Privacy Act of 1974: Implementation of Exemptions; U.S. Department of Homeland Security/U.S. Immigration and Custom Enforcement-018 Analytical Records System of Records
| Citation | 86 FR 61665 |
| Record Number | 2021-24328 |
| Published date | 08 November 2021 |
| Section | Rules and Regulations |
| Court | Homeland Security Department |
Federal Register, Volume 86 Issue 213 (Monday, November 8, 2021)
[Federal Register Volume 86, Number 213 (Monday, November 8, 2021)]
[Rules and Regulations]
[Pages 61665-61668]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24328]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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Federal Register / Vol. 86, No. 213 / Monday, November 8, 2021 /
Rules and Regulations
[[Page 61665]]
DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2021-ICEB-2021-0012]
Privacy Act of 1974: Implementation of Exemptions; U.S.
Department of Homeland Security/U.S. Immigration and Custom
Enforcement-018 Analytical Records System of Records
AGENCY: U.S. Immigration and Custom Enforcement U.S. Department of
Homeland Security.
ACTION: Final rule.
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SUMMARY: The U.S. Department of Homeland Security (DHS) is issuing a
final rule to amend its regulations to exempt portions of a newly
established system of records titled, ``DHS/U.S. Immigration and
Customs Enforcement (IC)-018 Analytical Records System of Records''
from certain provisions of the Privacy Act. Specifically, the
Department exempts portions of the system of records'' from one or more
provisions of the Privacy Act because of criminal, civil, and
administrative enforcement requirements.
DATES: This final rule is effective November 8, 2021.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Jordan Holz, [email protected], Privacy Officer, U.S. Immigration
and Customs Enforcement (ICE), 500 12th Street SW, Mail Stop 5004,
Washington, DC 20536. For privacy issues please contact: Lynn Parker
Dupree (202) 343-1717, [email protected], Chief Privacy Officer,
Privacy Office, U.S. Department of Homeland Security, Washington, DC
20528.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Department of Homeland Security (DHS) U.S. Immigration and
Customs Enforcement (ICE) published a notice of proposed rulemaking in
the Federal Register, (86 FR 15134, March 22, 2021), proposing to
exempt portions of the system of records titled, ``DHS/ICE-018
Analytical Records'' from one or more provisions of the Privacy Act
because of criminal, civil, and administrative enforcement
requirements. The DHS/ICE-018 Analytical Records system of records
notice was published concurrently in the Federal Register, (86 FR
15246, March 22, 2021), and comments were invited on both the Notice of
Proposed Rulemaking (NPRM) and System of Records Notice (SORN).
Public Comments
DHS received four comments on the NPRM, two of which also
referenced the SORN.
NPRM
All comments related to the NPRM state that exempting the SORN from
portions of the Privacy Act will restrict the public's ability to
demand transparency regarding ICE analytical systems.
The first concern commenters presented was that ICE's claiming of
Privacy Act exemptions create a lack of transparency in ICE operations
and the analytical systems themselves, stating: ``[t]he American public
has the right to know how our tax dollars are being spent and if their
tax dollars are being spent wisely and ethically in regards to
immigrants'' and ``[e]xemptions under the Privacy Act will not just
protect DHS' system of records but also the data, software, and systems
owned by private companies, perpetuating further a lack of transparency
in deportations and other investigations under the guise of `national
security.' ''
As discussed in the SORN and below, individuals about whom ICE
maintains information in its records systems may still submit a Privacy
Act amendment request or a request for access to information. While ICE
has exempted this system of records from the access and amendment
provisions of the Privacy Act, it will still consider these requests on
a case-by-case basis to ensure that agency data is complete, accurate,
and current.
Further, to provide the greatest access to information, ICE
considers individuals' requests under both the Privacy Act and the
Freedom of Information Act (FOIA). To this end, the public can seek
records described in the Analytical Records SORN under FOIA. In
contrast to the broad scope of FOIA, 5 U.S.C. 552, the Privacy Act is
narrowly focused on individuals' personal information maintained in
agency systems of records. As stated in the comment, the Privacy Act is
meant to ``. . . ensure accuracy of and individuals' access to
information that agencies gather about them.'' FOIA's broad scope
allows the public access to governmental information generally. This
includes information on data, systems, and connections within the
agency. Subsections (t)(1) and (t)(2) of the Privacy Act prohibit
agencies not only from restricting an individual's access to his/her
record under FOIA based solely on claimed Privacy Act exemptions, but
also from withholding records under the Privacy Act based on FOIA
exemptions. Information about filing a FOIA request with ICE is
available at www.ice.gov/foia.
