Misidentification of persons as terrorists

Foreclosure of remedy of cure. The Electronic Privacy Information Center (EPIC) challenge exempted.

2 December 2005
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

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[Federal Register: December 2, 2005 (Volume 70, Number 231)]
[Rules and Regulations]
[Page 72199-72205]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de05-3]

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DEPARTMENT OF JUSTICE

Federal Bureau of Investigation

28 CFR Part 16

[AAG/A Order No. 010-2005]


Privacy Act of 1974; Implementation

AGENCY: Federal Bureau of Investigation, DOJ.

ACTION: Final rule.

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[[Page 72200]]

SUMMARY: The Department of Justice (DOJ), Federal Bureau of
Investigation (FBI), is issuing a final rule exempting a new system of
records entitled the Terrorist Screening Records System (TSRS)
(JUSTICE/FBI-019) from subsections (c)(3) and (4); (d)(1), (2), (3),
and (4); (e)(1), (2), (3), (5), and (8); and (g) of the Privacy Act,
pursuant to 5 U.S.C. 552a(j) and (k). The FBI published a system of
records notice for JUSTICE/FBI-019 and a proposed rule implementing
these exemptions on July 28, 2005, at 70 FR 43661 and 43715. The listed
exemptions are necessary to avoid interference with the law
enforcement, intelligence, and counterterrorism functions and
responsibilities of the FBI and the Terrorist Screening Center (TSC).
This document addresses public comments on both the proposed rule and
the system of records notice.

DATES: This final rule is effective January 3, 2006.

FOR FURTHER INFORMATION CONTACT: Mary E. Cahill, (202) 307-1823.

SUPPLEMENTARY INFORMATION:

Background

On July 28, 2005, the FBI published notice of a new Privacy Act
system of records entitled ``Terrorist Screening Records System,
JUSTICE/FBI-019,'' which became effective on September 6, 2005.\1\ The
Terrorist Screening Records System (TSRS) supports the mission of the
FBI-administered Terrorist Screening Center (TSC) to consolidate the
Government's approach to terrorism screening. Under Homeland Security
Presidential Directive/HSPD-6, the TSC maintains the Government's
consolidated watch list of known and suspected terrorists in the
Terrorist Screening Database (TSDB). As required by HSPD-6, the TSDB
contains ``information about individuals known or appropriately
suspected to be or have been engaged in conduct constituting, in
preparation for, in aid of, or related to terrorism.'' \2\ The TSDB is
a sensitive-but-unclassified database containing only identifying
information about known or suspected terrorists. Information from the
TSDB is used to screen for terrorists in a variety of contexts,
including during law enforcement encounters, the adjudication of
applications for U.S. visas or other immigration and citizenship
programs, at U.S. land borders and ports of entry, and for civil
aviation security purposes. The TSDB is included in the new TSRS.
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\1\ 70 FR 43715 (July 28, 2005).
\2\ Homeland Security Presidential Directive/HSPD-6 (Sept. 16,
2003).
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In conjunction with publication of the TSRS system of records
notice, the FBI initiated a rulemaking to exempt the TSRS from a number
of provisions of the Privacy Act, pursuant to its authority in Privacy
Act subsections 552a(j) and (k).\3\ On July 28, 2005, the FBI published
at 70 FR 43661 a proposed rule exempting records in the TSRS from
Privacy Act subsections (c)(3) and (4); (d)(1), (2), (3), and (4);
(e)(1), (2), (3), (5), and (8); and (g).\4---------------------------------------------------------------------------

\3\ 5 U.S.C. 552a(j), (k).
\4\ 5 U.S.C. 552a(c)(3)-(4); (d)(1)-(4); (e)(1)-(3), (5), (8);
(g).
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Public Comments

The FBI received comments on the proposed rule and the TSRS system
of records notice from the Electronic Privacy Information Center (EPIC)
and joint comments from the Electronic Frontier Foundation and Privacy
Activism (EFF/PA). A discussion of these comments and the FBI's
responses are set forth below. With respect to the public comments on
the routine uses for the TSRS that were published in the July 28, 2005,
notice, the FBI has determined that none of the comments merited
changes to routine uses prior to their implementation.

