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United States

Transparency of Federal Use of Investigative Technologies (US0070)

Overview

At-a-Glance

Action Plan: United States Action Plan 2015-2017

Action Plan Cycle: 2015

Status: Inactive

Institutions

Lead Institution: NA

Support Institution(s): NA

Policy Areas

E-Government, Records Management

IRM Review

IRM Report: United States End-of-Term IRM Report 2015-2017, United States Mid-Term Report 2015-2017

Starred: No

Early Results: Did Not Change

Design i

Verifiable: No

Relevant to OGP Values: Access to Information

Potential Impact:

Implementation i

Completion:

Description

As law enforcement and homeland security agencies have harnessed the use of new technologies, such as unmanned aircraft systems, the Administration has recognized that these technologies — which have proven to be safe and low-cost alternatives to traditional methods for criminal investigation, identification, and apprehension — must be used in a manner that protects the privacy and civil liberties of the public. Consistent with the goals of the President’s February 2015 memorandum, law enforcement agencies are encouraged to develop and make publicly available a privacy analysis for advanced technologies and undertake periodic privacy review of their use.

IRM Midterm Status Summary

IRM End of Term Status Summary

Commitment 18. Enhance Transparency of Federal Use of Investigative Technologies

Commitment Text:

Enhance Transparency of Federal Use of Investigative Technologies

As law enforcement and homeland security agencies have harnessed the use of new technologies, such as unmanned aircraft systems, the Administration has recognized that these technologies — which have proven to be safe and low-cost alternatives to traditional methods for criminal investigation, identification, and apprehension — must be used in a manner that protects the privacy and civil liberties of the public. Consistent with the goals of the President’s February 2015 memorandum, law enforcement agencies are encouraged to develop and make publicly available a privacy analysis for advanced technologies and undertake periodic privacy review of their use.

Responsible institutions: Department of Homeland Security and Department of Justice

Supporting institutions: Law enforcement agencies and civil society organizations

Start Date: Not Specified End Date: Not Specified

Commitment Aim

The government drafted this commitment in response to concerns about the growing use of unmanned aircraft systems (UAS) by the government.[1] This commitment aimed to have law enforcement agencies develop and publicly disclose privacy analyses for advanced surveillance technologies—specifically UAS—and undertake privacy reviews related to their use.

Status

Midterm: Limited

At the midterm, the government had made limited progress on this commitment. Policy guidance issued by the Department of Justice (DOJ) in May 2015[2] pursuant to a White House memorandum from February 2015[3] called for privacy reviews on the use of unmanned aircraft systems (UAS), but the guidance did not mention the issue of public disclosure. The guidance further stated that the DOJ itself would provide summaries of its UAS use on the DOJ website. However, no such summaries were available at the midterm.

The Department of Homeland Security (DHS), on the other hand, published best practices for protecting privacy, civil rights, and civil liberties in UAS programs in December 2015.[4] DHS also published a policy on the use of cell-site simulators—law enforcement tools that mimic cell towers and are used to connect to nearby mobile phones and other devices that use cellular data.[5]

End of term: Substantial

By the end of term, DHS had in place a system of periodic privacy review and disclosure of privacy analyses regarding the use of UAS, as required by the commitment text. Specifically, as noted in the 2017 annual report of the DHS Privacy Office, DHS Components must first complete a Privacy Threshold Analysis (PTA) when considering “the acquisition, development, or deployment of UAS.”[6] According to the report, most of the PTAs regarding UAS received by the Privacy Office relate to system testing or demonstrations. The Privacy Office then works with the Component(s) to determine if the testing or demonstration could affect the privacy of anyone outside of DHS.

If there is “even a remote possibility” that the use of UAS (or counter-UAS technology) could result in DHS acquiring personally identifiable information (PII), the Privacy Office requires a privacy impact assessment (PIA). According to DHS, PIAs help “the public understand what PII the Department is collecting, why it is being collected, and how it will be used, shared, accessed, secured and stored.”[7] PIAs are then published online if they do not contain classified information.[8] For example, during the period of the action plan, DHS published a PIA that covers the use of cell-site simulators by the Secret Service.[9]

Despite the progress made by DHS in developing and publishing privacy reviews regarding the use of investigative technologies, the DOJ made less progress. The DOJ’s 2016 Annual Privacy Report briefly mentions UAS privacy-related issues. The report, published by the chief privacy and civil liberties officer (CPCLO) and the Office of Privacy and Civil Liberties (OPCL), covers October 2013 through 30 September 2016. The report noted, “The CPCLO and OPCL are working to publish additional documentation that addresses the concerns of transparency and accountability in the Department’s domestic use and operation of UAS, and is designed to help ensure that Department personnel continue to respect individuals’ privacy, civil rights, and civil liberties.”[10] However, no such documentation was publicly available by the close of the end-of-term reporting period.

According to the Department of Justice, its components are required to report annually to the Deputy Attorney General on completed privacy reviews. In addition, components must report the number of deployments of UAS, including a brief description of types or categories of missions, and the number of each type of mission. The Department is then expected to publish a summary of its UAS operations. At the time of writing, the Department informed that this summary would be posted “in the near future,” following a careful and time-intensive review of this information, some of which is potentially sensitive.[11]

Despite the progress made by DHS in developing and publishing privacy reviews, the absence of any publicly available DOJ privacy analyses regarding the use of UAS means that this commitment is substantially—rather than fully—complete.

Did It Open Government?

Access to Information: Did Not Change

The commitment did not open government with respect to access to information during the action plan period. As mentioned above, the DOJ did not publish any new information regarding privacy analyses surrounding the use of UAS or other investigative technologies. While DHS maintained a system of periodic privacy reviews, there is little evidence of a change to government practice as it relates to the public disclosure of PIAs. Specifically, DHS has been publishing PIAs since before the start of the action plan. According to the 2017 annual report of the DHS Privacy Office cited above, the Privacy Office has published three PIAs to date surrounding the use of UAS.[12] Two of the PIAs were published well before the start of the action plan (in 2012 and 2013); the other was published after the close of the action plan (in August 2017).[13] Moreover, while DHS did publish a PIA regarding the use of cell-site simulators by the Secret Service in May 2017, this was an update to an earlier existing PIA published in October 2013.[14] Given the lack of new PIAs disclosed during the action plan period, the IRM considers that this commitment did not contribute to greater levels of public access to information.

Carried Forward?

At the time of writing, the US government had not published its fourth national action plan, so it is unclear if this commitment will be carried forward. Privacy issues related to unmanned aircraft systems (UAS) are clearly important. However, the lack of specificity surrounding this commitment’s actions implies a limited potential impact and suggests that limited resources may be better spent elsewhere. If this topic is included in a future action plan, it is important to modify the commitment. The revised version should reflect a concrete deliverable and a greater emphasis on making more information on the use of UAS regularly available to the public.


[1] Gregory McNeal, “Drones and Aerial Surveillance: Considerations for Legislatures,” Brookings Institution, November 2014, http://brook.gs/2qcn8RG.

[2] Department of Justice, Department of Justice Policy Guidance: Domestic Use of Unmanned Aircraft Systems,” May 2015, https://www.justice.gov/file/441266/download, consulted 4 October 2017.

[3] “Presidential Memorandum: Promoting Economic Competitiveness while Safeguarding Privacy, Civil Rights, and Civil Liberties in Domestic Use of Unmanned Aircraft Systems,” The White House, 15 February 2015, https://obamawhitehouse.archives.gov/the-press-office/2015/02/15/presidential-memorandum-promoting-economic-competitiveness-while-safegua, consulted 4 October 2017.

[4] “Best Practices for Protecting Privacy, Civil Rights & Civil Liberties In Unmanned Aircraft Systems Programs,” US Department of Homeland Security, 18 December 2015, https://www.dhs.gov/sites/default/files/publications/UAS%20Best%20Practices.pdf, consulted 9 May 2018.

[5] “Policy Directive 047-02,” Department of Homeland Security, 19 October 2015, https://www.dhs.gov/sites/default/files/publications/Department%20Policy%20Regarding%20the%20Use%20of%20Cell-Site%20Simulator%20Technology.pdf, consulted 9 May 2018.

[6] “2017 Privacy Office Annual Report to Congress,” Department of Homeland Security, Privacy Office, 31 October 2017, https://www.dhs.gov/sites/default/files/publications/dhsprivacyoffice2017annualreport-FINAL-10312017.pdf, consulted 9 May 2018.

[7] “Privacy Compliance,” Department of Homeland Security, 30 March 2017, https://www.dhs.gov/compliance, consulted 4 May 2018.

[8] “Privacy Impact Assessments,” Department of Homeland Security, https://www.dhs.gov/privacy-impact-assessments, consulted 4 May 2018.

[9] “Privacy Impact Assessment for the Field Support System (FSS),” Department of Homeland Security, 8 May 2017, https://www.dhs.gov/sites/default/files/publications/privacy-pia-usss-014%28a%29-fss-may2017.pdf, consulted 4 May 2018.

[10] Department of Justice, 2016 Annual Privacy Report: 1 October 2013 – 30 September 2016, 18–19, https://www.justice.gov/CPCLO_OPCL_AR13-16_FINAL/download, consulted 14 September 2017.

[11] The IRM received this information in a comment from the Department of Justice during the pre-publication review of this report. The comment was received via e-mail on 30 April 2018.

