Rule2022-22234
Data Protection Review Court
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 14, 2022
Effective
October 14, 2022
Issuing agencies
Justice Department
Abstract
As authorized and directed by the Executive order of October 7, 2022, "Enhancing Safeguards for United States Signals Intelligence Activities," this rule amends Department of Justice regulations to establish within the Department a Data Protection Review Court ("DPRC"). The DPRC will review determinations made by the Civil Liberties Protection Officer of the Office of the Director of National Intelligence ("ODNI CLPO") in response to qualifying complaints that allege certain violations of United States law in the conduct of United States signals intelligence activities. Applications for review by the DPRC must be filed by individuals through the appropriate public authority in a designated foreign country or regional economic integration organization. To facilitate their independent and impartial review, DPRC judges will not be subject to the day-to-day supervision of the Attorney General and will be subject to removal protections. DPRC decisions, including the direction of appropriate remedial measures to be undertaken by United States intelligence agencies, will be final and binding. Individual complainants will not be informed whether they were subject to signals intelligence activities, but instead will receive a standardized notice that states that the DPRC's review has been completed and either did not identify any covered violations or the DPRC issued a determination requiring any appropriate remediation.
Full Text
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<title>Federal Register, Volume 87 Issue 198 (Friday, October 14, 2022)</title>
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[Federal Register Volume 87, Number 198 (Friday, October 14, 2022)]
[Rules and Regulations]
[Pages 62303-62308]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-22234]
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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 201
[Docket No. NSD 103; Attorney General Order No. 5517-2022]
RIN 1105-AB68
Data Protection Review Court
AGENCY: Department of Justice.
ACTION: Final rule.
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SUMMARY: As authorized and directed by the Executive order of October
7, 2022, ``Enhancing Safeguards for United States Signals Intelligence
Activities,'' this rule amends Department of Justice regulations to
establish within the Department a Data Protection Review Court
(``DPRC''). The DPRC will review determinations made by the Civil
Liberties Protection Officer of the Office of the Director of National
Intelligence (``ODNI CLPO'') in response to qualifying complaints that
allege certain violations of United States law in the conduct of United
States signals intelligence activities. Applications for review by the
DPRC must be filed by individuals through the appropriate public
authority in a designated foreign
[[Page 62304]]
country or regional economic integration organization. To facilitate
their independent and impartial review, DPRC judges will not be subject
to the day-to-day supervision of the Attorney General and will be
subject to removal protections. DPRC decisions, including the direction
of appropriate remedial measures to be undertaken by United States
intelligence agencies, will be final and binding. Individual
complainants will not be informed whether they were subject to signals
intelligence activities, but instead will receive a standardized notice
that states that the DPRC's review has been completed and either did
not identify any covered violations or the DPRC issued a determination
requiring any appropriate remediation.
DATES: This rule is effective October 14, 2022.
FOR FURTHER INFORMATION CONTACT: J. Bradford Wiegmann, Deputy Assistant
Attorney General, National Security Division, United States Department
of Justice, Washington, DC 20530; telephone: (202) 514-1057.
SUPPLEMENTARY INFORMATION:
I. Background
Section 3 of the Executive order of October 7, 2022 authorizes and
directs the Attorney General to issue regulations to establish a Data
Protection Review Court as the second level of a two-level redress
mechanism. The redress mechanism will provide for the review of
qualifying complaints by individuals, filed through appropriate public
authorities in designated foreign countries or regional economic
integration organizations, alleging certain violations of United States
law concerning United States signals intelligence activities. The
Executive order of October 7, 2022 implements commitments made by the
United States as part of the U.S.-EU Data Privacy Framework announced
in March 2022 to foster trans-Atlantic data flows. The Framework was
developed in response to a 2020 ruling by the Court of Justice of the
European Union that invalidated the European Commission's ``adequacy
decision'' for the United States, which was part of the then-existing
U.S.-EU Privacy Shield Framework.
The new redress mechanism established by the Executive order of
October 7, 2022 will have two levels. The first level is the
investigation, review, and determination by the Civil Liberties
Protection Officer of the Office of the Director of National
Intelligence (``ODNI CLPO'') of whether a covered violation occurred
and, where necessary, the appropriate remediation in response to a
qualifying complaint. As a second level, the complainant or an element
of the Intelligence Community may seek review by the DPRC of the ODNI
CLPO's determinations.