A. Exemption From Subsections (c) and (d) (Accounting, Access, and
Amendment)

EPIC objected to the FBI's proposal to exempt the TSRS from
subsection (d) of the Privacy Act, which generally requires an agency
to permit individuals access to records pertaining to them and the
ability to request correction of any portion they believe is not
accurate, relevant, timely, or complete.\5\ EPIC stated that exemption
of the TSRS from subsection (d) is in conflict with the purposes of the
Privacy Act. EPIC stated that the FBI's notice of proposed rulemaking
does not explain how the application of standard Privacy Act procedures
permitting access to records would seriously damage the purpose of the
TSRS.
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\5\ 5 U.S.C. 552a(d).
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EFF/PA objected to the FBI's application of any of the exemptions
to information about individuals who have been misidentified as known
or suspected terrorists. EFF/PA stated that, for instance, there is no
basis to exempt information about misidentified persons from subsection
(c)(3) of the Privacy Act, which permits individuals to obtain an
accounting of any disclosures of records containing information about
them.\6---------------------------------------------------------------------------

\6\ 5 U.S.C. 552a(c)(3).
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The exemption of the TSRS from the access provisions of subsection
(d) is fully consistent with the language and intent of the Privacy
Act. Allowing the subject of a TSRS record to obtain access to the
record could, among other things, reveal the Government's investigative
interest in a known or suspected terrorist, leading to the destruction
of evidence, improper influencing of witnesses, or flight of the
subject. Public release of information in the TSRS also could endanger
the safety of confidential sources and law enforcement personnel.
Congress anticipated these types of potentially damaging consequences
of allowing access to some categories of Government records and
included the exemption provisions in the Privacy Act to address them.
According to the Office of Management and Budget's Guidelines for
Privacy Act Implementation (OMB Guidelines), ``[t]he drafters of the
Act recognized that the application of all the requirements of the Act
to certain categories of records would have had undesirable and often
unacceptable effects upon agencies in the conduct of necessary public
business.'' \7\ Frustrating the detection and prevention of terrorist
activities and endangering the lives of law enforcement personnel are
the type of ``undesirable'' and ``unacceptable'' effects on the
Government's operation that the drafters of the Privacy Act sought to
avoid through the allowance of exemptions. Thus, the FBI's claim of
exemption from the access provisions of the Privacy Act for the TSRS is
consistent with the principles of public policy reflected in the Act.
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\7\ 40 FR 28971 (July 9, 1975).
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Although the FBI has claimed exemption from the access and
amendment requirements of subsection (d), this exemption applies only
to those records or portions of records contained in the TSRS that meet
the requirements for exemption. While the FBI anticipates that all the
records in the TSRS meet such requirements, individuals may submit
requests for access to any non-exempt records pertaining to them. In
addition, the FBI may allow individuals access to exempt records on a
discretionary basis under proposed 28 CFR 16.96(r)(2). The FBI also
will consider requests for amendment of records under this
discretionary procedure. In addition, the TSC will work with the
agencies that use data from the TSDB in their screening operations to
assist those agencies in helping individuals who may be misidentified
during the screening process.
EPIC stated that the FBI's discretionary procedures for access and
amendment and its assistance to

[[Page 72201]]

