Justice must plug its fusion center civil liberties regulation loophole


The risks posed to civil liberties and privacy by the nation's 77 fusion centers cannot be ignored any longer. Those risks have been discussed in the public for some time now--for example in The Washington Post's 2010 investigative series "Top Secret America" and most recently in a Constitution Project report calling for greater safeguards.

Suspicious activity reports--the bread and butter of fusion centers, reports from law enforcement about possibly out-of-the-ordinary behavior that could have nefarious motivation--fall through a regulatory loophole that allows the fusion centers to amass information about Americans who most often merely happened to catch the attention of highly suspicious law enforcement.

Ordinarily, federal regulations prohibit state law enforcement agencies that receive federal funding from maintaining personally identifiable information in criminal intelligence databases unless there exists reasonable suspicion that the individual is involved in criminal conduct or that the information is relevant to criminal conduct.

But the Justice Department interprets regulations to exclude from those conditions the data gleaned from suspicious activity reports on the ground that SARs are "tips and lead data" and not criminal intelligence information.

Since SARs are meant to cast a wide net, the outcome is that fusion centers are building up a database populated mainly with the information of Americans who are neither criminal nor terrorists.

The Post's example of a local law enforcement officer reporting in a SAR that he observed "a suspicious subject...taking photographs of the Orange County Sheriff Department Fire Boat and the Balboa Ferry with a cellular phone camera" illustrates the problem. The SAR goes on to note that "another adult with two small children joined them, and then they all boarded the ferry and crossed the channel."

Perhaps there was something occurring on the dock that day that led the officer to record what in fact seems like a family on vacation. The Constitution Project argues that the threshold for the collection of SARs shouldn't be lowered in the first place.

But once inside a fusion center database, chances are the record about that ferry photograph-taking individual has festered there, subject neither to a determination that the activity was harmless nor to an actual investigation.

By not subjecting fusion centers to the reasonable suspicion threshold for data retention, we allow them to build up information about innocent Americans undertaking innocent activities--such as a family excursion on a ferry.

The requirement that intelligence agencies need to be able to connect the dots can't be used as an excuse for this state of affairs. Treating all citizens as potential suspects and keeping files on them within the national security apparatus are not the hallmarks of a healthy civil society. At a minimum, the Justice Department should plug this regulatory loophole it's opened up and treat SARs like the criminal intelligence they are. - Dave