Privacy SOS

by Nancy Murray | ACLU of Massachusetts Statewide Conference, February 6, 2010

 
The American Civil Liberties Union of Massachusetts was founded 90 years ago to challenge government violations of civil rights and civil liberties and to defend the Bill of Rights. We were formed because the Bill of Rights is not self-enforcing and without an enforcement mechanism, it is just a piece of paper. Our mission is to ensure that civil rights and civil liberties protections work for all people.
 
We were founded just after the First World War, when thousands of residents who were not citizens were being rounded up in cities across the country in the so-called Palmer raids, named after the attorney general of the time. I should add here that the Bill of Rights applies to all “persons”, not citizens – the Supreme Court has recognized that people who are not citizens are supposed to have rights too.
 
The Palmer raids were targeted at people who were believed to be spreading dangerous ideas – ideas like organizing trade unions, and promoting socialism. It was as if the First Amendment guaranteeing the freedom of expression and religion did not exist as the fear of radicalism was manipulated to scare people into silence.
 
The post World War I round up was similar to the mass detention of Muslims and people of Middle East and South Asian descent in the days and weeks that followed 9/11 – then, as now, there was a blanket denial of due process rights, people were held in secret detention, and many put on boats and deported. The newly-formed ACLU challenged those violations, and demanded that the courts intervene to protect civil liberties and civil rights. 
 
At the time, another agency was getting off the ground – the Bureau of Investigation. J. Edgar Hoover, who joined the Department of Justice’s General Intelligence Division in 1917 and was made Assistant Director of the Bureau in 1921 and its Director in 1924, had been the force behind the Palmer raids. In these early years, he oversaw the collection of 150,000 secret files which contained details about individuals considered dangerously radical, and also about organizations, associations, societies, publications and social conditions in various localities. It’s a good thing he didn’t have access to computers!
 
From then, until today, our role has been to try to keep the government from violating constitutional rights. Our California affiliate was the only major organization to oppose the World War II internment of 120,000 Japanese-Americans and non citizens of Japanese descent. We defended civil rights and liberties during the Red Scare of the late 1940s and 50s – although it is likely that one prominent ACLU official did “give names” — when people suspected of being a Communist Party members or sympathizers were at risk of losing their livelihoods and being imprisoned, simply because of their beliefs and associations. 
 
And we were active during the civil rights movement of the 50s and 60s, when African Americans marched and conducted sit ins and voter registration drives and went to jail and to court to ensure that the Constitution worked for everyone. This is the time when the FBI’s illegal COINTELPRO operation was spying on civil rights movement leaders like Martin Luther King Jr. on people who were protesting the Vietnam War and labor organizers, among many others.
 
Between 1960 and 1974, the FBI opened over 500,000 domestic intelligence files and created a list of 20,000 individuals who would be “rounded up” in the event of a national emergency, according to the Congressional Church Report – (its formal title the Select Committee to Study Governmental Operations with Respect to Intelligence Activities). No doubt you are familiar with this kind of domestic spying – information gathered by wiretaps and FBI agents in the field and turned into vast stacks of memos, often addressed to J. Edgar Hoover. 
 
I want this evening to focus on the implications of the new surveillance system that has been erected across the nation and within the Commonwealth during the last 8 years and leave plenty of time for discussion. I won’t be surprised if much of what am going to talk about is totally new to you – it is to most people, including elected officials.
 
I’d like to start with a story.
 
At 7:15 AM on March 13, 2008, Peter Watchorn, one of the world’s foremost harpsichordists who is an Australian-born American citizen, was standing at Central Square Station with a professional cellist from Australia who had his instrument with him. They were on their way to the airport catch a plane.
 
When they reached Park Street Station, the entire red line was put on hold and searched with sniffer dogs. They thought they still could make their plane when it started up again and they made it to the Silver Line. But at the terminal B stop state troopers entered the bus and hauled them off. With 8 officers assisting, they were subjected to an abusive search during which the $250,000 cello was nearly tipped out of the case.
 
They were interrogated for a further 30 minutes with one state trooper telling them they had been overheard at Central Square “having conversations we were not supposed to be having.” On a hearsay anonymous tip (which they think must have been a hoax) the MBTA police decided that they posed a “credible threat.” And so they never made it to their concert – and never got any kind of apology from the police.
 
The incident left Peter Watchorn wondering whether he had done the right thing becoming an American citizen. His cellist friend was afraid to visit the US again – fearing that there is some electronic record of his posing a threat which could cause him problems at the airport. And he might very well be right.
 
I want to put this discussion within a broader framework, by focusing on the implications of the new surveillance system that has been erected across the nation and within the Commonwealth during the last 8 years. Its basic parameters are presented in our new backgrounder, “When we are all suspects.” The government has now institutionalized elements of John Ashcroft’s Operation TIPS (remember that?) and John Poindexter’s Total Information Awareness with ominous implications for us all. 
 
Who here remembers Total Information Awareness? Based at the Defense Department’s Defense Advanced Research Projects Agency or DARPA, the existence of TIA was made public in late 2002. The idea behind it was to use powerful computers to search all possible commercial and government databases, in order to detect hidden patterns indicating possible terrorist activity.
 
As you may recall, an outcry across the political spectrum stopped this Orwellian program in its tracks – or so we were made to believe. Congress did strike funding for TIA in FY 2004 – but the TIA approach to “fighting terrorism” infiltrated different government programs and agencies. The notion that the nation can be made safe by trawling through databases in search of “suspicious patterns” was vigorously debunked by an exhaustive multi year study carried out by the National Research Council, published in October 2008. The report says that finding terrorists through data mining “is neither feasible as an objective nor desirable as a goal of technology development efforts” and that it will result in “ordinary law abiding citizens and businesses” being wrongly treated as suspects. 
 
This is the world we are inhabiting today. With no public discussion or consideration about what this could mean for such fundamental concepts as the presumption of innocence and right to privacy, the definition of intelligence work has dramatically expanded to include the broad collection of information about everyday activities in hopes of detecting (and preventing) future behavior.
 
Our telephone calls and e-mails, web browsing-activity, financial records, credit reports, library records, and peaceful political and religious activity are swelling the mountain of data that is being mined for suspicious patterns and associations. Has anyone seen the film “Minority Report” which features a Department of pre crime where psychic “precogs” discern which “criminals” to pursue before they commit crimes? Computer algorithms are our precogs, as data mining techniques like “link analysis” are used to probe a variety of databases and weave webs of guilt by association. 
 
The hubs of this emerging domestic intelligence system are the nation’s 72 “fusion centers” where information gathered and deposited by federal, state, local law enforcement, and private entities in a variety of databases is intended to be analyzed and widely shared among agencies both vertically and horizontally in order to identify individuals for closer scrutiny.
 
Originally intended as terrorism-fighting tools, fusion centers – including the two in Massachusetts – soon adopted an “all crimes” and “all hazards” mission, and have become repositories of traditional criminal information. Spurred by the availability of federal grants, a concept of policing (“predictive policing”) has emerged that is no longer primarily reactive and focused on solving crimes but on collecting evidence of crimes that may be about to be committed. 
 
The hunt for “pre-crime” is being taken up by local police who are no longer entirely “local.” When they are assigned to work with the FBI in its Joint Terrorism Task Forces, they become federal officers and are no longer under the supervision of and accountable to their local departments and communities. And when they participate with fusion centers in the collection and sharing of information, they become integrated into a national surveillance network for law enforcement and intelligence agencies where the lines of authority between local, state and federal agencies are blurred and there is no meaningful local control. 
 
We have two fusion centers in Massachusetts – which are among the oldest in the country. The Commonwealth Fusion Center was launched by Governor Romney in 2004 without any public notice or legislative process. The following year saw the establishment of the Boston Regional Intelligence Center (BRIC). 
 
The ACLU of Massachusetts has submitted a number of Freedom of Information Act requests and requests for information under the Massachusetts public records laws in an effort to find out more about the operations of the secretive Commonwealth Fusion Center and BRIC. We have faced two major obstacles.
 
First, there is a general lack of accountability and transparency built into these institutions. Because their organizational structure entangles federal, state and local law enforcement agencies, there are ambiguous lines of authority. It is difficult to know where to go to get information about what they are doing and whom to hold responsible for maintaining civil liberties protections for Massachusetts residents, and it is easy for the authorities involved to pass the buck.
 
Although the Commonwealth Fusion Center is nominally under the Secretary of Public Safety and Security, the FBI, representatives of such federal agencies as the Bureau of Alcohol, Tobacco, Firearms and Explosives, the National Guard, the US Army in addition to the state police and a private commercial railway company, CSX Corporation, are all involved in its operations and all apparently have their own memorandums of understanding with it.
 
Likewise, the BRIC has entered into data-sharing agreements with local police departments in Massachusetts, state police in Massachusetts and other states, the MBTA transit police, the Massachusetts Department of Correction, and the Suffolk County Sheriff’s Office. It also shares information with the Joint Terrorism Task Force and the Commonwealth Fusion Center.
 
Second, when we try to find out what fusion centers are doing we face a gaping exemption in the state’s Fair Information Practices Act for all “intelligence information.” If residents want to know what information is being held about them in these Massachusetts data centers, they have no way of finding out since it is all classified as “intelligence.” Furthermore, the agreements made between the Fusion Center and third party agencies contain a provision that any shared information will not be disclosed in response to a public records request. And so Fusion Centers are left to police themselves, and we are left in the dark. 
 
What we do know is that the Commonwealth Fusion Center and BRIC have steadily expanded the number of public and private sources from which they collect information – in addition to having access to the data available through state and national criminal justice information systems, it has secured direct access to scores of federal and state government databases, has contracted with major commercial data aggregators and investigative services and receives “tips” from the public.
 
We know that the Boston Police Department is one of 7 police departments in the country that has been participating a pilot program known as SARS (Suspicious Activity Reporting) – filing reports about “suspicious behaviors” that create a stream of intelligence about a range of every day activities such as taking pictures of infrastructure, taking notes, and espousing “extremist views.” 
 
This aggressive collection of personal data by the state represents an unprecedented government intrusion into the lives of Massachusetts residents and an enormous threat to personal privacy. This threat is magnified by the total lack of quality control to ensure that information is correct and appropriately classified. Indeed, according to one document we received from the Commonwealth Fusion Center, “participating agencies remain…responsible for the quality and accuracy of the data accessed by the CFC.” The fact that this data can be flawed and yet is still used by law enforcement officials seems of no consequence to the fusion center. 
 
We also know that fusion center activities around the country have huge implications for lawful political activity. Documents that have been leaked from fusion centers in many states reveal that a whole range of groups and individuals have been monitored and labeled as potential terrorists – including environmental groups, and anti-war groups – see handout.
 
Groups that have a presence in Massachusetts have been targeted elsewhere (we don’t yet know about here) – including Code Pink, ANSWER, American Friends Service Committee, Amnesty International and the anti-war Coalition United for Peace and Justice, while historically black Colleges have been deemed potential “radicalization nodes” for terrorists. When “civil activists and extremist groups” get lumped together and federal dollars drive the hunt for any sign of so-called suspicious activity, the First Amendment is on very shaky ground. 
 
So we are all in this together, and we need to take a stand together to roll back Big Brother. As a first step, the ACLU of Massachusetts has drafted a Fusion Center bill for the state legislature – which, among other things, calls for effective oversight to ensure that protected First Amendment activity is not deposited in fusion centers and widely shared.
 
In the year ahead we will continue to try to shine a light on the new domestic surveillance apparatus and demand that our basic rights and freedoms are protected. Peter Watchorn has written about his experience, “Do we need to create our own Police State in response to the very real problem of terrorism?” We have to make sure the answer is 'no.' 

© 2021 ACLU of Massachusetts.