Rule: Privacy Act Implementation

Friday,
November 9, 2007
Part III
Department of
Homeland Security
Transportation Security Administration
49 CFR Part 1507

Privacy Act of 1974: Implementation of
Exemptions and System of Records;
Secure Flight Records; Final Rule and
Notice
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63706 Federal Register / Vol. 72, No. 217 / Friday, November 9, 2007 / Rules and Regulations
DEPARTMENT OF HOMELAND In addition, copies are available by 188 Stat. 3638, Dec. 17, 2004) and
SECURITY writing or calling the individuals in the provides for TSA’s assumption from air
FOR FURTHER INFORMATION CONTACT carriers the comparison of passenger
Transportation Security Administration section. Make sure to identify the docket information for domestic flights to the
number of this rulemaking. consolidated and integrated terrorist
49 CFR Part 1507 watch list maintained by the Federal
Small Entity Inquiries Government. Section 4012(a)(2) of
[Docket No. TSA–2007–28972; Amendment
No. 1507–3] The Small Business Regulatory IRTPA similarly requires the DHS to
Enforcement Fairness Act (SBREFA) of compare passenger information for
RIN 1652–AA48 1996 requires TSA to comply with small international flights to and from the
entity requests for information and United States against the consolidated
Privacy Act of 1974: Implementation of advice about compliance with statutes and integrated terrorist watch list before
Exemptions; Secure Flight Records and regulations within TSA’s departure of such flights. Further, as
AGENCY: Transportation Security jurisdiction. Any small entity that has a recommended by the 9/11 Commission,
Administration, DHS. question regarding this document may TSA may access the ‘‘larger set of watch
ACTION: Final rule. contact the person listed in FOR FURTHER lists maintained by the Federal
INFORMATION CONTACT. Persons can Government.’’ 1 Therefore, as warranted
SUMMARY: Following a Notice of obtain further information regarding by security considerations, TSA may
Proposed Rulemaking (NPRM) and SBREFA on the Small Business use the full Terrorist Screening Database
public comment, this rule amends the Administration’s web page at http:// (TSDB) or other government databases,
Transportation Security Administration www.sba.gov/advo/laws/law_lib.html. such as intelligence or law enforcement
(TSA)’s regulations by exempting a new databases (referred to as ‘‘watch list
system of records from several Abbreviations and Terms Used in This
matching’’). For example, TSA may
provisions of the Privacy Act. The Document obtain intelligence that flights flying a
Secure Flight Records system (DHS/TSA DHS—Department of Homeland particular route may be subject to an
019) includes records used as part of the Security increased security risk. Under this
watch list matching program known as FBI—Federal Bureau of Investigation circumstance, TSA may decide to
Secure Flight, which implements a TSA—Transportation Security compare passenger information on some
mandate of the Intelligence Reform and Administration or all of the flights flying that route
Terrorism Prevention Act of 2004 against the full TSDB or other
Background
(IRTPA) and is consistent with TSA’s government database.
authority under the Aviation and The Privacy Act of 1974 (Privacy Act), In conjunction with the establishment
Transportation Security Act (ATSA). 5 U.S.C. 552a, governs the means by and publication of the Secure Flight
Under the Secure Flight program, TSA which the U.S. Government collects, Records system of records on August 23,
would assume the current watch list maintains, uses, and disseminates 2007, TSA initiated a proposed
matching function to the No Fly and personally identifiable information. The rulemaking (Part III, 72 FR 48397) to
Selectee Lists from aircraft operators. Privacy Act applies to information that exempt this system of records from a
TSA is exempting DHS/TSA 019 from is maintained in a ‘‘system of records.’’ number of provisions of the Privacy Act
provisions of the Privacy Act to the A ‘‘system of records’’ is a group of any because this system of records may
extent necessary to protect the integrity records under the control of an agency contain records or information
of investigatory information that may be from which information is retrieved by recompiled from, or created from,
included in the system of records. the name of the individual or by some information contained in other systems
DATES: Effective December 10, 2007. identifying number, symbol, or other of records, which are exempt from
FOR FURTHER INFORMATION CONTACT: identifying particular assigned to the certain provisions of the Privacy Act.