screening agencies in resolving complaints provide inadequate recourse
for individuals misidentified as watch list matches. This is in part,
according to EPIC, because the screening agencies do not have effective
redress processes in place for those adversely affected by watch list
screening procedures. The FBI believes that its procedures strike the
appropriate balance between the interest in public safety and the needs
of those individuals who experience repeated difficulties related to
terrorist watch list information. The FBI and its partner agencies in
the TSC continue to work to improve redress processes related to
terrorist screening.
EPIC also stated that the application of the claimed exemptions to
the entire TSRS is inappropriate, because the system will contain
information that should be subject to access. EFF/PA objected to
applying any exemptions to information about misidentified persons.
They argued that because misidentified persons are not actually
subjects of an investigation, the release of information about them
would not reveal the Government's interest in investigating terrorists.
Therefore, they argued, exemption from provisions such as subsection
(c)(3) regarding accounting of record disclosures, is unwarranted.
As stated in subsection proposed 28 CFR 16.96(r)(2), the exemptions
claimed by the FBI for the TSRS apply only to the extent that
information in the system is subject to one of those exemptions. If any
record or portion of a record in the TSRS is not subject to the claimed
exemptions, the FBI will release that information, as appropriate, in
response to a proper Privacy Act request. The FBI is claiming
exemptions for the entire TSRS, however, in accordance with the
language of 5 U.S.C. 552a(j) and (k), which permits the head of an
agency ``to exempt any system of records'' from the access requirements
of the Privacy Act. Furthermore, as stated in the proposed rule, the
FBI may waive an applicable exemption where compliance with access
procedures would not appear to interfere with or adversely affect the
counterterrorism processes of the TSRS and the overall law enforcement
process.
With respect to the comments of EFF/PA on misidentified persons,
individuals are misidentified as known or suspected terrorists during
the screening process when their names and other identifying
information are the same as, or very similar to, that of a known or
suspected terrorist. Disclosing information about misidentified
persons, therefore, could reveal the Government's investigative
interest in a terrorist suspect, because it could make known the name
of the individual who actually is the subject of the Government's
interest. Consequently, the Government has as great an interest in
protecting the confidentiality of identifying information of
misidentified persons as it does in protecting the confidentiality of
the identities of the actual persons of interest. The FBI has added a
discussion of this justification in sections 16.96(s)(1) and (3) of the
final rule.
EPIC raised a question about the FBI's ability to use 5 U.S.C.
552a(k)(2) as the basis for exempting the TSRS from the access
provisions in subsection (d). EPIC stated that exemption (k)(2) is
applicable only where the system of records consists of investigatory
material compiled for law enforcement purposes. EPIC further stated
that exemption (k)(2) generally does not permit an agency to deny an
individual access to a record where the agency's maintenance of the
record resulted in the individual being denied a right, privilege, or
benefit to which he would otherwise be entitled by Federal law, or for
which he would otherwise be eligible.\8\ EPIC requested further
explanation of the FBI's authority to exempt the TSRS from the Privacy
Act's access provisions, in light of the limitations on the
applicability of the (k)(2) exemption.
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\8\ 5 U.S.C. 552a(k)(2).
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Under the Privacy Act, an agency may exempt a system of records
from the access provisions of subsections (c) and (d) if the system of
records meets certain criteria under 5 U.S.C. 552a(j) or (k). The FBI
is exempting the TSRS from the access provisions under the authority of
5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
Exemption (j)(2) applies where a system of records consists of
information compiled for purposes of a criminal investigation and the
system is maintained by an agency or component of the agency that
performs as its principal function any activity pertaining to the
enforcement of criminal laws, including efforts to prevent, control, or
reduce crime or to apprehend criminals.\9\ The records in the TSRS come
within the scope of the (j)(2) exemption because they are maintained by
the FBI for the purpose of identifying individuals who pose potential
terrorist threats and enforcing the criminal laws with respect to those
individuals.\10---------------------------------------------------------------------------

\9\ 5 U.S.C. 552a(j)(2).
\10\ 70 FR 43716 (July 28, 2005).
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Exemption (k)(1) applies to a system of records that contains
information classified in the interest of national security.\11\ Some
records in the TSRS are subject to exemption (k)(1) because they
contain such classified information.
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\11\ 5 U.S.C. 552a(k)(1).
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Exemption (k)(2) applies to investigatory material compiled for law
enforcement purposes that is not otherwise covered by exemption (j)(2).
The FBI believes most, if not all, records in the TSRS fall within the
scope of exemptions (j)(2) and (k)(1). The FBI is invoking exemption
(k)(2) as a precautionary measure to protect investigatory information
that may not be covered by exemption (j)(2) or (k)(1). If an instance
arises where a record is not covered by exemptions (j)(2) or (k)(1),
and the exception to exemption (k)(2) applies regarding denial of an
individual's right, privilege, or benefit due to maintenance of the
record at issue, the FBI will provide the individual access to that
record to the extent that the law requires.

