Privacy Act of 1974; Implementation, 71378-71381 [2016-24536]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Rules and Regulations]
[Pages 71378-71381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24536]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DOD-2016-OS-0059]


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule.

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SUMMARY: The Office of the Secretary of Defense is exempting records 
maintained in DUSDI 01-DoD, ``Department of Defense (DoD) Insider 
Threat Management and Analysis Center (DITMAC) and DoD Component 
Insider Threat Records System,'' from subsections (c)(3) and (4); 
(d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), (H), and (I), (5), 
and (8); and (g) of the Privacy Act.
    In addition, in the course of carrying out collections and analysis 
of information in connection with the operations of the DITMAC and DoD 
Component insider threat programs, exempt records received from other 
systems of records may become part of this system. To the extent that 
copies of exempt records from those other systems of records are 
maintained in this system, the Department also claims the same 
exemptions for the records from those other systems that are maintained 
in this system, as claimed

[[Page 71379]]

for the original primary system of which they are a part.

DATES: Effective Date: This rule is effective October 17, 2016.

FOR FURTHER INFORMATION CONTACT: Cindy Allard, Chief, of the Defense 
Privacy, Civil Liberties, and Transparency Division, 703-571-0070.

SUPPLEMENTARY INFORMATION:

Background

    The DITMAC was established by the Under Secretary of Defense for 
Intelligence in order to consolidate and analyze insider threat 
information reported by the DoD Component insider threat programs 
mandated by Presidential Executive Order 13587, issued October 7, 2011, 
which required Federal agencies to establish an insider threat 
detection and prevention program to ensure the security of classified 
networks and the responsible sharing and safeguarding of classified 
information consistent with appropriate protections for privacy and 
civil liberties. For purposes of this system of records, the term 
``insider threat'' is defined in the Minimum Standards for Executive 
Branch Insider Threat Task Force based on direction provided in Section 
6.3(b) of Executive Order 13587. The DITMAC helps prevent, deter, 
detect, and/or mitigate the potential threat that personnel, including 
DoD military personnel, civilian employees, and contractor personnel, 
who have or had been granted eligibility for access to classified 
information or eligibility to hold a sensitive position may harm the 
security of the United States. This threat can include damage to the 
United States through espionage, terrorism, unauthorized disclosure of 
national security information, or through the loss or degradation of 
departmental resources or capabilities.
    The system of records will be used to analyze, monitor, and audit 
insider threat information for insider threat detection and mitigation 
within DoD on threats that persons who have or had been granted 
eligibility for access to classified information or eligibility to hold 
sensitive positions may pose to DoD and U.S. Government installations, 
facilities, personnel, missions, or resources. The system of records 
will support the DITMAC and DoD Component insider threat programs, 
enable the identification of systemic insider threat issues and 
challenges, and provide a basis for the development and recommendation 
of solutions to deter, detect, and/or mitigate potential insider 
threats. It will assist in identifying best practices among other 
Federal Government insider threat programs, through the use of existing 
DoD resources and functions and by leveraging existing authorities, 
policies, programs, systems, and architectures.

Public Comments

    The Department of Defense published a proposed Privacy Act 
exemption rule for its Insider Threat Management and Analysis Center 
(DITMAC) and DoD Component Insider Threat Records Systems (hereafter 
Insider Threat) on May 19, 2016 (81 FR 31561). The Department of 
Defense received comments from seven submitters related to a proposed 
Federal Rulemaking (docket: DOD-2016-OS-0059, published May 19, 2016) 
relating to a Privacy Act exemption rule for the Department of Defense 
(DoD) Insider Threat Management and Analysis Center (DITMAC) and DoD 
Component Insider Threat Records System (hereafter Insider Threat). In 
addressing comments submitted to this proposed Privacy Act exemption 
rule, the Department notes that such rules do not mandate exemptions in 
every instance, and are not intended to apply to all records, but must 
be reviewed in each specific case.
    Two commenters were opposed to the proposed exemption rule but did 
not provide specific concerns; an additional commenter provided a 
number of proposals for the Insider Threat program at large, as well as 
one addressing an access concern which is addressed in the access 
discussion.
    The largest number of comments related to the proposed exemption 
from the access provisions of the Privacy Act (5 U.S.C. 552a(d)(1), 
(2), (3), and (4)). The Department notes that the specific exemptions 
upon which the access limitation is based are generally predicated on 
``the identity of a source who furnished information to the Government 
under an express promise that the identity of the source would be held 
in confidence'' found in 5 U.S.C. 552a(k)(2), (5), and (7). One of 
these commenters raised concerns that the ``largest and most common 
sources providing information to the DITMAC provide such information 
under a general promise of confidentiality.'' It is not clear to the 
Department which sources the commenter believes are providing 
information under a general promise of confidentiality, but the 
language used in exemptions (k)(2), (5), and (7) requires an ``express 
promise'' (if promised after the Act took effect). This is normally 
done on a case-by-case basis. One commenter noted that ``it is 
important to allow people as much access as possible to the data being 
collected about them, so that they can make informed decisions about 
what to do in the event of a data loss.'' In response, the Department 
anticipates providing access rights, except in those specific cases 
where an exemption rule would appropriately apply. In view of the 
earlier discussion in this paragraph, DoD anticipates exercising access 
exemption rules as the exception rather than the norm.
    Another commenter was also particularly concerned that ``it would 
become entirely possible that qualified Soldiers might unknowingly 
become flagged as non-promotable for being a possible insider threat.'' 
We note first that when exercising the (k)(7) exemption, the Department 
uses reasonable segregability to provide the maximum amount of the 
record to the subject while honoring the express promise of 
confidentiality to the source. Moreover, the Department notes that the 
Insider Threat system of records is not a source of information for the 
promotion selection process.
    Several comments also addressed the proposed exemption from the 
amendment provisions of the Privacy Act. The Insider Threat Hubs will 
aggregate information from a number of sources, the first of which is 
the subject of the record. Since the subjects of Insider Threat records 
are cleared personnel, the most appropriate place for them to address a 
factual error is with the appropriate DoD source (e.g., human resources 
offices for human resources records or the security officer for 
personnel security concerns). Insider Threat records are updated at 
scheduled intervals or upon a specified query for current information 
and validated prior to any investigative or administrative action taken 
by a DoD Component.
    One commenter noted that the collections and proposed exemptions 
asserted by the Department of Defense were overly extensive and would 
diminish accountability:

    DoD claims the authority to collect any information it wants 
without disclosing where it came from or even acknowledging its 
existence. The net result of these exemptions, coupled with DoD's 
proposal to collect and retain virtually unlimited information 
unrelated to any purpose Congress delegated to the agency, would be 
to diminish the legal accountability of the agency's information 
collection activities.

    In response, disclosure could interfere with or reveal information 
relating to actual or potential criminal, civil, or administrative 
investigations or actions. DoD further notes that it identified the 
varied sources of Insider Threat information in the System of Records 
Notice and has asserted exemptions to protect from disclosure sources

[[Page 71380]]

expressly promised confidentiality (pursuant to 5 U.S.C. 552a(k)(2), 
(5), and (7) as discussed above). Such promises apply to a relatively 
narrow scope of DoD records. If DoD were not able to provide such 
promises on a case-by-case basis, they would find it difficult, if not 
impossible, to gather candid information that is not generally known, 
precisely the type of information needed to make well-informed 
assessments of behavior (and potential behavior) to identify and 
address insider threats. As previously mentioned, exemption rules do 
not mandate the application of exemptions in every instance, are not 
intended to apply to all records, and will be applied on a case-by-case 
basis.
    The commenter claims that DoD ``contemplates collecting information 
that will not be relevant or necessary to a specific investigation'' 
and that ``the inability to determine, in advance, whether information 
is accurate, relevant, timely, and complete precludes its agents from 
complying with the obligation to ensure that the information meets 
these criteria after it is stored.'' In response, the Department notes 
that it is implementing an insider threat program required by Executive 
Order as well as by Public Law (e.g., Public Law 112-81, Title IX, 
Section 922, (10 U.S.C. 2224 note), Insider Threat Detection). The 
statutory note requires the use of anomaly detection techniques, which 
logically require ingestion of non-anomalous information in order to 
identify anomalous information. Further, the purpose of the Insider 
Threat program is to identify potential insider threat behavior; cases 
of concern are referred to the appropriate DoD or Federal investigative 
entity. DoD takes seriously its requirement under the Privacy Act to 
``balance the Government's need to maintain information about 
individuals with the rights of those individuals to be protected from 
unwarranted invasions of their privacy.''
    There were no comments related to the exemption of the access 
provisions through (k)(1), pertaining to classified information; 
(k)(4), applicable to records required by statute to be maintained and 
used solely as statistical records; or (k)(6), testing or examination 
material used solely to determine individual qualifications for 
appointment or promotion in the Federal service the disclosure of which 
would compromise the objectivity or fairness of the testing or 
examination process. The Department also asserted an access exemption 
under (j)(2), which addresses law enforcement activities, which did not 
receive comment.
    DoD made no changes to the regulatory text of the rule based on 
public comments received.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    It has been determined that this rule is not a significant rule. 
This rule does not (1) Have an annual effect on the economy of $100 
million or more or adversely affect in a material way the economy; a 
sector of the economy; productivity; competition; jobs; the 
environment; public health or safety; or State, local, or tribal 
governments or communities; (2) Create a serious inconsistency or 
otherwise interfere with an action taken or planned by another Agency; 
(3) Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs, or the rights and obligations of recipients 
thereof; or (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
these Executive orders.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    It has been certified that this rule does not have a significant 
economic impact on a substantial number of small entities because it is 
concerned only with the administration of Privacy Act systems of 
records within DoD. A Regulatory Flexibility Analysis is not required.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that this rule does not impose additional 
information collection requirements on the public under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that this rule does not involve a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more and that it will not significantly or uniquely affect 
small governments.