Peter Pietra, Director, Privacy Policy individual. See 5 U.S.C. 552a(a)(5). For these records or information only, to
and Compliance, TSA–36, An individual may request access to the extent necessary to protect the
Transportation Security Administration, records containing information about integrity of watch list matching
601 South 12th Street, Arlington, VA him or herself. 5 U.S.C. 552a(b), (d). procedures performed under the Secure
22202–4220; facsimile (571) 227–1400; However, the Privacy Act authorizes Flight Program and in accordance with
e-mail TSAPrivacy@dhs.gov; or Hugo Government agencies to exempt systems 5 U.S.C. 552a(j)(2) and (k)(2), TSA is
Teufel III (703–235–0780), Chief Privacy of records from access by individuals claiming the following exemptions for
Officer, U.S. Department of Homeland under certain circumstances, such as certain records within the Secure Flight
Security, Washington, DC 20528; e-mail where the access or disclosure of such Records system: 5 U.S.C. 552a(c)(3) and
pia@dhs.gov. information would impede national (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
SUPPLEMENTARY INFORMATION: security or law enforcement efforts. (4)(G) through (I), (5), and (8); (f), and
Exemptions from Privacy Act (g).
Availability of Rulemaking Document provisions must be established by
You can get an electronic copy using regulation. 5 U.S.C. 552a(j), (k). TSA’s Discussion of Comments
the Internet by— Privacy Act exemptions are found at 49 TSA received comments on the
(1) Searching the electronic Federal CFR part 1507. proposed rule from both the Electronic
Docket Management System (FDMS) On August 23, 2007, TSA published Frontier Foundation (EFF) and the
Web page at http://www.regulations.gov; a notice (Part III, 72 FR 48392) Electronic Privacy Information Center
(2) Accessing the Government establishing a new Privacy Act system (EPIC). Some of their comments dealt
Printing Office’s Web page at http:// of records entitled Secure Flight more generally with the Secure Flight
www.gpoaccess.gov/fr/index.html; or Records (DHS/TSA 019). The Secure Program and will be addressed in the
(3) Visiting TSA’s Security Flight Records system maintains records final rule for the Secure Flight Program.
Regulations Web page at http:// for the Secure Flight Program which
www.tsa.gov and accessing the link for carries out the requirement of section 1 ‘‘National Commission on Terrorist Attacks
‘‘Research Center’’ at the top of the page. 4012(a)(1) of IRTPA (Pub. L. 08–458, Upon the United States’’, page 393.
Federal Register / Vol. 72, No. 217 / Friday, November 9, 2007 / Rules and Regulations 63707
The remaining comments relate to the reservation or seeking access to a enforcement efforts to preserve national
exemptions claimed for the Secure secured area under the Secure Flight security. Further, to the extent that an
Flight Records system, which TSA has program. individual is denied a right, benefit, or
addressed below. Exemption (k)(1) applies to records privilege due to the maintenance of a
As a preliminary matter and an that contain information that have been record by TSA in this system, TSA will
overall response to the comments, TSA officially classified in the interest of provide access to that record to the
recognizes that although there is a need national security. EFF noted that the extent the law requires.
for the exemptions provided for in this designated security classification in the 2. Exemption from Access and
document, there may be instances Privacy Act system or records notice for Amendment Requirements. The bulk of
where such exemptions can be waived. Secure Flight Records is ‘‘[u]nclassified; both EFF and EPIC’s comments
There may be times when the Privacy Sensitive Security Information’’ and, constituted objections to TSA’s proposal
Act exemptions claimed here are not therefore, this system could not be to exempt portions of the system from
necessary to further a governmental exempt under (k)(1). TSA appreciates 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2),
interest. In appropriate circumstances, the comment, and upon re-examination (3), and (4); (e)(4)(G)–(I); and (f) which
where compliance would not appear to concludes that the system will not be all relate to an individual’s ability to
interfere with, or adversely affect, the likely to contain classified material. request access to and correction of
law enforcement and national security TSA will update its system of records records in a system of records. Both
purposes of the system and the overall notice to delete the assertion of an groups are concerned that the watch
law enforcement and security process, exemption under (k)(1). lists used by the Secure Flight Program
the applicable exemptions may be Exemption (k)(2) applies to contain errors and inaccuracies that lead
waived. investigatory material compiled for law to inconveniences and, in some cases, a
1. Applicability of Exemptions (j)(2), enforcement purposes that is not loss of liberty for individuals who are
(k)(1), and (k)(2). EFF raised a question otherwise covered by exemption (j)(2), placed on a watch list in error. EFF and
about TSA’s ability to use 5 U.S.C. provided that an individual is not EPIC do not believe that TSA has an
552a(j)(2), (k)(1), and (k)(2) as the basis denied access to a record where the adequate redress process in place, and
for exempting the system from portions agency’s maintenance of the record thus, the need for access and
of the Privacy Act. Exemption (j)(2) resulted in the individual being denied amendment under the Privacy Act is
applies where a system of records a right, privilege, or benefit to which he critical.