[12] “2017 Privacy Office Annual Report to Congress,” Department of Homeland Security, Privacy Office, 31 October 2017, https://www.dhs.gov/sites/default/files/publications/dhsprivacyoffice2017annualreport-FINAL-10312017.pdf, consulted 9 May 2018.

[13] Ibid.

[14] “DHS/USSS/PIA-014 Field Support System,” Department of Homeland Security, https://www.dhs.gov/publication/dhsussspia-014-field-support-system, consulted 9 May 2018.


United States's Commitments

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  2. Grants Accountability

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  3. Public Access to Federally Funded Research

    US0107, 2019, E-Government

  4. Workforce Data Standards

    US0108, 2019, E-Government

  5. Chief Data Officers

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  6. Open Data for Public Health

    US0110, 2019, E-Government

  7. Enterprise Objective

    US0111, 2019, Capacity Building

  8. Developing Future Action Plans

    US0112, 2019, OGP

  9. Reconstitution of the USA.gov

    US0053, 2015, E-Government

  10. Accessibility of Government Information Online

    US0054, 2015, Marginalized Communities

  11. Access to Educational Resources

    US0055, 2015, Open Data

  12. Public Listing of Every Address in the US

    US0056, 2015, Open Data

  13. Informed Decisions About Higher Education.

    US0057, 2015, Open Data

  14. New Authentication Tools to Protect Individual Privacy and Ensure That Personal Records Go Only to the Intended Recipients.

