[Note: these comments were written in response to this document, produced by the Department of Justice.]
The ACLU of Massachusetts appreciates this opportunity to review the draft “Guidance” produced as a result of roundtable discussions held across the United States over this past year. Although we take note of the extent to which the document references the need for transparency and oversight, as well as civil liberties and civil rights protections, our fundamental concerns about the role of fusion centers, suspicious activity reporting and the information-sharing environment have not been satisfactorily addressed. We are mindful that the problems of the unreliability of intelligence gathering are compounded when intelligence gathering is not aimed outward, but inward, with citizens and other residents of the United States as its target. Moving forward with new domestic intelligence programs that impact rights and privacy at home without first obtaining concrete evidence that these programs are effective both in enhancing security and protecting constitutional freedoms is, in our view, wholly problematic. We are especially troubled by the following sections of the Guidance document:
• Fusion Centers
We have outlined our particular concerns about fusion centers in our report, “When We All Suspects: a Backgrounder on Government Surveillance in Massachusetts” (available here). At the end of the report we make a series of recommendations for independent oversight, auditing, and transparency. Although these terms appear frequently in the Guidance document, the substance that would make them meaningful is for the most part lacking.
We agree that there must be “strong privacy policies and audits of center activities to ensure that the policies and their related standards are being fully met” (page1). But we have strong reservations about an auditing process based on “peer review and evaluation, where trained staff members from other fusion centers conduct regular audits of individual fusion centers” (page 13). More promising is the proposal for an “audit committee” consisting of “individuals who have knowledge of law enforcement policies and practices and the law” (page 14), with a summary of findings being made public. But there is the danger that such a committee could be convened for public relations purposes, and could rapidly become mere window dressing. For there to be meaningful independent oversight, auditing and public reporting of fusion center activities, state legislatures should be held responsible for these entities which are under their jurisdiction. Legislatures must create robust oversight mechanisms – either in the form of a new office empowered to audit and investigate the activities of fusion centers, or by statutorily authorizing an existing independent watchdog office to conduct such investigations. Investigative authority must be coupled with public reporting to hold otherwise unaccountable institutions to agreed upon standards.
It should be noted that “transparency” is not necessarily increased by the formation of an advisory board that would take part in the decision-making process (page 2). Neither is transparency ensured by having local advocacy groups such as the ACLU at the table (page 28), since we have only very limited access to fusion center products laboriously obtained through public record requests. Instead, the policies of the new intelligence programs and the general laws must clearly state that public record laws apply to these institutions, and that “intelligence information” exemptions must not be overbroad. Individuals should be able to find out what information the government maintains about them and any exemptions should be narrowly tailored to reflect specific objectives, such as protecting people from harm and maintaining appropriate secrecy about ongoing investigations.
We also see the urgent need to establish mechanisms to monitor the quality of the data that is being accumulated by fusion centers, and security issues connected with these data bases. The Boston Police Department shares our concerns about at least one data base housed at the Commonwealth Fusion Center. Reportedly, the BDP is not adding to the MassGangs data base because of worries about “who’s maintaining and updating the intelligence, who would be privy to it, and what security measures would be taken” to keep the information strictly in the hands of the police (Jonathan Saltzman, “Police don’t add to gang database,” Boston Globe, June 15, 2010). We must be aware that “intelligence” is only valuable to our security when it is true.
• The SAR Process
We recognize that improvements have been made in the functional standards for Suspicious Activity Reporting. But a national program of enormous complexity and expense that purports to give police officers the authority to intercede with individuals exercising their constitutional rights in public places without due cause is taking this country in the wrong direction and will invariably be riddled with error and abuse. The Final Report on the Information-Sharing Environment (ISE) Suspicious Activities Reporting (January 2010) contains no compelling evidence that the program is worth the massive expenditure of resources: indeed, it may well prove a waste of law enforcement time. In the Final Report, the Boston Police Department – one of the pilot agencies for the SAR initiative – spelled out the need “to avoid the entry of information into the ISE-SAR shared spaces that is not of value and avoid large volumes of information being ‘dumped’ into the system” (page 100). Other pilot projects point to significant problems with technology and training. The danger of SAR opening the door to racial, ethnic and religious profiling has been described by Political Research Associates in its report, Platform for Prejudice.
• Community vs. Predictive Policing
Throughout the document, reference is made to “community policing” as essential to building relationships of trust. But there is no recognition of the extent to which the model of “community policing” idealized in the report has been fundamentally undermined by the data-led “predictive” policing which the document is promoting. When local police work hand in hand with the state police, FBI, CIA, ICE, TSA and other federal agencies that are assigned to the Joint Terrorism Task Forces, they are no longer “local” and under the control of their communities. The relationships of trust that traditionally defined effective community policing cannot be built with local police if they have a separate federal agenda that calls on them to submit SARs and information to the fusion center that can eventually be shared with other fusion centers, police forces and federal agencies around the country.
Furthermore, the collaboration between local police and Immigration and Customs Enforcement (ICE) in JTTFs, 287(g) programs and the secretive DHS “Secure Communities” initiative has harmed relationships with the police in many immigrant communities. Non citizens now are often afraid to report crimes in case they are themselves detained and deported. As a result, some police departments are re-considering their partnership with ICE agents and aspects of the collaboration have been condemned by the Inspector General of the Department of Homeland Security in a March 2010 report.
The ACLU of Massachusetts fully endorses the need for police forces to be diverse and culturally aware, but training programs that seek to impart “sensitivity” clearly do not go far enough if endemic problems of bias remain unaddressed. The success story cited by in the Guidance document provides a good example: “As the Boston Transit Police have found, using good models for training police on police-youth interaction can dramatically change such relationships” (page 10). This assertion collides with the facts presented in a May 2010 report on the Boston Transit Police-youth relations compiled by the Hyde Square Task Force, which finds “no mutual respect” between the police and youth. Indeed, 75 percent of the teens surveyed disagreed or strongly disagreed with the statement that the “transit police are skilled in communicating with teens,” and 76 percent agreed or strongly agreed that “transit police could use training in how to communicate in a positive manner with youth.”
We fully agree with the Guidance document that “developing trust is a complex matter” (page 7). But trust will not be fostered by giving lip service to community collaboration, while at the same time warning police that they should “always assume that products produced by the fusion center…will be read by impacted communities and will reach unintended audiences” and should always be “checked by personnel who are cognizant of local cultural norms, community issues, indications of bias, and constitutionally protected activities to avoid statements or analysis that violates these basic standards” (page 15). Products violating basic standards should not have been produced in the first place. To build trust and public safety, funds would be better spent on traditional community policing than on programs that enlist the police into a new intelligence-gathering apparatus of questionable value.
We therefore urge federal agencies to seek a full evaluation and cost/benefit analysis of intelligence-gathering and sharing programs before moving ahead with their implementation. To be effective, domestic intelligence activities need to be narrowly focused on real threats, tightly regulated and closely monitored, with independent oversight and accountability to the public. It would be a serious mistake to sacrifice liberty and the constructive relationships built through traditional community policing for the mere illusion of security.