Thursday, July 29, 2010

Behavior Profiling: Ineffective and Expensive Security Theater

Behavioral profiling, the latest trend in pre-emptive policing, has been used in America’s airport terminals since 2003 when the Screening of Passengers by Observation Techniques (SPOT) program was implemented by the Transportation Security Administration (TSA) across the United States. This past May, the U.S. Government Accountability Office (GOA) issued a report assessing the program’s effectiveness, how much validity was established before SPOT went nationwide, and any improvements that could be made. The results reveal serious flaws in the SPOT program’s makeup and implementation.

The success of the initiative has yet to be seen in regards to counterterrorism; no scientific basis currently exists that supports the idea that mere observation of people’s behaviors can lead to identifying those with terrorist inclinations. Despite this lack of factual groundwork, airport security is increasingly relying on SPOT to locate people who may seem suspicious. Security officers may also be utilizing databases and other resources to identify the people pointed out by Behavior Detection Officers.

This $212 million dollar a year endeavor, which TSA wants $20 million more for 2011, has yet to uncover a single terrorist. [1] On top of that, the GOA reports, 16 people who have been previously flagged as terrorist sympathizers or accomplices were never picked up (or “spotted”) by Behavior Detection Officers despite having "moved through SPOT airports on at least 23 different occasions."

“If the GAO weren't so kind and subtly state it, this report would be rather damning,” mentioning that of the SPOT program’s “152,000 secondary referrals, only 1,100 have resulted in arrests, less then half of which might have anything to do with terrorism, and zero actual terrorists have been caught,” said Jim Harper, member of the Department of Homeland Security's Data Privacy and Integrity Advisory Committee during an oversight hearing.

When Harper asked U.S. Secretary of Homeland Security Janet Napolitano for her remarks on the report during the July hearing, she alleged she was not aware of the GOA’s report. She has yet to make any public comments concerning the effectiveness of the SPOT program.

The GOA report recommends that TSA introduce an independent review panel to evaluate the SPOT program and that security officers make better use of the different resources available to them. The GOA acknowledged that TSA lacked “outcome oriented measures” to review SPOT’s progress, but falls short of recognizing its obvious ineffectiveness. Merely observing a random pool of the public will never be a sufficient method to prevent terrorist attacks. Instead, it provides opportunities for routine racial profiling and detaining innocent people for questioning, a blatant Fourth Amendment infringement.

Organizations including Political Research Associates rightly take issue with such flagrant violations on civil liberties, especially as the SPOT program has yet to locate a single terrorist in its years of operation. There is no reason for Americans to continue allowing their tax dollars to fund this piece of security theater. The initiative has yet to make anyone safer in the air—instead, it allows the government to hamper freedom and interrupt the personal lives of everyday citizens.

[1] Roger Yu, 24 May, 2010, “Airport Check-in: TSA Behavior Screening Misses Suspects,” USA Today, accessed 25 July, 2010.

Tuesday, July 20, 2010

FBI JTTF Agent Hands Private Data Over to Corporate Security Guards

A Texas City police officer, Cpl. Tom Robison, detained freelance photographer Lance Rosenfield during the first week of July 2010 for taking pictures of public signs. The law enforcement harassment of Mr. Rosenfield resembles hundreds of similar acts around the country, where taking pictures on public land in the bright of day is mistaken for “surveillance.” The Coast Guard and BP have recently raised eyebrows along the Louisiana gulf coastline for blocking photographers’ access to beaches and marshland under the pretext of safety for “boom maintenance workers,” according to independent photojournalist Georgianne Nienaber. See: Kevin Gosztola, “Embedded Media Only Allowed to Cover Oil Disaster?” (May 20, 2010). Rosenfield’s experience – which involved a roadside interrogation by an officer attached to the FBI’s Joint Terrorism Task Force – provides added insight into how law enforcement collaboration with private industry threatens privacy rights and civil liberties.

Throughout the growing homeland security bureaucracy, government agencies collaborate more and more closely with private companies. Technology firms like MEMEX design and run information-sharing databases for fusion centers. “Critical Infrastructure Support Groups” connect law enforcement with industrial security firms for power plants, hospitals, and transportation providers. New systems like Infragard give private industry access to sensitive security information. These new entanglements provide many opportunities for private personal data to be shifted from government hands to the corporate sector, increasing the risk of identity theft or other harm. The Department of Homeland Security is busy developing electronic mechanisms to protect privacy, but Mr. Rosenfield’s situation shows that disclosure can be as simple as handing over a piece of paper to a security guard.

As reported on Democracy Now, Mr. Rosenfield was acting on assignment for an investigation by Pro Publica and Frontline into an April 2010 toxic chemical release at BP’s massive refinery in Texas City. On April 6, just two weeks before the explosion on the deepwater horizon oil rig, 538,000 pounds of chemicals began spewing into the atmosphere. When Rosenfield started taking photos of the local town and roadway signs to give a portrait of the town itself, he was followed by BP security guards and Texas City police officers. Police Officer T. Krietemeyer pulled in after Mr. Rosenfield stopped at a gas station and demanded to review his photographs. (You can view the video from the dashboard camera here). Says Rosenfield,

They had reports that I was taking photographs. And I said, ‘Yes, I’m a photojournalist.’ And they said, ‘We need to see your pictures.’ I said, well, you know, ‘Without a warrant, I don’t feel like I need to show you the pictures.’ And he said, ‘Well, you can show ‘em to us now or we can to this later with Homeland Security.’
In blatant disregard for Mr. Rosenfield’s privacy rights, the Officer Krietemeyer gathered Rosenfield’s personal information, including his social security number, and then turned around and handed that information directly to BP’s security guard, Mr. Stief. Mr. Rosenfield objected to no avail. Next, Cpl. Tom Robison, a liaison with the Joint Terrorism Task Force, arrived and continued questioning Mr. Rosenfield in an aggressive and antagonistic fashion. Cpl. Robison explained his view that “a refinery is a terrorist target and any time people take pictures of it, they have to investigate.” After concluding that the photos did not represent a terrorist threat, Mr. Rosenfield was free to leave the scene.

In a statement from BP, the company claims that Officer Krietemeyer provided BP with information needed to make a report to the Coast Guard’s National Response Center (NRC), consistent with regulatory requirements under 33 C.F.R Part 101.305. Any duty to report incidents to the Coast Guard is limited to suspicious activity. 33 CFR Part 101.305 requires an owner of a maritime facility to report activities that “may result in a transportation security incident.” Nothing that Mr. Rosenfield did was suspicious under any reasonable standard. He did not enter facility property or possess photos of any BP facilities. Of course, the purpose of this reporting mechanism is to notify law enforcement. Here, a member of the JTTF (to which the Coast Guard belongs) already possessed the information, so there was no need to pass it on to BP so it could notify law enforcement! The fact that the NRC now has an incident report with Mr. Rosenfield’s personal information on file should not comfort anyone.

This is not the only time that the FBI JTTF liaison was involved in detaining a refinery photographer. In July 2008, a photographer for the Galveston County Daily News was also detained by Cpl. Robison. Officer Robison, it was alleged, tried to cajole Kevin Cox into showing him photos of Marathon refinery employees cleaning up a minor oil spill during a 45-minute detention. Both Texas City Police and the FBI assert a legal right to review photos of refineries, although where this power comes from is not clear.

Wednesday, July 14, 2010

Ban All Racial Profiling Without Exception

On Monday this week, the New York Times announced that its investigation of NYPD “stop and frisk” practices from 2006 through 2010 found police stopped 52,000 people in a small eight-block predominantly black neighborhood called Brownsville. That’s one stop per year for every one of the neighborhood’s 14,000 residents. Police claim that almost half of those stops were prompted by “furtive action” of the resident. Action by Congress to ban profiling based on race, ethnicity, nationality, and religion is long overdue, but Congress has been diverted by politicized and uninformed calls to use race-based profiling as a counterterrorism tool.

Prior to 9/11, a consensus was emerging in the country that racial profiling was a common, destructive practice requiring federal action. Congress is today poised to reconsider the End Racial Profiling Act (ERPA), first introduced in 2001, which would prohibit all law enforcement officers from engaging in racial profiling. The proposed ERPA provides legal options to individuals injured by racial profiling and includes grants to state and local agencies to enable them to meet the bill’s requirements. Arizona’s passage of SB1070 highlights the need for comprehensive federal legislation banning racial profiling, especially since copycat legislation is cropping up in at least eighteen more states. Arizona’s new anti-immigration law will intensify and spread racial profiling because it essentially criminalizes “walking while brown” by requiring law enforcement to act on reasonable suspicion that an individual is in the country illegally and arrest them if they fail to produce papers. Despite candidate Obama’s promise to ban profiling, and support for ERPA by Attorney General Eric Holder, the bill has yet to be introduced in this Congressional term. The House Judiciary Committee held hearings on the bill on June 17, 2010, but there remains strong pressure to carve out an exemption to allow profiling for national security reasons. Political Research Associates calls on Congress to pass ERPA and opposes any effort to water down the legislation with a national security exemption.

A national security exemption would create an enormous loophole in a nationwide ban on racial profiling. Under this loophole, current pretexts for racial profiling such as gang or drug enforcement could be justified under a new national security rationale. In Arizona, border security could easily be twisted to justify detentions and searches based on nothing more than ethnicity and nationality. Since 2003, FBI guidelines that generally prohibit racial profiling by federal law enforcement do allow the practice for purposes of “national security” and “border security.” As a result, racial profiling has become more pronounced since September 11, 2001, particularly among Muslim, South Asian, Middle Eastern, and Arab communities. The U.S. government has also mobilized local cops to gather and report “suspicious activities” in a manner that frequently targets people solely on the basis of nationality and religion.

An exemption for national security is entirely inconsistent with equal protection guarantees in the Constitution. In declaring that racial profiling is wrong and immoral, except where national security is at stake, the government currently asserts that there is something unique about the “War on Terror” that makes ethnicity and race legitimate factors when the same tactics have been found to be ineffective and discriminatory in other criminal investigations. That approach ignores the fact that there has not been a single documented incident where racial profiling by law enforcement resulted in the capture or detention of any suspect related to terrorism. The FBI caught no terrorists when it sought out 8,000 Middle Easterners and Muslims to interview in the months following 9/11. Instead, the interviews may have had a chilling effect on relations between the Arab community and law enforcement. Stereotyping in any context is too blunt, almost always overbroad, and a poor substitute for investigations based on particularized suspicion. Congress should listen to the U.S. intelligence officials who have emphasized that focusing on racial characteristics of individuals wastes resources and diverts attention away from criminal behavior by people who do not fit the profile.

Instead of spending millions of dollars to fill our jails with hard-working people, states like Arizona should be creating living-wage jobs and supporting those who keep the economy afloat. More importantly, the federal government should act quickly to shut down any law that criminalizes groups of people based on their race or nationality. The Department of Justice lawsuit against SB1070 is a good start, but Washington should also set the example by banning all racial profiling in the FBI guidelines and pass the ERPA.

Wednesday, July 7, 2010

Praying as Suspicious Behavior in the Henderson 7 Case

Since 9/11, practicing Islam has been unfairly viewed as suspicious in some circles, including among many in law enforcement. On December 20, 2009, in Henderson, Nevada, a concerned caller notified police that seven Muslim men were praying in a gas-station parking lot. The men had been traveling through the area and had stopped to perform one of the five daily prayers required in their religion. Although the caller did not describe any illegal conduct, the Henderson police investigated the “incident,” detaining the seven Muslims for approximately forty minutes and searching their vehicle. No arrests were made that night, but the FBI recently questioned five of the men again. [1] Muslim advocacy groups have raised alarms about this unfair and prejudicial treatment, emphasizing that the men were doing nothing suspicious and should not have been placed under so much scrutiny for an innocuous, legal activity.

Although police claim that local policy required them to check out the scene since they received a terrorism-related tip, it is unclear why they needed so much time to investigate the men. Indeed, it is disquieting that the simple act of praying prompted suspicion, on the parts of both U.S. citizens and police. Would they respond the same way to yoga, tai chi, or other peaceful movements in a public space?

One of the seven men recorded part of the investigation on his camera phone. In the recording, a police officer says he doesn’t know what the Muslims could be praying about and ignorantly suggests that they could be chanting, “I want to kill a police officer today.” [2] Police later admitted that “they were not trained well enough to know how to appropriately respond to Muslim religious behavior.” [3]

This is not the first time practicing Islam has been deemed suspicious activity by authorities. The Henderson Seven case is similar to a May 2002 incident in Stoughton, Massachusetts, in which fire trucks, police officers, and the bomb squad converged on a BJ’s Wholesale Club after Muslim men were sighted there praying at sunset. [4] The police evacuated the entire establishment and questioned the men. Clearly, racial bias influences these kinds of 911 calls about “suspected terrorists.”

Muslims, Middle Easterners, and South Asians are often subjected to slurs, and hate crimes on the streets and discrimination in housing, public accommodations, education, and employment. The Council on American-Islamic Relations (CAIR) recommends training police about Muslim religious practices and civil rights, and disciplining officers who inappropriately target Muslims. Perhaps flagrant abuses from law authorities will serve as catalysts for ensuring better treatment of ethnic and religious minorities.

Continued unfair treatment, in contrast, is bound to result in the alienation and even disenfranchisement of Muslim American communities, just when the Department of Homeland Security, the FBI, and President Obama recommend that we develop relationships of mutual trust. John Brennan, Obama’s chief counterterrorism advisor, has publicly recognized that domestic counterterrorism efforts will fail if Muslims are not involved as partners. [5]
When police officers and FBI agents spend their time pursuing innocent people because of ethnic or religious bias, they waste time they could spend on developing real leads.

1. Ritter, Ken. “Muslim Group Says FBI Still On Nevada Prayer Case,” SFGate, June 21, 2010. (accessed 6 July 2010).
2. see
3. Blasky, Mike. Las Vesgas Review Journal. “Racial Profiling Alleged: Muslims Criticize Henderson Police Tactics” (accessed 6 July 2010). Mar. 06, 2010
4. “Evacuation Due to Muslim Prayers Sparks Debate,” by Ray Henry, The Boston Globe, May 16, 2002.
5. “John Brennan’s Counterterrorism Vision vs. American Muslim Reality,” by Spencer Ackerman, The Washington Independent, June 17, 2010.

Suspicious Activity Reporting Expands to LAX and Amtrak: A Recipe for Racial Profiling

In an expansion of the national Suspicious Activity Reporting Initiative (SAR), law enforcement and Department of Homeland Security (DHS) officials recently tied both Amtrak and Los Angeles International Airport (LAX) into the initiative. Unfortunately, although SAR is meant to help intelligence analysts “connect the dots,” it has a major flaw: it encourages police to gather and share information about completely legal activities in which thousands of people engage every day. Many of these activities are so common that racial, religious, and ethnic factors often determine whether the activities are perceived as “suspicious.” [1]

On July 1, Department of Homeland Security Secretary Janet Napolitano announced the expansion of the See Something, Say Something campaign, originally launched after 9/11 by New York’s Metropolitan Transit Authority and funded in part by $13 million from DHS’s Transit Security Grant Program. The campaign generated “tips” about Middle Eastern men “speaking in a foreign language” on their cellphones and about a person photographing trains at New York’s Penn Station. The photographer was participating in an Amtrak contest. Now the campaign is going national. Napolitano described the new Amtrak version as a “simple and effective program to raise public awareness of indicators of terrorism, crime, and other threats.” [2] (Could this program possibly be less specific about terrorist behavior than “See Something, Say Something”??)

On July 3, the Los Angeles Police Department (LAPD) announced that it would expand its controversial and unproven iWatch program to LAX. The program encourages people to report activities that “do not seem right” and individuals who “do not seem to belong” to the authorities, vague standards that invite untrained citizens to act on the racial prejudices that often underlie their anxieties about terrorism, potentially distracting security professionals from real threats.

In its announcement, the LAPD boasted that iWatch is the “21st century version of neighborhood watch.” An educational component explains the kinds of activities in which terrorists engage and encourages people to report these. iWatch supporters point to this educational component to defend themselves against allegations of racial profiling, but the initiative is still too new to show whether it leads to useful tips. Despite this and other potential glitches, iWatch is already being marketed to and “adopted by law enforcement agencies nationwide.” [3]

Not one terrorism plot has ever been uncovered by a citizen-watch program. Shoe-bomber Richard Reid, Christmas day bomber Umar Farouk Abduulmutallab, Times Square bomber Faisal Shahzad, and even the 9/11 hijackers did nothing to arouse the suspicions of ordinary people before they boarded their aircraft. On June 6, 2010, two accused terrorists from New Jersey boarded a plane at JFK Airport that was flying to Egypt, yet nothing they did at the airport provoked anyone to “see something, say something.” [4] In some cases, even Homeland Security professionals trained to recognize the threats saw nothing unusual or did not do their jobs. Passengers acted appropriately and instinctively to subdue Reid and Abduulmutallab when they attempted to set off their bombs – but they didn’t need iWatch or similar programs to tell them to act with common sense.

TSA officials treat Arabs, South Asians, Muslims, and Sikhs, whether they’re U.S. citizens or not, differently from the rest of the air traveling public. These travelers are routinely asked lengthy and inappropriate questions about their faith and personal politics when they enter the country, such as, “What is your religion? What mosque do you attend? How often do you pray? What charities do you contribute to? and What do you think of the war in Iraq?” [5] They are often targeted for discriminatory searches of laptops and other personal property. One Muslim father explained to the audience at an interfaith colloquium at New York University that his 21-year-old son, who is American-born and raised, is subjected to extra security every time he boards a plane. His son now feels disenfranchised in his own country.

Religious profiling at airports has intensified since the failed 2009 Christmas Day bombing attempt at Detroit Metropolitan Airport. The number of people on the federal no-fly list, the majority of whom are Muslims and have no criminal records, has increased. People on the no-fly list can neither travel domestically nor return into the United States from abroad—so Americans who were traveling when the list was updated cannot re-enter to their country. The ACLU is currently litigating several such cases.

Suspicious-activity reporting at airports and transportation hubs has delivered nothing useful. In January 2002, police officers stopped an Arab American passenger en route to Washington, D.C., because the airplane’s pilot requested that he be “checked out” because he had “an Arabic name.” On October 28, 2001, three Arab American women were prevented from boarding their flight because airline personnel heard them quietly praying before the flight and became concerned upon hearing one of the women say the word “Allah.” [6] JetBlue and the Transportation Security Administration were forced to pay $240,000 to Raed Jarrar after they refused to permit him to board his flight while wearing a t-shirt that read, “We Will Not Be Silent” in Arabic and English. In January 2009, members of a large Muslim family on AirTran Flight 9 were removed from the plane because two of them had been casually speaking about the “safest place to sit on an airplane.” Even after the FBI cleared the group, AirTran refused to rebook them. [7]

Pushing iWatch in an environment where law abiding Middle Eastern, Arab, and Muslim members of the public are already subject to heightened scrutiny is irresponsible and harmful. It will stir up fear and anxiety among the traveling public, while also promoting the belief that government is doing something – even if it is theater – to keep them safer.

1. See Political Research Associates, Platform for Prejudice (March 2010) [web link]. See also, ACLU, “More About Suspicious Activity Reporting” (June 29, 2010)
3. See LAPD Blog, iWATCH Launches at Los Angeles International Airport Program Encourages Airport Visitors and Communities to Help Fight Terrorism (accessed 29 June 2010).
4. “Feds tracked N.J. terror suspects for years,” USA Today, June 8, 2010.
5. Muslim Advocates, “Unreasonable Intrusions,” April 2009.
6. Leadership Conference on Civil Rights Education Fund, “Wrong Then, Wrong Now: Racial Profiling Before & After September 11, 2001.”
7. ACLU and Rights Working Group, “Persistence of Racial and Ethnic Profiling in the United States,” June 30, 2009.

Thursday, July 1, 2010

Don’t give the President an “Internet Kill Switch”

On June 10, 2010, Senator Joseph Lieberman (I-CT) and his cosponsors Senator Thomas Carper (D-DE) and Senator Susan Collins (R-ME) introduced the Protecting Cyberspace as a National Asset Act. This bill, which would give the president power to restrict or shut down the Internet during emergencies, threatens civil liberties, including the right to free speech. The unprecedented bill is Congress’s most comprehensive piece of legislation concerning cybersecurity during a national crisis.

Greg Nojeim, the senior counsel and director of the Project on Freedom, Security, and Technology at the Center for Democracy and Technology, spearheaded a campaign to amend the bill. Because of his efforts, 23 organizations signed on to a letter calling for changes to the bill. The signatories concerns include the bill’s scope, the preservation of free speech, the extent of information sharing, privacy, and transparency. [1] The diverse signatories include the National Lawyers Guild, the Citizens’ Committee for the Right to Keep and Bear Arms, and Political Research Associates.

An amendment to the bill has since been proposed that addresses several of these concerns. It limits the extent to which the president can obstruct Internet usage and changes the original indefinite period of executive privilege to a maximum of 120 days before the president must seek congressional approval. [2]

The bill creates a National Center for Cybersecurity and Communications (NCCC) that would control access to any aspect of the Internet that it deemed “covered critical infrastructure” (CCI). Originally, it possessed the power to shut down all Internet access to civilians. However, the amendment narrows the definition of CCI to a “system or asset the destruction or disruption of which would cause national or regional catastrophic effects.” [3]

Despite the improvements to the bill, there is still reason for concern unless additional amendments are included. In a second letter, addressed to the cosponsors of the bill and the rest of the Senate Committee on Homeland Security and Government Affairs, Nojeim applauded the senators for the modifications laid out in the amendment but urged them to go further. At a minimum, he said, Congress must explicitly delineate the power of the NCCC, especially regarding the extent to which it can “develop and coordinate emergency measures or actions necessary to preserve the reliable operation, and mitigate or remediate the consequences of potential disruption, of covered critical infrastructure.” [4]

This bill gives the president control over the lines of communication and potentially limits free speech during emergencies, just the times when peoples’ voices need to be heard. Like the word “terrorism,” “emergency” can be manipulated to justify measures that hamper social justice movements. In the name of national security, President Truman broke a steelworkers’ strike in 1952, during the Korean War. On a much smaller scale, during protests at the G-20 meetings in Pittsburg in 2009, police harassed and arrested Twitter users who were communicating with demonstrators – echoing Iran’s crackdown on the internet during popular protests in that same year. These incidents are a reminder of what’s at stake in the Cybersecurity Bill.

Political advocacy groups have an interest in keeping the Internet secure from malicious threats; however we must also be cautious about giving government too much power or control over public resources such as the Internet.

1. Nojeim, Gregory T., RE: Civil Liberties Issues in Cybersecurity Bill, see (accessed 1 July 2010). See also John Byrne, “Senators introduce bill that would allow US to disconnect the Internet,” The Raw Story (June 18, 2010), at (accessed July 1, 2010). For more on this issue, also see the Electronic Privacy Information Center at:
2. Open Congress, “Text of S. 3480 as Introduced in Senate: Protecting Cyberspace as a National Asset Act of 2010,” (accessed 1 July 2010).
3. Nojeim, Gregory T., Regarding S. 3480, the Protecting Cyberspace as a National Asset Act, see (accessed 1 July 2010).
4. Nojeim, Regarding S. 3480.