\xe2\x80\x9d\nseek review in the appropriate court o f appeals.\nWe think it apparent from the statutory language that the Service does\nnot qualify as a \xe2\x80\x9cperson or entity\xe2\x80\x9d that may seek judicial review o f a final\norder under section 1324a(e)(8). Although the phrase is not expressly\ndefined in section 1324a,2 it is clear from the context in which it is used\nthat \xe2\x80\x9cperson or entity\xe2\x80\x9d refers to the employer being prosecuted. The\nphrase appears numerous times \xe2\x80\x94 sixteen times in subsection (e) alone\n\xe2\x80\x94 in ways that indicate that this is so.3 See, e.g., 8 U.S.C. \xc2\xa7 1324a(a)(l)\n(making it unlawful for \xe2\x80\x9ca person or other entity to hire ... an unautho\xc2\xad\nrized alien\xe2\x80\x9d); id. \xc2\xa7 1324a(e)(3)(B) (hearing to be held \xe2\x80\x9cat the nearest prac\xc2\xad\nticable place to the place where the person or entity resides\xe2\x80\x9d); id. \xc2\xa7\n1324a(e)(4) (discussing application o f sanctions to \xe2\x80\x9ca person or entity\ncomposed o f distinct, physically separate subdivisions\xe2\x80\x9d). Indeed, a con\xc2\xad\nstruction o f subsection (e)(8) that would allow the Service to seek judi\xc2\xad\ncial review o f a final order o f the Attorney General would raise serious\nconstitutional questions. Such review would interfere with the\nPresident\xe2\x80\x99s authority under Article II o f the Constitution to supervise his\nsubordinates and resolve disputes among them, see Myers v. United\nStates, 272 U.S. 52, 135 (1926) (President \xe2\x80\x9cmay properly supervise and\nguide\xe2\x80\x9d Executive officers in \xe2\x80\x9ctheir construction o f the statutes under\nwhich they act in order to secure that unitary and uniform execution of\nthe laws which Article II o f the Constitution evidently contemplated in\nvesting general executive power in the President alone\xe2\x80\x9d), and would\nimplicate the general rule that a lawsuit between two members o f the\nexecutive branch does not give rise to a justiciable \xe2\x80\x9ccase or controversy\xe2\x80\x9d\nunder Article III. See Constitutionality o f Nuclear Regulatory\nCommission\xe2\x80\x99s Imposition of Civil Penalties on the Air Force, 13 Op.\nO.L.C. 131 (1989) (discussing rule that lawsuits between two federal\nagencies are generally not justiciable).4\nWe also conclude that the Service cannot seek review by the Attorney\nGeneral o f the CAHO\xe2\x80\x99s order. The regulations clearly provide that the\nCAHO\xe2\x80\x99s order is the final order o f the Attorney General in an employer\nsanctions case. 28 C.ER. \xc2\xa7 68.52(a)(1). Neither the statute nor the regu\xc2\xad\nlations provide for any further administrative review.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice of Legal Counsel\n2 Section 1101(b)(3) o f title 8 defines \xe2\x80\x9cperson" as simply \xe2\x80\x9can individual or an organization \xe2\x80\x9d\n3 We also note that when Congress sought to refer to the Service in subsection (e), it did so explicitly.\nSee 8 U S C. \xc2\xa7 1324a(e)(l)(D) (directing Attorney General to establish procedures \xe2\x80\x9cfor the designation in\nthe Service o f a unit\xe2\x80\x9d whose primary duty is the prosecution o f cases under subsections (a) and (g)(1)).\n4 Because we conclude that the Service may not seek judicial review under section 1324a(e)(8), we do\nnot address whether such review should be sought as a matter o f policy.\n\n371\n\n\x0c'


b'United States Participation in\nInterpol Computerized Search File Project\nNeither state nor federal law would prohibit participation by the United States National\nCentral Bureau o f Interpol (USNCB) in a proposed computerized information exchange\nsystem, provided the USNCB complies with all disclosure, accounting, and publication\nrequirements imposed by applicable federal statutes, such as 22 U.S.C. \xc2\xa7 263a, the\nPrivacy Act, and other federal restrictions on the exchange of criminal history informa\xc2\xad\ntion. As a matter of comity, the USNCB may comply with relevant state laws and\nregulations that restrict the disclosure and dissemination o f personally identifiable\ninformation; however, under the Supremacy Clause, as a federal law enforcement\nagency it is not bound to do so.\nThe requirements o f the Privacy A ct may affect the structure and functioning o f any\ncomputerized information exchange system in which the USNCB participates, particu\xc2\xad\nlarly insofar as it would require the USNCB to verify the accuracy o f data in its\nrecords prior to disclosure.\nApplicable international guidelines and agreements relating to information exchange and\nprivacy protection are broader in scope than the Privacy Act, and may restrict federal\nlaw enforcement agencies\xe2\x80\x99 ability to participate fully in the proposed system. More\xc2\xad\nover, there are a number o f possible international conflicts o f law issues raised by the\nUnited States\xe2\x80\x99 participation in Interpol generally, and in any automated information\nexchange system it may implement.\n\nDecember 9, 1981\nMEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY\nGENERAL FOR ADMINISTRATION\nThis responds to your request for this Office\xe2\x80\x99s advice on legal issues\nimplicated by the proposed Interpol Computerized Search File Project,\nFisher Informatise de Recherches (F.I.R.). This project, if approved by\nthe Interpol General Assembly, will result in computerization of infor\xc2\xad\nmation now maintained by the Interpol General Secretariat and the\nexchange of information among member national central bureaus\n(NCBs) and the General Secretariat. While our discussion focuses on\nthe F.I.R. project, our analysis may, as you recognize in your request,\nhave implications for other recent initiatives dealing with the computer\xc2\xad\nized exchange of personally identifiable information. One such initiative\nwould be the recommendation of the Attorney General\xe2\x80\x99s Task Force\non Violent Crime for establishment of an Interstate Identification Index\nas an alternative to a national centralized computerized criminal history\nfile. We will, as appropriate, point out that overlap and the possible\neffects of our analysis on the Interstate Identification Index proposal.\n373\n\n\x0cWe understand that the primary purpose of the F.I.R. project is to\nfacilitate more rapid exchange of information through Interpol; such\nexchanges are presently accomplished largely on a manual basis. Imple\xc2\xad\nmentation of the F.I.R. project would not alter the obligations and\nresponsibilities of member NCBs with respect to the exchange of infor\xc2\xad\nmation, except insofar as will be necessary for technical operation of\nthe system. Therefore, we do not believe that the computerization of\nthe General Secretariat\xe2\x80\x99s files and the exchange of information among\nmembers of Interpol raise any unique legal issues. The more difficult\nquestions will undoubtedly be those of policy and technical feasibility.\nYou have also asked us to address more generally, however, the legal\nissues raised with respect to the collection and exchange of information\namong the member NCBs and the General Secretariat, so that you may\nevaluate how they affect the usefulness, desirability, and design of the\nF.I.R. project. We focus in this memorandum on the following: (1)\nrestrictions imposed by state or federal law on the information that the\nUnited States National Central Bureau (USNCB) may contribute to the\nF.I.R. system; (2) the USNCB\xe2\x80\x99s responsibility to verify data it discloses\nthrough the system; and (3) the effect on federal law enforcement\nagencies of the voluntary privacy protection guidelines recently\nadopted by the Organization for Economic Cooperation and Develop\xc2\xad\nment and of the Convention for the Protection of Individuals with\nRegard to Automatic Processing of Personal Data adopted by the\nCouncil of Europe. We will also discuss briefly conflict of laws prob\xc2\xad\nlems raised by the F.I.R. project.\n1. Background\nCurrently, NCBs exchange criminal justice and certain humanitarian\ninformation directly with the General Secretariat, which maintains a\ncentralized file in St. Cloud, France, and directly with other NCBs.\nUnder the F.I.R. project, the centralized records now maintained by\nthe General Secretariat in manual form, which consist primarily of\ninformation contributed by member NCBs, would be put in a comput\xc2\xad\nerized data base accessible by member NCBs through remote terminals.