=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF JUSTICE
28 CFR Part 23
[OJP (BJA)-1177]
RIN 1121-ZB14
Criminal Intelligence Sharing Systems; Policy Clarification
AGENCY: Bureau of Justice Assistance (BJA), Office of Justice Programs
(OJP), Justice.
ACTION: Proposed clarification of policy.
-----------------------------------------------------------------------
SUMMARY: The current policy governing the entry of identifying
information into criminal intelligence sharing systems requires
clarification. This policy clarification is to make clear that the
entry of individuals, entities and organizations, and locations that do
not otherwise meet the requirements of reasonable suspicion is
appropriate when it is done solely for the purposes of criminal
identification or is germane to the criminal subject's criminal
activity. Further, the definition of ``criminal intelligence system''
is clarified. While this clarification is not a rulemaking for the
purposes of the Administrative Procedure Act, 5 U.S.C. 553, BJA is of
the opinion that this clarification is significant enough to warrant
public comment.
DATES: Public comment is due by September 18, 1998. Comments may be
faxed to (202) 307-1419, e-mailed to ``fisheral@ojp.usdoj.gov,'' or
mailed to the Office of the General Counsel, 810 7th Street NW,
Washington, DC, 20531.
FOR FURTHER INFORMATION CONTACT: Paul Kendall, General Counsel, Office
of Justice Programs, 810 7th Street NW, Washington, DC 20531, (202)
307-6235.
SUPPLEMENTARY INFORMATION: The operation of criminal intelligence
information systems is governed by 28 CFR Part 23. This regulation was
written to both protect the privacy rights of individuals and to
encourage and expedite the exchange of criminal intelligence
information between and among law enforcement agencies of different
jurisdictions. Frequent interpretations of the regulation, in the form
of policy guidance and correspondence, have been the primary method of
ensuring that advances in technology did not hamper its effectiveness.
Use of Identifying Information
28 CFR 23.3(b)(3) states that criminal intelligence information
that can be put into a criminal intelligence sharing system is
``information relevant to the identification of and the criminal
activity engaged in by an individual who or organization which is
reasonably suspected of involvement in criminal activity, and * * *
[m]eets criminal intelligence system submission criteria.'' Further, 28
CFR 23.20(a) states that a system shall only collect information on an
individual if ``there is reasonable suspicion that the individual is
involved in criminal conduct or activity and the information is
relevant to that criminal conduct or activity.'' 28 CFR 23.20(b)
extends that limitation to collecting information on groups and
corporate entities.
In an effort to protect individuals and organizations from the
possible taint of having their names in intelligence systems (as
defined at 28 CFR § 23.3(b)(1)), the Office of Justice Programs has
previously interpreted this section to allow information to be placed
in a system only if that information independently meets the
requirements of the regulation. Information that might be vital to
identifying potential criminals, such as favored locations and
companions, or names of family members, has been excluded from the
systems. This policy has hampered the effectiveness of many criminal
intelligence sharing systems.
Given the swiftly changing nature of modern technology and the
expansion of the size and complexity of criminal organizations, the
Bureau of Justice Assistance (BJA) has determined that it is necessary
to clarify this element of 28 CFR Part 23. Many criminal intelligence
databases are now employing ``Comment'' or ``Modus Operandi'' fields
whose value would be greatly enhanced by the ability to store more
detailed and wide-ranging identifying information. This may include
names and limited data about people and organizations that are not
suspected of any criminal activity or involvement, but merely aid in
the identification and investigation of a criminal suspect who
independently satisfies the reasonable suspicion standard.
Therefore, BJA issues the following clarification to the rules
applying to the use of identifying information. Information that is
relevant to the identification of a criminal suspect or to the criminal
activity in which the suspect is engaged may be placed in a criminal
intelligence database, provided that (1) appropriate disclaimers
accompany the information noting that is strictly identifying
information, carrying no criminal connotations; (2) the identifying
information may not be used as an independent basis to target a subject
for investigation or to establish reasonable suspicion of involvement
in criminal activity; and (3) the individual who is the criminal
suspect identified by this information otherwise meets all requirements
of 28 CFR Part 23. This information may be a searchable field in the
intelligence system.
For example: A person reasonably suspected of being a drug dealer
is known to conduct his criminal activities at the fictional
``Northwest Market.'' An agency may wish to note this information in a
criminal intelligence database, as it may be important to future
identification of the suspect. Under the previous interpretation of the
regulation, the entry of ``Northwest Market'' would not be permitted,
because there was no reasonable suspicion that the ``Northwest Market''
was a criminal organization. Given the current clarification of the
regulation, this will be permissible, provided that the information
regarding the ``Northwest Market'' was clearly noted to be non-criminal
in nature. For example, the data field that ``Northwest Market'' was
entered in could be marked ``Non-Criminal Identifying Information,'' or
the words ``Northwest Market'' could be followed by a parenthetical
comment such as ``This organization has been entered into the system
for identification purposes only--it is not suspected of any criminal
activity or involvement.'' ``Northwest Market'' could not become the
target of an investigation solely on the basis of the information
provided in the comment field on the suspected drug dealer. Independent
information would have to be obtained as a basis for the opening of an
investigative file or the submission of intelligence information, based
on reasonable suspicion, on ``Northwest Market.'' Further, the fact
that other individuals frequent ``Northwest Market'' would not provide
a reasonable suspicion determination for those other individuals.
The Definition of a ``Criminal Intelligence System''
The definition of a ``criminal intelligence system'' is given in 28
CFR 23.3(b)(1) as the ``arrangements, equipment, facilities, and
procedures used for the receipt, storage, interagency exchange or
dissemination, and analysis of criminal intelligence information . . .
.'' Given the fact that cross-database searching techniques are now
common-place, and given the fact that multiple databases may be
contained on the same computer system, BJA has determined that this
definition needs clarification, specifically to differentiate between
criminal intelligence systems and non-intelligence systems.
The comments to the 1993 revision of 28 CFR Part 23 noted that
``[t]he term `intelligence system' is redefined to clarify the fact
that historical telephone toll files, analytical information, and work
products that are not either retained, stored, or exchanged and
criminal history record information or identification (fingerprint)
systems are excluded from the definition, and hence are not covered by
the regulation * * *.'' 58 FR 48448-48449 (Sept. 16, 1993.) The
comments further noted that materials that ``may assist an agency to
produce investigative or other information for an intelligence system *
* *'' do not necessarily fall under the regulation. Id.
The above rationale for the exclusion of non-intelligence
information sources from the definition of ``criminal intelligence
system,'' suggests now that, given the availability of more modern non-
intelligence information sources such as the Internet, newspapers,
motor vehicle administration records, and other public record
information on-line, such sources shall not be considered part of
criminal intelligence systems, and shall not be covered by this
regulation, even if criminal intelligence systems access such sources
during searches on criminal suspects. Therefore, criminal intelligence
systems may conduct searches across the spectrum of non-intelligence
systems without those systems being brought under 28 CFR Part 23. There
is also no limitation on such non-intelligence information being stored
on the same computer system as criminal intelligence information,
provided that sufficient precautions are in place to separate the two
types of information and to make it clear to operators and users of the
information that two different types of information are being accessed.
Such precautions should be consistent with the above clarification of
the rule governing the use of identifying information. This could be
accomplished, for example, through the use of multiple windows,
differing colors of data or clear labeling of the nature of information
displayed.
Additional guidelines will be issued to provide details of the
above clarifications as needed.
Richard H. Ward, III,
Director, Bureau of Justice Assistance.
[FR Doc. 98-19092 Filed 7-17-98; 8:45 am]
BILLING CODE 4410-18-P