[Federal Register Volume 78, Number 95 (Thursday, May 16, 2013)]
[Proposed Rules]
[Pages 28761-28764]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-11727]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 78, No. 95 / Thursday, May 16, 2013 /
Proposed Rules
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DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary
6 CFR Part 5
[Docket No. DHS-2013-0012]
Privacy Act of 1974: Implementation of Exemptions; Department of
Homeland Security U.S. Immigration and Customs Enforcement--014
Homeland Security Investigations Forensic Laboratory System of Records
AGENCY: Privacy Office, Department of Homeland Security.
ACTION: Notice of Proposed Rulemaking.
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SUMMARY: The Department of Homeland Security is giving concurrent
notice of a newly established system of records pursuant to the Privacy
Act of 1974 for the ``Department of Homeland Security/U.S. Immigration
and Customs Enforcement--014 Homeland Security Investigations Forensic
Laboratory System of Records'' and this proposed rulemaking. In this
proposed rulemaking, the Department proposes to exempt portions of the
system of records from one or more provisions of the Privacy Act
because of criminal, civil, and administrative enforcement
requirements.
DATES: Comments must be received on or before June 17, 2013.
ADDRESSES: You may submit comments, identified by docket number DHS-
2013-0012 by one of the following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Fax: 202-343-4010.
Mail: Jonathan R. Cantor, Acting Chief Privacy Officer,
Privacy Office, Department of Homeland Security, Washington, DC 20528.
Instructions: All submissions received must include the agency name
and docket number for this notice. All comments received will be posted
without change to http://www.regulations.gov, including any personal
information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: For general questions please contact:
Lyn Rahilly, Privacy Officer, (202-732-3300), U.S. Immigration and
Customs Enforcement, 500 12th Street SW., Mail Stop 5004, Washington,
DC 20536, email: [email protected]. For privacy issues please contact:
Jonathan R. Cantor (202-343-1717), Acting Chief Privacy Officer,
Privacy Office, Department of Homeland Security, Washington, DC 20528.
SUPPLEMENTARY INFORMATION:
I. Background
The Department of Homeland Security (DHS) is giving concurrent
notice of a newly established system of records pursuant to the Privacy
Act of 1974 for the ``DHS/U.S. Immigration and Customs Enforcement
(ICE)--014 Homeland Security Investigations Forensic Laboratory (HSI-
FL) System of Records'' and this proposed rulemaking. In this proposed
rulemaking, the Department proposes to exempt portions of the system of
records from one or more provisions of the Privacy Act because of
criminal, civil, and administrative enforcement requirements.
The Homeland Security Investigations Forensic Laboratory (HSI-FL)
is an accredited crime laboratory located within ICE's Office of
Homeland Security Investigations (HSI) that provides a broad range of
forensic, intelligence, and investigative support services for ICE,
DHS, and many other U.S. and foreign law enforcement agencies. Created
in 1978 under the U.S. Department of Justice, Immigration and
Naturalization Service, the HSI-FL became part of DHS on March 1, 2003,
as part of the federal government's response to the 9/11 attacks. The
HSI-FL is the only U.S. crime laboratory specializing in scientific
authentication; forensic examination; research, analysis, and training
related to travel and identity documents; latent and patent finger and
palm prints; and audio and video files in support of law enforcement
investigations and activities by DHS and other agencies. To facilitate
forensic examinations and for use in forensic document training,
research, and analysis, the HSI-FL maintains case files, a case
management system, an electronic library of travel and identity
documents (Imaged Documents and Exemplars Library (IDEAL)), and a hard
copy library referred to as the HSI-FL Library.