\nThis would be similar in design to the Computerized Criminal History\nFile (CCH) now maintained as part of the Federal Bureau of Investiga\xc2\xad\ntion\xe2\x80\x99s (FBI\xe2\x80\x99s) National Crime Information Center (NCIC). Channels\nwould also be created between member NCBs allowing direct commu\xc2\xad\nnication of requests and information without intermediate processing at\nthe Interpol General Secretariat. It is our understanding that the FBI\xe2\x80\x99s\nNCIC system does not permit direct communication between state and\nlocal governments, but that such communication may be accomplished\nindependently through the National Law Enforcement Telecommunica\xc2\xad\ntions System (NLETS).\n374\n\n\x0cAn alternative system design would be a central index maintained by\nthe General Secretariat which would include only names or other\nidentifying characteristics and corresponding index entries indicating\nwhich NCB maintains relevant information. A requesting NCB could\nnot obtain information directly from the General Secretariat under such\na system, but would be referred to the NCB that has information\nresponsive to the request. The FBI\xe2\x80\x99s proposed Interstate Identification\nIndex, which has been undergoing a trial in Florida, is based on the\nindex concept.\nWe understand that the F.I.R. project has as yet only been proposed\nin principle, and that it will be submitted to the Interpol General\nAssembly early in 1982 for approval. Assuming the project is approved,\nthe details of its design and operation will be addressed by the General\nAssembly only after the project has been approved in concept.1\nII. Restrictions on Exchanges of Information\n\nYou have asked us to address specifically whether state or federal\nlaws impose binding restrictions on the types of information the\nUSNCB can contribute to the F.I.R. system. The USNCB now ex\xc2\xad\nchanges a wide variety of information with other NCBs and the\nInterpol General Secretariat, including: humanitarian records (missing\npersons, amnesia victims, victim locate requests, and identification of\ndecedents); criminal subject records (stolen property, wanted persons,\ncriminal history records); criminal investigative records (persons in\xc2\xad\nvolved in or property associated with a criminal act); and criminal\nintelligence records (information indicating that a specific individual\nmay commit a specific criminal act). Upon occasion, other types of\npersonal assistance data may be communicated through Interpol to\nfacilitate humanitarian efforts.2 As we discuss below, we do not believe\nthat state or federal law would prohibit the USNCB from continuing to\nexchange those categories of information through Interpol, provided\nthe USNCB complies with all disclosure, accounting, and publication\nrequirements imposed by the applicable federal statutes.\nA. Restrictions Imposed by State Laws\n\nA significant portion of information communicated by the USNCB\nthrough Interpol comes from cooperating state and local law enforce\xc2\xad\n1Rules governing the processing o f police information within Interpol, including treatment of data\nin an automated data processing system, have recently been discussed by the General Assembly. In\nour memorandum o f October 17, 1981, we commented on the acceptability of those rules under\nUnited States law. W e understand that because many countries did not have an adequate opportunity\nto review those rules before the General Assembly meeting, a committee has been established to\nconsider the draft further, and that the rules, as modified, will be resubmitted to the General Assembly\nnext year.\n2 For example, information relating to adoptions of Peruvian babies is communicated between\nPeruvian authorities and the adopting parents only through Interpol channels.\n\n375\n\n\x0cment agencies, either directly through the NLETS system or indirectly\nthrough other federal law enforcement systems such as the Treasury\nEnforcement Communications Systems (TECS).3 Most, if not all, states\nhave laws restricting secondary dissemination of particular types of\ninformation, ranging from omnibus privacy legislation modeled on the\nfederal Privacy Act, to specific limitations on disclosure of tax, welfare,\ncriminal history, or other personal information.4 The first question you\nhave posed is whether the USNCB must or should comply with state\nlaws that restrict the disclosure of personal history information, either\n(1) on the principle that the records submitted by a state remain the\nproperty of the state and therefore subject to state statutory restrictions;\nor (2) on a principle of voluntary compliance based on federal/state\ncomity.\nMany federal law enforcement agencies, including the FBI and the\nUSNCB, recognize that the primary responsibility lies with state and\nlocal law enforcement agencies for determining what information can\nor should be disclosed to federal agencies. Neither the FBI nor the\nUSNCB requires state and local agencies to disclose any information,\nor particular types of information. Disclosure is on a voluntary, cooper\xc2\xad\native basis. In some instances, if the state or local agency undertakes to\nexchange information, it becomes subject to federal restrictions on\nmaintenance and disclosure of that information, but those restrictions\ndo not affect the state\xe2\x80\x99s authority to decide, in the first instance,\nwhether it will transmit particular types of information to the federal\nagency and whether such transmittal would comply with state law.5\nBoth the FBI and the USNCB routinely honor requests by state and\nlocal law enforcement agencies for return, deletion, or modification of\n*The USNCB has direct access to T E C S, which includes data bases of a number of Treasury and\nother federal agencies, including the U.S. Customs Service, the Bureau of Alcohol, Tobacco and\nFirearm s, the Internal Revenue Service, and, to a limited extent, the United States Coast Guard and\nthe D epartm ent o f State Through T E C S , the USNCB also has access to the FBI\'s criminal record\ninformation files.\n4A lthough we have not undertaken an exhaustive survey of state laws that regulate the disclosure\nof persona] information, several state statutes we have reviewed apply only to disclosure of informa\xc2\xad\ntion by state agencies and officials, and therefore would not restrict disclosure by federal agencies or\nofficials. F o r example, the Minnesota statute referred to in your request, which prohibits disclosure to\n\xe2\x80\x9c the private international organization known as Interpol,\xe2\x80\x9d applies only to state agencies and political\nsubdivisions. Minn. Stat. Ann. \xc2\xa7 15.1643 (West Supp. 1980) See also Ark. Stat. Ann. \xc2\xa7\xc2\xa7 16-801 to 810\n(1979) (omnibus privacy act applicable to \xe2\x80\x9can agency o f the State Government or any local govern\xc2\xad\nment or other political subdivision o f the State\xe2\x80\x9d); Conn. Gen Stat Ann \xc2\xa7\xc2\xa74-190 to 197 (West Supp.\n1980) (restrictions on transfer of \xe2\x80\x9cpersonal data\xe2\x80\x9d by any \xe2\x80\x9cstate board, commission, department, o r\nofficer\xe2\x80\x9d ); but see Me. Rev. Stat. Ann. tit. 16, \xc2\xa7\xc2\xa7611-22 (West Supp. 1979-80) (limiting use of criminal\njustice information by \xe2\x80\x9ccriminal justice agencies,\xe2\x80\x9d including \xe2\x80\x9cfederal, state . . or local government\nagenc[ies]\xe2\x80\x9d).\n5 F o r example, the regulations governing disclosure o f criminal justice information by state agencies\nthat receive Law Enforcement Assistance Administration funding under the Omnibus Crime Control\nand Safe Streets A ct of 1968, as amended, 42 U.S.C. \xc2\xa7\xc2\xa7 3701-3797 (Supp. IV 1980), provide that,\n\xe2\x80\x9c Subsection (b) [limiting dissemination of criminal justice information by states] does not mandate\ndissemination o f criminal history record information to any agency or individual. States and local\ngovernm ents will determine the purposes for which dissemination o f criminal history record informa\xc2\xad\ntion is authorized by state law, executive order, local ordinance, court rule, decision or order.\xe2\x80\x9d 28\nC.F.R. \xc2\xa7 20.21(c)(3), interpreting 42 U.S.C. \xc2\xa7 3789g(b).\n\n376\n\n\x0crecords previously forwarded to the federal agency. Thus, the FBI and\nUSNCB recognize that states have a legitimate interest in and consider\xc2\xad\nable control over what criminal justice information will be exchanged.