The publication process for the Analytical Records SORN as required
by the Privacy Act promotes the accountability, responsibility,
legislative oversight, and open government requested by commenters.
Subsection (r) of the Privacy Act requires agencies, when establishing
or significantly modifying a system of records, to provide adequate
advance notice to the Office of Management and Budget (OMB), the
Committee on Oversight and Government Reform of the House of
Representatives, and the Committee on Homeland Security and
Governmental Affairs of the Senate. This advance notice is separate
from the public comment period ICE is engaging in here. The advanced
notice that ICE provided to OMB and the committees of jurisdiction in
Congress allows each body to make an evaluation of the probable or
potential effects of ICE's proposal on the privacy or other rights of
individuals.
Finally, in addition to the publication of SORNs here in the
Federal Register, ICE also provides transparency into its systems
through the publication of Privacy Impact Assessments (PIA). PIAs are
conducted in accordance with the E-Government Act of 2002 (Pub. L. 107-
347) by ICE Privacy personnel, are reviewed by the DHS Privacy Office,
and signed by the DHS Chief Privacy Officer. PIAs describe how ICE
[[Page 61666]]
information technology systems work, what information they collect, how
ICE uses that information, any external parties with whom the
information is shared, and the privacy risks and corresponding
mitigations employed by ICE. ICE and all DHS PIAs are published on the
DHS website, www.dhs.gov/privacy.
The second concern raised by commenters is the perceived inability
for an individual to access ICE records about him/her due to the
exemptions claimed in this rule. Commenters state ``[e]xemptions
intended to prevent the subject of an investigation from being aware of
the investigation undermine the presumption of innocence enjoyed by
individuals in the United States by proposing that individuals being
investigated should be denied rights . . .'' and that they ``. . . take
exception to the fact that the DHS is not required to establish
requirements, rules, or procedures with respect to such access.'' The
commenters' concern is amplified as the exemptions may not just apply
to individuals under investigation, but their associates and family
members as well.
As recognized in the comments, DHS is exempting this system as law
enforcement sensitive to ensure that information and records produced
in response to Privacy Act requests are not used to disrupt or
frustrate ICE investigations. As stated in the accompanying SORN,
``DHS/ICE will consider individual requests to determine whether or not
information may be released.'' ICE will consider all Privacy Act
requests, whether access or amendment requests, on a case-by-case
basis. As such, ICE has established access requirements, rules, and
procedures outlined in the SORN accompanying this rule. The Privacy Act
exemptions claimed here in no way alter or abrogate an individual's due
process and fair trial rights guaranteed by the U.S. Constitution.
SORN
The comments filed in response to the proposed rule also raised
objections regarding the DHS/ICE-018 Analytical Records SORN. Two
objections are outside the scope of this rulemaking and so will not be
addressed here. One objection from a commenter is that the SORN does
not examine ICE's relationship with a private software vendor. ICE will
not respond to this objection as a final rule is not the proper forum
to discuss ICE contractual relationships. Additionally, ICE will not
examine U.S. Citizenship and Immigration Services' (USCIS) biometrics
NPRM, as requested by a commenter, as that proposed rule has been
withdrawn (86 FR 24750, May 10, 2021).
The comments ICE received on the SORN were focused on four distinct
areas of concern: (1) The SORN expands ICE's existing authority and
ability to collect records on individuals; (2) The SORN lacks
transparency, in that the SORN did not address issues important to the
commenters; (3) ICE analytical systems use artificial intelligence and
machine learning, with specific concern that these analytical systems
will be used for ``predictive policing'' or ``constant and ongoing
surveillance of immigrants and citizens;'' and, (4) The SORN's routine
uses are so overly broad that ``they provide no limit on permissible
sharing.''
The Analytical Records SORN Expands ICE's Existing Records Collection
A commenter expressed concern that the Analytical Records SORN was
``expanding the sources from which data is gathered as well as the
categories of individuals covered and records included and allows use
of algorithmic processes.'' ICE did not intend the SORN to be
understood as solely a consolidation of two previously published SORNs.
