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Connecting the Dots, Protecting Rights

Since 9-11, the U.S. government has worked to improve intelligence collection and to create an information sharing environment (ISE) to prevent the next terrorist attack. Part of the effort has been a national network of intelligence fusion centers. A newer component is a pilot program for suspicious activity reporting (SAR) that the government hopes will provide additional data points needed to prevent the next 9-11. The Director of National Intelligence’s Program Manager-ISE (PM-ISE) launched a pilot test of SAR in 12 cities in 2008.

John Cohen, a PM-ISE spokesman, explains the formulation of a SAR as such: A police officer sees a group of people photographing a piece of critical infrastructure, such as a bridge. The officer approaches and asks them why they are taking pictures. They explain that they are tourists and that they are sightseeing. If the officer finds this credible, no SAR is filed. If, however, the officer detects deception, he would file a SAR.

Each SAR is coded based on as many as 200 variables, such as time, location, vehicles involved, and descriptions of those involved. The common data fields allow sharing under a national information-exchange model via fusion centers. SARs are vetted by regional Joint Terrorism Task Forces for consideration of a potential nexus to terrorism and possible criminal investigation.

Civil libertarians had already voiced concerns that fusion center operations, which are shielded from state and federal sunshine laws, would form the backbone of a new surveillance society in which analysis of personal data could target law abiding citizens for undue scrutiny. The SAR model has heightened civil libertarians’ concerns amid a series of revelations during the past year about political activities that some law enforcement agencies have already singled out.

For example, the American Civil Liberties Union (ACLU) discovered that the Maryland State Police surveilled nonviolent antiwar and anti-death penalty groups from 2005 to 2006, designating them terrorist organizations.

Earlier this year, a bulletin from the North Central Texas Fusion System alerted police officers to the activity of Muslim groups that espouse the superiority of Islam. A separate document issued by the Missouri Information Analysis Center concerning militia members listed support for 2008 presidential candidate U.S. Rep. Ron Paul (R-TX) as a characteristic of militia members.

Federally funded law enforcement operations are forbidden from collecting information about an individual’s religious, political, or social views by 28 Code of Federal Regulations (CFR) Part 23. Many law enforcement agencies and fusion centers observe 28 CFR Part 23 as a best practice, regardless of whether they receive federal funding.

In the scheduled revision of the national SAR guidelines this year, PM-ISE sought to erase any ambiguity and apply standards similar to 28 CFR Part 23, and engaged the ACLU for its input, Cohen says. Among the results in the revised guidelines is an explicit statement that race, ethnicity, national origin, and religious affiliation cannot be among the factors that create suspicion.

The new guideline lists First Amendment-protected activities, such as nonviolent political and religious speech, and also alters the definition of suspicious activity, from “observed behavior that may be indicative of intelligence gathering or pre-operational planning related to terrorism, criminal, or other illicit intention,” to “observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity.”

Michael German, the ACLU’s National Security Policy Counsel and a former FBI agent, says the organization is “very happy” with the revised guideline, which he called “vastly improved.”

More must be done nationally to monitor the ISE, German says, including a requirement of auditable records of all data transactions and robust self-policing. One improper operation taints the entire environment, he says.

PM-ISE has expanded its SAR pilot to 22 new cities, with another review of the guideline scheduled for [email protected] Read the revised guidelines for the SAR program at "Beyond Print."