As a crime laboratory specializing in the forensic examination and
research of travel and identity documents, the HSI-FL attempts to
determine the authenticity, authorship, and any actual or potential
alterations of travel and identity documents. Examinations of such
documents submitted by DHS and other U.S. and foreign law enforcement
agencies and international organizations normally begin with a physical
(naked eye, tactile) inspection and proceed to microscopic,
instrumental, and comparative examinations, as necessary and
appropriate. Depending on the document type, these examinations also
may require the expert analyses of handwriting, hand printing,
typewriting, printing processes, papers, inks, and stamp impressions.
HSI-FL examinations are predominantly performed on documents used
to establish identity or facilitate travel, such as passports, visas,
identification cards, and border crossing cards, but can be performed
on virtually any document, including envelopes, handwritten documents,
letters, vital records, and typewritten documents. DHS and other
federal, state, and international government agencies, or organizations
such as the United Nations, may submit requests to HSI-FL for document
authentication. In response, the HSI-FL may conduct an analysis and
share the results of forensic examinations within DHS and externally
with other government agencies and international organizations in the
course of law enforcement investigations and for admission into
evidence in judicial proceedings.
In addition to the forensic examination of documents, the HSI-FL
performs fingerprint analysis. The fingerprint analysis performed by
HSI-FL may not be document-related. This analysis may include
fingerprints collected from evidence during an investigation such as
firearms, drug packaging, currency, periodicals, photo albums, CDs and
computers. Fingerprint analysis will include both latent (invisible to
the naked eye) and patent
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(visible to the naked eye) finger and palm prints.
The HSI-FL also performs technical enhancements of audio and video
files. The audio and video work performed by the HSI-FL is limited to
enhancing files to improve their quality and clarifying detail to allow
law enforcement agencies to better examine the files. For example, this
could include removing background noise from an audio file or improving
the clarity of an image in a video. The HSI-FL is not responsible for
performing forensic examinations of the audio or video files but merely
performs technical work to permit law enforcement agencies outside of
the HSI-FL to conduct law enforcement investigations.
Laboratory Information Management System
In order to track evidence and cases, the HSI-FL implemented the
Laboratory Information Management System (LIMS) as their case
management system. LIMS allows the HSI-FL to capture information about
the individual submitting the request for analysis, identify the
evidence submitted, track the evidence as it moves throughout the HSI-
FL for chain of custody purposes, capture case notes and results of
examinations, store electronic images of evidence, and produce reports
of findings. LIMS also captures other case-related activities such as
descriptions of expert witness testimony provided by HSI-FL employees.
The HSI-FL also uses LIMS to record and store operational (non-
forensic) requests for assistance, hours HSI-FL staff spend on training
activities, and digital copies of training certificates of completion.
In addition, LIMS generates recurring and ad hoc statistics reports in
support of HSI-FL staff operations and management request.
Imaged Documents and Exemplars Library
The IDEAL database and the HSI-FL Library contain two categories of
records: (1) Travel and identity documents and (2) reference materials
used to help in the forensic analysis of travel and identity documents.
The HSI-FL maintains the documents and reference materials in both hard
copy and electronic format for use in comparative forensic examination
and fraudulent document training, research, and analysis. The hard
copies are maintained in the HSI-FL Library while the electronic copies
are stored in the IDEAL database. IDEAL contains electronic images and
document characteristics for all documents and reference materials
stored in the HSI-FL Library and allows HSI-FL employees to access
these electronic images and document characteristics from their own
workstations. Further, IDEAL provides the inventory control of the hard
copy material in the HSI-FL Library, which includes the support of
``checking out'' hard copy documents and reference materials in the
HSI-FL Library by HSI-FL employees.
IDEAL indexes and assigns to all documents added to the HSI-FL
Library an IDEAL identification number (IDEAL ID Number) and bar code,
thus providing a standard identification and tracking mechanism and
permitting indexing. The IDEAL ID Number is system-generated and allows
documents to be quickly located in IDEAL. The bar code number links the
images maintained in IDEAL to hardcopies maintained in the HSI-FL
Library.