Rather, as stated in the background section of the SORN, ICE is
establishing a new system of records that clarifies and more accurately
reflects the nature of records ICE collects, maintains, processes, and
shares in large analytical data environments.
The purpose for ICE's publication of the Analytical Records SORN is
to give the public notice of the types of records ICE maintains in
support of analytical and algorithmic processes. Information derived
from the ICE Tip Line and trade data, previously covered by the DHS/
ICE-016 FALCON-Search and Analysis (FALCON-SA) SORN and DHS/ICE-005
Trade Transparency and Research (TTAR) SORN, respectively, are now
covered under the Analytical Records SORN. Beyond those two categories
of information, the Analytical Records SORN does not provide stand-
alone coverage for any other ICE collection efforts. As stated in the
SORN, ICE analytical systems ingest data collected through other
efforts and authorities and covered by other SORNs. Differences in the
categories of individuals or records described in the DHS/ICE-016
FALCON-SA SORN and DHS/ICE-005 TTAR SORN and those described in the
Analytical Records SORN are reflective of these other ingestions.
The SORNs covering the ingested information restrict ICE's use of
that information to what is compatible with the original purpose of the
collection. Technological advancements allow ICE to institute
protections at the record level that follow the data as it passes from
the originating systems into ICE analytical systems. As such, the
initial protections and restrictions on the use and sharing of the
ingested information as described in those originating SORNs are
retained by ICE as a record is ingested into its analytical systems. To
reiterate an example given in the SORN, data available through an
ingest from ICE's Investigative Case Management System (ICM) would be
covered by the DHS/ICE-009 External Investigations SORN (85 FR 74362,
November 20, 2020) and each record stored from that ingest is tagged as
belonging to that system of record. An analytical system may filter,
search, graph, or link that data with other datasets, but only for a
purpose described in DHS/ICE-009, such as generating leads for
investigations. If ICE personnel wish to share an analytical product
from an ICE analysis system with a third party, the tags of the
underlying data, and its accompanying restrictions, must similarly be
respected. Therefore, ICE analytical systems covered by the Analytical
Records SORN do not expand ICE collections, use, or sharing of personal
data.
The Analytical Records SORN Does Not Provide an Adequate Accounting of
DHS Collection, Use, and Sharing of Data
The commenters maintain that the Analytical Records SORN does not
describe the access controls and auditing mechanisms within ICE's
analytical systems in sufficient granularity. They also raise
objections that the SORN does not discuss different analytical systems,
such as ICE's FALCON-SA system and ICE's ``complex network of
interlocking systems'' including ICE's connections to DHS's Homeland
Advanced Recognition Technology system (HART).
The publication of the Analytical Records SORN is an effort to
provide broader transparency of the ICE analytical environment so that
ICE does not continue to rely on disparate and segregated notices from
previously-published SORNs. The Analytical Records SORN reflects the
realities of cloud computing and modern technological processes, where
access and control are derived from user privileges rather than the
physical location of data. As stated in the SORN, ICE's analytical
processes may span multiple information technology systems within the
ICE domain and records may be derived from multiple
[[Page 61667]]
collection points. Moreover, the purpose of a SORN is to provide notice
to the public regarding personally identifiable information maintained
by an agency; it is not meant to outline or provide a full description
of the technical capabilities and nuances of an IT system. Granular
detail of system connections, algorithmic processes, access controls,
and auditing functions can be found in the applicable system's PIA,
which can be found at www.dhs.gov/privacy. All PIAs link to their
associated SORN(s), providing clear notice as to which systems are
covered under the Analytical Records SORN.
The SORN Allows for ICE To Conduct Unlimited Surveillance and
``Predictive Policing''
Several commenters expressed concern with ICE's use of advanced
analytics and artificial intelligence to engage in controversial
policing tactics. The first tactic, ``predictive policing,'' is the
practice of using statistics and analysis to forecast crime or identify
where crime may occur in the near future.\1\ Certain state or local
police departments have used these methods to determine where to deploy
resources or to identify those who are likely to commit crimes in the
future by examining past behaviors.
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\1\ Tim Lau, Predictive Policing Explained (April 1, 2020),
available at https://www.brennancenter.org/our-work/research-reports/predictive-policing-explained.
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The Analytical Records SORN does not support predictive policing.
The SORN lists the purposes of the collection, use, and sharing of
information in ICE analytical systems. The purposes of the systems are
to identify current violations of law and regulation or generate leads
for ongoing investigations. There is no purpose stated in the SORN that
allows for its systems to engage in future state risk modelling.
Commenters expressed concern with a second controversial policing
tactic, ``ongoing and constant surveillance of immigrants and
citizens.'' This is similarly not supported by the Analytical Records
SORN. As stated in the SORN and above, the Analytical Records SORN does
not expand ICE collections of personal data. ICE analytical systems
ingest data that has already been collected through other efforts and
authorities. The restrictions on use of that data are listed in the
SORN relevant to that collection and are transferred to the ICE
analytical systems for linkage and further analysis. ICE analytical
systems are meant to process data that has already been collected in a
more efficient manner using advanced analytics and modern processing
techniques. They are not used to monitor or surveil the public.
The SORN's Routine Uses Are Overly Broad
Finally, a commenter objected that the routine uses listed in the
Analytical Records SORN are ``so expansive . . . they provide no limit
on permissible sharing.'' The commenter, unfortunately, has not
articulated any specific routine use that is inconsistent with the
Privacy Act or ICE's statutory authorities for ICE to address.
Generally, however, any routine use listed in the SORN must be
compatible with the purpose of the system of records, as stated in the
SORN, the purpose for which ICE originally collected the information,
and ICE's statutory mission. Each routine use is analyzed and vetted
for compatibility by ICE and DHS. As the Analytical Records SORN
consolidates two previous ICE SORNs, the vast majority of routine uses
in the new Analytical Records SORN are the same as the routine uses
listed in those previously published SORNs. This means that the
Analytical Records SORN routine uses were examined on multiple
occasions by government oversight bodies that determined they were
neither overly broad nor outside the stated purpose of the system of
records.
As described in the SORN, if data is ingested from another system
of records, the ICE analytical system, through record tagging and
controls, ensures any subsequent sharing is compatible with the
original SORN's purposes. This provides additional safeguards in the
flow of information and limits the permissible sharing of data.
After consideration of public comments, the Department will
implement the rulemaking as proposed.
List of Subjects in 6 CFR Part 5
Freedom of information, Privacy.
For the reasons stated in the preamble, DHS amends Chapter I of
Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
0
1. The authority citation for part 5 continues to read as follows:
Authority: 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.
0
2. In appendix C to part 5, add paragraph 86 to read as follows:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
86. The DHS/ICE-018 Analytical Records System of Records
consists of electronic and paper records and will be used by DHS and
its components. The DHS/ICE-018 Analytical Records 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. The DHS/ICE-018 Analytical
Records System of Records contains information that is collected by,
on behalf of, in support of, or in cooperation with DHS and its
components and may contain personally identifiable information
collected by other Federal, State, local, tribal, foreign, or
international government agencies. The Secretary of Homeland
Security has exempted this system from the following provisions of
the Privacy Act, subject to limitations set forth in 5 U.S.C.
552a(c)(3) and (4), (d), (e)(1), (e)(2) and (3), (e)(4)(G),
(e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); and (g) 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 limitations set forth in 5 U.S.C.
552a(c)(3), (d), (e)(1), (e)(4)(G), (e)(4)(H), and (f) pursuant to 5
U.S.C. 552a(k)(2). Where a record received from another system has
been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS
will claim the same exemptions for those records that are claimed
for the original primary systems of records from which they
originated and claims any additional exemptions set forth here.
Exemptions from these particular subsections are justified, on a
case-by-case basis to be determined at the time a request is made,
for the following reasons:
(a) From subsection (c)(3) and (4) (Accounting for Disclosures)
because release of the accounting of disclosures could alert the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
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 and Amendment 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
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avoid detection or apprehension. Amendment of the records could
interfere with ongoing investigations and law enforcement
activities. Further, permitting amendment to counterintelligence
records after an investigation has been completed would impose an
unmanageable administrative burden. In addition, permitting access
and amendment to such information could disclose security-sensitive
information that could be detrimental to homeland security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal law, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not
be strictly relevant or necessary to a specific investigation. In
the interests of effective law enforcement, it is appropriate to
retain all information that may aid in establishing patterns of
unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules), because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it
is impossible to determine in advance what information is accurate,
relevant, timely, and complete.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS's ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
Lynn Parker Dupree,
Chief Privacy Officer, U.S. Department of Homeland Security.
[FR Doc. 2021-24328 Filed 11-5-21; 8:45 am]
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