\nWe believe that this recognition of the states\xe2\x80\x99 interest in criminal\njustice information communicated to federal agencies is only a matter\nof comity between state and federal law enforcement agencies. While\nfederal agencies may choose to honor states\xe2\x80\x99 requests or statutory\nrestrictions in the exchange of information, they are not bound by state\nlaws that restrict secondary dissemination of criminal justice informa\xc2\xad\ntion. Under the Supremacy Clause of the Constitution, Art. VI, cl. 2, it\nis settled that the states cannot subject instrumentalities of the federal\ngovernment to state regulation or control, in the absence of a clear\ncongressional mandate to make federal authority subject to state regula\xc2\xad\ntion.6 In particular, courts have held that state statutes restricting dis\xc2\xad\nclosure of certain types of information must give way where they are\ninconsistent with an Act of Congress or the Constitution, as, for exam\xc2\xad\nple, where a federal grand jury subpoenas records otherwise protected\nby state statute.7 Where the agency is not subject to state statutes or\nregulations restricting the disclosure of information, a fortiori its officers\nand employees are not subject to prosecution for violation of those\nregulations, if they are acting in furtherance of their responsibilities\nunder federal law.8\nHere, the relevant statutes that affect the ability of federal agencies to\ncollect and disseminate data contain no \xe2\x80\x9cclear congressional mandate\xe2\x80\x9d\nthat the federal agencies and their employees are subject to the restric\xc2\xad\ntions contained in the various state statutes on use of criminal justice\ninformation except as a matter of comity. See, e.g., 28 U.S.C. \xc2\xa7 534\n(authorizing the Attorney General to \xe2\x80\x9cacquire, collect, classify and\npreserve identification, criminal identification, crime and other records\xe2\x80\x9d\nand to \xe2\x80\x9cexchange these records with and for the official use of author\xc2\xad\nized officials of the Federal Government, the States, cities and penal\nand other institutions\xe2\x80\x9d); Omnibus Crime Control and Safe Streets Act\nof 1968, supra ; 22 U.S.C. \xc2\xa7 263a (authorizing the Attorney General to\n\xe2\x80\x9caccept and maintain membership . . . in Interpol\xe2\x80\x9d).\nYou suggest in your request that language in Tarlton v. Saxbe, 507\nF.2d 1116 (D.C. Cir. 1974) and Department of Justice regulations\n6See Mayo v. United Stares, 319 U.S. 441, 447-48 (1943); Kern-Limenck, Inc. v. Scurlock, 347 U.S.\n110, 122 (1954).\n1 In re Grand Jury Subpoena, May 1978, at Baltimore. 596 F.2d 630, 632 (4th Cir. 1979); In re Special\nApril 1977 Grand Jury, 581 F.2d 589, 592 (7th Cir.) cert, denied sub. nom. Scott v. United States 439,\nU.S. 1046 (1978); see In re Grand Jury Subpoena fo r N. Y. State Income Tax Records, 468 F. Supp. 575,\n577 (N .D N Y 1979); see also United States v. Thorne, 467 F. Supp. 938, 940 (D. Conn. 1979).\nsSee In re Neagle, 135 U.S. 1, 62 (1890); Ohio v. Thomas. 173 U.S. 276, 282 (1899), Massachusetts v.\nHills. 437 F. Supp 351, 353 (D. Mass. 1977) (Secretary of HUD not subject to criminal prosecution\nfor alleged violations o f Massachusetts Sanitary Code in buildings owned by department); Memoran\xc2\xad\ndum for the Attorney General from Mary C. Lawton, Deputy Assistant Attorney General, Office o f\nLegal Counsel (Nov. 30, 1976); see generally United States v. Georgia Public Service Comm\'n, 371 U.S.\n285, 292-93 (1963).\n\n377\n\n\x0cgoverning the disclosure of criminal history information under the\nOmnibus Crime Control and Safe Streets Act, supra, might embody a\nconcept of \xe2\x80\x9cdata ownership\xe2\x80\x9d whereby information contributed by a\nstate to a federal agency would remain the property of, and therefore\nunder the control of, the contributing state. We do not believe that\nsuch a concept is inherent in either the Tarlton decision or the pertinent\nregulations. In Tarlton, an action for expungement of FBI arrest\nrecords, the Court of Appeals for the District of Columbia Circuit\nsuggested that 28 U.S.C. \xc2\xa7 534, supra, may require the FBI to make\n\xe2\x80\x9creasonable efforts\xe2\x80\x9d to maintain \xe2\x80\x9cconstitutionally accurate criminal\nfiles.\xe2\x80\x9d It bolstered that suggestion by reference to \xc2\xa7 524(b) of the Omni\xc2\xad\nbus Crime Control and Safe Streets Act, which requires state officials\nsubject to the Act to make efforts to assure the accuracy and complete\xc2\xad\nness of criminal history record information submitted to the FBI. The\ncourt noted in a footnote that:\nCongress surely cannot be presumed to undercut its\naction in [28 U.S.C.] \xc2\xa7 534 by intending that the FBI be\nauthorized to receive and disseminate without reasonable\nprecautions the sort of incomplete, unchallengable infor\xc2\xad\nmation from state or local officials which those officials\nthemselves are forbidden to disseminate.\n507 F.2d at 1125 n.28. The court\xe2\x80\x99s reference to \xe2\x80\x9cthe sort of . . .\ninformation from state or local officials which the officials themselves\nare forbidden to disseminate,\xe2\x80\x9d involves only the obligations imposed on\nstate officials under the Omnibus Act, and not those obligations im\xc2\xad\nposed under state laws. This language therefore does not suggest that\nthe FBI (or any other federal agency) is bound by state laws restricting\nthe disclosure of criminal history information. Likewise, 28 C.F.R.\n\xc2\xa7 20.21(c), quoted at n.5 supra, recognizes only that a state is not\nrequired to disclose information if disclosure would contravene its own\nlaw, regulations, or orders. That subsection does not suggest that the\nFBI is bound by such state laws.\nMoreover, the concept of \xe2\x80\x9cdata ownership\xe2\x80\x9d would imply that the\nreceiving agency does not have control over data that it did not\ndevelop itself, and therefore that the receiving agency is not bound by\nfederal laws or regulations governing use and disclosure of that infor\xc2\xad\nmation, such as the Privacy Act or the Freedom of Information Act\n(FOIA). There is no suggestion, however, in either the Privacy Act or\nFOIA that records collected by a federal agency are exempt from the\nrequirements of those statutes if they are contributed by a state agency.9\n9 T he Privacy A ct applies broadly to any \xe2\x80\x9csystem o f records\xe2\x80\x9d maintained, collected, used, or\ndisseminated by a federal agency. \xe2\x80\x9cR ecord" is defined in terms o f the nature o f the information (Le.,\ninformation about an individual) and not the source o f the information. 5 U.S.C. \xc2\xa7 552a(aX4). The\ndefinition of \xe2\x80\x9csystem o f records\'* is intended to exclude only groupings of records over which the\nContinued\n\n378\n\n\x0cFinally, because federal agencies collect information from thousands of\nsources, including an estimated 20,000 state and local law enforcement\nagencies, it would clearly be impracticable to require the federal agen\xc2\xad\ncies to abide by the varying and inconsistent restrictions imposed by\nindividual state laws. Where state regulation will frustrate the purpose\nand operation of a duly authorized federal program, the state statute\nmust give way. See Public Utilities Commission o f California v. United\nStates, 355 U.S. 534, 540-44 (1958); Mayo v. United States, 319 U.S. at\n445; C ity o f Los Angeles v. United States, 355 F. Supp. 461, 465 (C.D.\nCalif. 1972).\nThus, we conclude that federal agencies such as the USNCB or the\nFBI may, as a matter of comity, comply with state restrictions on the\nuse of data or state requests with respect to disclosure of data, at least\nso long as those restrictions are not themselves inconsistent with federal\nlaw, but are not obligated to abide by the laws of the various states in\nthe handling of data submitted by the states. In addition, federal agen\xc2\xad\ncies are not required to comply with restrictions on disclosure of data\nimposed by the domestic laws of foreign countries, but may choose to\nhonor those restrictions as a matter of international comity.10\nB. Restrictions Imposed by Federal Law\n\nWhile the USNCB need not comply with limitations imposed by\nstate law except as a matter of comity, there are federal statutes and\nagency has no \xe2\x80\x9ccontrol\xe2\x80\x9d \xe2\x80\x94i.e., if it does not have access to the records; the ability to include, exclude,\nor modify information included in the grouping; or the responsibility to ensure the physical safety and\nintegrity o f the records\xe2\x80\x94and records which, although in the physical possession of agency employees\nand used by them in performing official functions, are not \xe2\x80\x9cagency" records, such as uncirculated\npersonal notes, papers, and records retained or discarded at the author\'s discretion and over which the\nagency exercises no control or dominion. See Office of Management and Budget Privacy Act\nGuidelines. 40 Fed. Reg. 28,949, 28,952, (July 9, 1975) (OMB Guidelines). The FOIA applies generally\nto \xe2\x80\x9crecords\xe2\x80\x9d o f an agency, except as specifically exempted by the statute. 