B. Exemption From Subsection (e)(1) (Relevant and Necessary)

EPIC objected to the FBI's proposal to exempt the TSRS from
subsection (e)(1) of the Privacy Act, which requires an agency to
``maintain in its records only such information about an individual as
is relevant and necessary to accomplish a purpose of the agency
required to be accomplished by statute or by executive order of the
President.'' \12\ EPIC stated that exemption of the TSRS from
subsection (e)(1) will increase the likelihood that the system will
contain erroneous and invasive information unrelated to terrorist
screening.
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\12\ 5 U.S.C. 552a(e)(1).
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As discussed in the notice of proposed rulemaking, the FBI is
exempting the TSRS from subsection (e)(1) in furtherance of the
screening and law enforcement purposes of the system. The collection of
information during the screening process and the facilitation of an
appropriate law enforcement response may involve the collection of
identifying information that, following completion of the screening or
response, turns out to have been unnecessary. It is not always possible
to know in advance what information will be relevant or necessary, such
that the TSC and the FBI can tailor their information collection in all
cases to meet the requirements of subsection (e)(1). This is not,
however, inconsistent with the principles of the Privacy Act. As
discussed above, the drafters of the Privacy Act established exemptions
from provisions such as subsection

[[Page 72202]]

(e)(1) to avoid inappropriately limiting the ability of the Government
to carry out certain functions, such as law enforcement.\13\
Constraining the collection of information included in the TSRS in
accordance with the ``relevant and necessary'' requirement of
subsection (e)(1) could discourage the appropriate collection of
information, and thereby impede the Government's efforts to detect and
apprehend terrorists. It is, therefore, appropriate to exempt the TSRS
from subsection (e)(1).
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\13\ OMB Guidelines, 40 FR 28971 (July 9, 1975).
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C. Exemption From Subsection (e)(5) (Accuracy, Relevance, Timeliness
and Completeness)

EPIC and EFF/PA objected to the FBI's proposal to exempt the TSRS
from subsection (e)(5) of the Privacy Act, which requires agencies to
``maintain all records which are used by the agency in making any
determination about any individual with such accuracy, relevance,
timeliness, and completeness as is reasonably necessary to assure
fairness to the individual in the determination.'' \14\ EPIC and EFF/PA
stated that exemption of the TSRS from subsection (e)(5) is
inconsistent with the TSC's obligation under its governing
organizational document to develop and maintain ``the most thorough,
accurate, and current information possible'' about known or
appropriately suspected terrorists.\15---------------------------------------------------------------------------

\14\ 5 U.S.C. 552a(e)(5).
\15\ See Memorandum of Understanding on the Use and Integration
of Screening Information to Protect Against Terrorism at 1, (Sept.
16, 2003).
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As discussed in the notice of proposed rulemaking, the TSC supports
agencies that conduct terrorism investigations by collecting
information from encounters with known or suspected terrorists. It is
not always possible to determine, when collecting information during an
encounter with a terrorist suspect, whether the information is
accurate, relevant, timely, and complete. It is the nature of the
investigative process to obtain information of uncertain accuracy and
completeness with the goal of achieving accuracy and completeness.
Moreover, with the passage of time, seemingly irrelevant or untimely
information collected during an encounter with a terrorist suspect may
acquire new significance as further investigation brings new details to
light.
The TSC's obligation to develop and maintain the most thorough,
accurate, and current information possible about individuals known or
suspected to be terrorists must be read in the context of the
investigative process. The FBI completely agrees with EPIC's view that
``[m]aintaining the most accurate possible data is unquestionably a
critical goal of the TSRS * * * '' To meet this goal, TSC has
implemented internal quality assurance procedures. Applying the
requirements of subsection (e)(5), however, to the TSRS would hinder
the ability of the law enforcement and intelligence agencies supported
by TSC to conduct investigations and develop intelligence necessary for
effective law enforcement and counterterrorism efforts.
The FBI also is exempting the TSRS from the requirements of
subsection (e)(5) in order to prevent the use of a challenge under
subsection (e)(5) as a collateral means to obtain access to records in
the TSRS. As discussed above, the FBI has exempted TSRS records from
the access and amendment requirements of subsection (d) of the Privacy
Act in order to protect the integrity of counterterrorism
investigations. In the past, where agencies have exempted records from
access under subsection (d), individuals have asserted challenges to a
record's accuracy, timeliness, completeness, and/or relevance under
subsection (e)(5) as an alternative means to get access to the records.
Exempting the TSRS from subsection (e)(5) serves to prevent the use of
that subsection to circumvent the exemption claimed from subsection
(d). The FBI has added a discussion of this justification in section
16.96(s)(7) of the final rule.