The HSI-FL collects and maintains genuine, altered, and counterfeit
travel and identity documents (hereafter, ``documents'') in hard copy
format from international organizations, government agencies, and law
enforcement organizations from across the United States and around the
world to research methods of document production and authenticate
questionable documents through comparative forensic examinations. These
travel and identity documents include documents such as passports,
identification cards, birth certificates, stamps, visas, and any other
document that can be used to establish nationality or identity from any
country including the United States.
From these same sources, the HSI-FL also collects information that
helps with the identification of potential counterfeit characteristics,
potential fraud, security features, and other information valuable to
forensic analysis (hereafter, ``reference materials''). HSI-FL
employees also make use of reference materials issued by the United
States and other nations that contain useful information such as
descriptions of security features of travel and identity documents or
information concerning attempts to counterfeit or alter such documents.
Document characteristics including personally identifiable
information (PII) are manually entered into IDEAL to catalogue, track,
and facilitate searching for documents and reference materials.
Depending on the particular document, the document characteristics
entered into IDEAL may include the document type, document number
(e.g., passport number, driver's license number, state identification
number), country of origin, region, authenticity of the document,
information regarding the location and availability of the hard copy
document in the HSI-FL Library, and a short description of the
document. Social Security Numbers are not directly entered into IDEAL,
instead the serial number on the back of the document is entered into
the system. In addition to manually entered information, the document
is scanned into IDEAL capturing and storing additional information,
including PII. The PII stored on the images is view-only and may not be
searched or used in any other manner in IDEAL.
The HSI-FL divides the documents maintained in the HSI-FL Library
and electronically in IDEAL into five different categories: (1) Genuine
standard documents; (2) verified documents; (3) unverified documents;
(4) counterfeit documents; and (5) altered documents. The first
category, genuine standard documents, is comprised of documents never
used in circulation and officially submitted to the HSI-FL by a valid
issuing authority or other officially recognized domestic or foreign
agency. Valid issuing authorities produce genuine standard documents as
samples of particular travel and identity documents (e.g., passports)
and include all of the same characteristics and security features of
that document. Genuine standard documents are usually issued under an
obviously fictitious name, such as ``Happy Traveler,'' to ensure they
are easily identified as samples. Genuine standard documents do not
contain the PII of actual individuals; however, they may contain
photographs of individuals who have consented for their images to be
used and distributed on these sample documents. The HSI-FL uses genuine
standard documents during forensic analysis to authenticate other
travel and identity documents purporting to have been issued by the
same issuing authority. This authentication is used to support law
enforcement investigations in response to government agency inquiries
from the United States and around the world and judicial proceedings.
The remaining four categories of documents are provided to the HSI-
FL by the valid issuing authority of a domestic or foreign agency, or
from other sources including international organizations; DHS; the U.S.
Department of State (DOS); and other federal, state, and foreign
government agencies and law enforcement organizations. These four
categories of documents may be directly provided for inclusion in the
HSI-FL Library or may be initially provided for other purposes such as
forensic examination and then retained by the HSI-FL, with the
submitting agency's permission, after
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the examination is complete. The HSI-FL determines whether to include
specific documents in the HSI-FL Library based upon the HSI-FL
Library's need for that document, particularly whether the HSI-FL
Library currently has a document of that type already in the HSI-FL
Library. These categories of documents may contain the PII of
individuals. Verified documents are documents that the HSI-FL has found
to conform to comparable genuine travel and identity documents.
Unverified documents are documents that the HSI-FL has analyzed and has
not conclusively determined are verified, counterfeit, or altered.
Counterfeit documents are documents that the HSI-FL has determined
through forensic analysis are not authentic documents issued by a
foreign or domestic governmental issuing authority. Altered documents
are documents that were originally authentic documents issued by a
foreign or domestic governmental issuing authority that have been
changed in an unauthorized manner.
Certain designated users at DOS have read-only access to IDEAL.