5 U S.C. \xc2\xa7 552(a)(3)(b). With\nthe exception of the exemption in FO IA for \xe2\x80\x9ctrade secrets and commercial or financial information\nobtained from a person and privileged or confidential,\xe2\x80\x9d we are unaware of any statutory or regulatory\nprovision or administrative or judicial interpretations suggesting that the Privacy Act and FO IA do\nnot apply to records maintained by agencies on the sole ground that the records were obtained from a\nsource outside the agency.\n10 For example, the federal agency could agree, by contract or otherwise, to restrict dissemination\nof state-supplied data and to honor states* requests for modification or return of information, so long as\nthat agreement is not inconsistent with the agency\'s obligations under federal statutes As we discuss\ninfra, however, such agreement would not in any sense exempt information contributed by the states\nfrom the Privacy Act, FO IA, or other federal disclosure statutes, once that information has been\nincorporated in the records of the federal agency. An index system, either at the federal or interna\xc2\xad\ntional level, would clearly have advantages in enabling the responsible central authority to honor\nrestrictions requested by the states or foreign governments, because the central authority would not\nretain or disclose the information itself, but would only refer the requesting entity to the state or\ncountry that has relevant information. It would be the responsibility of that state or government to\ndetermine if disclosure is consisent with its laws, regulations, and policies. Even with a centralized\ndata base, however, it may be possible to accommodate differing state or national disclosure require\xc2\xad\nments by allowing the source of the information unilaterally to restrict or qualify subsequent uses of\ninformation disclosed to the authority. The Interpol draft rules, for example (see n. 1 supra), contemplate\nthat an NCB may classify information as intended only for the use o f the General Secretariat (Art. 6, %\n3) o r only for the use o f the country to which the information is communicated (Art. 12, 3). As a\ntechnical matter, codes or safeguards would have to be built into the F.I.R. project to accommodate\nsuch limitations.\n\n379\n\n\x0cregulations that restrict the types of data that can be collected and\ndisseminated by the USNCB and the circumstances under which infor\xc2\xad\nmation can be disclosed outside the agency. In particular, we consider\nhere: (1) 22 U.S.C. \xc2\xa7263a (Supp. IV 1980), the legislation authorizing\nUnited States participation in Interpol; (2) the Privacy Act; and (3)\nother federal restrictions on the exchange of criminal history informa\xc2\xad\ntion.\n1. 22 U.S.C. \xc2\xa7 263a\nThe statutory authority for participation by the United States in\nInterpol is 22 U.S.C. \xc2\xa7 263a, which authorizes the Attorney General \xe2\x80\x9cto\naccept and maintain, on behalf of the United States, membership in the\nInternational Criminal Police Organization, and to designate any de\xc2\xad\npartments and agencies which may participate in the United States\nrepresentation with that organization.\xe2\x80\x9d Participation by the United\nStates in Interpol is accomplished through the USNCB, which is part\nof the Department of Justice.11 No statutory or regulatory authority\nexpressly authorizes the USNCB to exchange criminal justice or hu\xc2\xad\nmanitarian information through Interpol.12 Such authority can be in\xc2\xad\nferred, however, from the broad mandate in \xc2\xa7 263a authorizing partici\xc2\xad\npation in the organization, and congressional approval of payment of\ndues to Interpol. See, e.g., Fleming v. Mohawk Co., 331 U.S. Ill, 116\n(1947).13\nWe believe that the USNCB has broad authority to coordinate and\ncommunicate criminal investigative requests and humanitarian requests\nwith the United States law enforcement agencies, the Interpol Secretar\xc2\xad\niat, and other NCBs, consistent with the purposes of Interpol. The\nInterpol constitution describes the purposes of Interpol as follows:\n11T he A ttorney G eneral has approved a departmental reorganization that will make the USNCB a\nseparate office within the Department o f Justice. See memorandum from William French Smith,\nA ttorney G eneral, to Rudolph W. Giuliani, Associate Attorney General (Oct. 14, 1981).\n12As part o f the departmental reorganization (see n.10 supra), the Attorney General has also\nproposed an amendment to the D epartm ent o f Justice\xe2\x80\x99s organizational regulations, which will specify\nthe functions to be handled by th e USNCB. Those functions include the authonty to \xe2\x80\x9ctransmit\ninformation o f a criminal justice, humanitarian, or other law enforcement related nature between\nN ational Central Bureaus of IN TER PO L member countries, and law enforcement agencies within the\nUnited States and abroad; and respond to requests by law enforcement agencies and other legitimate\nrequests by appropriate organizations, institutions and individuals, when in agreement with the\nIN T E R P O L Constitution."\n13 Prior to 1978, \xc2\xa7 263a included a ceiling on the amount o f dues the United States could contribute\nto Interpol. Between 1957 and 1978, Congress raised that ceiling several times. See, e.g., Pub. L. No.\n85-768, 72 Stat. 921; Pub. L. No. 90-159, 81 S ta t 517; Pub. L. No. 92-380, \xc2\xa7 1, 86 Stat. 531; Pub. L.\nNo. 93\xe2\x80\x94468, \xc2\xa7 1, 88 Stat. 1422. In reports accompanying bills to increase the dues ceiling, Congress\ndescribed in some detail the information-gathering functions o f Interpol, and acknowledged that the\nUnited States* participation in Interpol is of substantial value for efforts to combat crime on an\ninternational scale. See, e.g., S. Rep. N o. 2403, 85th Cong., 2d Sess., reprinted in 1958 U.S. Code Cong.\n& A d. N ew s 3957; S. Rep. No. 1199, 93rd Cong., 2d Sess., reprinted in 1974 U.S. Code Cong. & Ad.\nN ew s 5906. In 1978, Congress amended \xc2\xa7 263a to provide that dues and expenses for the membership\no f th e U nited States in Interpol \xe2\x80\x9cshall be paid out o f sums authorized and appropriated for the\nD epartm ent o f Justice.\xe2\x80\x9d Pub. L No. 95-624, \xc2\xa7 21(a), 92 Stat. 3466.\n\n380\n\n\x0ca) To ensure and promote the widest possible\nmutual assistance between all criminal police au\xc2\xad\nthorities within the limits of the laws existing in\nthe different countries and in the spirit of the\n\xe2\x80\x9cUniversal Declaration of Human Rights.\xe2\x80\x9d\nb) To establish and develop all institutions likely to\ncontribute effectively to the prevention and sup\xc2\xad\npression of ordinary law crimes.\nArt. I. This specification of purpose is quite broad, and can be read to\nencompass the types of criminal justice and humanitarian information\nnow collected and exchanged by the USNCB.14\n2. Privacy Act, 5 U.S.C. \xc2\xa7 552a\nThe USNCB must comply with the requirements of the Privacy Act\nwith respect to any personal information maintained on United States\ncitizens or permanent residents.15 The Privacy Act limits the collection\nand dissemination of \xe2\x80\x9cpersonally identifiable\xe2\x80\x9d information by federal\nagencies generally to \xe2\x80\x9csuch information . . . as is relevant and neces\xc2\xad\nsary to accomplish a purpose of the agency required to be accom\xc2\xad\nplished by statute or by executive order of the President.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 552a(e)(l). The Act specifically prohibits the maintenance of any\nrecords \xe2\x80\x9cdescribing how any individual exercises rights guaranteed by\nthe First Amendment.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 552(e)(7). Criminal history informa\xc2\xad\ntion and certain law enforcement records, however, may be exempted\nfrom the requirements of subsections (e)(1) and (e)(7). 5 U.S.C.\n\xc2\xa7 552a(j)(2). Pursuant to that authority, law enforcement records main\xc2\xad\ntained by the USNCB in its Criminal Investigative Records System\nhave been exempted from those requirements. The exemption from\nsubsection (e)(1) means only, however, that the USNCB need not\n14 The authonty of Interpol to investigate crimes is generally limited to \xe2\x80\x9c ordinary law crimes.\'*\nArticle III of the Interpol constitution expressly forbids the organization \xe2\x80\x9cto undertake any interven\xc2\xad\ntion or activities of a political, military, religious or racial character.