D. Exemption From Subsection (g) (Civil Remedies)

EPIC objected to the FBI's proposal to exempt the TSRS from
subsection (g) of the Privacy Act, which establishes civil remedies for
violations of certain of the Act's provisions.\16\ Specifically, EPIC
stated that the FBI failed to explain why it is exempting the TSRS from
the civil remedies provisions in subsection (g) as they relate to the
right to enforce the amendment requirements under subsection (d) of the
Act.
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\16\ 5 U.S.C. 552a(g).
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The proposed rule states that the FBI is exempting the TSRS from
subsection (g) ``to the extent that the system is exempt from other
specific subsections of the Privacy Act.'' \17\ Therefore, the TSRS is
exempt from the civil remedies provisions only to extent that the TSRS
is exempt from the underlying requirement to which the remedies relate.
Because the FBI is claiming exemption from the record amendment
requirement under subsection (d), it also is claiming exemption from
the civil remedy provisions under subsection (g), as they relate to
enforcement of subsection (d).
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\17\ 70 FR 43663 (July 28, 2005).
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E. Extension of Opportunity for Public Comment

EPIC stated that the FBI should suspend this rulemaking and provide
a further opportunity for public comment after the FBI has publicly
released more information in response to EPIC's previously filed
Freedom of Information Act (FOIA) request regarding the use of the TSDB
for the Transportation Security Administration's proposed Secure Flight
program.
Information about specific programs, such as Secure Flight, that
will use the TSDB to perform terrorist screening may be informative in
understanding the TSRS. The FBI does not believe, however, that this
type of information is necessary to allow the public to engage in
informed consideration of the issues raised by the proposed rule and
the operation of the TSRS. Therefore, the FBI sees no basis to
indefinitely suspend this rulemaking, pending the release of additional
information about the Secure Flight program.

F. Routine Uses

EPIC and EFF/PA generally objected to the breadth of the routine
uses set forth in the TSRS notice. EFF/PA stated that the FBI's
intention to disclose only those records that are ``relevant'' in
accordance with any current and future blanket routine uses established
for FBI record systems fails to establish any limit on disclosure,
because the FBI has exempted the TSRS from the requirement under
subsection (e)(1) to maintain only relevant records. This comment
incorrectly links the issue of whether the collection of a record is
properly relevant to the accomplishment of an agency purpose and
whether the disclosure of a record is relevant to the purpose of a
routine use. By exempting the TSRS from the relevance requirement under
subsection (e)(1), the FBI has permitted the collection of records
whose relevance to the purpose of the TSRS may be unclear. The FBI is
not, however, claiming that it will disclose a record without
determining whether the record is relevant to the purpose of the
routine use under which it is to be disclosed. By stating that the TSC
will disclose only those records that are ``relevant'' in accordance
with any current and future blanket routine uses established for FBI
record systems, the FBI is limiting, not expanding, its ability to make
disclosures of records in the TSRS.
EFF/PA objected to routine use (F) as allowing unlimited
disclosure,