This read-only access allows certain designated DOS employees to search
and view travel and identity documents and reference materials. These
documents and materials may contain the PII of actual individuals. This
information is used by the DOS for their reference and in support of
their mission. This use includes supporting the processing of petitions
or applications for benefits under the Immigration and Nationality Act,
and other immigration and nationality laws including treaties and
reciprocal agreements. It also includes when the DOS requires
information to consider and/or provide an informed response to a
request for information from a foreign, international, or
intergovernmental agency, authority, or organization about an alien or
an enforcement operation with transnational implications. Authorized
users from the DOS are the only non-DHS users with direct access to
IDEAL.
Consistent with DHS' information sharing mission, information
stored in the DHS/ICE-014 Homeland Security Investigations Forensic
Laboratory System of Records may be shared with other DHS components
that have a need to know the information to carry out their national
security, law enforcement, immigration, intelligence, or other homeland
security functions. In addition, information may be shared with
appropriate federal, state, local, tribal, territorial, foreign, or
international government agencies consistent with the routine uses set
forth in the system of records notice.
This proposed rulemaking will be included in DHS' inventory of
record systems.
II. Privacy Act
The Privacy Act embodies fair information practice principles in a
statutory framework governing the means by which federal government
agencies collect, maintain, use, and disseminate individuals' records.
The Privacy Act applies to information that is maintained in a ``system
of records.'' A ``system of records'' is a group of any records under
the control of an agency from which information is retrieved by the
name of an individual or by some identifying number, symbol, or other
identifying particular assigned to the individual. In the Privacy Act,
an individual is defined to encompass U.S. citizens and lawful
permanent residents. As a matter of policy, DHS extends administrative
Privacy Act protections to all individuals when systems of records
maintain information on U.S. citizens, lawful permanent residents, and
visitors.
The Privacy Act allows government agencies to exempt certain
records from the access and amendment provisions. If an agency claims
an exemption, however, it must issue a Notice of Proposed Rulemaking to
make clear to the public the reasons why a particular exemption is
claimed.
DHS is claiming exemptions from certain requirements of the Privacy
Act for DHS/ICE-014 Homeland Security Investigations Forensic
Laboratory System of Records. Some information in DHS/ICE-014 Homeland
Security Investigations Forensic Laboratory System of Records relates
to official DHS national security, law enforcement, immigration, and
intelligence activities. These exemptions are needed to protect
information relating to DHS activities from disclosure to subjects or
others related to these activities. Specifically, the exemptions are
required to preclude subjects of these activities from frustrating
these processes; to avoid disclosure of activity techniques; to protect
the identities and physical safety of confidential informants and law
enforcement personnel; to ensure DHS' ability to obtain information
from third parties and other sources; and to protect the privacy of
third parties. Disclosure of information to the subject of the inquiry
could also permit the subject to avoid detection or apprehension.
In appropriate circumstances, when compliance would not appear to
interfere with or adversely affect the law enforcement purposes of this
system and the overall law enforcement process, the applicable
exemptions may be waived on a case by case basis.
A system of records notice for DHS/ICE-014 Homeland Security
Investigations Forensic Laboratory System of Records is also published
in this issue of the Federal Register.
List of Subjects in 6 CFR Part 5
Freedom of information; Privacy.