\xe2\x80\x99\xe2\x80\x99 We understand that because of\nthis express limitation in the Interpol constitution, the USNCB will not provide through Interpol\ninformation related to incidents o f a \xe2\x80\x9c political, military, religious or racial\xe2\x80\x9d character In addition, the\ndraft rules on processing of police information recently considered by the Interpol General Assembly\n(see n.l supra) would restrict the disclosure of information by the General Secretariat and the NCBs,\nalthough the rules do not restrict the prerogative of individual NCBs to determine w hat types of\ninformation can or should be disclosed under their own laws and policies. Under those rules, \xe2\x80\x9cpolice\ninformation\xe2\x80\x99\xe2\x80\x99 may be disclosed only for the following purposes*\n. . . to prevent ordinary law crimes, to bring the persons responsible to justice, to find\nthe victims of such crimes, to find missing persons and to identify dead bodies . . .\nItems of police information other than names of persons may be processed for research\nand publication purposes. Any police information that has been published may also be\nprocessed for general reference purposes.\nArt. 3, HH 3, 4. Items o f police information may be further disseminated by the receiving N CB only to\n\xe2\x80\x9cofficial institutions concerned with the enforcement of the criminal law in its country.\xe2\x80\x9d A rt. 12, fl(4)19 T he Privacy A ct does not apply to information maintained on foreign nationals unless they have\npermanent resident status in the United States Thus, information that the USNCB maintains on\nforeign nationals and nonresident aliens is not subject to the disclosure, accounting, and access\nrequirements of the Act.\n\n381\n\n\x0cscreen all information received from state, local, or foreign sources to\ndetermine if the information is relevant and necessary to the USNCB\xe2\x80\x99s\nstatutory purpose. As we discuss below, the USNCB is required to\nmake reasonable efforts prior to dissemination of any information sub\xc2\xad\nject to the Privacy Act to assure that the records disseminated are\n\xe2\x80\x9crelevant\xe2\x80\x9d to the USNCB\xe2\x80\x99s purposes. See 5 U.S.C. \xc2\xa7 552a(e)(6). More\xc2\xad\nover, independent of the requirements of the Privacy Act, the USNCB\nis without statutory authority to collect or disseminate information that\nis unrelated to the purposes of Interpol. See discussion in previous\nsection.\nOther than the limitations imposed by subsections (e)(1) and (e)(7),\nwhich may be of limited practical significance because of the exemption\nof law enforcement records, the Privacy Act does not limit the types of\npersonal information that may be maintained and disseminated by a\nfederal agency. The Privacy Act does, however, limit the circumstances\nunder which such information may be disclosed. No personal informa\xc2\xad\ntion subject to the Act may be disclosed without the consent of the\nindividual concerned unless one of eleven statutory exceptions is met. 5\nU.S.C. \xc2\xa7 552a(b). For law enforcement purposes, the most significant\nexception allowed is for a \xe2\x80\x9croutine use\xe2\x80\x9d of the agency, i.e., a use which\nis \xe2\x80\x9ccompatible with the purpose for which [the record] is collected.\xe2\x80\x9d 5\nU.S.C. \xc2\xa7 552a(a)(5), (b)(3).\nThe legislative history of the Privacy Act does not provide much\nguidance as to the outer limits of the \xe2\x80\x9croutine use\xe2\x80\x9d exception. Congress\nchose not to define or prescribe a list of permissible \xe2\x80\x9croutine uses.\xe2\x80\x9d\nInstead it provided a check on the scope of the exception by requiring\npublication of the nature of all \xe2\x80\x9croutine uses\xe2\x80\x9d in the Federal Register.\nRep. Moorhead noted in House debate on the bill that:\nIt would be an impossible legislative task to attempt to\nset forth all of the appropriate uses of Federal records\nabout an identifiable individual. It is not the purpose of\nthe bill to restrict such ordinary uses of the information.\nRather than attempting to specify each proper use of such\nrecords, the bill gives each Federal agency the authority\nto set forth the \xe2\x80\x9croutine\xe2\x80\x9d purposes for which the records\nare to be used under the guidance contained in the com\xc2\xad\nmittee\xe2\x80\x99s reports.\nIn this sense \xe2\x80\x9croutine use\xe2\x80\x9d does not encompass merely\nthe common and ordinary uses to which records are put,\nbut also includes all of the proper and necessary uses even\nif any such use occurs infrequently . . . .\nMr. Chairman, the bill obviously is not intended to\nprohibit . . . necessary exchanges of information, pro\xc2\xad\nvided its rulemaking procedures are followed. It is in\xc2\xad\n382\n\n\x0ctended to prohibit gratuitous, ad hoc, disseminations for\nprivate or otherwise irregular purposes. . . .\nSee 120 Cong. Rec. 36,967 (1974) (remarks of Rep. Moorhead); see also\n\nOMB Guidelines, 40 Fed. Reg. at 28,952. We are unaware of any\njudicial decisions that define the outer limits of the \xe2\x80\x9croutine use\xe2\x80\x9d\nexception. In the absence of definitive legislative history or court rul\xc2\xad\nings to the contrary, we believe that the \xe2\x80\x9croutine use\xe2\x80\x9d exception affords\nconsiderable latitude to a federal agency to disclose information in\nfurtherance of the purposes of that agency.\nThe USNCB, as well as other federal law enforcement agencies, have\ninterpreted the \xe2\x80\x9croutine use\xe2\x80\x9d exception to authorize disclosure of crimi\xc2\xad\nnal history, investigative, and intelligence records for a wide variety of\nlaw enforcement and humanitarian purposes. See 45 Fed. Reg. 75,90203 (Nov. 17, 1980) (disclosure of routine uses of Interpol Criminal\nInvestigative Records System). The USNCB has made the disclosures\nrequired by the Privacy Act. See 45 Fed. Reg. 16,473 (March 12, 1981);\n45 Fed. Reg. 75,903 (Nov. 17, 1980). We have reviewed the routine\nuses listed by the USNCB, and believe they are consistent with the\nscope of the Privacy Act \xe2\x80\x9croutine use\xe2\x80\x9d exemption. If the F.I.R. project\nis implemented, however, the USNCB should consider at that point\nwhether additional disclosures are necessary to describe the relationship\nbetween the F.I.R. system and the USNCB\xe2\x80\x99s system of records, and the\nexchange of information that will be made through the F.I.R. system.\nThe requirements of the Privacy Act may also affect how the F.I.R.\nsystem should be structured. For example, under subsections (c)(1) and\n(2), 5 U.S.C. \xc2\xa7 552a(c)(l) and (2), the USNCB is required to keep an\naccurate accounting of the date, nature, and purpose of each disclosure\nof information subject to the Act, and the name and address of the\nperson or agency to whom the disclosure is made. If disclosures are\nmade directly through the F.I.R. system, the system must provide a\nmechanism for the USNCB to keep the required accounting. In addi\xc2\xad\ntion, the USNCB must be able to ensure the \xe2\x80\x9csecurity and confidential\xc2\xad\nity\xe2\x80\x9d of records in its system by \xe2\x80\x9cappropriate administrative, technical\nand physical safeguards.\xe2\x80\x9d 5 U.S.C. 552a \xc2\xa7 (e)(10). The system should\nallow the USNCB to screen incoming requests from other NCBs or\nfrom the General Secretariat and to verify that the disclosure of re\xc2\xad\nquested information would be consistent with the \xe2\x80\x9croutine uses\xe2\x80\x9d author\xc2\xad\nized for that information and with the Interpol constitution.16 As we\ndiscuss below, the USNCB must also be able to screen outgoing infor\xc2\xad\nmation.\nl6The USNCB currently screens all requests from other NCBs for criminal history information to\ndetermine that: (1) a crime has been committed in the country requesting the information, and the\ncrime would be considered a violation of U.S. law; (2) there is a link between the crime and the\nindividual about whom the information is requested; and (3) the type o f crime is not one encompassed\nby Article III of the Interpol constitution.\n\n383\n\n\x0cC. Crim inal History Record Exchange Restrictions\n\nWhen the USNCB obtains information from the FBI\xe2\x80\x99s Computerized\nCriminal History File or Identification Division systems, it is restricted\nin the use of that information by regulations promulgated under the\nOmnibus Crime Control and Safe Streets Act of 1968, supra. See 28\nC.F.R. Part 20, Subpart C .17 Subsection 20.33 provides that data from\nthose systems will be made available by the FBI to, inter alia, \xe2\x80\x9ccriminal\njustice agencies for criminal justice purposes\xe2\x80\x9d and to \xe2\x80\x9cfederal agencies\nauthorized to receive it pursuant to Federal statute or Executive\nOrder.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 20.33(a)(1) and (2). That exchange, however, is\n\xe2\x80\x9csubject to cancellation if dissemination [of the information] is made\noutside the receiving departments or related agencies.\xe2\x80\x9d Id. \xc2\xa7 20.33(b).