New report claims Fusion centers are violating Americans' civil rights.
A report released today by The Constitution Project highlights potential civil rights violations at many of the nation’s 77 fusion centers. Practices criticized by The Constitution Project, which is based in Washington D.C., include racial and religious profiling and data mining.
This report contains six parts. In parts I and II, the report introduces the subject and provides an overview of the structure of fusion centers and the institutional framework within which they operate. In part III, the report highlights civil liberties concerns raised by fusion center data collection. Some fusion centers’ policies and training programs have enabled racial, religious and political profiling, and their collection of information for "suspicious activity" reports has threatened constitutional rights of privacy. Part IV outlines and critiques fusion centers’ procedures regarding data storage and use.
The report explains how fusion centers should rely upon the Fair Information Practice Principles that form the basis for the Privacy Act of 1974 to develop proper safeguards for personally identifiable information, such as through data minimization, use limitations, and audit logs, as well as policies strictly regulating the use of data mining and private sector partnerships. Part V addresses the lack of adequate accountability and redress mechanisms within fusion centers and the need for government transparency. Finally, in part VI, the report offers a set of recommendations to ensure that fusion centers operate effectively while respecting civil liberties and constitutional values. These recommendations include specific limits on collection, storage and use of data, as well as state and federal oversight.
The following are excerpts from the report:
Suspicious Activity Reports and privacy
The DHS plans to use fusion centers to form a national network for collecting and sharing local law enforcement reports of suspicious, potentially terrorism-related activity. This effort is known as the Nationwide Suspicious Activity Reporting (SAR) Initiative. While information sharing can be important for law enforcement, the program also has the potential to infringe upon constitutional rights of privacy and fundamental notions of appropriate government collection of information. In particular, the loose definition of "suspicious activity" under these plans could result in the creation of government databases that store files on individuals who have no link to terrorism or any other criminal activity.
The definitions of suspicious behavior used by the federal government and police forces are wide-ranging and include behavior that may be completely innocuous. For instance, the Los Angeles Police Department (LAPD) Special Order 11, praised by the Office of the Director of National Intelligence as a "national model,"calls upon LAPD officers to report "suspicious activities" that encompass non-criminal conduct such as using binoculars, taking notes, drawing diagrams and "espousing extremist views."
The ACLU criticized the LAPD, expressing concern that "overbroad reporting authority gives law enforcement officers justification to harass practically anyone they choose, to collect personal information and to pass such information along to the intelligence community." Special Order 11 was superseded by Special Order 1 in January 2012. While the new policy adopts a narrower definition of "suspicious activities," it has been criticized by civil liberties organizations and other advocacy groups.The federally published standards for suspicious activity reports, like the LAPD Special Orders, describe conduct that might not meet the "reasonable suspicion" standard. For example, "observation through binoculars" and "taking notes" could provide grounds for a suspicious activity report. As of the date of this report, the LAPD has agreed to amend its policy, although the new standards have not yet been released.
An example of an actual suspicious activity report described in The Washington Post illustrates some of the problematic aspects of the reporting system. An officer observed a man snapping photos of a police fire boat and a ferry with a cell phone camera. The man made a phone call and was eventually joined by two other adults and two small children, all of whom then boarded the ferry. The report of this activity was passed along to the regional fusion center. Authorities would not address what happened to the report after it reached the fusion center, but even if the fusion center concluded that it was harmless, it would still be forwarded to the FBI.
The FBI, the report would either be used to start a full-fledged investigation or be deemed irrelevant, in which case the FBI would leave the report in its suspicious activity reporting database, eGuardian. The most likely outcome, however, would be that no decision would be made and a file would remain open on the individual in question. Over time, more information could be added to the file, including employment and financial history, phone numbers, addresses and any other potentially useful information. In another real-life example, a suspicious activity report generated by the private security team of a large shopping center based on nothing more suspicious than a cell phone accidently left on a cafeteria table resulted in a visit by the FBI to the cell phone owner’s home. The investigation concluded that a 72-year-old man who operated a kiosk in the shopping center simply forgot his phone on the table during a break.
An individual taking pictures of a ferry or a cell phone sitting on an abandoned table might warrant an initial inquiry, it certainly does not justify the creation of a government file linking that individual to terrorism. Such a file might easily have serious consequences. It might be accessed by law enforcement or intelligence agencies—or perhaps released to private sector entities—with potentially severe ramifications, including placement on a no-fly list, loss of employment or serious reputational harm. To limit these consequences, files that link individuals to allegations of terrorism should not be held in government databases unless those files are based on information that rises to the level of "reasonable suspicion" of criminal activity.
Other reports, although they do not involve fusion centers per se, provide additional troubling examples of profiling and demonstrate the manner in which problematic incident reports can spread through linked databases. For example, from 2005 to 2007, the Homeland Security and Intelligence Division of the Maryland State Police secretly monitored a wide range of anti-war, anti-death penalty, animal rights and bike lane activists, even going so far as to employ undercover operatives to infiltrate meetings. The surveillance lasted for several years, despite the fact that no evidence of criminal activity was ever uncovered. Even more troubling, the police characterized these groups and individuals as terrorists and security threats in state files which were subsequently transmitted to federal databases. All told, data characterizing 53 peaceful activists (including two nuns) as "terrorists" was transmitted to at least seven federal and state agencies, including the National Security Agency.
In a similar incident, Pennsylvania state homeland security officials reportedly hired contractors to draft intelligence bulletins on a wide range of protest movements and activities, including a gay and lesbian festival, Tea Party meetings, an anti-British Petroleum candlelight vigil and the screening of an environmentalist documentary film. These intelligence bulletins were distributed to both law enforcement personnel and the security offices of private companies. In an example of potential profiling on other grounds, reporters analyzing suspicious activity reports generated by the private security offices at Minnesota’s Mall of America and shared with the local police department and the Minnesota state fusion center revealed that nearly two-thirds of the reports involved minorities. According to the Mall’s security director, his office is the Minnesota fusion center’s "number-one source of actionable intelligence."
Fusion centers store personal information about Americans and may have access to a vast range of government databases.
They can access and share information from state and local criminal record systems, as well as federal intelligence and law enforcement databases. They can also gain access to personal information, including unlisted phone numbers, insurance claims, car rental information, drivers’ license photographs and credit reports, through commercial databases owned by "information resellers." While access to information is necessary to achieve the anti-terrorism and anti-crime goals of fusion centers, policymakers must balance the desirability of the free flow of information against the risks that information will be abused or shared inappropriately.
One of the most pressing concerns regarding fusion centers is accountability.
Accountability is crucial to both protecting privacy and civil liberties and ensuring that institutions operate effectively. Yet, several features of fusion centers contribute to a lack of accountability. First, the rapid pace of advances in information technology and the nation’s limited experience with the fusion center concept may make it difficult for policymakers to understand the nature and consequences of fusion center activity. Some fusion center employees may be aware of the latitude that can result from this lack of understanding; in the words of one analyst, fusion centers are "a sort of ‘wild west’ . . . in that they can use a variety of technologies before ‘politics’ catches up and limits options." The wide variety of fusion center structures and the diverse legal regimes to which they are subject also complicate oversight. It is not always clear whether these governance structures are effective or whether the fusion centers abide by the relevant legal regimes. And while the federal government exercises limited oversight of fusion centers, there are reports of federal agencies pushing states to flout or alter their laws at the expense of civil liberties. Finally, the secrecy that surrounds fusion centers makes public oversight of their activities more difficult.
http://www.constitutionproject.org/pdf/fusioncenterreport.pdf