The DPRC will be established within the Department of Justice
(``Department''), consisting of individuals chosen from outside the
United States Government, to provide independent and impartial review
of applications for review. Exercising the Attorney General's authority
under 28 U.S.C. 511 and 512 to provide his advice and opinion on
questions of law and the authority delegated to the Attorney General
under the Executive order of October 7, 2022, as delegated to the DPRC
in this rule by the Attorney General pursuant to 28 U.S.C. 510, the
DPRC will review whether the ODNI CLPO's determination regarding the
occurrence of a covered violation was legally correct and supported by
substantial evidence and whether, in the event of a covered violation,
the ODNI CLPO's determination as to the appropriate remediation was
consistent with the Executive order of October 7, 2022.
II. Discussion of Rule
This rule establishes within the Department a DPRC. The DPRC will
review, upon an application for review, the ODNI CLPO's determinations
made in response to a qualifying complaint, transmitted through the
appropriate public authority in a designated foreign country or
regional economic integration organization, from an individual who
alleged a covered violation of United States law in the conduct of
United States signals intelligence activities that adversely affected
the complainant's individual privacy and civil liberties interests.
The DPRC will consist of six or more judges appointed by the
Attorney General from outside the United States Government. To
facilitate their independent and impartial review of the applications
for review, the judges will not be subject to the day-to-day
supervision of the Attorney General and may not be removed or subjected
to other adverse action arising from their service on the DPRC, except
for instances of misconduct, malfeasance, breach of security, neglect
of duty, or incapacity. The DPRC panels will have access to the
classified national security information they need to conduct their
reviews and make decisions. In accordance with section 3(d)(ii) and
(iv) of the Executive order of October 7, 2022, those decisions,
including the direction of appropriate remedial measures, will be final
and binding with respect to the application for review.
Applications for review may be filed by an individual complainant
after receiving notification that the ODNI CLPO has completed its
review or by an element of the Intelligence Community. Applications for
review by complainants must be filed through the appropriate public
authority in a ``qualifying state,'' which is defined under the rule as
a country or regional economic integration organization designated as a
qualifying state by the Attorney General under section 3(f) of the
Executive order of October 7, 2022.
Each application will be reviewed by a three-judge panel of the
DPRC convened by the Department's Office of Privacy and Civil Liberties
(``OPCL''). Once convened, the presiding judge on the DPRC panel will
select a Special Advocate who, in accordance with section 3(d)(i)(C) of
the Executive order of October 7, 2022, will assist the panel by
advocating regarding the complainant's interest in the matter and by
ensuring that the panel is well informed regarding the issues and the
law. The Special Advocate will not be the agent of or have an attorney-
client relationship with the complainant and, in the interest of
national security, will be subject to restrictions on communications
with the complainant and the complainant's counsel to ensure that
classified or otherwise privileged or protected information, including
whether or not the complainant was subject to United States signals
intelligence activities, is not disclosed.
Each DPRC panel will review the application before it to determine
whether the ODNI CLPO's determination regarding whether a covered
violation occurred was legally correct under the applicable law and
supported by substantial evidence and whether any appropriate
remediation was consistent with the Executive order of October 7, 2022.
If the DPRC panel decides that the CLPO's determination does not meet
these requirements, the panel will issue its own determination,
including any appropriate remediation. In conducting this review, the
panel will interpret the Executive order of October 7, 2022 exclusively
according to United States law and legal traditions and, more
generally, will be guided by decisions of the United States Supreme
Court in the same way as a court established under Article III of the
United States Constitution, including decisions on the appropriate
deference to be provided relevant determinations of national security
officials.
The panel will conduct its review based on the record of the ODNI
CLPO's review, supplemented by any information or submissions from the
[[Page 62305]]
complainant, the Special Advocate, or an element of the Intelligence
Community. The DPRC panel may also request that the ODNI CLPO
supplement the record in response to specific questions from the panel.
The DPRC panel's decision will be by majority vote, and the panel will
issue a written decision setting out its determinations and the
specification of any appropriate remediation.
The individual complainant will not be informed whether they were
subject to signals intelligence activities. Instead, the individual
will receive a standardized notice that states that the DPRC's review
has been completed, namely that ``the review either did not identify
any covered violations or the Data Protection Review Court issued
determinations requiring appropriate remediation,'' and that the
notification constitutes final agency action.
OPCL will provide administrative support to the DPRC and the
Special Advocates.
