July 6, 2016
United States Department of Justice
ATTN: Privacy Analyst, Privacy and Civil Liberties Office
National Place Building
1331 Pennsylvania Ave. NW, Suite 1000
Washington, DC 20530
Re: The Federal Bureau of Investigation’s proposal to exempt the Next Generation Identification
System from certain provisions of the Privacy Act (CPCLO Order No. 003-2016 and No. 002-2016)
Submitted by: OpenTheGovernment.org with 17 endorsing organizations
OpenTheGovernment.org has joined a coalition of civil rights, human rights, immigrant rights, privacy
and transparency organizations, and companies in opposing the FBI proposal to exempt its biometrics
database – the Next Generation Identification (NGI) system – from virtually every key provision of the
Privacy Act. This system deserves stronger privacy and transparency measures, not weakened ones.
Since the launch of NGI in 2008, the public has waited for the FBI to publish basic privacy notices about
this database, including a System of Records Notice (SORN) and/or a Privacy Impact Assessment (PIA).
On May 5, 2016, the FBI finally published a SORN for NGI. The same day, the FBI asked for exemptions to
key public protections of the Privacy Act, specifically provisions that allow people to: (1) find out if they
are in the NGI database; (2) request the FBI promptly fix errors and inaccurate information in their files;
and (3) obtain information (so long as it would not impede law enforcement) about whether their
information is being shared with other parts of the government.
OpenTheGovernment.org strongly opposes the FBI’s proposal to exempt the NGI database from specific
requirements of the Privacy Act; specifically, its proposal to be exempt from the part of the law that
allows citizens to enforce any Privacy Act violation (5 U.S.C. § 552a(g)) – even violations of requirements
from which the FBI is not exempt. For example, the Privacy Act generally bars the government from
creating databases about the political activities of its citizens (5 U.S.C. § 552a(e)(7)). Under the FBI’s
proposal, the FBI could violate that rule – and private citizens would be denied redress to hold the FBI to
account for any such violations.
The FBI’s proposal to exempt the NGI system from important provisions of the Privacy Act is a matter of
serious concern, especially given the lack of proper public oversight for the FBI’s use of facial recognition
technology. A recent GAO report has concluded that the FBI has not completed audits to oversee the
use of its facial recognition programs, and determined that without conducting these audits, FBI officials
“cannot be sure they are implementing face recognition capabilities in a manner that protects
individuals’ privacy.”1 Further, GAO notes, the FBI has failed to provide timely updates to the public
through Privacy Impact Assessments required by law – assessments that are essential to informing the
public on how the FBI mitigates the privacy risks associated with its information systems. 2
1

 The secrecy surrounding the FBI’s largest domestic database is an area of serious concern for open
government groups and civil rights advocates alike. There is a need for greater transparency about the
FBI NGI system, and the public has a right to the protections and redress afforded by the Privacy Act. We
object to any measure that would deprive us of these crucial protections.
If you have any questions or would like to discuss this issue further, please contact Patrice McDermott,
Executive Director of OpenTheGovernment.org at 202-332-6736 or
pmcdermott@openthegovernment.org.
Endorsed by:
American Library Association
Bill of Rights Defense Committee
Campaign for Accountability
Cause of Action Institute
Center for Media and Democracy
ColorOfChange
Demand Progress
Defending Dissent Foundation
Free Speech Coalition
Government Accountability Project
National Immigration Project of the National Lawyers Guild
National Security Archive
National Security Counselors
Project On Government Oversight
Privacy Times
Public Citizen
Sunlight Foundation

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OpenTheGovernment.org is a coalition transcending party lines of more than 90 consumer and good
government groups, librarians, environmentalists, labor, journalists, and others – focused on pushing
back governmental secrecy and promoting openness.

2

 1

United States Government Accountability Office, Face Recognition Technology, FBI Should Better Ensure Privacy
and Accuracy, GAO-16-267, May, 2016: http://www.gao.gov/assets/680/677098.pdf.
2
Ibid.