For the reasons stated in the preamble, DHS proposes to amend
Chapter I of Title 6, Code of Federal Regulations, as follows:
PART 5--DISCLOSURE OF RECORDS AND INFORMATION
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. Add at the end of Appendix C to Part 5, the following new paragraph
70:
Appendix C to Part 5--DHS Systems of Records Exempt From the Privacy
Act
* * * * *
70. The DHS/ICE-014 Homeland Security Investigations Forensic
Laboratory System of Records consists of electronic and paper
records and will be used by DHS and its components. The DHS/ICE-014
Homeland Security Investigations Forensic Laboratory System of
Records contains records of evidence and cases submitted to the HSI-
FL. This information will include information on the individual
submitting the request, identify the evidence submitted, track the
evidence as it moves throughout the HSI-FL, capture case notes and
results of examinations, store electronic images of evidence, and
produce reports of findings. Other case-related records are
maintained including descriptions of expert witness testimony
provided by HSI-FL employees. Records in the DHS/ICE-014 Homeland
Security Investigations Forensic Laboratory System of Records also
include the library of genuine, altered, and counterfeit travel and
identity documents provided to the HSI-FL by international
organizations, government agencies, and law enforcement
organizations from across the United States and around the world to
research methods of document production and authenticate questioned
documents through comparative forensic examinations. The DHS/ICE-014
Homeland Security Investigations Forensic Laboratory 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, pursuant to 5 U.S.C.
552a(j)(2), has exempted this system from the following provisions
of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1),
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(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8);
(f); and (g). Additionally, the Secretary of Homeland Security,
pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d);
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Where a record
received from another system has been exempted in that source system
under 5 U.S.C. 552a(j)(2), 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 to Records) because access to
the records contained in this system of records could inform the
subject of an investigation of an actual or potential criminal,
civil, or regulatory violation to the existence of that
investigation and reveal investigative interest on the part of DHS
or another agency. Access to the records could permit the individual
who is the subject of a record to impede the investigation, to
tamper with witnesses or evidence, and to avoid detection or
apprehension. Amendment of the records could interfere with ongoing
investigations and law enforcement activities and would impose an
unreasonable administrative burden by requiring investigations to be
continually reinvestigated. In addition, permitting access and
amendment to such information could disclose classified and other
security-sensitive information that could be detrimental to homeland
security.
(c) From subsection (e)(1) (Relevancy and Necessity of
Information) because in the course of investigations into potential
violations of federal law, the accuracy of information obtained or
introduced occasionally may be unclear, or the information may not
be strictly relevant or necessary to a specific investigation. In
the interests of effective law enforcement, it is appropriate to
retain all information that may aid in establishing patterns of
unlawful activity.
(d) From subsection (e)(2) (Collection of Information from
Individuals) because requiring that information be collected from
the subject of an investigation would alert the subject to the
nature or existence of the investigation, thereby interfering with
that investigation and related law enforcement activities.
(e) From subsection (e)(3) (Notice to Subjects) because
providing such detailed information could impede law enforcement by
compromising the existence of a confidential investigation or reveal
the identity of witnesses or confidential informants.
(f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency
Requirements) and (f) (Agency Rules), because portions of this
system are exempt from the individual access provisions of
subsection (d) for the reasons noted above, and therefore DHS is not
required to establish requirements, rules, or procedures with
respect to such access. Providing notice to individuals with respect
to existence of records pertaining to them in the system of records
or otherwise setting up procedures pursuant to which individuals may
access and view records pertaining to themselves in the system would
undermine investigative efforts and reveal the identities of
witnesses, and potential witnesses, and confidential informants.
(g) From subsection (e)(5) (Collection of Information) because
with the collection of information for law enforcement purposes, it
is impossible to determine in advance what information is accurate,
relevant, timely, and complete. Compliance with subsection (e)(5)
would preclude DHS agents from using their investigative training
and exercise of good judgment to both conduct and report on
investigations.
(h) From subsection (e)(8) (Notice on Individuals) because
compliance would interfere with DHS's ability to obtain, serve, and
issue subpoenas, warrants, and other law enforcement mechanisms that
may be filed under seal and could result in disclosure of
investigative techniques, procedures, and evidence.
(i) From subsection (g)(1) (Civil Remedies) to the extent that
the system is exempt from other specific subsections of the Privacy
Act.
Dated: April 22, 2013.
Jonathan R. Cantor,
Acting Chief Privacy Officer, Department of Homeland Security.
[FR Doc. 2013-11727 Filed 5-15-13; 8:45 am]
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