Tracking Blackness: A Q&A with Dark Matters Author Simone Browne

Click here to download the article as a PDF.

This article appears in the Spring 2016 edition of The Public Eye magazine.

We tend to think of mass surveillance as a relatively new phenomenon, a byproduct of the digital revolution. Examples of high-tech surveillance spring readily to mind, including the NSA scooping up our emails, Samsung televisions picking up living room chitchat along with your voice commands, and Oral Roberts University collecting data on its entire student body via Fitbit activity trackers. But, as it turns out, our high-tech surveillance society had lower-tech precursors.

Simone Browne, an associate professor of African and African Diaspora Studies at the University of Texas at Austin, describes her new book, Dark Matters: On The Surveillance of Blackness, as a conversation between Black Studies and Surveillance Studies—the latter a young discipline devoted to investigating the technological and social dimensions of surveillance. Browne’s research shows that surveillance was an essential part of transatlantic slavery, a system that held millions of people against their will and tracked them as property. And she argues that slavery created an ongoing demand for technologies to monitor Black bodies. The day-to-day enforcement of slavery raised familiar-sounding questions: Is this person who they say they are? Are they allowed to be here? How do we know? Dramas of surveillance and counter-surveillance played out constantly.

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Browne argues that awareness of being under constant surveillance is an enduring condition of Black life. Source: Carley Comartin License: https://creativecommons.org/licenses/by-nc/2.0/

If surveillance is the state watching the individual, sousveillance is the individual looking back at the state. The history of slavery is full of examples of both kinds of watching. Slave catchers hunted down runaway slaves for money. The catchers were themselves carefully watched, and the news of a slave catcher’s whereabouts could also spread rapidly through the Black community. Abolitionists also circulated handbills warning free Blacks and their allies to be on guard against slave catchers.

Surveillance still goes both ways today, as activists counter police oversight by recording interactions on their own cameras and protesters at rallies for Republican presidential candidate Donald Trump film their own attacks, not trusting event security cameras to hold anyone accountable.1

The long history of mass surveillance in the United States began with slavery.

The long history of mass surveillance in the United States began with slavery. Slaves sought to free themselves by escaping to free territories or impersonating free people, and the system had well-developed mechanisms to thwart them. Slave traders branded the flesh of their captives to mark them as slaves. Further, slavery in the United States was so thoroughly racialized that being Black was tantamount to proof of being enslaved—skin color becoming evidence of legal status. Slaves who gained their freedom by “passing” as White had, in effect, eluded the biometric profiling of their day.

To this day, communities of color are subject to intensive surveillance, both public and private. Police helicopters are a familiar presence in some neighborhoods. Young men of color are overwhelmingly more likely to be selected for stop-and-frisk police encounters. Browne argues that awareness of being under constant surveillance is an enduring condition of Black life.

This March, Lindsay Beyerstein interviewed Simone Browne about Dark Matters and what it says about surveillance in our current political climate.

How did you come to write this book?

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Dark Matters: On The Surveillance of Blackness, published by Duke University Press, October 2015. Photo: Duke University Press.

I was working on my dissertation on Canadian/U.S. border security and I got into reading the Surveillance Studies literature. One thing that I found that was missing was a discussion of the archive of slavery because it seemed so important to situate surveillance as a key practice that underwrote transatlantic slavery. So, when it came time to write my own book, I wanted to put Surveillance Studies in conversation with Black Studies.

An enslaving society does a lot of work to keep track of people as property. How does that technology and expertise carry forward into our modern surveillance society?

I didn’t want to make the link that they are one and the same, but that some of the practices that we see happening now have earlier articulations or iterations. There were a few instances that I looked at: Mainly biometric technology, but also tracking people with passports, which we still use now. Also, the ways in which bodies and people become disciplined by way of light. That is, how illumination can make bodies visible, trackable, countable, and controllable. I looked at branding and biometric technology. I also looked at the Book of Negroes [a record of Black Loyalists, former slaves who were eligible to leave the U.S. to settle in Canada after serving in the Revolutionary War] as an early passport to cross the Canada-U.S. border.

There were also lantern laws. These were 18th century laws in New York City and other places that said that Black and Indigenous people had to carry a lit candle after dark if they weren’t in the company of White person. Lantern laws existed in other times and places but there was something specific about the regulation of Black people on the move that I saw as a way to think about how certain technologies become supervisory devices.

So, the lantern was a piece of technology that was mandated because Black people were deemed more suspect than everybody else?

That’s one way of putting it. It was a form of identification. Other people would have been walking with lanterns, too. But the idea was that that any White person would be deputized to seize that Black/enslaved person who was walking without a lantern. You can think about the ways in which White people become deputized through White supremacy today around Black bodies in and out of place. I’m thinking of a Trump rally. Even with people who go to a rally as protest or as observation might be marked as out of place there and subjected to violence. Being Black, wearing a hijab, other markers of being out of place at a Trump rally, and then being subjected to violence from police or Trump supporters.

You talk about slave branding as a precursor to modern biometric ID. How did that work?

There was branding for identification, but also as a form of punishment.

I looked at the ways that the body becomes a mark or a measure of enslavement. If you think of biometrics simply as marking or measurement. How we use it today as identification, verification, or automation, thinking of iris scans, face scans, finger scans…. All of those ways in which the body is reduced to parts, pieces, and performances for identification and verification purposes. I wanted to see if there were moments when those get racialized. Branding became a racialization process during transatlantic slavery.

You write about the hearings at the Fraunces Tavern in New York City and the creation of the Book of Negroes, a document that listed 3,000 Black Loyalists who served with the British during the American Revolution and who sought to be evacuated to freedom after the war. What happened?

A page of the Book of Negros, compiling the name of the 3000 Black people who left New York City in 1783. Photo: Wikimedia Commons.

A page of the “Book of Negroes,” compiling the name of the 3000 Black people who left New York City in 1783. Photo: Wikimedia Commons.

This was something that happened around the British evacuation of New York City [after the American Revolution]. Many people who had answered the call to fight with the British had entered into a bargain with them. These were people who had escaped slavery. They’d worked with the British as soldiers but also as support staff: cooks, spies, laundresses, and so on. Also at this time you had slave catchers coming to New York to seize former slaves who were set up on ships ready to leave the country mainly bound for Canada or Europe. People would be seized on those ships and taken to New York’s Fraunces Tavern every Wednesday from May to November to argue for their freedom by demonstrating that they were behind British lines at time of occupation and therefore entitled to go free.

What was the process of arguing for one’s freedom?

The tribunal was tasked with adjudicating claims under Article Seven of the Provisional Treaty of Paris, which said that the British could not leave with Patriot property, namely “Negroes,” and that that “no person is permitted to embark as a Refugee, who has not resided Twelve Months within the British Lines, without a special Passport from the Commandant.”

The British created the Book of Negroes, which was basically a record of the loss of human property. It was a record of who left [the country]. They would record their names, where they were born, who had enslaved them, how they ran away, information about their bodies, how they were branded, racial descriptors, and so on.

[The people pleading their cases at the Fraunces Tavern] had claimed their freedom. At that moment, you had slave catchers or others deputized to “take them back.” We’re using the term “property” but these were human beings.

You talk about the difference between surveillance and sousveillance. Would it be fair to say that surveillance is the powerful watching the powerless (like the NSA opening our emails) and sousveillance is the powerless watching the powerful (like citizens filming police brutality)?

A drawing by Mann's six-year-old daughter, illustrating surveillance versus sousveillance. Photo: Wikimedia Commons.

A drawing by Mann’s six-year-old daughter, illustrating surveillance versus sousveillance. Photo: Wikimedia Commons.

There’s a graphic in the book designed by surveillance scholar Steve Mann. For Mann, sousveillance is the b-side of surveillance. