Treasury Enforcement Communications System (TECS)

From Cyberlaw

Notice of Privacy Act system of records [hereinafter “System of Records Notice (SORN)”] on TECS ¹ is a very instructive piece of official jargon, illustrating how the idea of privacy has evolved due to the pressure from the American government.

According to SORN:

"Categories of records in the system: Every possible type of information from a variety of Federal, state and local sources, which contributes to effective law enforcement may be maintained in this system of records (..)." (at 53029)

Could the range of information comprised by TECS be more overarching?

Yet, even more striking is the breadth of allowed uses. Pending criminal investigations, the most obvious purpose of maintaining records on individuals, is only one among the legitimate ones:

"Routine uses of records maintained in the system, including categories of users and the purposes of such uses: These records and information in the records may be used to: (1) Disclose pertinent information to appropriate Federal, State, local or foreign agencies responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license, where the disclosing agency becomes aware of an indication of a violation or potential violation of civil or criminal law or regulation; (2) disclose information to a Federal, State, or local agency, maintaining civil, criminal or other relevant enforcement information or other pertinent information, which has requested information relevant to or necessary to the requesting agency's or the bureau's hiring or retention of an individual, or issuance of a security clearance, license, contract, grant, or other benefit; (3) disclose information to a court, magistrate, or administrative tribunal in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, or settlement negotiations, in response to a subpoena, or in connection with criminal law proceedings; (4) provide information to the news media in accordance with guidelines contained in 28 CFR 50.2 which relate to an agency's functions relating to civil and criminal proceedings; (5) provide information to third parties during the course of an investigation to the extent necessary to obtain information pertinent to the investigation; (6) provide passenger archive information and other TECS data relevant to the National Center for Missing and Exploited Children (NCMEC) investigation through Department of the Treasury law enforcement officers to personnel of the NCMEC to assist in investigations of missing or exploited children." (at 53029)

It is no surprise that the range of individuals covered by the system corresponds to its breadth:

"(1) Violators or suspected violators of U.S. Customs or related laws (some of whom have been apprehended by Customs officers); (2) Individuals who are suspected of, or who have been arrested for, thefts from international commerce; (3) Convicted violators of U.S. Customs and/or drug laws in the United States and foreign countries; (4) Fugitives with outstanding warrants--Federal or state; (5) Victims of U.S. Customs law violations; (6) Owners, operators and/or passengers of vehicles, vessels or aircraft traveling across U.S. borders; (7) Individuals participating in financial transactions reported under the Bank Secrecy Act." (at 53029)

Categories 1-4 and the last one, on Bank Secrecy Act, are quite understandable.² Including victims of U.S. Customs law violations is more mysterious, but really odd is placing international commerce thieves (sec. 2) and vehicles passengers (sec. 6) on an equal footing.

What is given in return? Are there any safeguards?

There are some technical and organizational:

"(1) All officers making inquiries have had a full field background investigation and are given information on a ``need-to- know basis only. (2) Procedural and physical safeguards are utilized such as accountability and receipt records, guards patrolling the area, restricted access and alarm protection systems, special communications security, etc." (at 53029)

But no legal ones:

"Notification procedure: This system of records may not be accessed for purposes of determining if the system contains a record pertaining to a particular individual. (See 5 U.S.C. 552a (e)(4)(G) and (f)(1).) Record access procedures: This system of records may not be accessed under the Privacy Act for the purpose of inspection. Contesting record procedures: Since this system of records may not be accessed for purposes of determining if the system contains a record pertaining to a particular individual and those records, if any, cannot be inspected, the system may not be accessed under the Privacy Act for the purpose of contesting the content of the record. Record source categories: This system contains investigatory material compiled for law enforcement purposes whose sources need not be reported. Exemptions claimed for the system: This system is exempt from several Privacy Act provisions pursuant to 5 U.S.C. 552a (j)(2) and (k)(2). (See 31 CFR 1.36.)" (at 53029)

To sum it up - records related to crossing the US border are being captured into the system and may be used by any law enforcement agency for any purpose somehow related to its tasks. While some of the agency obligations envisaged by the Privacy Act were retained, the corresponding rights of an individual were swept away entirely.

With the climate change, the ground has been prepared for targeting travelers with the Automated Targeting System.

Notes

1 ^  Department of the Treasury, Notice of Privacy Act system of records, 66 Fed. Reg. 52983, 53029 (Oct. 18, 2001) available here.

2 ^  Even though the Bank Secrecy Act might rise some privacy concerns, as Privacilla.org alerts here.