consists of information compiled for would otherwise be entitled. EFF alleges TSA claims these exemptions in order
purposes of a criminal investigation and that Secure Flight potentially denies to protect information relating to
the system is maintained by an agency individuals their right to travel, so the investigations from disclosure to
or component of the agency that exemption may not be invoked with subjects of investigations and others
performs as its principal function any respect to those individuals who have who could interfere with investigatory
activity pertaining to the enforcement of been denied this right and material in activities. Specifically, the exemptions
criminal laws, including efforts to the system should be provided to them. are required to: Prevent subjects of
prevent, control, or reduce crime, or As a preliminary matter, TSA does investigations from frustrating the
apprehend criminals. EFF alleges that not believe that the Secure Flight investigative process; avoid disclosure
this exemption would only apply to the program denies individuals their right of investigative techniques; protect the
Secure Flight Records system if TSA to travel. Courts have consistently held privacy of confidential sources; ensure
believes that millions of innocent that travelers do not have a TSA, DHS and other agencies ability to
citizens are ‘‘criminal offenders or Constitutional right to travel by a single obtain information from third party and
alleged offenders.’’ TSA disagrees that mode or the most convenient form of other sources; and safeguard sensitive
the Secure Flight Records system in any travel. See for example: Town of information. Allowing amendment of
way suggests that the majority of Southold v. Town of East Hampton, 477 these records could interfere with
individuals undergoing screening by the F.3d 38, 54 (2d Cir. 2007); Gilmore v. ongoing counterterrorism, law
Secure Flight program are criminals. Gonzales, 435 F.3d 1125, 1136 (9th Cir. enforcement, or intelligence
However, the Secure Flight system does 2006); Miller v. Reed, 176 F.3d 1202, investigations and analysis activities
contain records originating from the 1205 (9th Cir. 1999). The Secure Flight and impose an impossible
systems of records of other law program would only regulate one mode administrative burden by requiring
enforcement and intelligence agencies, of travel (aviation), and would not investigations, analyses, and reports to
such as records obtained from the TSC impose any restriction on other mode of be continuously reinvestigated and
of known or suspected terrorists in the travel. Therefore, a restriction on an revised. The exemptions proposed here
Terrorist Screening Database (TSDB) individual’s ability to board an aircraft are standard law enforcement and
and records of individuals identified on as a result of the Secure Flight program national security exemptions exercised
classified and unclassified would not implicate a Constitutional by Federal law enforcement and
governmental watch lists, which may be right to travel. intelligence agencies.
properly exempt from certain provisions In addition, as noted above, EFF and EPIC refer to the redress
of the Privacy Act pursuant to (j)(2). In information in this system may be process, DHS Traveler Redress Inquiry
order to ensure that agencies’ related to investigations arising out of Program (DHS TRIP), as ‘‘vague,’’
investigative or law enforcement efforts DHS or other agency programs and ‘‘discretionary,’’ ‘‘not meaningful,’’ and
are unharmed, and information relating activities, and may pertain to law ‘‘Kafkaesque.’’ These assertions are
to DHS activities are protected from enforcement or national security simply incorrect, and are not comments
disclosure to subjects of investigations, matters. In such cases, allowing access upon which TSA can meaningfully act.
