The ACLU enumerated many of the threats fusion centers pose to Americans’ privacy in a November report, "What’s Wrong With Fusion Centers." We all want law enforcement agencies to be able to quickly and effectively share information about suspected criminals, but recent news reports reveal that it is not just criminal intelligence that is being collected and shared with the intelligence community.
The Wall Street Journal and the Los Angeles Times both reported on the Los Angeles Police Department’s extensive list of "criminal and non-criminal" behaviors, which LAPD officers are instructed to report as "suspicious activities." The list includes such innocuous, clearly subjective and First Amendment protected activities as "taking pictures or video footage with no apparent esthetic value," "drawing diagrams and taking notes," "espousing extremist views," and "engaging in suspected coded conversations or transmissions." Million of America teenagers conduct "coded conversations and transmissions" every day: OMG LOL TTYL! And do we want police officers determining whether our photographs have "esthetic value?"
Now the LAPD would tell you that these suspicious activity reports (SARs) aren’t a privacy concern because they wouldn’t include "personally identifiable information." But the Director of National Intelligence recently issued new functional standards for suspicious activity reporting that the LAPD program and others like it would generate. These standards make it easier for state and local law enforcement to report non-criminal suspicious activities to the intelligence community and re-define "personally identifiable information" to allow the collection and retention of specific data that could be used to distinguish or trace an individual's identity. For instance while your name and driver’s license number would be removed from a SAR, your date of birth, height, weight, race, hair and eye color, driver’s license state, date of issue and date of expiration would all be reported. Clearly this detailed information could be traced back to a particular individual.
The Massachusetts fusion center (known as the Commonwealth Fusion Center) recently issued standard operating procedures that authorize "inquiries and investigations" when "oral or written statements advocate unlawful or violent activity, to determine whether there exists a real threat." These guidelines allow undercover police officers to attend public meetings to gather intelligence even when there is no reasonable suspicion of illegal activity. The hazards of such a policy were revealed in a recent incident at Harvard University, where a plain-clothes Harvard University detective was caught photographing people at a peaceful protest for "intelligence gathering" purposes. A university spokesman refused to say what the HUPD does with the photographs.
If you want to learn more about fusion centers, you better work fast because there appears to be an effort by the federal government to coerce States into exempting their fusion centers from state open government laws. If you live in Virginia, it’s already too late. The Virginia General Assembly just passed a law exempting the Virginia fusion center from the Freedom of Information Act. According to comments by the commander of the Virginia State Police Criminal Intelligence Division and the administrative head of the center, the federal government pressured Virginia into passing the law with the threat of withholding classified information.
We can’t afford to be in the dark about fusion centers. And just because the government isn’t announcing this domestic surveillance program the way it did TIA, TIPS and MATRIX, doesn’t mean we can ignore it. Given the broad scope of information collected, processed and disseminated by fusion centers, it would be irresponsible not to enforce vigorous public oversight. We have to make sure our members of Congress and state legislators know it’s up to them to guard our privacy.
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