    US0058, 2015, Public Service Delivery

  15. Transparency of Open311

    US0059, 2015, E-Government

  16. Support Medicine Research Throught Opening up Relevant Data of the Field

    US0060, 2015, Health

  17. Access to Workforce Data

    US0061, 2015, Open Data

  18. Using Evidence and Concrete Data to Improve Public Service Delivery

    US0062, 2015, Capacity Building

  19. Expand Use of the Federal Infrastructure Permitting Dashboard

    US0063, 2015,

  20. Consolidation of Import and Export Systems

    US0064, 2015, E-Government

  21. Improving Government Records

    US0065, 2015, Open Data

  22. Starred commitment Ammendments to FOIA

    US0066, 2015, Open Data

  23. Streamline the Declassification Process

    US0067, 2015, Capacity Building

  24. Implement the Controlled Unclassified Information Program

    US0068, 2015, Open Data

  25. Transparency of Privacy Programs and Practices

    US0069, 2015, Capacity Building

  26. Transparency of Federal Use of Investigative Technologies

    US0070, 2015, E-Government

  27. Increase Transparency of the Intelligence Community

    US0071, 2015, Capacity Building

  28. Open Science Through Open Data

    US0072, 2015, Open Data

  29. Open Data Portal

    US0073, 2015, E-Government

  30. Increase Transparency of Trade Policy and Negotiations

    US0074, 2015, E-Government

  31. Develop a Machine Readable Government Organizational Chart

    US0075, 2015, E-Government

  32. Improving Public Participation

    US0076, 2015, Public Participation

  33. Expand Public Participation in the Development of Regulations

    US0077, 2015, Public Participation

  34. Civic Engagement in Decision-Making Processes

    US0078, 2015, Public Participation

  35. Open Mapping

    US0079, 2015, E-Government

  36. Tracking OGP Implementation

    US0080, 2015, OGP

  37. Strengthening Whistleblower Protection

    US0081, 2015, Capacity Building

  38. Transparency of Legal Entities

    US0082, 2015, Beneficial Ownership

  39. Extractive Industries Transparency

    US0083, 2015, Extractive Industries

  40. Spending Transparency

    US0084, 2015, E-Government

  41. Enhance the Use of U.S. Foreign Assistance Information

    US0085, 2015, Aid

  42. Participatory Budgets and Responsive Spending

    US0086, 2015, Participation in Budget Processes

  43. Expand Access to Justice to Promote Federal Programs

    US0087, 2015, E-Government

  44. Build Safer Communities with Police Open Data

    US0088, 2015, E-Government

  45. Open Federal Data to Benefit Local Communities

    US0089, 2015, E-Government

  46. Support the Municipal Data Network

    US0090, 2015, E-Government

  47. Foster Data Ecosystems

    US0091, 2015, Capacity Building

  48. Extend Digital, Data-Driven Government to Federal Government’S Support for Communities

    US0092, 2015, Capacity Building

  49. Promote Implementation of SDGs

    US0093, 2015, Open Data

  50. Starred commitment Promote Open Climate Data

    US0094, 2015, E-Government

  51. Air Quality Data Available

    US0095, 2015, E-Government

  52. Promote Food Security and Data Sharing for Agriculture and Nutrition

    US0096, 2015, Capacity Building

  53. Promote Data Sharing About Global Preparedness for Epidemic Threats

    US0097, 2015, Capacity Building

  54. Promote Global Interconnectivity

    US0098, 2015, Aid

  55. Open Contracting

    US0099, 2015, Capacity Building

  56. Harness the Data Revolution for Sustainable Development

    US0100, 2015, OGP

  57. Open Government to Support Global Sustainable Development

    US0101, 2015, Anti-Corruption Institutions

  58. Open Collaboration Onf the Arctic

    US0102, 2015, Environment and Climate

  59. Support Capacity Building for Extractives Transparency

    US0103, 2015, Capacity Building

  60. Support Responsible Investment and Business Practices for Companies

    US0104, 2015, Private Sector

  61. Improve Public Participation in Government

    US0027, 2013, Capacity Building

  62. Modernize Management of Government Records

    US0028, 2013, Records Management

  63. Modernize the Freedom of Information Act

    US0029, 2013, Capacity Building

  64. Transform the Security Classification System

    US0030, 2013, Records Management

  65. Implement the Controlled Unclassified Information Program

    US0031, 2013, Security

  66. Increase Transparency of Foreign Intelligence Surveillance Activities

    US0032, 2013, E-Government

  67. Make Privacy Compliance Information More Accessible

    US0033, 2013, E-Government

  68. Support and Improve Agency Implementation of Open Government Plans

    US0034, 2013, OGP

  69. Strengthen and Expand Whistleblower Protections for Government Personnel

    US0035, 2013, Capacity Building

  70. Increase Transparency of Legal Entities Formed in the United States

    US0036, 2013, Legislation & Regulation

  71. Starred commitment Implement the Extractive Industries Transparency Initiative

    US0037, 2013, Environment and Climate

  72. Make Fossil Fuel Subsidies More Transparent

    US0038, 2013, Extractive Industries

  73. Starred commitment Increase Transparency in Spending

    US0039, 2013, Fiscal Transparency

  74. Increase Transparency of Foreign Assistance

    US0040, 2013, Aid

  75. Continue to Improve Performance.Gov

    US0041, 2013, E-Government

  76. Consolidate Import and Export Systems to Curb Corruption

    US0042, 2013, Private Sector

  77. Promote Public Participation in Community Spending Decisions

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  78. Expand Visa Sanctions to Combat Corruption

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  79. Further Expand Public Participation in the Development of Regulations

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  80. Open Data to the Public

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  81. Continue to Pilot Expert Networking Platforms

    US0047, 2013, Public Participation

  82. Reform Government Websites

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  83. Promote Innovation Through Collaboration and Harness the Ingenuity of the American Public

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  84. Promote Open Education to Increase Awareness and Engagement

    US0050, 2013, E-Government

  85. Deliver Government Services More Effectively Through Information Technology

    US0051, 2013, E-Government

  86. Increase Transparency in Spending

    US0052, 2013, E-Government

  87. Reform Records Management

    US0001, 2011, Records Management

  88. Lead a Multi-Agency Effort

    US0002, 2011, Capacity Building

  89. Monitor Agency Implementation of Plans

    US0003, 2011, OGP

  90. Provide Enforcement and Compliance Data Online

    US0004, 2011, Environment and Climate

  91. Advocate for Legislation Requiring Meaningful Disclosure

    US0005, 2011, Legislation & Regulation

  92. Apply Lessons from Recovery Act to Increate Spending Transparency

    US0006, 2011, Fiscal Transparency

  93. Government-Wide Reporting Requirements for Foreign Aid

    US0007, 2011, Aid

  94. Use Performanc.Gov to Improve Government Performance and Accountability

    US0008, 2011, Public Service Delivery

  95. Overhaul the Public Participation Interface on Regulations.Gov

    US0009, 2011, Legislation & Regulation

  96. Launch Expertnet

    US0010, 2011, E-Government

  97. Launch International Space Apps Competition

    US0011, 2011, E-Government

  98. Launch “We the People”

    US0012, 2011,

  99. Open Source “We the People”

    US0013, 2011,

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    US0014, 2011, Capacity Building

  101. Professionalize the FOIA Administration

    US0015, 2011, Right to Information

  102. Harness the Power of Technology

    US0016, 2011, Right to Information

  103. Advocate for Legislation on Whistleblower Protection

    US0017, 2011, E-Government

  104. Explore Executive Authority to Protect Whistleblowers

    US0018, 2011, Legislation & Regulation

  105. Implement the EITI

    US0019, 2011, Extractive Industries

  106. Partnership to Build on Recent Progress

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    US0021, 2011, Open Data

  108. Data.Gov: Foster Communities on Data.Gov

    US0022, 2011, Education

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    US0023, 2011, Public Participation

  110. Update Government-Wide Policies for Websites

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  111. Promote Smart Disclosure to Ensure Timely Release of Information

    US0025, 2011, Capacity Building

  112. Publish Guidelines on Scientific Data

    US0026, 2011, Capacity Building