TSA must use this exemption. However, to information could alert subjects of The DHS TRIP program is a robust and
TSA does not assert exemptions to any investigations of actual or potential effective mechanism for individuals
provision of the Privacy Act with criminal, civil, or regulatory violations, who believe that they have been delayed
respect to information submitted by or and could reveal, in an untimely or prohibited from boarding or denied
on behalf of individual passengers or manner, DHS’s and other agencies’ entry to the airport sterile area as the
non-travelers in the course of making a investigative interests in law result of the Secure Flight program to
seek redress and relief. With the these individuals, hair or eye color is acquire new significance as further
implementation of Secure Flight, TSA relevant, but not always necessary. In investigation reveals additional details.
believes that it will become even more addition, TSA and other agencies may The restriction imposed by (e)(5) would
effective with uniform application by not always know what information hamper the ability of those agencies’
the government, rather than relying on about an encounter with a known or trained investigators and intelligence
application by individual airlines. suspected terrorist will be relevant to analysts to exercise their judgment in
When an individual requests access to law enforcement for the purpose of conducting investigations and impede
his or her information through the conducting an operational response. the development of intelligence
redress process, the request will be Further, employing this exemption is necessary for effective law enforcement
examined on a case by case basis, and, not inconsistent with the principles of and counterterrorism efforts.
after conferring with the appropriate the Privacy Act; the drafters of the Act 5. Exemption from the Requirement of
component or agency, the agency may established exemptions to provisions Judicial Review. EFF and EPIC both
waive applicable exemptions in like (e)(1) to avoid inappropriately object to TSA’s exemption of portions of
appropriate circumstances where it limiting the ability of the Government to the Secure Flight system of records from
would not appear to interfere with or carry out certain functions such as law 5 U.S.C. 552a(g), which grants the right
adversely affect the law enforcement or enforcement. Constraining the to judicial review. According to EFF and
national security purposes of the collection of information in the Secure EPIC, the redress process offered by
systems from which the information is Flight Records system in accordance TSA and DHS is ‘‘unacceptably vague’’
recompiled or in which it is contained. with the ‘‘relevant and necessary’’ and ‘‘not meaningful’’ because it is too
Again, TSA shall not assert any requirement could discourage the ‘‘discretionary.’’ EFF states that without
exemption with respect to information appropriate collection of information the right to judicial review under the
submitted by and collected from the and impede TSA’s efforts to identify Privacy Act, it is unclear what recourse
individual or the individual’s known or suspected terrorists and keep is available to an individual who has
representative in the course of the them from threatening transportation been identified as potential match
Secure Flight Program or any redress security. through Secure Flight based on
process associated with the underlying incorrect information. TSA disagrees.
4. Exemption from Requirement of
records. The redress process is effective in
Maintaining All Records Used by the
assisting individuals who believe they
3. Exemption from Requirement to Agency in Making a Determination have been delayed or prohibited from
Collect Only Relevant and Necessary About an Individual with Accuracy, boarding or denied entry to the airport
Information. EFF and EPIC object to Relevance, Timeliness, and sterile area, as a result of the operation
TSA’s assertion of exemption authority Completeness. Section (e)(5) of the of the Secure Flight program. Each
under 5 U.S.C. 552a(e)(1) which permits Privacy Act requires agencies to separate request for redress is examined
the maintenance of information beyond maintain all records which are used by on a case by case basis, and, after
that which is ‘‘relevant and necessary’’ the agency in making any determination conferring with the appropriate agency,
to accomplish the agency’s purpose. The about any individual with such the agency may waive applicable
groups’ objection stems from their accuracy, relevance, timeliness, and exemptions in appropriate
conviction that the watch lists used by completeness as is reasonably necessary circumstances and where it would not
Secure Flight are riddled with errors to assure fairness to the individual in appear to interfere with or adversely
and inaccuracies. EFF states that the the determination. The comments affect the law enforcement or national