III. Regulatory Certifications
A. Administrative Procedure Act
This rule involves the foreign affairs function of the United
States, relates to a matter of agency management or personnel, and
involves a matter relating to agency organization, procedure, or
practice. As such, this rule is exempt from the usual requirements of
prior notice and comment and a 30-day delay in the effective date. See
5 U.S.C. 553(a)(1), (a)(2), (b), and (d).
B. Regulatory Flexibility Act
An analysis under the Regulatory Flexibility Act was not required
for this rule because the Department was not required to publish a
general notice of proposed rulemaking for this matter. See 5 U.S.C.
601(2), 604(a).
C. Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of $100
million or more in any one year (adjusted for inflation), and it will
not significantly or uniquely affect small governments. Therefore, no
actions are necessary under the provisions of the Unfunded Mandates
Reform Act of 1995, 2 U.S.C 1501 et seq.
D. Congressional Review Act
This rule is not a major rule as defined by the Congressional
Review Act, 5 U.S.C. 804(2). Further, because it relates to agency
management or personnel, it is not a ``rule'' as that term is used in
the Congressional Review Act, 5 U.S.C. 804(3)(b), and, accordingly, the
reporting requirements of 5 U.S.C. 801 do not apply.
E. Paperwork Reduction Act of 1995
This rule does not impose any new reporting or recordkeeping
requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501
et seq.
F. Executive Orders 12866 and 13563--Regulatory Review
Because the rule involves the foreign affairs function of the
United States, it is not a ``regulation or rule'' under section 3(d) of
Executive Order 12866, ``Regulatory Planning and Review,'' and the
requirements of that order and Executive Order 13563, ``Improving
Regulation and Regulatory Review,'' accordingly, do not apply.
Nevertheless, this rule has been drafted and reviewed in accordance
with section 1(b) of Executive Order 12866 and section 1(b) of
Executive Order 13563.
G. Executive Order 13132--Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the National Government and the States, or
on the distribution of power and responsibilities among the various
levels of government. Therefore, in accordance with section 6 of
Executive Order 13132, ``Federalism,'' the Department has determined
that this rule does not have sufficient federalism implications to
warrant the preparation of a federalism summary impact statement.
H. Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988, ``Civil Justice Reform.''
List of Subjects in 28 CFR Part 201
Claims, Foreign relations, Privacy, Signals intelligence.
0
Accordingly, for the reasons set forth in the preamble, the Department
of Justice adds part 201 to chapter I of title 28 of the Code of
Federal Regulations to read as follows:
PART 201--DATA PROTECTION REVIEW COURT
Sec.
201.1 Purpose.
201.2 Definitions.
201.3 Appointment of judges and rules of procedure.
201.4 Appointment of Special Advocates.
201.5 Administrative support for the DPRC.
201.6 Applications for review.
201.7 Convening of panels, conduct of judges, and independence of
the DPRC.
201.8 Special Advocates.
201.9 Consideration of applications and decisions.
201.10 Guiding principles of law.
201.11 Information security and classified national security
information.
201.12 Disclaimer.
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510-512; Executive
order of October 7, 2022.
Sec. 201.1 Purpose.
This part establishes an independent and impartial Data Protection
Review Court (DPRC) to consider, in classified proceedings,
applications for review of determinations made by the Civil Liberties
Protection Officer of the Office of the Director of National
Intelligence (ODNI CLPO) in response to qualifying complaints submitted
through the redress mechanism established pursuant to section 3 of the
Executive order of October 7, 2022, ``Enhancing Safeguards for United
States Signals Intelligence Activities.''
Sec. 201.2 Definitions.
The terms ``appropriate remediation,'' ``covered violation,''
``element of the Intelligence Community,'' ``Intelligence Community,''
``national security,'' and ``qualifying complaint'' shall have the same
meanings as they have in the Executive order of October 7, 2022. The
term ``qualifying state'' means a country or regional economic
integration organization designated as a qualifying state by the
Attorney General pursuant to section 3(f) of the Executive order of
October 7, 2022.
Sec. 201.3 Appointment of judges and rules of procedure.
(a) The Attorney General shall, in consultation with the Secretary
of Commerce, the Director of National Intelligence, and the Privacy and
Civil Liberties Oversight Board (PCLOB), appoint not fewer than six
individuals to serve as judges on the DPRC for four-year renewable
terms, choosing individuals who at the time of their initial
appointment have not been employees of the executive branch in the
previous two years.
(b) The Attorney General's appointments shall be informed by the
criteria used by the executive branch in assessing candidates for the
Federal judiciary, giving weight to any prior judicial experience, and
shall be of individuals with appropriate experience in the fields of
data privacy and national security law. The Attorney General shall
endeavor to ensure that at least half of the judges at any given time
have prior judicial experience, and all persons appointed as judges
shall be active members in good standing of the bar of a State,
Commonwealth, Territory, or
[[Page 62306]]
Possession, or of the District of Columbia and shall be duly licensed
to practice law.
(c) During their term of appointment as judges on the DPRC, such
judges shall not have any official duties or employment within the
United States Government other than their official duties and
employment as judges on the DPRC.
(d) The DPRC shall review and adopt by majority vote rules of
procedure consistent with the Executive order of October 7, 2022 and
this part, which thereafter shall be made publicly available and
applied by each DPRC panel convened under Sec. 201.7(a). The rules of
procedure may thereafter be amended at such times and in such ways as a
majority of the judges may deem necessary and appropriate to accomplish
the work of the DPRC. A quorum of six judges shall be required for the
initial adoption of and any amendments to the rules of procedure.
Sec. 201.4 Appointment of Special Advocates.
(a) The Attorney General shall, in consultation with the Secretary
of Commerce, the Director of National Intelligence, and the PCLOB,
appoint no fewer than two individuals to serve as Special Advocates for
two-year renewable terms, choosing individuals who at the time of their
initial appointment have not been employees of the executive branch in
the previous two years.
(b) All persons appointed as Special Advocates shall have
appropriate experience in the fields of data privacy and national
security law, shall be experienced attorneys and active members in good
standing of the bar of a State, Commonwealth, Territory, or Possession,
or of the District of Columbia, and shall be duly licensed to practice
law.
Sec. 201.5 Administrative support for the DPRC.
(a) The Office of Privacy and Civil Liberties of the Department of
Justice (OPCL) shall be responsible for providing administrative
support to the DPRC and the Special Advocates.
(b) The administrative support provided by OPCL shall include the
following functions:
(1) Facilitating the Attorney General's consultations with other
officials regarding the appointment of judges and Special Advocates;
(2) Drafting in consultation with relevant agencies rules of
procedure and, when requested by the DPRC, any amendments thereto for
consideration by the DPRC;
(3) Receiving applications for review of determinations made by the
ODNI CLPO and receiving from the ODNI CLPO its record of review;
(4) Receiving and maintaining the confidentiality of any written
information that a complainant filing an application for review wishes
to provide to the DPRC and of any responses the complainant or their
counsel provides to questions from the Special Advocate;
(5) Coordinating with the ODNI CLPO as needed on matters arising
from an application for review;
(6) Securely maintaining records pursuant to applicable law;
(7) Making publicly available information about the DPRC, including
the names of the judges and Special Advocates, the rules of procedure,
and the process for filing an application for review, and such other
information as the DPRC in its discretion deems appropriate for its
function; and
(8) Providing other administrative support to the DPRC, its panels
and judges, and the Special Advocates.
Sec. 201.6 Applications for review.
(a) A complainant may apply for review by the DPRC of a
determination made by the ODNI CLPO in response to a qualifying
complaint submitted by the complainant by filing an application for
review with the appropriate public authority in a qualifying state, for
forwarding to OPCL, no later than sixty (60) days after the date, as
reported to OPCL by the appropriate public authority in a qualifying
state, on which the complainant receives notification that the ODNI
CLPO has completed its review.
(b) The complainant shall submit with the application for review,
through the appropriate authority in a qualifying state, any
information, including argument on questions of law or the application
of law to the facts, that the complainant wishes to provide to the
DPRC. The complainant may be represented by counsel in submitting this
information. OPCL shall maintain the confidentiality of such
information.
(c) An element of the Intelligence Community may apply for review
by the DPRC of a determination made by the ODNI CLPO by filing an
application for review with OPCL no later than sixty (60) days after
the date on which the element of the Intelligence Community receives
notification from the ODNI CPLO that the ODNI CLPO has completed its
review of the qualifying complaint. An application for review filed by
an element of the Intelligence Community may include any information
that the element of the Intelligence Community wishes to provide to the
DPRC, including argument on questions of law or the application of law
to the facts. To prevent the disclosure of classified or otherwise
privileged or protected information, the DPRC, Special Advocates, and
OPCL shall not provide to the complainant any information relating to
the existence, review, or outcome of any application for review filed
by an element of the Intelligence Community.
Sec. 201.7 Convening of panels, conduct of judges, and independence
of the DPRC.
(a) Upon receipt of an application for review, OPCL shall convene a
panel of the DPRC by selecting three judges on a rotating basis, while
ensuring if possible that at least one of the judges selected has prior
judicial experience.
(b) The three judges on a DPRC panel shall select a presiding judge
by unanimous agreement. If agreement is not reached within five (5)
days of the convening of the DPRC panel, the presiding judge shall be
the judge who was selected first by OPCL who has prior judicial
experience; if no judge on the DPRC panel has such experience, the
presiding judge shall be the judge selected first by OPCL.
(c) Judges on a DPRC panel shall conduct themselves in accordance
with the Code of Conduct for United States Judges, except that a judge
may participate in extrajudicial activities, including business
activities, financial activities, non-profit fundraising activities,
fiduciary activities, and the practice of law, where such extrajudicial
activities do not interfere with the impartial performance of the
judge's duties or the effectiveness or independence of the DPRC.
(d) A DPRC panel and its judges shall not be subject to the day-to-
day supervision of the Attorney General. The Attorney General shall not
remove a judge from a DPRC panel, remove a judge from the DPRC prior to
the end of the judge's term of appointment under Sec. 201.3(a), or
take any other adverse action against a judge arising from service on
the DPRC, except for instances of misconduct, malfeasance, breach of
security, neglect of duty, or incapacity, after taking due account of
the standards in the Rules for Judicial-Conduct and Judicial-Disability
Proceedings promulgated by the Judicial Conference of the United States
pursuant to the Judicial Conduct and Disability Act (28 U.S.C. 351 et
seq.).
Sec. 201.8 Special Advocates.
(a) After a DPRC panel is convened under Sec. 201.7(a), the
presiding judge shall select a Special Advocate to assist the panel in
the consideration of the application for review.
[[Page 62307]]
(b) The Special Advocate shall upon selection receive from OPCL the
application for review and any information that the complainant
provided under Sec. 201.6(b). The Special Advocate shall not be the
agent of the complainant, consistent with the rules of professional
responsibility, and there shall be no attorney-client relationship
between the Special Advocate and the complainant.
(c) The Special Advocate shall also have access to the record of
the ODNI CLPO's review and any information or submissions provided to
the DPRC panel by an element of the Intelligence Community.
(d) To prevent the disclosure of classified or otherwise privileged
or protected information, the Special Advocate shall adhere to the
following rules on communications with the complainant or the
complainant's counsel:
(1) If the complainant did not file an application for review, the
Special Advocate shall not communicate with the complainant or the
complainant's counsel.
(2) If the complainant did file an application for review, the
Special Advocate may at any stage submit to OPCL written questions for
the complainant or the complainant's counsel. OPCL shall, in
consultation with relevant elements of the Intelligence Community,
review any such questions to ensure they do not disclose any classified
or otherwise privileged or protected information and, subject to that
limitation, shall convey the questions through the appropriate public
authority in a qualifying state to the complainant or the complainant's
counsel, with an invitation to provide written responses to the Special
Advocate through the appropriate public authority in a qualifying
state.
(e) The Special Advocate shall assist the DPRC panel in its
consideration of the application for review, including by advocating
regarding the complainant's interest in the matter and by ensuring that
the DPRC panel is well informed of the issues and the law with respect
to the matter. Where the complainant has filed an application for
review, the submissions of the Special Advocate to the DPRC shall
include the complainant's application for review and the information
and responses to questions submitted to the Special Advocate by the
complainant.
(f) Affected elements of the Intelligence Community shall be
provided an opportunity to respond to submissions made by the Special
Advocate.
Sec. 201.9 Consideration of applications and decisions.
(a) A DPRC panel shall consider an application for review in a
manner that is timely, impartial, and consistent with the Executive
order of October 7, 2022 and this part in order to determine whether a
covered violation occurred and, if so, to determine any appropriate
remediation.
(b) A DPRC panel shall conduct its review based on the record of
the ODNI CLPO's review and any information or submissions provided by
the complainant, the Special Advocate, or an element of the
Intelligence Community. A DPRC panel may request that the ODNI CLPO
supplement the record with specific explanatory or clarifying
information and that the ODNI CLPO make additional factual findings
where necessary to enable the DPRC panel to conduct its review.
(c) If the DPRC panel finds no evidence in the record indicating
that signals intelligence activities occurred involving personal
information of or about the complainant, the DPRC panel shall render a
decision to that effect.
(d) In all other cases, the DPRC panel shall determine:
(1) Whether, under the applicable law as set forth in the
definition of a covered violation in the Executive order of October 7,
2022, the ODNI CLPO's determination whether a covered violation
occurred was legally correct and supported by substantial evidence; and
(2) Whether, in the event of a covered violation, the ODNI CLPO's
determination as to the appropriate remediation was consistent with the
Executive order of October 7, 2022.
(e) If a DPRC panel decides that a determination by the ODNI CLPO
does not meet the standard set out in paragraph (d) of this section,
the DPRC panel shall issue its own determination.
(f) Prior to determining an appropriate remediation under paragraph
(e) of this section, a DPRC panel shall seek through the ODNI CLPO the
views of affected elements of the Intelligence Community regarding the
appropriate remediation, including an assessment of impacts on the
operations of the Intelligence Community and the national security of
the United States. The panel shall take due account of these views as
well as customary ways of addressing a violation of the type
identified.
(g) A DPRC panel shall make its decision by majority vote. Each
DPRC panel shall issue a written decision setting out its
determinations and the specification of any appropriate remediation.
The decision of each DPRC panel shall be final and binding with respect
to the application for review before it and shall be controlling only
as to that application for review.
(h) After the issuance of a written decision under paragraph (g) of
this section, OPCL shall forward the decision to the ODNI CLPO. If the
complainant submitted an application for review in the case, OPCL shall
notify the complainant through the appropriate public authority in a
qualifying state, without confirming or denying whether the complainant
was subject to signals intelligence activities, that:
(1) The DPRC completed its review;
(2) The review either did not identify any covered violations or
the Data Protection Review Court issued a determination requiring
appropriate remediation; and
(3) The notification to the complainant constitutes the final
agency action in the matter.
(i) A DPRC panel shall provide a classified report on information
indicating a violation of any authority subject to the oversight of the
Foreign Intelligence Surveillance Court to the Assistant Attorney
General for National Security, who shall report violations to the
Foreign Intelligence Surveillance Court in accordance with its rules of
procedure.
(j) For each application for review, OPCL shall maintain a record
of the information reviewed by the DPRC panel and the decision of the
DPRC panel, which records shall be made available for consideration as
non-binding precedent to future DPRC panels considering applications
for review.
Sec. 201.10 Guiding principles of law.
(a) The Executive order of October 7, 2022 and its terms shall be
interpreted by the DPRC exclusively in light of United States law and
the United States legal tradition, and not any other source of law.
(b) In a DPRC panel's review of an application under Sec. 201.9,
the DPRC panel shall be guided by relevant decisions of the United
States Supreme Court in the same way as are courts established under
Article III of the United States Constitution, including those
decisions regarding appropriate deference to relevant determinations of
national security officials.
Sec. 201.11 Information security and classified national security
information.
(a) All proceedings before and other activities of the DPRC and all
activities of the Special Advocates shall be governed by Executive
Order 13526 of
[[Page 62308]]
December 29, 2009, ``Classified National Security Information,'' or any
successor order, and this part.
(b) Judges may serve on a DPRC panel convened under Sec. 201.7(a),
and Special Advocates may be selected to assist a DPRC panel under
Sec. 201.8(a), only if they hold the requisite security clearances to
access classified national security information. The DPRC and Special
Advocates shall have no authority to declassify or grant any person
access to any classified or otherwise privileged or protected
information, including the information reviewed in or information about
the existence or outcome of any proceedings before the DPRC or any
information that would tend to reveal whether a complainant was subject
to signals intelligence activities.
(c) The Department of Justice Security Officer shall be responsible
for establishing security procedures for proceedings before and other
activities of the DPRC and the Special Advocate, and for amending those
procedures as necessary.
Sec. 201.12 Disclaimer.
This part governs the ability to obtain review of the ODNI CLPO's
determinations by the DPRC in accordance with the redress mechanism
established in section 3 of the Executive order of October 7, 2022.
This part is not intended to, and does not, create any other
entitlement, right, or benefit, substantive or procedural, enforceable
at law or in equity by any party against the United States, its
departments, agencies, or entities, its officers, employees, or agents,
or any other person. This part is not intended to, and does not, modify
the availability or scope of any judicial review of the decisions
rendered through the redress mechanism, which is governed by existing
law.
Dated: October 7, 2022.
Merrick B. Garland,
Attorney General.
[FR Doc. 2022-22234 Filed 10-13-22; 8:45 am]
BILLING CODE 4410-PF-P
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