2021-24316. Privacy Act of 1974; Implementation

AGENCY:

Justice Management Division, United States Department of Justice.

ACTION:

Final rule.

SUMMARY:

The United States Department of Justice (DOJ or Department) is finalizing without changes its Privacy Act exemption regulations for the system of records titled, Security Monitoring and Analytics Service Records, JUSTICE/JMD-026, which were published as a notice of proposed rulemaking (NPRM) on July 30, 3021. Specifically, the Department's regulations will exempt the records maintained in JUSTICE/JMD-026 from one or more provisions of the Privacy Act. The exemptions are necessary to avoid interference with efforts to prevent the unauthorized access, use, disclosure, disruption, modification, or destruction of information, information systems, and networks of DOJ and external Federal agency subscribers. The Department received two comments on the NPRM, neither of which impact the Department's decision to proceed with issuing this final rule.

DATES:

This final rule is effective December 8, 2021.

FOR FURTHER INFORMATION CONTACT:

Nickolous Ward, DOJ Chief Information Security Officer, [phone], 145 N Street NE, Washington, DC 20530.

SUPPLEMENTARY INFORMATION:

In accordance with the Federal Information Security Modernization Act of 2014, among other authorities, agencies are responsible for complying with information security policies and procedures requiring information security protections commensurate with the risk and magnitude of harm resulting from the unauthorized access, use, disclosure, disruption, modification, or destruction of DOJ information and information systems. See, e.g., 44 U.S.C. 3554 (2018). Executive Order 13800, Strengthening the Cybersecurity of Federal Networks and Critical Infrastructure (May 2017), directs agency heads to show preference in their procurement for shared information technology (IT) services, to the extent permitted by law, including email, cloud, and cybersecurity services. Office of Management and Budget (OMB) Memorandum M-19-16, Centralized Mission Support Capabilities for the Federal Government (April 26, 2019), establishes the framework for implementing the “Sharing Quality Services” across agencies. The Economy Act of 1932, as amended, 31 U.S.C. 1535, authorizes agencies to enter into agreements to obtain supplies or services from another agency. Consistent with these authorities, the Justice Management Division (JMD), Office of the Chief Information Officer (OCIO), Cybersecurity Services Staff (CSS), developed the Security Monitoring and Analytics Service (SMAS) system to provide DOJ-managed information technology service offerings to other Federal agencies wishing to leverage DOJ's cybersecurity services, referred to as “external federal agency subscribers.” This system provides external Federal agency subscribers with the technical capability to protect their data from malicious or accidental threats using a DOJ-managed system. In the Federal Register of July 30, 2021 (86 FR 41089), JMD published a notice of a new system of records titled, “Security Monitoring and Analytics Service Records,” JUSTICE/JMD-026, to provide the public notice of the records maintained by DOJ while implementing SMAS.

In this rulemaking, the Department exempts JUSTICE/JMD-026 from certain provisions of the Privacy Act in order to avoid interference with the responsibilities of the Department to prevent the unauthorized access, use, disclosure, disruption, modification, or destruction of external Federal agency subscribers' information and information systems. Additionally, the Department exempts JUSTICE/JMD-026 from certain provisions to assist DOJ and external Federal agency subscribers with protecting such data and ensuring the secure operation of information systems.

The Department received two anonymous comments during the notice-and-comment period. One comment expressed general support for the Department's work to address cybersecurity threats to the government through the implementation of JUSTICE/JMD-026. The second comment broadly questioned whether the proposed exemption would impact in any way the public's ability to access information maintained in the system of records or otherwise reduce the level of transparency required to maintain the public's trust in the Department. As noted in the rule, any restrictions on individual access are based on an articulated need to protect sensitive or law enforcement information. The Privacy Act was drafted to allow agencies to appropriately restrict the public's access to records maintained in a system of records when doing so could potentially reveal sensitive or law enforcement information. When working to ensure cybersecurity, the Department must balance the needs of ensuring transparency and public access with a duty to protect sensitive or law enforcement information that may reveal sources and methods or otherwise compromise law enforcement equities. Accordingly, the Department is proceeding with issuing this final rule without change.

In reviewing the proposed rule (86 FR 40972, July 30, 2021) for publication, the Department identified a minor typographical error in the name and number of the identified system of records proposed to be exempted. Additionally, the proposed rule indicated in one place an exemption from subsection (d), and in another place an exemption from subsections (d)(1)-(4). In an effort to reduce potential confusion, the language in the final rule has been modified to consistently identify the system of records as being exempted from subsections (d)(1)-(4). Further, corrections have been inserted in the final rule in multiple places where the proposed rule had used the term “system,” although “system of records” was clearly intended. Finally, the proposed rule stated that, in determining the relevance and utility of certain exempted information, it would be vetted and matched with other information necessarily and lawfully maintained by the DOJ, external Federal agency subscribers, or other entities. Such information need only be maintained lawfully by the DOJ, external Federal agency subscribers, or other entities for use in the vetting and matching described. The Department has determined that these changes do not significantly alter the efficacy of the notice that was provided to the public. The Department has made the adjustments in the final rule, which is published herein.

Executive Orders 12866 and 13563-Regulatory Review

In accordance with 5 U.S.C. 552a(j) and 552a(k), this regulation is subject to formal rulemaking procedures by giving interested persons an opportunity to participate in the rulemaking process “through submission of written data, views, or arguments,” pursuant to 5 U.S.C. 553. This regulation will promulgate certain Privacy Act exemptions for a DOJ system of records titled, “Security Monitoring and Analytics Service Records,” JUSTICE/JMD-026. This regulation does not raise novel legal or policy issues, nor does it adversely affect the economy, the budgetary impact of entitlements, grants, user fees, loan programs, or the rights and obligations of recipients thereof in a material way. The Department of Justice has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), and accordingly this rule has not been reviewed by the Office of Information and Regulatory Affairs within the Office of Management and Budget pursuant to Executive Order 12866.

Regulatory Flexibility Act

This regulation will only impact Privacy Act-protected records, which are personal and generally do not apply to an individual's entrepreneurial capacity, subject to limited exceptions. Accordingly, the Chief Privacy and Civil Liberties Officer, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act of 1996 (Subtitle E—Congressional Review Act)

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, 5 U.S.C. 801 et seq., requires the Department to comply with small entity requests for information and advice about compliance with statutes and regulations within the Department's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT section, above. Persons can obtain further information regarding SBREFA on the Small Business Administration's web page at https://www.sba.gov/​advocacy. This regulation is not a major rule as defined by 5 U.S.C. 804 of the Congressional Review Act.

Executive Order 13132—Federalism

This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

Executive Order 12988—Civil Justice Reform

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

Executive Order 13175—Consultation and Coordination With Indian Tribal Governments

This regulation will have no implications for Indian Tribal governments. More specifically, it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Therefore, the consultation requirements of Executive Order 13175 do not apply.

Unfunded Mandates Reform Act of 1995

This regulation will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000, as adjusted for inflation, or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

This rule is not a major rule as defined by 5 U.S.C. 804 of the Congressional Review Act.

Paperwork Reduction Act

This rule imposes no information collection or recordkeeping requirements.

List of Subjects in 28 CFR Part 16

• Administrative practices and procedures
• Courts
• Freedom of information
• Privacy

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, the Department of Justice amends 28 CFR part 16 as follows:

PART 16—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION

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

Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717.

Subpart E—Exemption of Records Systems Under the Privacy Act

2. Amend § 16.76 by adding paragraphs (e) and (f) to read as follows:

§ 16.76

Exemption of Justice Management Division.

* * * * *

(e) The following system of records is exempted from 5 U.S.C. 552a(c)(3); (d)(1)-(4); (e)(1), (e)(4)(G), (H), and (I); and (f): Department of Justice Security Monitoring and Analytics Service Records (JUSTICE/JMD-026). The exemptions in this paragraph (e) apply only to the extent that information in this system of records is subject to exemption pursuant to 5 U.S.C. 552a(k)(2). Where DOJ determines compliance would not appear to interfere with or adversely affect the purpose of this system of records to ensure that the Department can track information system access and implement information security protections commensurate with the risk and magnitude of harm that could result from the unauthorized access, use, disclosure, disruption, modification, or destruction of DOJ information and information systems, the applicable exemption may be waived by the DOJ in its sole discretion.

(f) Exemptions from the particular subsections listed in paragraph (e) of this section are justified for the following reasons:

(1) From subsection (c)(3), the requirement that an accounting be made available to the named subject of a record, because this system of records is exempt from the access provisions of subsection (d). Also, because making available to a record subject the accounting of disclosures of records concerning the subject would specifically reveal investigative interests in the records by the DOJ, external Federal agency subscribers, or other entities that are recipients of the disclosures. Revealing this information could compromise sensitive information or interfere with the overall law enforcement process by revealing a pending sensitive cybersecurity investigation. Revealing this information could also permit the record subject to obtain valuable insight concerning the information obtained during any investigation and to take measures to impede the investigation, e.g., destroy evidence or alter techniques to evade discovery.

(2) From subsection (d)(1), (2), (3) and (4), (e)(4)(G) and (H), and (f) because these provisions concern individual access to and amendment of certain law enforcement and sensitive records, compliance of which could alert the subject of an authorized law enforcement activity about that particular activity and the interest of the DOJ, external Federal agency subscribers, and/or other entities that are recipients of the disclosure. Providing access could compromise sensitive information or reveal sensitive cybersecurity investigative techniques; provide information that would allow a subject to avoid detection; or constitute a potential danger to the health or safety of law enforcement personnel or confidential sources.

(3) From subsection (e)(1) because it is not always possible to know in advance what information is relevant and necessary for law enforcement purposes. The relevance and utility of certain information that may have a nexus to cybersecurity threats may not always be fully evident until and unless it is vetted and matched with other information lawfully maintained by the DOJ, external Federal agency subscribers, or other entities.

(4) From subsection (e)(4)(I), to the extent that this subsection is interpreted to require more detail regarding the record sources in this system of records than has been published in the Federal Register . Should the subsection be so interpreted, exemption from this provision is necessary to protect the sources of law enforcement information.

Dated: October 26, 2021.

Peter A. Winn,

Acting Chief Privacy and Civil Liberties Officer, United States Department of Justice.