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Federal Register / Vol. 86, No. 213 / Monday, November 8, 2021 / Rules and Regulations
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information technology systems work, what information they collect, how ICE
uses that information, any external parties with whom the information is shared, and the privacy risks and corresponding mitigations employed by ICE. ICE and all DHS PIAs are published on the DHS website, www.dhs.gov/
privacy.
The second concern raised by commenters is the perceived inability for an individual to access ICE records about him/her due to the exemptions claimed in this rule. Commenters state exemptions intended to prevent the subject of an investigation from being aware of the investigation undermine the presumption of innocence enjoyed by individuals in the United States by proposing that individuals being investigated should be denied rights . . . and that they . . . take exception to the fact that the DHS is not required to establish requirements, rules, or procedures with respect to such access.
The commenters concern is amplified as the exemptions may not just apply to individuals under investigation, but their associates and family members as well.
As recognized in the comments, DHS
is exempting this system as law enforcement sensitive to ensure that information and records produced in response to Privacy Act requests are not used to disrupt or frustrate ICE
investigations. As stated in the accompanying SORN, DHS/ICE will consider individual requests to determine whether or not information may be released. ICE will consider all Privacy Act requests, whether access or amendment requests, on a case-by-case basis. As such, ICE has established access requirements, rules, and procedures outlined in the SORN
accompanying this rule. The Privacy Act exemptions claimed here in no way alter or abrogate an individuals due process and fair trial rights guaranteed by the U.S. Constitution.
SORN
The comments filed in response to the proposed rule also raised objections regarding the DHS/ICE018 Analytical Records SORN. Two objections are outside the scope of this rulemaking and so will not be addressed here. One objection from a commenter is that the SORN does not examine ICEs relationship with a private software vendor. ICE will not respond to this objection as a final rule is not the proper forum to discuss ICE contractual relationships. Additionally, ICE will not examine U.S. Citizenship and Immigration Services USCIS
biometrics NPRM, as requested by a
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commenter, as that proposed rule has been withdrawn 86 FR 24750, May 10, 2021.
The comments ICE received on the SORN were focused on four distinct areas of concern: 1 The SORN expands ICEs existing authority and ability to collect records on individuals; 2 The SORN lacks transparency, in that the SORN did not address issues important to the commenters; 3 ICE analytical systems use artificial intelligence and machine learning, with specific concern that these analytical systems will be used for predictive policing or constant and ongoing surveillance of immigrants and citizens; and, 4 The SORNs routine uses are so overly broad that they provide no limit on permissible sharing.
The Analytical Records SORN Expands ICEs Existing Records Collection A commenter expressed concern that the Analytical Records SORN was expanding the sources from which data is gathered as well as the categories of individuals covered and records included and allows use of algorithmic processes. ICE did not intend the SORN to be understood as solely a consolidation of two previously published SORNs. Rather, as stated in the background section of the SORN, ICE is establishing a new system of records that clarifies and more accurately reflects the nature of records ICE collects, maintains, processes, and shares in large analytical data environments.
The purpose for ICEs publication of the Analytical Records SORN is to give the public notice of the types of records ICE maintains in support of analytical and algorithmic processes. Information derived from the ICE Tip Line and trade data, previously covered by the DHS/
ICE016 FALCON-Search and Analysis FALCONSA SORN and DHS/ICE005
Trade Transparency and Research TTAR SORN, respectively, are now covered under the Analytical Records SORN. Beyond those two categories of information, the Analytical Records SORN does not provide stand-alone coverage for any other ICE collection efforts. As stated in the SORN, ICE
analytical systems ingest data collected through other efforts and authorities and covered by other SORNs. Differences in the categories of individuals or records described in the DHS/ICE016
FALCONSA SORN and DHS/ICE005
TTAR SORN and those described in the Analytical Records SORN are reflective of these other ingestions.
The SORNs covering the ingested information restrict ICEs use of that information to what is compatible with
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the original purpose of the collection.
Technological advancements allow ICE
to institute protections at the record level that follow the data as it passes from the originating systems into ICE
analytical systems. As such, the initial protections and restrictions on the use and sharing of the ingested information as described in those originating SORNs are retained by ICE as a record is ingested into its analytical systems. To reiterate an example given in the SORN, data available through an ingest from ICEs Investigative Case Management System ICM would be covered by the DHS/ICE009 External Investigations SORN 85 FR 74362, November 20, 2020 and each record stored from that ingest is tagged as belonging to that system of record. An analytical system may filter, search, graph, or link that data with other datasets, but only for a purpose described in DHS/ICE009, such as generating leads for investigations. If ICE personnel wish to share an analytical product from an ICE
analysis system with a third party, the tags of the underlying data, and its accompanying restrictions, must similarly be respected. Therefore, ICE
analytical systems covered by the Analytical Records SORN do not expand ICE collections, use, or sharing of personal data.
The Analytical Records SORN Does Not Provide an Adequate Accounting of DHS Collection, Use, and Sharing of Data The commenters maintain that the Analytical Records SORN does not describe the access controls and auditing mechanisms within ICEs analytical systems in sufficient granularity. They also raise objections that the SORN does not discuss different analytical systems, such as ICEs FALCONSA system and ICEs complex network of interlocking systems including ICEs connections to DHSs Homeland Advanced Recognition Technology system HART.
The publication of the Analytical Records SORN is an effort to provide broader transparency of the ICE
analytical environment so that ICE does not continue to rely on disparate and segregated notices from previouslypublished SORNs. The Analytical Records SORN reflects the realities of cloud computing and modern technological processes, where access and control are derived from user privileges rather than the physical location of data. As stated in the SORN, ICEs analytical processes may span multiple information technology systems within the ICE domain and records may be derived from multiple
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