[[Page 72203]]

including to consumer reporting agencies. The FBI specifically states
in the system of records notice that the TSC will not make disclosures
to consumer reporting agencies. The FBI will not use general language
of a routine use to override this specific statement. Furthermore, the
language of routine use (F) limits its scope to disclosures that are in
furtherance of the TSC's function. TSC anticipates that it will use
this routine use in order to share information with other agencies and
entities (other than consumer reporting agencies) to verify the quality
and accuracy of its information.
EFF/PA objected to routine uses (J) and (K) because they permit
disclosure of TSRS records to Governmental authorities with law
enforcement responsibilities. EFF/PA argued that this allows TSC to
make disclosures beyond the scope of the counterterrorism purposes of
the TSRS.
The TSC maintains information about individuals known or
appropriately suspected to be or have been engaged in conduct
constituting, in preparation for, in aid of, or related to
terrorism.\18\ Terrorist activities are inherently criminal in nature.
In addition, individuals engaged in preparation for terrorist acts
engage in illegal activities that support the terrorist enterprise.
Therefore, government authorities involved in law enforcement are
integrally related to counterterrorism efforts. The FBI accordingly has
written routine uses (J) and (K) to permit appropriate information
sharing with such authorities.
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\18\ HSPD-6 at 1.
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G. Maintenance of Misidentified Person Information

EFF/PA stated that including information on misidentified persons
in the TSRS has inherent privacy and civil liberties costs. EFF/PA
suggested that instead of maintaining information on misidentified
persons in order to avoid causing them inconvenience during the
screening process, the Federal government should discontinue
information-based terrorist screening. Alternatively, the FBI should
segregate data on misidentified persons to avoid cross-contamination
with data on persons of interest.
Whether the government should engage in information-based terrorist
screening is beyond the scope of the issues raised for public comment
through the TSRS system of records notice and this rulemaking. In
implementing the directive of HSPD-6 to integrate information on known
and appropriately suspected terrorists for use in screening processes,
the FBI has determined that maintenance of information on misidentified
persons is essential to carrying out this function in a fair and
efficient manner. The FBI, therefore, has reflected its handling of
such information in the TSRS notice and the proposed rule.
In order to maintain the integrity of the TSDB and avoid cross-
contamination of information, data on misidentified persons is not
maintained in the TSDB. All records containing information on
misidentified persons are clearly marked, and the TSC has procedures in
place to prevent the accidental inclusion of misidentified persons'
data in TSC records on known or appropriately suspected terrorists. In
addition, the TSC has attempted to mitigate any privacy and civil
liberties costs associated with its use of misidentified persons'
information through data quality and security assurance procedures.

Final Rule; Implementation of Routine Uses

After consideration of the public comments, the FBI has determined
to issue the proposed rule in final form, with the changes described
above. In addition, the FBI determined that none of the public comments
merited changes to routine uses for the TSRS system of records prior to
their implementation.

Regulatory Flexibility Act

This rule relates to individuals, as opposed to small business
entities. Nevertheless, pursuant to the requirements of the Regulatory
Flexibility Act, 5 U.S.C. 601-612, the rule will not have a significant
economic impact on a substantial number of small entities.

Small Entity Inquiries

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires the FBI to comply with small entity requests for
information and advice about compliance with statutes and regulations
within FBI jurisdiction. Any small entity that has a question regarding
this document may contact the person listed in FOR FURTHER INFORMATION
CONTACT. Persons can obtain further information regarding SBREFA on the
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law_lib.html
.


Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that the FBI consider the impact of paperwork and other information
collection burdens imposed on the public. There are no current or new
information collection requirements associated with this rule.

Analysis of Regulatory Impacts

This rule is not a ``significant regulatory action'' within the
meaning of Executive Order 12886. Because the economic impact should be
minimal, further regulatory evaluation is not necessary. Moreover, the
Attorney General certifies that this rule would not have a significant
economic impact on a substantial number of small entities, because the
reporting requirements themselves are not changed and because it
applies only to information on individuals.

