by Nashwa Gewaily, ACLU of Massachusetts fellow
After 9/11, “intelligence-led policing” emerged as a dominant model of criminal intelligence, moving law enforcement standards far below reasonable suspicion of criminal activity as a minimum threshold for initiating investigation. The underlying premise, as former DHS Secretary Michael Chertoff explained, is that “[i]ntelligence is about thousands and thousands of routine, everyday observations and activities” which “when fused together, give us a sense of the patterns and flow that really is at the core of what intelligence is all about.”
The proliferation of fusion centers – intelligence data hubs initially created to facilitate counterterrorism information-sharing between federal, state, and local agencies – institutionalized this new theory of policing. In Massachusetts, two such fusion centers are currently operational: the Commonwealth Fusion Center (CFC) under the auspices of the Massachusetts State Police and the Boston Regional Intelligence Center (BRIC), run by the Boston Police Department.
While sharing information about specific violent threats among law enforcement agencies is an important element of public safety work, there’s no evidence fusion centers have been useful in this regard. Often, the spying that happens at fusion centers hurts rather than helps our society. Indeed, several diverse bodies have extensively chronicled the many significant problems with the way these fusion centers have been operating. Of particular concern are the ways in which certain surveillance practices encouraged by fusion center policies infringe on our privacy and civil liberties.
Knowledge is power, and fusion centers are chock full of data about millions of innocent people. So what do fusion centers do to minimize the risk that their employees will abuse their power?
We at the ACLU closely examined the standard operating procedures and privacy policies of the Commonwealth Fusion Center (CFC) to figure this out. (See here for our BRIC documents and analysis.) As we’ve previously illustrated, government and law enforcement officials often carry (and exploit) a vast array of linguistic loopholes in their arsenal of public relations. It’s no surprise that officials often painstakingly craft their words to cloud just how questionable certain practices may be. The CFC is no exception – if you read its guidelines without a discerning eye and a healthy dose of skepticism, you might be led to believe that its policies are designed to safeguard your privacy, civil rights, and civil liberties as earnestly as it purports to on paper. But upon closer examination, the so-called privacy protections are remarkable for how many loopholes they provide.
Here are five reasons to dig a little deeper:
1. Message: The CFC safeguards the exercise of First Amendment-protected political activity.
The CFC’s “Guidelines for Investigations Involving First Amendment Activity” directs that when undercover operatives and informants are used, they are “strictly prohibited from engaging in any conduct the sole purpose of which is to disrupt the lawful exercise of political activity.” Any kind of “strict prohibition” connotes gravity in its enforcement. Here, however, it appears that investigations that aim to disrupt protected political activity would be justified, so long as any other nominal purpose can be articulated – for example, rooting out extremists or ensuring safety precautions. A single, instrumental word in this clause, “sole,” renders the prohibition essentially meaningless.
2. Message: Only people plotting terrorist acts have anything to worry about.
Take, for example,the LAPD’s instructions to officers on the kinds of potentially terrorism-related activity they are required to report. Among the 65 behaviors listed: using binoculars, taking notes, and taking pictures or videos “with no apparent esthetic value.” (Cops are art critics now?) Other fusion centers have stored information based on determinations that a jogger had stretched for too long, that an individual’s cell phone conversation went on too long, that a bus or train passenger was waiting at a stop for too long without boarding, and that it was weird that a customer didn’t eat the food he just ordered. For fusion center employees in Tennessee, potential terrorist groups include the ACLU; in Missouri, supporting Ron Paul is a suspicious activity; and in Maryland, advocating against the death penalty might land you in a federal terrorism database.
These are, of course, innocent, commonplace, First Amendment-protected behaviors that are absurd to equate with a criminal predicate justifying invasive government surveillance. While the CFC Policy ensures safeguards against civil rights and civil liberties violations, such results are inevitable given the sweeping nature of this standard for documenting and sharing individuals’ speech and activity.
3. Message: When the “reasonable suspicion” standard isn’t met, surveillance and investigation is limited in duration to a reasonable amount of time necessary to determine whether the subject poses a real criminal or terrorist threat.
Investigators may conduct a “preliminary inquiry” when it is determined that further scrutiny beyond checking leads is required but that “the information initially received does not warrant a full investigation because there is not yet a ‘reasonable suspicion’ of unlawful activity.” CFC policy directs that preliminary inquiries be completed within 180 days of authorization by the CFC Commander, but the Commander may grant an extension “for succeeding 90-day periods.” Importantly, while these “inquiries” can involve such invasive tactics as deploying undercovers and informants, despite the absence of reasonable suspicion, there is no clarification in the Policy regarding durational limits in this investigative stage. While six months is already a very long time to investigate someone when cops have no suspicion that the person has engaged in a crime, a three-month extension may be understandable in truly exceptional circumstances. But what could possibly justify successive three-month extensions in a preliminary inquiry that hasn’t even become serious enough to warrant full investigation? There is no articulated limit here to the number of extensions that may be granted with a single individual’s approval, increasing the likelihood of indefinite, unjustified surveillance. That means secretive spies at the Massachusetts state fusion center could investigate you forever—even if they never once found any indication that you were involved in criminal activity, let alone something as serious as violence.
4. Message: The CFC’s investigations are narrowly focused on preventing dangerous unlawful activity rather than monitoring First Amendment-protected speech and assembly.
Under the CFC’s general principles, an inquiry or investigation is “warranted when facts and circumstances establish a potential for, or indicate an apparent intent to engage in unlawful conduct, particularly acts of violence or other conduct that may threaten public safety.” As with the standard for storing SAR information, this standard for initiating investigations may appear at first glance to focus on criminal conduct and the prevention of serious harm. Leaving aside the broader implications of lowering the threshold for investigating speech and behavior to one far below reasonable suspicion, the semantic framing of this standard leaves the door wide open for abuse. Consider just how expansively a “potential for…unlawful conduct” can be (and has been) interpreted. Any protest, rally, meeting of a controversial activist organization, street corner conversation, gathering of rowdy teenagers, or the even more mundane, can be associated with a “potential” for unlawful conduct. This wording also encourages racial, ethnic, and religious profiling based on stereotypes of various forms of criminality. It’s basically opening up the door to a pre-crime policing methodology. You might not have committed a crime yet, but do you seem like the sort of person who might?
This isn’t mere speculation: Right here in Massachusetts, BRIC (the Boston Police Department’s fusion center) was found to not only monitor peaceful protests and political groups, but also maintain criminal “intelligence reports” on people and activities without any plausible link to terrorism or crime – including Howard Zinn, Boston City Councilor Felix Arroyo, Veterans for Peace, and an anti-war rally that it labeled as a “Criminal Act.” When no criminal predicate is required before police can spy on us, we are welcoming these kinds of abuses.
5. Message: The CFC respects the importance of preserving confidentiality in attorney-client conversations.
The CFC’s guidelines state: “Where reasonably possible, and without exposing one’s cover or compromising the investigation, undercovers should not attend meetings where legal counsel is discussing or preparing legal strategy for pending or anticipating litigation.” It doesn’t take a lawyer to understand how troublesome this policy is. Anyone with a basic grasp on how the adversarial system of justice is set up in the U.S. understands that the government should never be spying on attorneys discussing litigation strategy or other potentially attorney-client privileged conversations (or in exceptionally risky situations, like if one happens to be infiltrating a mob meeting, the informant should at the very least be prohibited from relaying privileged information to his handlers). To direct that undercover government officers merely “should not” be doing this – articulating no apparent disincentive or consequence – undermines our bedrock Sixth Amendment right to effective assistance of counsel, whose preservation is critical to a fair and just adversarial legal system.
No privacy, by design
Massachusetts residents should take action to ensure that police don’t continue to spy on non-violent behaviors without reasonable suspicion that the targets are involved in criminal activity. Our Constitution, our Massachusetts Declaration of Rights, and our heritage as the cradle of liberty demand no less.