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Privacy Impact Assessment Update

CBP, APIS PIA Update

Page 4

In March 2012, the Attorney General of the United States approved Guidelines for

Access, Retention, Use and Dissemination by the National Counterterrorism Center and other

Agencies of Information in Datasets Containing Non-Terrorism Information (AG Guidelines).

These Guidelines establish an outside limit of five years for NCTC’s temporary retention of U.S.

Person information obtained from the datasets

of other federal departments and agencies. The

purpose of this temporary retention period is to allow NCTC sufficient time to determine

whether the U.S. Person information it receives from other federal departments and agencies is

terrorism information.

The AG Guidelines allow NCTC to retain all information in the datasets

whereby the information may be “continually

it receives for the full temporary retention period,

assessed” against new intelligence to identify previously unknown links to terrorism.

NCTC

may only retain U.S. Person information within such datasets beyond the temporary retention

period if the information is “reasonably believed to constitute terrorism information.”

In light

of the new AG Guidelines, NCTC requested that DHS re-evaluate its information sharing and

access agreements with NCTC, including the 2011 MOU to share APIS information.

The AG Guidelines preserve the Department’s authority to negotiate with NCTC the

terms and conditions of information sharing and access agreements relating to, among other

things, “privacy or civil rights or civil liberties concerns and protections.”

One such protection

is the amount of time NCTC may retain DHS records that do not constitute terrorism

information. With this in mind, DHS developed a Data Retention Framework of Factors to

See NCTC’s AG Guidelines, available at Guidelines.pdf.

In the context of DHS’s information sharing relationship with NCTC, a “dataset” refers to a collection of

information about a set of individuals that DHS has gathered during its routine interactions (e.g., screening travelers,

reviewing immigration benefit applications, issuing immigration benefits) with the public. Consequently, DHS

datasets contain information about individuals who have no connection to terrorism. A dataset may constitute all the

records in a Privacy Act System of Records, or a portion of the records therein.

NCTC’s AG Guidelines use the statutory definition of “terrorism information” in Section 1016 of the Intelligence

Reform and Terrorism Prevention Act of 2004, which states “the term ‘terrorism information’—(A) means all

information, whether collected, produced, or distributed by intelligence, law enforcement, military, homeland

security, or other activities relating to: (i) the existence, organization, capabilities, plans, intentions, vulnerabilities,

means of finance or material support, or activities of foreign or international terrorist groups or individuals, or of

domestic groups or individuals involved in transnational terrorism; (ii) threats posed by such groups or individuals

to the United States, United States persons, or United States interests, or to those of other nations; (iii)

communications of or by such groups or individuals; or (iv) groups or individuals reasonably believed to be assisting

or associated with such groups or individuals; and (B) includes weapons of mass destruction information.” 6 U.S.C.

§ 485(a)(5).

As noted later in the PIA, the Guidelines allow departments and agencies to negotiate the terms and conditions of

information sharing and access agreements. Through these negotiations, departments and agencies may establish

temporary retentions period that are less than the five year outside limit established by the AG Guidelines. DHS’s

agreement with NCTC for APIS information establishes a temporary retention period of one year for reasons

explained later in the PIA.

See NCTC’s AG Guidelines, available at Guidelines.pdf.

Privacy Impact Assessment Update For The Advance Passenger Information System (Apis) - U.s. Department Of Homeland Security - 2013 Page 4

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