Thursday, October 29, 2009

Public Accountability for Fusion Centers

Amidst widespread concerns about the far-reaching surveillance capacities of intelligence fusion centers, citizens groups are moving forward with demands for public oversight and privacy protections.

The Department of Homeland Security pushed and funded the establishment of 72 “information-sharing, collection, and analysis” centers around the country. Unfortunately, officials erected this risky surveillance apparatus without adequate civil liberties guidelines in place. Mechanisms for privacy protection and oversight have been developed hodgepodge. As a result, the Michigan state fusion center has a privacy oversight board that has never met because the Governor appointed only 4 of 15 sitting members. And in Massachusetts, the Commonwealth Fusion Center lacks any privacy board whatsoever.

Civil libertarians across the political spectrum have raised concerns about the intrusive powers of fusion centers. The seminal 2005 report by the American Civil Liberties Union, What’s Wrong With Fusion Centers, rang the alarm in a resounding manner. Political Research Associates posted a compelling 2003 article by Michelle Kinnucan (a Veteran for Peace and co-coordinator of the Ann Arbor Bill of Rights Defense Committee), on the early efforts of the Global Intelligence Working Group to fundamentally restructure federal/state/local intelligence sharing “along a continuum of all types of law enforcement agencies.”

Public concern about law enforcement access, collection, and sharing of Americans’ personal data and political activities is slowly but surely making its way into state legislatures and city council halls. Here are a few recent initiatives:

Massachusetts: Senate Bill 931

In Massachusetts, the ACLU is organizing support for Senate Bill 931 to shine a light on “intelligence” operations in the Commonwealth. Sponsored by State Senator Harriette L. Chandler, this “Act Regarding the Commonwealth Fusion Center and Other Intelligence Data Cencers,” aims to prevent surveillance abuses and ensure that intelligence operations do not violate privacy and First Amendment rights. Although the fusion center collect and compiles intimate personal information from an array of public and private electronic sources, it operates with virtually no independent oversight, no regular compliance audits, and without quality controls. The Massachusetts State Police, who command the center that houses representatives from DHS, FBI, and the National Guard, implicitly asks the public to trust them to abide by voluntary guidelines on criminal intelligence.

Rather than take their word for it, this legislation offers the accountability and oversight necessary in a system that relies on checks and balances. Senate Bill 931 will prohibit law enforcement from collecting information about individuals’ political and religious views, associations, or activities, unless it relates directly to a criminal investigation based on reasonable suspicion of criminal conduct. It will also establish an office of data protection and privacy oversight for all intelligence data centers, with a commissioner who is provided with full access and subpoena power in order to enable the office to investigate and analyze intelligence data center operations and make regular public reports. In addition, the bill will require basic privacy and quality controls on the data, and assure that an individual can access, review, and correct materials pertaining to him or her that the government has in its records, in order to ensure data accuracy and reliability.

The ACLU asks supporters of this initiative to write or call State Senator James Timilty, Chair of the Joint Committee on Public Safety and Homeland Security. The Massachusetts Chapter of the ACLU has also assembled a brief fact sheet on fusion center abuses that can be useful for organizing.

Cambridge City Council

In February 2009, the Cambridge City Council passed an order requiring city law enforcement agencies to notify their elected leaders of the nature of the information being shared with the state fusion center. Under federal guidelines concerning fusion center operation, criminal intelligence files may be maintained only when there is reasonable suspicion that an individual committed or is about to commit a criminal act. However, the Department of Homeland Security has encouraged local police to report “suspicious activities” to fusion centers that include non-criminal, innocuous behaviors. This order by Cambridge lawmakers is a worthy effort to shed sunlight on the specific kinds of information being exchange by police and fusion centers. It reads:

WHEREAS: As part of the Department of Homeland Security & Emergency Response, the Commonwealth Fusion Center in Maynard, Massachusetts, collects and analyzes information from all available sources to produce and disseminate actionable intelligence to stakeholders for strategic and tactical decision-making in order to disrupt domestic and international terrorism; and

WHEREAS: This Fusion Center was the first of its kind created under the leadership of Governor Romney - without the approval of the State Legislature; and

WHEREAS: There are now 66 of these centers around the country; and

WHEREAS: The goal of the Fusion Center is to collect data from a variety of sources for example, – traffic departments, libraries, for the purposes of analysis and identification of potential threats; and

WHEREAS: The City of Cambridge may have contributed, either voluntarily or by request, information to the Fusion Center; now therefore be it

ORDERED: That the City Manager is hereby requested to inform the Council as to what City Departments contribute, or have contributed, whether voluntarily or otherwise, information to the Fusion Center, and the nature of that information; and be it further

ORDERED: That the City Manager be and hereby is requested to provide information regarding the circumstances under which the Fusion Center would receive data from Cambridge City Departments or third party entities.

Austin, Texas: Getting In on the Ground Floor

On October 26, 2009, two civil liberties groups went before the Austin Human Rights Commission to present recommendations for public oversight of the new Austin Regional Intelligence Center.

Bask in August 2009, the Austin City Council approved a resolution for the use of Homeland Security grants to turn an existing Department of Public Safety building into the new Austin Regional Intelligence Center, at a cost of up to $200,000. Residents spoke out against the new fusion center wearing masks to emphasize the risk that the police department will collect and monitor information beyond criminal activity.

Speakers from the ACLU of Texas emphasized how difficult it can be to backtrack and create policies after the center is in full operation. Matt Simpson insisted on public dissemination of a final privacy policy as well as the memorandums of understanding between various agencies involved. The lack of transparency on such policies and agreements does not bode well for privacy concerns. Chuck Young, founder of Texans for Accountable Government, was struck by the redaction of information in the privacy policy and the lack of disclosure of memorandums of understanding with information providers. The ACLU has demanded a removal policy that eliminates personally identifiable information that is not criminal, such as witness names, from databases. He also stated that the anti-discrimination clause of the policy should be strengthened in light of the prejudicial information sent in a bulletin issued by the North Central Texas Fusion Center in February 2009. That bulletin told law enforcement officials to report the activities of lobbying groups, Muslim civil rights organizations, and anti-war protestors.

David Carter, the Austin Police Department’s Chief of Staff, agreed to create a sub-committee of the Public Safety Commission, which oversees the Department of Public Safety. The sub-committee will be made up of community members and members of civil liberties groups. Certainly, more citizen vigilance of this kind will be needed to ensure public control of law enforcement surveillance and intelligence-gathering activities.

Making "28 CFR Part 23" Law in Texas

Another approach concerning oversight is to give the federal guideline concerning criminal intelligence databases the force of law at the state level. Fusion centers largely sprung into existence without legislative action or debate. Any future legislative action on fusion centers may, however, provide opportunities to add critical privacy protections.

For example, in Texas, lawmakers proposed a bill requiring the Texas Fusion Center to produce an annual report assessing the threat posed statewide by criminal street gangs* (S.B. 379). Representative Ryan Guillen added an amendment providing that “any information received by the center under this section, that is stored, combined with other information, analyzed, or disseminated is subject to the rules governing criminal intelligence in 28 C.F.R. Part 23.” This amendment brought the new bill into conformity with other provisions regarding the gang-related intelligence, but it demonstrates that any new laws concerning fusion centers should include these protections.

The above-listed reforms are just a small sample of what can be done to shine light on fusion center operations before large-scale abuses occur. These local efforts can help build momentum for national reform, which is ultimately what is needed. In truth, an entire new legal regime is needed to address data-based surveillance and guarantee the privacy that most U.S. citizens expect.

* In fact, many fusion centers prioritize traditional crime-fighting and anti-gang measures, rather than counter-terrorism. According to Christopher Pyle, “advocates of fusion centers are trying to diversify their operations before Americans realize that there aren’t that many terrorists to justify the enormous scale of the fusion center network, and before legislators discover that the centers are virtually useless in the war on terrorism.” Pyle is a Professor of Politics at Mount Holyoke College, who in the 1970s disclosed the military's surveillance of civilian political activity.

This regulation (28 CFR Part 23) was part of a series of law enforcement reforms initiated in the 1970s to curb widespread abuses of police investigative authorities for political purposes, particularly by police intelligence units. Encouraging the collection of information not reasonably linked to criminal activity while weakening the regulations governing intelligence systems will likely lead to similar abuses.