Unfunded Mandates

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), (Pub.
L. 104-4, 109 Stat. 48), requires Federal agencies to assess the
effects of certain regulatory actions on State, local, and tribal
governments, and the private sector. UMRA requires a written statement
of economic and regulatory alternatives for proposed and final rules
that contain Federal mandates. A ``Federal mandate'' is a new or
additional enforceable duty, imposed on any State, local, or tribal
government, or the private sector. If any Federal mandate causes those
entities to spend, in aggregate, $100 million or more in any one year
the UMRA analysis is required. This rule would not impose Federal
mandates on any State, local, or tribal government or the private
sector.

Executive Order 13132, Federalism

The FBI has analyzed this rule under the principles and criteria of
Executive Order 13132, Federalism. This action will not have a
substantial direct effect on the States, on the relationship between
the national Government and the States, or on the distribution of power
and responsibilities among the various levels of government, and
therefore, will not have federalism implications.

Environmental Analysis

The FBI has reviewed this action for purposes of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has
determined that this action will not have a significant effect on the
human environment.

Energy Impact

The energy impact of this action has been assessed in accordance
with the Energy Policy and Conservation Act (EPCA) Public Law 94-163,
as amended (42 U.S.C. 6362). This rulemaking is not a major regulatory
action under the provisions of the EPCA.

[[Page 72204]]

List of Subjects in 28 CFR Part 16

Administrative Practices and Procedures, Courts, Freedom of
Information Act, Government in the Sunshine Act, and the Privacy Act.

0
Pursuant to the authority vested in the Attorney General by 5 U.S.C.
552a and delegated to me by Attorney General Order 793-78, amend 28 CFR
part 16 as follows:

PART 16--PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

0
1. The authority citation for part 16 continues to read as follows:

Authority: 5 U.S.C. 301, 552, 552a, 552b(g), 553; 18 U.S.C.
4203(a)(1); 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717, 9701.

Subpart E--Exemption of Records Systems Under the Privacy Act

0
2. Section 16.96 is amended to add new paragraphs (r) and (s) to read
as follows:


Sec. 16.96 Exemption of Federal Bureau of Investigation Systems'--
limited access.

* * * * *
(r) The following system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (5),
and (8); and (g):
(1) Terrorist Screening Records System (TSRS) (JUSTICE/FBI-019).
(2) These exemptions apply only to the extent that information in
this system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2),
(k)(1), and (k)(2). Where compliance would not appear to interfere with
or adversely affect the counterterrorism purposes of this system, and
the overall law enforcement process, the applicable exemption may be
waived by the FBI in its sole discretion.
(s) Exemptions from the particular subsections are justified for
the following reasons:
(1) From subsection (c)(3) because making available to a record
subject the accounting of disclosures from records concerning him/her
would specifically reveal any investigative interest in the individual.
Revealing this information could reasonably be expected to compromise
ongoing efforts to investigate a known or suspected terrorist by
notifying the record subject that he/she is under investigation. This
information could also permit the record subject to take measures to
impede the investigation, e.g., destroy evidence, intimidate potential
witnesses, or flee the area to avoid or impede the investigation.
Similarly, disclosing this information to individuals who have been
misidentified as known or suspected terrorists due to a close name
similarity could reveal the Government's investigative interest in a
terrorist suspect, because it could make known the name of the
individual who actually is the subject of the Government's interest.
Consequently, the Government has as great an interest in protecting the
confidentiality of identifying information of misidentified persons as
it does in protecting the confidentiality of the identities of known or
suspected terrorists.
(2) From subsection (c)(4) because this system is exempt from the
access and amendment provisions of subsection (d).
(3) From subsections (d)(1), (2), (3), and (4) because these
provisions concern individual access to and amendment of records
contained in this system, which consists of counterterrorism,
investigatory and intelligence records. Compliance with these
provisions could alert the subject of a terrorism investigation of the
fact and nature of the investigation, and/or the investigative interest
of the FBI and/or other intelligence or law enforcement agencies;
compromise sensitive information classified in the interest of national
security; interfere with the overall law enforcement process by leading
to the destruction of evidence, improper influencing of witnesses,
fabrication of testimony, and/or flight of the subject; could identify
a confidential source or disclose information which would constitute an
unwarranted invasion of another's personal privacy; reveal a sensitive
investigative or intelligence technique; or constitute a potential
danger to the health or safety of law enforcement personnel,
confidential informants, and witnesses. Amendment of these records
would interfere with ongoing counterterrorism investigations and
analysis activities and impose an impossible administrative burden by
requiring investigations, analyses, and reports to be continuously
reinvestigated and revised. Similarly, compliance with these provisions
with respect to records on individuals who have been misidentified as
known or suspected terrorists due to a close name similarity could
reveal the Government's investigative interest in a terrorist suspect,
because it could make known the name of the individual who actually is
the subject of the Government's interest.
(4) From subsection (e)(1) because it is not always possible for
TSC to know in advance what information is relevant and necessary for
it to complete an identity comparison between the individual being
screened and a known or suspected terrorist. Also, because TSC and the
FBI may not always know what information about an encounter with a
known or suspected terrorist will be relevant to law enforcement for
the purpose of conducting an operational response.
(5) From subsection (e)(2) because application of this provision
could present a serious impediment to counterterrorism efforts in that
it would put the subject of an investigation, study or analysis on
notice of that fact, thereby permitting the subject to engage in
conduct designed to frustrate or impede that activity. The nature of
counterterrorism investigations is such that vital information about an
individual frequently can be obtained only from other persons who are
familiar with such individual and his/her activities. In such
investigations it is not feasible to rely upon information furnished by
the individual concerning his own activities.
(6) From subsection (e)(3), to the extent that this subsection is
interpreted to require TSC to provide notice to an individual if TSC
receives information about that individual from a third party. Should
the subsection be so interpreted, exemption from this provision is
necessary to avoid impeding counterterrorism efforts by putting the
subject of an investigation, study or analysis on notice of that fact,
thereby permitting the subject to engage in conduct intended to
frustrate or impede that activity.
(7) From subsection (e)(5) because many of the records in this
system are derived from other domestic and foreign agency record
systems and therefore it is not possible for the FBI and the TSC to
vouch for their compliance with this provision; however, the TSC has
implemented internal quality assurance procedures to ensure that TSC
terrorist screening data is as thorough, accurate, and current as
possible. In addition, TSC supports but does not conduct
investigations; therefore, it must be able to collect information
related to terrorist identities and encounters for distribution to law
enforcement and intelligence agencies that do conduct terrorism
investigations. In the collection of information for law enforcement,
counterterrorism, and intelligence purposes, it is impossible to
determine in advance what information is accurate, relevant, timely,
and complete. With the passage of time, seemingly irrelevant or
untimely information may acquire new significance as further
investigation brings new details to light. The

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restrictions imposed by (e)(5) would limit the ability of those
agencies' trained investigators and intelligence analysts to exercise
their judgment in conducting investigations and impede the development
of intelligence necessary for effective law enforcement and
counterterrorism efforts. The TSC has, however, implemented internal
quality assurance procedures to ensure that TSC terrorist screening
data is as thorough, accurate, and current as possible. The FBI also is
exempting the TSRS from the requirements of subsection (e)(5) in order
to prevent the use of a challenge under subsection (e)(5) as a
collateral means to obtain access to records in the TSRS. The FBI has
exempted TSRS records from the access and amendment requirements of
subsection (d) of the Privacy Act in order to protect the integrity of
counterterrorism investigations. Exempting the TSRS from subsection
(e)(5) serves to prevent the assertion of challenges to a record's
accuracy, timeliness, completeness, and/or relevance under subsection
(e)(5) to circumvent the exemption claimed from subsection (d).
(8) From subsection (e)(8) because to require individual notice of
disclosure of information due to compulsory legal process would pose an
impossible administrative burden on the FBI and the TSC and could alert
the subjects of counterterrorism, law enforcement, or intelligence
investigations to the fact of those investigations when not previously
known.
(9) From subsection (g) to the extent that the system is exempt
from other specific subsections of the Privacy Act.

Dated: November 22, 2005.
Paul R. Corts,
Assistant Attorney General for Administration.
[FR Doc. 05-23568 Filed 12-1-05; 8:45 am]

BILLING CODE 4410-02-P