implementation of this exemption ‘‘will received from EFF and EPIC were security purposes of the systems from
serve only to increase the likelihood concerned that the quality of the watch which the information is recompiled or
that Secure Flight will become an error- lists used by the Secure Flight program in which it is contained. If individuals
filled, invasive repository of all sorts of are mediocre, and that inaccuracies in disagree with the agency’s final decision
information bearing no relationship to the lists coupled with exempting in the redress process, the Court of
its stated goals of expediting the pre- records from (e)(5) will lead to a loss of Appeals is the appropriate venue to
boarding process for travelers and convenience and even liberty for those contest the decision, not a suit for
improving transportation security.’’ TSA individuals who are mistakenly put on amendment of records under the
appreciates this concern and similarly a watch list. TSA is sensitive to these Privacy Act. As courts have held, even
seeks to ensure that data used in the concerns, however; because many of the for records that are not exempt from
watch list matching process is as records in this system come from other provisions of the Privacy Act, the
thorough, accurate, and current as domestic and foreign agency records Privacy Act may not be used as ‘‘a
possible. However, TSA must exempt systems, it is not possible for TSA to weapon to collaterally attack agency
portions of this system from (e)(1) ensure compliance with (e)(5). TSA is determinations.’’ Pellerin v. V.A., 790
because it is not always possible for interested in eliminating erroneous and F.2d 1553, 1555 (11th Cir. 1986). TSA’s
TSA or other agencies to know in out of date information from the watch exemption of portions of the Secure
advance what information will be list matching process. To that end, the Flight Records system from judicial
relevant or necessary for it to complete agency has implemented internal review does not impair an individual’s
an identity comparison between quality assurance procedures to ensure ability to seek redress when they believe
aviation passengers or certain non- that data used by Secure Flight is as they have been erroneously delayed or
travelers and a known or suspected complete, accurate, and current as denied boarding or entry to the airport
terrorist. For example, for one possible. In the collection of sterile area.
individual hair color might be the information for law enforcement,
distinguishing feature that allows TSA counterterrorism, and intelligence Paperwork Reduction Act
to distinguish him or her from someone purposes, it is impossible to determine The Paperwork Reduction Act of 1995
on the watch list. For other individuals, in advance what information is (PRA) (44 U.S.C. 3501 et seq.) requires
eye color, or whether they have a tattoo accurate, relevant, timely, and complete. that TSA consider the impact of
may be data needed to distinguish them With the passage of time, seemingly paperwork and other information
from someone on the watch list. For irrelevant or untimely information may collection burdens imposed on the
Federal Register / Vol. 72, No. 217 / Friday, November 9, 2007 / Rules and Regulations 63709
public and, under the provisions of PRA Regulatory Flexibility Act The Amendments
section 3507(d), obtain approval from The Regulatory Flexibility Act (RFA)
the Office of Management and Budget ■ In consideration of the foregoing, the
of 1980 requires that agencies perform a Transportation Security Administration
(OMB) for each collection of review to determine whether a proposed
information it conducts, sponsors, or amends part 1507 of Chapter XII, Title
or final rule will have a significant 49 of the Code of Federal Regulations,
requires through regulations. TSA has economic impact on a substantial
determined that there are no current or as follows:
number of small entities. If the
new information collection determination is that it will, the agency PART 1507—PRIVACY ACT-
requirements associated with this rule. must prepare a regulatory flexibility EXEMPTIONS
Regulatory Evaluation Summary analysis as described in the RFA. For
purposes of the RFA, small entities ■ 1. The authority citation for part 1507
Changes to Federal regulations must include small businesses, not-for-profit continues to read as follows:
undergo several economic analyses. organizations, and small governmental Authority: 49 U.S.C. 114(l)(1), 40113, 5
First, Executive Order 12866, Regulatory jurisdictions. Individuals and States are U.S.C. 552a(j) and (k).
Planning and Review (58 FR 51735, not included in the definition of a small ■ 2. Add a new paragraph (k) to § 1507.3
October 4, 1993), directs each Federal entity. to read as follows:
agency to propose or adopt a regulation This final rule exempts records in the
only upon a reasoned determination § 1507.3 Exemptions.
Secure Flight Records system of records
that the benefits of the intended from certain provisions of the Privacy * * * * *
regulation justify its costs. Second, the Act. TSA certifies that this rulemaking (k) Secure Flight Records. (1) Secure
Regulatory Flexibility Act of 1980 (5 will not have a significant economic Flight Records (DHS/TSA 019) enables
U.S.C. 601 et seq., as amended by the impact on a substantial number of small TSA to maintain a system of records
Small Business Regulatory Enforcement entities. Further, the exemptions to the related to watch list matching applied to
Fairness Act (SBREFA) of 1996) requires Privacy Act apply to individuals, and air passengers and to non-traveling
agencies to analyze the economic individuals are not covered entities individuals authorized to enter an
impact of regulatory changes on small under the RFA. airport sterile area. Pursuant to 5 U.S.C.
entities. Third, the Trade Agreements 552a(j)(2) and (k)(2), TSA is claiming
Act (19 U.S.C. 2531–2533) prohibits International Trade Impact Assessment the following exemptions for certain
agencies from setting standards that This rulemaking will not constitute a records within the Secure Flight
create unnecessary obstacles to the barrier to international trade. The Records system: 5 U.S.C. 552a(c)(3) and
foreign commerce of the United States. exemptions relate to criminal (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
Fourth, the Unfunded Mandates Reform investigations and agency (4)(G) through (I), (5), and (8); (f), and
Act of 1995 (2 U.S.C. 1531–1538) documentation and, therefore, do not (g).
requires agencies to prepare a written create any new costs or barriers to trade. (2) In addition to records under the
assessment of the costs, benefits, and control of TSA, the Secure Flight system
other effects of proposed or final rules Executive Order 13132, Federalism of records may include records
that include a Federal mandate likely to TSA has analyzed this final rule originating from systems of records of
result in the expenditure by State, local, under the principles and criteria of other law enforcement and intelligence
or tribal governments, in the aggregate, Executive Order 13132, Federalism. We agencies which may be exempt from
or by the private sector, of $100 million determined that this action will not certain provisions of the Privacy Act.
or more annually (adjusted for have a substantial direct effect on the However, TSA does not assert
inflation). States, or the relationship between the exemption to any provisions of the
Executive Order 12866 Assessment National Government and the States, or Privacy Act with respect to information
on the distribution of power and submitted by or on behalf of individual
In conducting these analyses, TSA has responsibilities among the various passengers or non-travelers in the
determined: levels of government, and, therefore, course of making a reservation or
1. This rulemaking is not a does not have federalism implications. seeking access to a secured area under
‘‘significant regulatory action’’ as the Secure Flight program.
Environmental Analysis (3) To the extent the Secure Flight
defined in the Executive Order.
Accordingly, this rule has not been TSA has reviewed this action for system contains records originating
reviewed by the Office of Management purposes of the National Environmental from other systems of records, TSA will
and Budget (OMB). Nevertheless, TSA Policy Act of 1969 (NEPA) (42 U.S.C. rely on the exemptions claimed for
has reviewed this rulemaking and 4321–4347) and has determined that those records in the originating system
concluded that there will not be any this action will not have a significant of records. Exemptions for certain
significant economic impact. effect on the human environment. records within the Secure Flight
2. This rulemaking would not have a Records system from particular
Energy Impact subsections of the Privacy Act are
significant impact on a substantial
number of small entities. The energy impact of the action has justified for the following reasons:
been assessed in accordance with the (i) From subsection (c)(3) (Accounting
3. This rulemaking would not for Disclosures) because giving a record
Energy Policy and Conservation Act
constitute a barrier to international subject access to the accounting of
(EPCA), Public Law 94–163, as amended
trade. disclosures from records concerning
(42 U.S.C. 6362). We have determined
4. This rulemaking does not impose that this rulemaking is not a major him or her could reveal investigative
an unfunded mandate on state, local, or
regulatory action under the provisions interest on the part of the recipient
tribal governments, or on the private of the EPCA. agency that obtained the record
sector. pursuant to a routine use. Disclosure of
These analyses, available in the List of Subjects in 49 CFR Part 1507 the accounting could therefore present a
docket, are summarized below. Privacy. serious impediment to law enforcement
efforts on the part of the recipient agencies to know in advance what is not possible for TSA to ensure their
agency because the individual who is information is both relevant and compliance with this provision,
the subject of the record would learn of necessary for it to complete an identity however, TSA has implemented internal
third agency investigative interests and comparison between aviation quality assurance procedures to ensure
could take steps to evade detection or passengers or certain non-travelers and that data used in the watch list
apprehension. Disclosure of the a known or suspected terrorist. In matching process is as thorough,
accounting also could reveal the details addition, because TSA and other accurate, and current as possible. In
of watch list matching measures under agencies may not always know what addition, in the collection of
the Secure Flight program, as well as information about an encounter with a information for law enforcement,
capabilities and vulnerabilities of the known or suspected terrorist will be counterterrorism, and intelligence
watch list matching process, the release relevant to law enforcement for the purposes, it is impossible to determine
of which could permit an individual to purpose of conducting an operational in advance what information is
evade future detection and thereby response. accurate, relevant, timely, and complete.
