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Privacy Act of 1974; System of Records

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National Security Division, Department of Justice.


New System of Records.


Pursuant to the provisions of the Privacy Act of 1974, 5 U.S.C. 552a, notice is given that the Department of Justice (DOJ) proposes to establish a Start Printed Page 26154new National Security Division (NSD) system of records entitled “Foreign Intelligence and Counterintelligence Records System, JUSTICE/NSD-001.” The new system of records incorporates three previous systems of records of the Office of Intelligence Policy and Review (OIPR): The “Policy and Operational Records System, OIPR-001” last published in the Federal Register January 26, 1984 (49 FR 3281); “Foreign Intelligence Surveillance Act Records System, OIPR-002” last published in the Federal Register January 26, 1984 (49 FR 3282); and “Litigation Records System, OIPR-003” last published in the Federal Register January 26, 1984 (49 FR 3284). These systems will be deleted on the effective date of the new system, NSD-001.


In accordance with the requirements of 5 U.S.C. 552a(e)(4) and (11), the public is given a 30 day period in which to comment. The Office of Management and Budget (OMB), which has oversight responsibility under the Privacy Act, has 40 days in which to conclude its review of the system. Therefore, please submit any comments by June 18, 2007.


The public, OMB and the Congress are invited to submit any comments to Mary E. Cahill, Management and Planning Staff, Justice Management Division, Department of Justice, Washington, DC 20530 (Room 1400, National Place Building), facsimile number 202-307-1853.

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GayLa Sessoms (202) 616-5460.

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The National Security Division (NSD) was created by section 506 of the USA PATRIOT Improvement and Reauthorization Act of 2005 (“the Act”), by consolidating the resources of the Justice Department's three primary national security components: The Office of Intelligence Policy and Review (OIPR) and the Criminal Division's Counterterrorism and Counterespionage Sections. On March 7, 2007, the NSD published in the Federal Register, at 72 FR 10064, a final rule to amend title 28 of the Code of Federal Regulations (CFR) to reflect the establishment of the NSD and its mission and functions. The rule also made necessary amendments to the CFR to effect the changes necessary in the functions of the former Office of Intelligence and Policy Review and functions of the Criminal Division that are transferring to NSD.

In accordance with 5 U.S.C. 552a(r), the Department has provided a report to OMB and the Congress.

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Dated: April 27, 2007.

Lee J. Lofthus,

Assistant Attorney General for Administration.

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System Name:

Foreign Intelligence and Counterintelligence Records System.

Security Classification:

The majority of information in this system of records is classified. The remaining information is Sensitive But Unclassified.

System Location:

United States Department of Justice, 950 Pennsylvania Ave., NW., Washington, DC 20530-0001.

Categories of Individuals Covered by the System:

Individuals who are the subject of applications for electronic surveillance, physical search, and other foreign intelligence and foreign counterintelligence investigations authorized by the Foreign Intelligence Surveillance Court (FISC) pursuant to the Foreign Intelligence Surveillance Act of 1978, as amended, 50 U.S.C. 1801 et seq. (FISA), Executive Order 12333, and other applicable executive orders governing foreign intelligence; individuals about whom information was obtained by a foreign intelligence electronic surveillance or other search where issues pertaining to the surveillance or search were raised in subsequent litigation; individuals whose activities are the subject of a properly authorized foreign intelligence, foreign counterintelligence, or international terrorism investigation, or investigative techniques not requiring approval from the FISC or whose activities form the crux of a foreign intelligence or counterintelligence policy or operational question; individuals who are not the subjects or proposed subjects of particular investigations or investigative techniques, but who are identified in connection with the authorities for such investigations or techniques, because of their communications or associations with such subjects or their involvement in related activities of foreign intelligence or counterintelligence (including counterterrorism) interest; and NSD attorneys.

Categories of Records in the System:

The system consists of FISA applications, authorizations for foreign intelligence and foreign counterintelligence operations, supporting documentation, and FISC orders or Attorney General certifications, as appropriate. This includes notes, memoranda, legal opinions, and reports acquired or produced by the National Security Division (NSD) in the course of executing its assigned functions of preparing FISA applications. Included in this system are recommendations to the Attorney General concerning Attorney General authorizations for physical searches, pursuant to Executive Order (E.O.) 12333, and electronic surveillances abroad of United States persons that are requested by entities within the Intelligence Community pursuant to FISA and other applicable executive orders governing foreign intelligence. This system also includes documents related to authority to conduct particular investigations or to use certain techniques in particular investigations. Included in this system are legal opinions regarding questions of law and policy that relate to United States intelligence activities, and supporting documentation prepared in connection with litigation.

Authority for Maintenance of the System:

This system was established and is maintained pursuant to 44 U.S.C. 3101, 3103, 3105 and 28 CFR 0.72, to implement the provisions of 50 U.S.C. 1801 et seq. as amended and the applicable executive order(s) governing foreign intelligence surveillance and classified national security information.