Executive Order 13132, ``Federalism''

    It has been determined that this rule does not have federalism 
implications. This rule does not have substantial direct effects 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.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, 32 CFR part 310 is amended as follows:

PART 310 [AMENDED]

0
1. The authority citation for 32 CFR part 310 continues to read as 
follows:

    Authority:  5 U.S.C. 552a.


Sec. Sec.  310.30   through 310.53 [Redesignated as Sec. Sec.  310.31 
through 310.54]

0
2. Redesignate Sec.  310.30 through Sec.  310.53 as Sec.  310.31 
through Sec.  310.54.

0
3. In Subpart F, add a new Sec.  310.30 to read as follows:


Sec.  310.30   DoD-wide exemptions.

    (a) Use of DoD-wide exemptions. DoD-wide exemptions for DOD-wide 
systems of records are established pursuant to 5 U.S.C. 552a(j) and (k) 
of the Privacy Act.
    (b) Promises of confidentiality. (1) Only the identity of sources 
that have been given an express promise of confidentiality may be 
protected from disclosure under paragraphs (d)(3)(i), (ii), and (iii) 
and (d)(4) of this section. However, the identity of sources who were 
given implied promises of confidentiality in inquiries conducted before 
September 27, 1975, also may be protected from disclosure.
    (2) Ensure promises of confidentiality are not automatically given 
but are used sparingly. Establish appropriate procedures and identify 
fully categories of individuals who may make such promises. Promises of 
confidentiality shall be made only when they are essential to obtain 
the information sought (see 5 CFR part 736).
    (c) Access to records for which DOD-wide exemptions are claimed. 
Deny the individual access only to those portions of the records for 
which the claimed exemption applies.
    (d) DoD-wide exemptions. The following exemptions are applicable to 
all components of the Department of Defense for the following system(s) 
of records:
    (1) System identifier and name: DUSDI 01-DoD ``Department of 
Defense (DoD) Insider Threat Management and Analysis Center (DITMAC) 
and DoD Component Insider Threat Records System.''
    Exemption: This system of records is exempted from subsections 
(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (4)(G)(H) 
and (I), (5) and (8); and (g) of the Privacy Act pursuant to 5 U.S.C. 
552a(j)(2) and (k)(1), (2), (4), (5), (6), and (7).
    (2) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to

[[Page 71381]]

the extent that such provisions have been identified and an exemption 
claimed for the record and the purposes underlying the exemption for 
the record pertain to the record.
    (3) Exemption from the particular subsections is justified for the 
following reasons:
    (i) Subsection (c)(3). To provide the subject with an accounting of 
disclosures of records in this system could inform that individual of 
the existence, nature, or scope of an actual or potential law 
enforcement or counterintelligence investigation, and thereby seriously 
impede law enforcement or counterintelligence efforts by permitting the 
record subject and other persons to whom he might disclose the records 
to avoid criminal penalties, civil remedies, or counterintelligence 
measures. Access to the accounting of disclosures could also interfere 
with a civil or administrative action or investigation which may impede 
those actions or investigations. Access also could reveal the identity 
of confidential sources incident to Federal employment, military 
service, contract, and security clearance determinations.
    (ii) Subsection (c)(4). This subsection is inapplicable to the 
extent that an exemption is being claimed for subsection (d).
    (iii) Subsection (d)(1). Disclosure of records in the system could 
reveal the identity of confidential sources and result in an 
unwarranted invasion of the privacy of others. Disclosure may also 
reveal information relating to actual or potential criminal 
investigations. Disclosure of classified national security information 
would cause damage to the national security of the United States. 
Disclosure could also interfere with a civil or administrative action 
or investigation; reveal the identity of confidential sources incident 
to Federal employment, military service, contract, and security 
clearance determinations; and reveal the confidentiality and integrity 
of Federal testing materials and evaluation materials used for military 
promotions when furnished by a confidential source.
    (iv) Subsection (d)(2). Amendment of the records could interfere 
with ongoing criminal or civil law enforcement proceedings and impose 
an impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (v) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (vi) Subsection (e)(1). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement and counterintelligence, it is necessary to retain this 
information to aid in establishing patterns of activity and provide 
investigative leads.
    (vii) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations.
    (viii) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts.
    (ix) Subsection (e)(4)(G), (H), and (I). These subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (x) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to aid in 
establishing patterns of activity and provide investigative leads.
    (xi) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts.
    (xii) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the 
Privacy Act.
    (4) In addition, in the course of carrying out analysis for insider 
threats, exempt records from other systems of records may in turn 
become part of the case records maintained in this system. To the 
extent that copies of exempt records from those other systems of 
records are maintained into this system, the DoD claims the same 
exemptions for the records from those other systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.

    Dated: October 5, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-24536 Filed 10-14-16; 8:45 am]
 BILLING CODE 5001-06-P