\nWe believe that disclosure of information from the FBI\xe2\x80\x99s NCIC or\nIdentification Division files to Interpol and other NCBs is authorized\nby this provision, on the ground that the disclosure is to a \xe2\x80\x9crelated\nagency.\xe2\x80\x9d We note in that regard that the purpose of the FBI\xe2\x80\x99s exchange\nof information with the USNCB is to facilitate similar exchanges with\nconstituents of Interpol, and that the FBI would be authorized under\nthese regulations to disclose such information directly to \xe2\x80\x9ccriminal\njustice agencies\xe2\x80\x9d in foreign countries, such as NCBs or the Interpol\nGeneral Secretariat. Under \xc2\xa7 20.33(b), however, if the USNCB discloses\ninformation obtained from the FBI\xe2\x80\x99s CCH or Identification Division\nfiles to foreign agencies not affiliated with Interpol or to private busi\xc2\xad\nnesses, financial organizations, or individuals, its privilege of access to\nthose files would be subject to cancellation.\nIII. The USNCB\xe2\x80\x99s Obligation to Verify Records\n\nA separate question arising under the Privacy Act is the extent to\nwhich the USNCB must verify data disclosed to other NCBs, the\nInterpol General Secretariat, and state and local law enforcement agen\xc2\xad\ncies in the United States. Under the Privacy Act, prior to dissemination\nof any record about a United States citizen or permanent resident alien\nto anyone other than another federal agency, the USNCB is required to\nmake \xe2\x80\x9creasonable efforts to assure that such records are accurate,\ncomplete, timely, and relevant for agency purposes.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 552a(e)(6).18\n17 This subpart applies to \xe2\x80\x9cfederal, state and local criminal justice agencies to the extent that they\nutilize the services o f Department o f Justice criminal history record information systems.\xe2\x80\x9d 28 C.F.R.\n\xc2\xa7 20.30. \xe2\x80\x9cD epartm ent o f Justice criminal history record information system*1 is defined to include only\nthe Identification Division and Com puterized Criminal History File Systems operated by the FBI. 28\nC .F.R . \xc2\xa7 20.3(j).\n,8T he Privacy A ct authorizes exemption of law enforcement files such as the USNCB\xe2\x80\x99s Criminal\nInvestigative System from most o f the requirements o f \xc2\xa7552a(e) relating to the quality of records\ncollected and maintained by the agency. See 5 U.S.C. \xc2\xa7 552a(j)(2) No exemption is authorized,\nhow ever, from the requirements imposed by \xc2\xa7 552a(e)(6). Id.\n\n384\n\n\x0cThis provision does not require the USNCB to guarantee the accu\xc2\xad\nracy, completeness, timeliness, and relevance of records disclosed, but\nonly to make efforts that are reasonable given the administrative re\xc2\xad\nsources of the agency, the risk that erroneous information will be\ndisseminated, and the possible consequences to an individual if errone\xc2\xad\nous information is disclosed. See OMB. Guidelines, 40 Fed. Reg. at\n28,953; Smiertka v. United States Dep\'t o f Treasury, 447 F. Supp. 221,\n225-26 & n.35 (D.D.C. 1978). Courts have noted in varying contexts\nthat reasonable efforts may include, at a minimum, modification or\ndeletion of information if the source of that information informs the\nagency that the information is incorrect or incomplete;19 a request for\nadditional factual information from the source if an individual submits\nevidence challenging the accurracy of information contained in the\nagency\xe2\x80\x99s files; 20 or modification or deletion of records if the agency\xe2\x80\x99s\nindependent investigation and evaluation overwhelmingly shows that\nthe information is incorrect or unfounded.21 The OMB Guidelines sug\xc2\xad\ngest that, because the disclosing agency is often not in a position to\nevaluate \xe2\x80\x9cacceptable tolerances of error for the purposes of the recipi\xc2\xad\nent of the information,\xe2\x80\x9d it may be appropriate for the agency \xe2\x80\x9cto advise\nrecipients that the information disclosed was accurate as of a specific\ndate . . . or of other known limits on its accuracy e.g., its source.\xe2\x80\x9d 40\nFed. Reg. 28,949, 28,965 (July 9, 1975).\nSince implementation of the F.I.R. project may substantially increase\nthe volume of requests and disclosures handled by the USNCB, it will\nbe particularly important to establish workable procedures and guide\xc2\xad\nlines to implement the USNCB\xe2\x80\x99s obligation under \xc2\xa7 552a(e)(6). We\ncannot outline here what \xe2\x80\x9creasonable efforts\xe2\x80\x9d would be for the\nUSNCB, as that would require a detailed knowledge of how informa\xc2\xad\ntion is collected, stored, retrieved, and disclosed.22 We note, however,\nthat the F.I.R. system must provide an adequate opportunity for the\nUSNCB to screen all data prior to their dissemination outside the\nfederal government and to supplement information disclosed, as appro\xc2\xad\npriate, with caveats about its source, timeliness, or reliability.\nIV. International Initiatives\n\nYou have asked us specifically to address the potential impact on\nfederal law enforcement systems of the OECD\xe2\x80\x99s Guidelines Governing\nthe Protection of Privacy and Transborder Flows of Personal Data\n" S e e Menard v Saxbe, 498 F.2d 1017, 1027-28 (D.C Cir. 1974).\n\xe2\x80\x9c See id.; Tarlton v. Saxbe, 507 F.2d 1116, 1129 (D.C. Cir. 1974).\n21See Murphy v. National Security Agency, C.A. No. 79-1833 (D .D C . Sept. 29, 1981), memorandum\nop. at 9; R.R. v. Dep\'t o f Army, 482 F. Supp. 770, .773 (D.D.C. 1980).\n22 This analysis would be more appropriate, for example, for the Interpol Policy Guidelines\nWorking Group, which will be responsible for reviewing and updating policies applicable to the\nUSNCB\xe2\x80\x99s day-to-day operations.\n\n385\n\n\x0c(OECD Guidelines) 23 and the Council of Europe\xe2\x80\x99s Convention for the\nProtection of Individuals with Regard to the Automatic Processing of\nPersonal Data (Council of Europe Convention),24 and any international\nconflict of laws issues associated with United States participation in\nInterpol and the Interpol F.I.R. project. Both the OECD Guidelines\nand the Council of Europe Convention attempt to balance the need for\nprotection of personal privacy arising out of increasing flows of per\xc2\xad\nsonal information across national borders, and the political and eco\xc2\xad\nnomic necessity of maintaining transborder flows of data with minimal\nrestrictions. The OECD adopted the approach of voluntary guidelines,\nbased on certain \xe2\x80\x9cbasic principles\xe2\x80\x9d of national application intended to\nprovide minimum privacy protection,25 and of international application,\nintended to encourage the free flow of data.26 Member countries are\nencouraged to establish, through legislation, self-regulation, or volun\xc2\xad\ntary efforts, legal, administrative, and other procedures or institutions\nfor the protection of privacy, and to cooperate with other member\ncountries to facilitate international exchanges of information. See Parts\n4, 5. We understand that the United States participated in drafting the\nOECD Guidelines, and has undertaken to abide by the principles\ntherein.\nThe Council of Europe Convention requires each Party 27 to \xe2\x80\x9ctake\nthe necessary measures in its domestic law to give effect to the basic\nprinciples for data protection\xe2\x80\x9d set out in the Convention. Chap. II, f 1.\nThose principles resemble in content the principles outlined in the\nOECD Guidelines, with the addition of a specific provision that per\xc2\xad\nsonal data that would reveal \xe2\x80\x9cracial origin, political opinions or reli\xc2\xad\ngious or other beliefs, as well as personal data concerning health or\nsexual life\xe2\x80\x9d or \xe2\x80\x9cpersonal data relating to criminal convictions\xe2\x80\x9d may not\nbe processed automatically \xe2\x80\x9cunless domestic law provides appropriate\nsafeguards.\xe2\x80\x9d Art. 6. Parties are obligated to provide mutual assistance\n\xe2\x80\x9c T he O E C D is an intergovernmental organization dedicated to problems o f economic develop- \'\nment, whose members include the 19 democratic countries of Europe, the United States, Japan,\nAustralia, New Zealand, and Yugoslavia (special associate status).\n24T he Council o f E urope is an intergovernmental organization o f 21 European countries. Its\nmembers are pledged to cooperate at intergovernmental and interparliamentary levels to promote\ngreater E uropean unity. See Hondius, Data Law in Europe, 16 Stan. J. o f Int\xe2\x80\x99l L. 87, 91 (1980). The\nU nited States is not a member of the Council o f Europe.\n25T hese principles encompass limits to collection o f personal data; accuracy, completeness, rel\xc2\xad\nevance, and timeliness o f data; specification o f uses o f data and limitation to those uses; security\nsafeguards; openness in the establishment of systems and method of access to data; individual participa\xc2\xad\ntion and access; and accountability. Part 2.\n26 Member countries are to take into consideration the implications for other member countries of\ndom estic processing and re-export of personal data; to take reasonable and appropriate steps to ensure\nthat transborder flows of personal d ata are uninterrupted and secure; to refrain from restricting\ntransborder flows o f personal data except where necessary; and to avoid developing laws, policies, and\npractices in the name o f the protection of privacy and individual liberties, which would create\nobstacles to transborder flows of personal data that would exceed requirements for such protection.\nPart 3.\n27 N o member o f the Council of E urope has yet ratified the Convention. The Convention will not\nbecom e effective until ratified by five members. Art. 22. Non-member states may be invited to accede\nto the Convention following its entry into force. A rt 23.\n\n386\n\n\x0cto notify other parties of steps taken to implement the Convention, and\nto assist persons resident abroad to exercise rights conferred under the\ndomestic laws that give effect to the principles set out in the Conven\xc2\xad\ntion. Arts. 13, 14.\nWe note first that neither the OECD Guidelines nor the Council of\nEurope Convention imposes any binding obligations on the United\nStates or on federal law enforcement agencies. The OECD Guidelines\nare voluntary. Parts 4 and 5 of the Guidelines discuss various methods\nfor implementing the letter and spirit of the principles set forth through\nappropriate domestic legislation and policies and international coopera\xc2\xad\ntion, but do not impose any obligation upon parties other than mutual\ncooperation. The Council of Europe may, after the entry into force of\nthe Convention, invite non-members to accede to the Convention. We\nare unaware whether the United States will be invited to accede, and\nwhether the United States would accept that invitation. Since accession\nwould obligate the United States to pass domestic legislation consider\xc2\xad\nably broader in scope than that now in effect (see infra), it seems\nunlikely that the United States would accede to the Convention if\ninvited, and we assume here that the United States will not accede to\nthe Convention. Thus, the impact on federal law enforcement agencies\nwill not stem from obligations imposed on the United States under\neither the OECD Guidelines or the Council of Europe Convention, but\nrather will most likely result from actions taken by other nations to\nimplement the letter or spririt of those agreements.\nIn particular, both the OECD Guidelines and the Council of Europe\nConvention recognize the principle that a nation may restrict data\nflows to another nation if that nation does not afford the same protec\xc2\xad\ntion to that data as is afforded by the originating state, or if the export\nof that data would circumvent the domestic privacy legislation of the\noriginating country.28 In that regard, the privacy protection contem\xc2\xad\nplated by the OECD Guidelines and the Council of Europe Convention\nis broader than that afforded by the Privacy Act. The Guidelines and\nthe Convention apply to all exchanges of information, private and\npublic.29 The Privacy Act, by contrast, leaves untouched informationgathering and disclosure by state and local governments and by private\nbusinesses or individuals.30 Thus, even if the Privacy Act embodies\nmost of the substantive requirements outlined in the OECD Guidelines\nand the Council of Europe Convention,31 the coverage afforded by the\n28See, e.g., O ECD Guidelines, Part 3, fl 17; Council of Europe Convention Arts. 3, 6, 12 (U 3(a)).\n29T he Council of Europe Convention, however, applies only to information transmitted through\nautomatic data processing. Arts. 1, 2, 3.\n30 There are federal statutes that restrict the use and disclosure of information by state and local\ngovernments and private parties, but only in limited sectors. See, e.g., Fair Credit Reporting Act, IS\nU.S.C. \xc2\xa7 1681; Right to Financial Privacy Act of 1978, Pub. L. No. 95-630, 92 Stat. 3697 (codified at\nscattered sections in 31 U.S.C.).\n51The \xe2\x80\x9cbasic principles\'* o f data protection listed in Part 2 of the OECD Guidelines parallel in most\nrespects the underlying principles of the Privacy Act. See n. 25 supra.\n\n387\n\n\x0cPrivacy Act is narrower than that of those agreements. The practical\nresult of this may be that nations adhering to one or both of those\nagreements may refuse to disclose information to federal law enforce\xc2\xad\nment agencies within the United States, such as the USNCB, because\nthe United States does not provide protection for personal data that is\nequivalent to that provided by the originating country.32 Under the\nOECD Guidelines, United States agencies could similarly refuse to\ndisclose data if the requesting country could not adequately protect the\nsecurity or use of that information.\nO f course, even without the express recognition of this principle\ncontained in the OECD Guidelines and the Council of Europe Conven\xc2\xad\ntion, individual NCBs are free to restrict data flows for any reason,\nincluding the lack of privacy legislation in the receiving country. The\nexpress recognition of that prerogative in the OECD Guidelines and\nthe Council of Europe Convention has highlighted the problem of\nprotecting transborder data flows while ensuring personal privacy,\nhowever, and we cannot predict what the practical impact will be on\nfederal law enforcement. This is clearly an area in which mutual co\xc2\xad\noperation and voluntary compliance with privacy protection guidelines\ncould alleviate future problems.\nIt would be premature for us at this point to comment other than\ngenerally on the possible international conflicts of law issues raised by\nU.S. participation in Interpol and in the F.I.R. system. We note first\nthat Interpol, as an organization, occupies a somewhat anomalous posi\xc2\xad\ntion under our law, as it was not established by treaty or protocol, and\nis not generally accorded status as an international organization.33\nWhile our participation is authorized by statute, the Interpol constitu\xc2\xad\ntion has never been expressly approved by Congress or the Executive\nBranch and does not have treaty status. Consequently, the Interpol\nconstitution and resolutions and rules adopted by the Interpol General\nAssembly do not have the force of law in the United States and do not\nconfer any rights on United States citizens or residents that are enforce\xc2\xad\nable in our courts. See U.S. Const., Art. VI, cl. 2; see generally,\nMannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir.\n1979); B ell v. Clark, 427 F.2d 200 (4th Cir. 1971). Where there is a\n32 Federal, state, and local governments and private parties are not, of course, precluded from\nvoluntarily supplementing the protections required by applicable domestic legislation, in an effort to\navoid this potential problem.\n33 T he Interpol constitution was adopted by the Interpol General Assembly in June, 1956. Ratifica\xc2\xad\ntion o f the constitution does not require formal approval by member countries. All countries repre\xc2\xad\nsented at Interpol are dee hied to be Interpol members unless they subsequently declare through\nappropriate governmental authority th at they cannot accept the constitution. The United States has\nnever submitted any such nonacceptance declaration. The Interpol constitution has not been expressly\napproved by the Executive Branch o r Congress. See Report o f the Comptroller General o f the United\nStates, \xe2\x80\x9c United States Participation in IN TERPO L, T he International Criminal Police Organization\xe2\x80\x9d\n(Dec. 27, 1976) at 9, 25. Interpol is not listed as an \xe2\x80\x9cinternational organization\xe2\x80\x9d for purposes of\nimmunity under the International Organizations Immunities Act, 22 U.S C. \xc2\xa7 288\n\n388\n\n\x0cconflict between the USNCB\xe2\x80\x99s obligations under the Interpol constitu\xc2\xad\ntion or rules and its obligations under U.S. law, the latter will prevail.