Purpose of the System:

This system is maintained to enable NSD staff to prepare applications under FISA; maintain an accurate record of applications filed by the United States before the FISC; participate in the review, development, implementation and oversight of United States intelligence, counterintelligence, and national security policy matters; provide legal advice to the Attorney General and the United States intelligence agencies regarding questions of law and policy that relate to United States intelligence activities; support litigation issues pertaining to foreign intelligence collections; and, analyze, interpret, and comment upon proposed statutes, executive orders, guidelines and other directives pertaining to foreign intelligence, counterintelligence, and national security activities.

Routine Uses of Records Maintained in the System, Including Categories of Users and the Purposes of Such Uses:

These records are routinely used by NSD staff in performing the duties ascribed to the NSD. Information may be disclosed from this system consistent Start Printed Page 26155with restrictions that apply to classified information, and consistent with the FISA, as follows:

A. To any court, department, officer, agency, regulatory body or other authority of the United States, a state or a political subdivision thereof, or to any aggrieved person or representative of an aggrieved person, during the course of a trial, hearing, or other proceeding.

B. In an appropriate proceeding before a court, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.

C. To the Administrative Office of the United States Courts and to Congress.

D. To agencies or entities in the intelligence community that have submitted a policy or operational question to the NSD when the information is necessary in the course of providing legal advice in response to the question.

E. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal Government, when necessary to accomplish an agency function related to this system of records.

F. To the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined that release of the information in the context of a particular case would constitute an unwarranted invasion of personal privacy.

G. To the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.

H. To a former employee of the Department for purposes of: Responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.

I. To such recipients and under such circumstances and procedures as are mandated by federal statute or treaty.

J. To appropriate agencies, entities, and persons when (1) the Department suspects or has confirmed that the security or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Department or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.

Disclosure to Consumer Reporting Agencies:


Policies and Practices for Storing, Retrieving, Accessing, Retaining, and Disposing of Records in the System:


Records in this system are stored on paper, and/or in electronic form. Records that contain classified national security information are stored in accordance with applicable executive orders, statutes, and agency implementing regulations.


Information is retrieved by the name of the actual or proposed target of the electronic surveillance or physical search, and persons in contact with the target. Information may also be retrieved by the caption of the litigation, including the names of individuals, and through the use of a subject matter index that includes the names of individuals. Information may also be retrieved by name of the NSD attorney assigned.


Information in this system is safeguarded in accordance with applicable laws, rules, and policies, including the Department's automated systems security and access policies. Classified information is appropriately stored in safes and in accordance with other applicable requirements. Records and technical equipment are maintained in a secured area with restricted access. The required use of password protection identification features and other system protection methods also restrict access.

Retention and Disposal:

Records in this system are maintained and disposed of in accordance with all applicable statutory and regulatory requirements.

System Manager and Address:

Deputy Counsel for Intelligence Policy, Office of Intelligence Policy & Review, National Security Division, U.S. Department of Justice, 950 Pennsylvania Avenue, NW., Washington, DC 20530-0001.

Notification Procedures:

Address any inquiries to the System Manager listed above.

Record Access Procedures:

A major part of this system is exempted from this requirement under subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), (H) and (I), (5) and (8); (f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (2), and (5). A determination as to exemption shall be made at the time a request for access is received. A request for access to records contained in this system shall be made in writing, with the envelope and letter clearly marked “Privacy Act Request.” The request should include the full name of the individual involved, the individual's current address, date and place of birth, and his or her signature which shall be notarized or made pursuant to 28 U.S.C. 1746 as an unsworn declaration, along with any other information which may be of assistance in locating and identifying the record. The requester will also provide a return address for transmitting the information. Access requests will be directed to the System Manager listed above.

Contesting Record Procedures:

Individuals seeking to contest or amend information maintained in the system should direct their request to the System Manager listed above, stating clearly and concisely what information is being contested, the reasons for contesting it, and the proposed amendment to the information.

Record Source Categories:

Sources of information contained in this system include applications to the FISC and supporting documents that include investigative reports from federal law enforcement and intelligence agencies and other executive branch departments, and agencies conducting foreign counterintelligence and terrorism investigations that are client agencies of the Department of Justice. Occasional information from state, local or foreign governments, copies of criminal, civil and appellate court documents and related material, and the work product of Department of Justice and federal Start Printed Page 26156agency attorneys may also be included within this system.

Exemptions Claimed for the System:

The Attorney General has exempted this system from subsections (c)(3) and (4); (d); (e)(1), (2), (3), (4)(G), (H) and (I), (5) and (8); (f); (g); and (h) of the Privacy Act pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (2), and (5). Rules have been promulgated in accordance with the requirements of 5 U.S.C. 553(b), (c) and (e) and have been published in the Federal Register. These exemptions apply only to the extent that information in the system is subject to exemption pursuant to 5 U.S.C. 552a(j)(2), (k)(1), (2) or (5). A determination as to exemption shall be made at the time a request for access or amendment is received.

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[FR Doc. E7-8763 Filed 5-7-07; 8:45 am]