impede efforts to ensure transportation (v) From subsection (e)(2) because With the passage of time, seemingly
security. application of this provision could irrelevant or untimely information may
(ii) From subsection (c)(4) because present a serious impediment to acquire new significance as further
portions of this system are exempt from counterterrorism, law enforcement, or investigation brings new details to light.
the access and amendment provisions of intelligence efforts in that it would put The restrictions imposed by (e)(5)
subsection (d). the subject of an investigation, study or would limit the ability of those
(iii) From subsections (d)(1), (2), (3), analysis on notice of that fact, thereby agencies’ trained investigators and
and (4) because these provisions permitting the subject to engage in intelligence analysts to exercise their
concern individual access to and conduct designed to frustrate or impede judgment in conducting investigations
amendment of certain records contained that activity. The nature of and impede the development of
in this system, including law counterterrorism, law enforcement, or intelligence necessary for effective law
intelligence investigations is such that enforcement and counterterrorism
enforcement counterterrorism,
vital information about an individual efforts. However, TSA has implemented
investigatory and intelligence records.
frequently can be obtained only from internal quality assurance procedures to
Compliance with these provisions could
other persons who are familiar with ensure that the data used in the watch
alert the subject of an investigation of
such individual and his/her activities. list matching process is as thorough,
the fact and nature of the investigation,
In such investigations, it is not feasible accurate, and current as possible.
and/or the investigative interest of
to rely upon information furnished by
intelligence or law enforcement (ix) From subsection (e)(8) because to
the individual concerning his own
agencies; compromise sensitive require individual notice of disclosure
activities.
information related to national security; (vi) From subsection (e)(3), to the of information due to compulsory legal
interfere with the overall law extent that this subsection is interpreted process would pose an impossible
enforcement process by leading to the to require TSA to provide notice to an administrative burden on TSA and other
destruction of evidence, improper individual if TSA or another agency agencies and could alert the subjects of
influencing of witnesses, fabrication of receives or collects information about counterterrorism, law enforcement, or
testimony, and/or flight of the subject; that individual during an investigation intelligence investigations to the fact of
identify a confidential source or or from a third party. Should the those investigations when not
disclose information which would subsection be so interpreted, exemption previously known.
constitute an unwarranted invasion of from this provision is necessary to avoid (x) From subsection (f) (Agency Rules)
another’s personal privacy; reveal a impeding counterterrorism, law because portions of this system are
sensitive investigative or intelligence enforcement, or intelligence efforts by exempt from the access and amendment
technique; or constitute a potential putting the subject of an investigation, provisions of subsection (d).
danger to the health or safety of law study or analysis on notice of that fact, (xi) From subsection (g) to the extent
enforcement personnel, confidential thereby permitting the subject to engage that the system is exempt from other
informants, and witnesses. Amendment in conduct intended to frustrate or specific subsections of the Privacy Act.
of these records would interfere with impede that activity.
ongoing counterterrorism, law (vii) From subsections (e)(4)(G) and Issued in Arlington, Virginia, on November
enforcement, or intelligence 2, 2007.
(H) (Agency Requirements) and (f)
investigations and analysis activities (Agency Rules), because this system is Kip Hawley,
and impose an impossible exempt from the access provisions of 5 Assistant Secretary, Transportation Security
administrative burden by requiring U.S.C. 552a(d). Administration.
investigations, analyses, and reports to (viii) From subsection (e)(5) because John Kropf,
be continuously reinvestigated and many of the records in this system Deputy Chief Privacy Officer, Department of
revised. coming from other system of records are Homeland Security.
(iv) From subsection (e)(1) because it derived from other domestic and foreign [FR Doc. E7–21907 Filed 11–8–07; 8:45 am]
is not always possible for TSA or other agency record systems and therefore it BILLING CODE 9110–05–P

Rule: Privacy Act Implementation

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