\nSomewhat more difficult questions are presented under the domestic\nlaws of the various countries that participate in Interpol. Particularly as\nthe exchange of information among NCBs increases with implementa\xc2\xad\ntion of the F.I.R. project, individuals of one country who are damaged\nby disclosures of information through Interpol may seek redress based\non a variety of legal theories, such as defamation or invasion of pri\xc2\xad\nvacy.34 In the simplest situation, where an NCB in country A discloses\ninformation to an NCB in country B, and a person aggrieved by that\ndisclosure sues in one of those countries, a conflict of law question\nwould be presented as between the jurisdiction or substantive law of\ncountry A and country B which could probably be handled under\nexisting principles of conflicts of law. See Restatement o f the Foreign\nRelations Law o f the United States (2d) \xc2\xa7 40. Exchanges of information\nthrough the Interpol General Secretariat are more difficult because\nthey would raise the possibility that the jurisdiction and law of yet\nanother country (France) may be invoked. If the F.I.R. project is\nimplemented, the conflicts problems could become yet more compli\xc2\xad\ncated, because information could be switched through a number of\ncountries, either by design or for technical reasons, on its way between\ncountry A and country B.35 The OECD Guidelines and Council of\n34 For example, in recent years at least two suits involving disclosures by the USNCB or by the\nInterpol General Secretariat have been filed in United States courts, both seeking recovery for alleged\ndefamation by an official o f the USNCB or by the General Secretariat in connection with requests\nforwarded through Interpol to detain or arrest an individual. See Steinberg v. InternationaI Criminal\nPolice Organization, 672 F.2d 927 (D.C Cir. 1981); Sami v. United States, 617 F.2d 755 (D.C. Cir.\n1979). In both decisions, the court discussed only jurisdictional questions arising under United States\nlaw, and did not address possible conflicts of law questions. In Sam i v. United States, the court held\nthat the Interpol General Secretariat was not \xe2\x80\x9cdoing business\xe2\x80\x9d in the District o f Columbia for\npurposes of exercise o f the D.C. long-arm statute, D.C. Code \xc2\xa7\xc2\xa7 13-334. T he claim in that case arose\nout of communications made by an official of the USNCB to the German NCB through Interpol\nchannels, requesting arrest of plaintiff, a citizen of Afghanistan, on the basis of an outstanding Florida\nwarrant. By contrast, in Steinberg v. International Criminal Police Organization, the same court held\nthat there was m personam jurisdiction over Interpol under the same statute, where the claim involved\nInterpol\'s transmission o f a publication (a \xe2\x80\x9c Blue Notice\xe2\x80\x9d requesting arrest) into the District of\nColumbia. The court distinguished its result from that reached m Sam i on the basis that the Steinberg\ncase involved \xe2\x80\x9can invocation of specific, not general, adjudicatory authority.\xe2\x80\x9d Slip op. at 5. The court\nnoted that it did not intend by its holding to foreclose any other defense, \xe2\x80\x9cjurisdictional or otherwise,\xe2\x80\x9d\nthat Interpol or its Secretary General might raise. Id. at 12, n.13.\n35 A recent article has hypothesized the following situation to illustrate the problem. The health\nrecords of a Swiss national are collected by his employer in Switzerland, and transmitted to corporate\nheadquarters in Amsterdam where they are processed,, stored, and aggregated with health records of\nother nationals working in other countries. The aggregated data are then sent on via international\nfacilities to a United States-owned data processing service in the United States. While they are being\nheld in that facility, however, the main computer breaks down and an automatic switch sends the data\nthrough international telecommunications facilities on to a secondary processing facility in Hong\nKong. The data are processed there and returned to the primary facility in the United States. A copy\no f the processed data is sent to storage at the primary site and the data are returned to Amsterdam.\nThe employer then sends it along to the employer\xe2\x80\x99s insurance carrier, an Italian firm whose primary\ndata processing facilities are stored in Spain The insurance carrier again processes the data, stores\nthem in M adnd on magnetic tape, and issues the apprppriate group health policy to the employer. See\nFishman, Introduction to Transborder Data Flows, 16 Stan Int\xe2\x80\x99l L.J. 1, 21 (1980). While this example is\ndrawn from the private processing of data, it is not difficult to imagine equally convoluted trails for\nexchanges of criminal history information through F.I.R.\n\n389\n\n\x0cEurope Convention recognize that existing conflicts of laws principles\nmay not be adequate to deal with exchanges of information through\nautomated data processing in the future. The OECD\xe2\x80\x99s Expert Group,\nwhich drafted the guidelines, specifically rejected any detailed rules on\nconflicts of law questions, following extensive debate. See Explanatory\nMemorandum (Appendix), 1J22. The final Guidelines provide only that\n\xe2\x80\x9cMember countries should work towards the development of princi\xc2\xad\nples, domestic and international, to govern the applicable law in the\ncase of transborder flows of personal data.\xe2\x80\x9d OECD Guidelines Part 5,\n^|22. The Council of Europe Convention does not address the possible\nconflicts of laws questions, other than to require Parties to render\n\xe2\x80\x9cmutual assistance\xe2\x80\x9d in implementation of the Convention, including any\nassistance necessary to facilitate the exercise of rights under a Party\xe2\x80\x99s\ndomestic privacy legislation by \xe2\x80\x9cany person resident abroad.\xe2\x80\x9d Art. 14.\nIt is thus clear that before the F.I.R. project is implemented, the\nmembers of Interpol will have to grapple with potential conflicts of\nlaws problems. Since the resolution of those problems has implications\nbeyond those arising out o f Interpol\xe2\x80\x99s activities, it may not be possible\nfor the members of Interpol to reach a definitive consensus. It may be\npossible, however, to avoid or mitigate some of the problems that may\narise from technical operation of the system (see n.36 supra) in the way\nthe system is structured. In the absence of concrete plans for the\nsystem, it is difficult for us to speculate on what the problems or\npossible solutions may be. We will, of course, be willing to work with\nyou and other federal agencies to develop applicable principles and\nproposals, and to implement guidelines for operation of the F.I.R.\nsystem, if the project is approved.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n390\n\n\x0c'


b'UN Draft Declaration on the Rights of Indigenous Groups\nThe Constitution would not bar the federal government from establishing the kind o f govemmentto-govemment relationship it presently maintains with federally recognized Indian tribes with other\nappropriately constituted indigenous communities within the jurisdiction of the United States.\n\nNovember 1, 1996\nL e t t e r O p in io n\n\nfo r t h e\n\nD e p u t y L e g a l A d v is e r\n\nD epa rtm en t\n\nof\n\nSt a t e\n\nThis letter responds to your letter of October 10, 1996, to Associate Deputy\nAttorney General Seth Waxman, which requested the views of the Department\nof Justice as to whether the Constitution would permit the federal government\nto afford other indigenous groups in the United States treatment comparable to\nthat presently afforded federally recognized Indian tribes.\nWe have reviewed the text and constitutional history of the Indian Commerce\nand Treaty Clauses of the Constitution, the history of the federal government\xe2\x80\x99s\nexercise of the authority granted by those clauses with respect to Indian tribes\nin the continental United States and to the indigenous peoples of Alaska, and\nthe relevant case law. Based upon this analysis, we have concluded that the Con\xc2\xad\nstitution would not bar the federal government from establishing the kind of govemment-to-govemment relationship it presently maintains with federally recog\xc2\xad\nnized Indian tribes with other appropriately constituted indigenous communities\nwithin the jurisdiction of the United States.\nWe cannot, however, offer any view as to the permissibility of exercising this\nauthority regarding a particular group of indigenous peoples without a thorough\nanalysis of that group\xe2\x80\x99s history, its structure and status, the relationships between\nits members, and the group\xe2\x80\x99s relations with federal and state government authori\xc2\xad\nties. Thus, while Congress has the authority to consider recognizing or extending\nbenefits to indigenous groups other than Indian tribes, we cannot express a view\nat this time as to whether Congress could lawfully take such action towards any\nexisting community of Native Hawaiians or other indigenous entities. We would\nbe happy to undertake such an analysis if you so desire.\nCHRISTOPHER H. SCHROEDER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n371\n\n\x0c'