October 20, 2014
The United States government has moved to dismiss a lawsuit filed by the American Civil Liberties Union (ACLU) on behalf of five US citizens who say they were victims of a domestic surveillance program, which involves the collection of "suspicious activity reports" on individuals.
According to the ACLU’s filed complaint [PDF], a National Suspicious Activity Reporting Initiative (NSI) "encourages state and local law enforcement agencies as well as private actors to collect and report information that has a potential nexus to terrorism in the form of so-called 'suspicious activity reports [SARs].’"
The ACLU argues any individual who is flagged as having a "potential nexus to terrorism" will automatically be subject to "law enforcement scrutiny, which may include intrusive questioning by local or federal law enforcement agents." Plus, "Even when the Federal Bureau of Investigation concludes that the person did not have any nexus to terrorism, a SAR can haunt that individual for decades, as SARs remain in federal databases for up to 30 years."
The lawsuit suggests that standards, which govern collection of reports for this domestic surveillance program, conflict with the Justice Department’s own standards. The Justice Department "prohibits the collection, maintenance and dissemination of criminal intelligence information unless there is reasonable suspicion of criminal activity." But reasonable suspicion of criminal activity is not required for reports.
It is apparently acceptable for reports, which stem from constitutionally protected conducted, like photographing infrastructure, to be submitted and shared between agencies. A person who is believed to be "acting suspiciously," whatever that means, could become the subject of a widely shared report as well.
But, in a motion to dismiss [PDF] filed by the government on October 16, the government disputes the notion that guidance used in the system is "arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law."
The government maintains that the ACLU has not identified "any constitutional or statutory prohibition on law enforcement agencies sharing such information in the absence of reasonable suspicion." The motion later adds, "Plaintiffs’ claims are not based on any allegation that this information, once shared, is subject to less robust security or other privacy protections."
Also, while highlighting details related to individual citizens suing the government, the government suggests that the federal government is not responsible because some of the instances of surveillance involve local police and private security guards. Any abuses would not have been a result of federal guidance for NSI.
"Allegations of future law enforcement scrutiny are too vague and indeterminate to establish a cognizable injury-in-fact," the government adds. The lawyer do not believe the ACLU have any standing to bring claims because what the citizens allege are "metaphysical" injuries. They cannot allege "chilling effects" against photography because that is also too vague.
NSI consists of one central database launched a few years ago effectively enables a network of domestic spying activity where reports from various US law enforcement agencies are pooled together. Homeland Security fusion centers also facilitate the distribution of these SARs. There are 78 fusion centers in the country.
The system was setup, as the government describes, to build on the "already existing practice of local and state agencies gathering and documenting reports of suspicious activity." Tips from private citizens, "private sector partners" or "government officials" are relayed to local law enforcement and documented. They are then "frequently made available to collection points"—fusion centers. These center are "owned and operated by local or state governments (with funding support from the federal government)."
"When a SAR is provided to a fusion center," the government explains, "it is reviewed by an analyst or law enforcement officer. If the officer or analyst determines that the SAR has a sufficient nexus to terrorism, the fusion center may then choose to make that information available to federal, state, local, tribal, and territorial participants in the NSI."
If that information ends up in the NSI, the local law enforcement officer sharing it is now doing so under federal government regulations. That is because the domestic surveillance database is operated by the federal government. So, the federal government could still bear responsibility for the widespread sharing of a report that should not be filed because it violates constitutional rights.
For example, Tariq Razak, a US citizen of Pakistani descent and one of the plaintiffs in the lawsuit, was seen by Security Officer Karina De La Rosa while he was at the Santa Ana Train Depot in California. He became the subject of a SAR submitted by De La Rosa on May 16, 2011. It reads, "Male of Middle Eastern decent [sic] observed surveying entry/exit points."
De La Rosa further explained in the SAR that her "suspicion became aroused because the male appeared to be observant of his surroundings and was constantly surveying all areas of the facility. The male’s appearance was neat and clean with a closely cropped beard, short hair wearing blue jeans and a blue plaid shirt." She added that he moved where the restrooms were located and departed with "a female wearing a white burka head dress" after she came out of the restroom.
She considered this "suspicious activity as related to terrorism training’" she had received. "The behavior depicted by the male was similar to examples shown in her training raising her suspicion and making the decision to notify the police," according to the SAR.
As the ACLU’s complaint explain, "The woman he was with was his mother. He had an appointment at the county employment resource center, which is located in the station building. He had not been to the station before and spent some time locating the office before meeting up with his mother by the restrooms and leaving. His mother was wearing a hijab (head scarf), and not a burka."
This report was likely "collected, maintained and disseminated through a fusion center." It fit into a category in the Justice Department’s "Potential Indicators of Terrorist Activities Related to Mass Transportation," which includes "unusual or prolonged interest" in "entry points and access controls."
Another plaintiff, Aaron Conklin, attempted to photograph the Valero Refinery in Benicia, California in 2011 or 2012. He was there at 10 pm because he wanted to "capture the refinery illuminated against the dark knight sky." He was sternly warned by a private security guard and told he could not take a photograph. So, he left the refinery.
In November 2013, he tried to photograph the Shell Refinery at about 10 pm. Security guards came out to inform him photography was prohibited and taking a photo was "somehow connected to terrorism."
Even though Conklin complied, the Contra Costa County Sheriff’s Department was called and two deputy officers arrived. They searched through his photos on his camera and searched his car. The deputies told Conklin that he would be placed on an "NSA watch list." This police encounter went on for at least forty-five minutes before Conklin was allowed to leave.
Security guards are trained to follow SAR reporting standards and taking photographs of infrastructure can be regarded as "acting suspiciously."
The ACLU’s argument is that these people are victims because the domestic surveillance system allows for the targeting of First Amendment-protected activities and racial profiling. The government disagrees and argues it is streamlining and improving upon a process that has long been employed by law enforcement.
The main issue is the creation of a record that may be a part of a database for many years after an "incident," even if it contains no actual evidence of suspicious activity that leads to an arrest. It opens a person up to the risk of unreasonable searches and targeting because of their religion or even a hobby they might enjoy. And, once they are in the system, presumably, they may always be a suspect, even when they do not know what it is that makes them "suspicious" to the government.