WPF asks US DOJ to retain Privacy Act fairness standards in new system of records

The World Privacy Forum filed a pair of comments about a US Department of Justice proposal regarding treatment of insider threat records at the FBI. Our first comments respond to a Systems of Records notice, our second comments respond to a Notice of Proposed Rulemaking on the same issue.

In our first set of comments on the System of Records Notice, we strongly objected that the DOJ did not provide a method for electronic submission of comments. Because of the short time frame for comments combined with the difficulties of sending mail to Federal agencies through the Postal Service due to security screening requirements, public commenters had little ability to properly respond to the notice. The World Privacy Forum strongly believes that this circumstance should not happen again with any Privacy Act request for public comment. We also had substantive comments on the SORN regarding definitions, and blanket routine uses that if implemented would create loopholes in oversight.

Our second set of comments to the Department of Justice is focused on the Department’s Notice of Proposed Rulemaking. This proposal on the FBI Insider Threat System seeks to add new exemptions to a Privacy Act System of Records. Our main concern in the exemption was that the Department is exempting itself from the fairness standard in the Privacy Act of 1974, a poor precedent.

A system of records for insider threats has the potential to make decisions about individuals that could have very serious consequences. As the OMB Guidelines state, there are no absolute data quality standards, and a considerable amount of judgment is essential and is already built into the statute. We suggested in our comments that the exemption be dropped entirely or recast so that it does not treat the collection of information and the use of that information to make a determination in the same manner.

We do not see a justification for claiming the right to make determinations without any standards of reasonable accuracy, relevance, timeliness and completeness and without addressing the fairness obligation. This is a serious point, particularly in light of the need for decisional integrity based upon data. We do not see these fairness provisions as interfering with the goals of the system of records or as hindering the nature of investigations.

Related Documents: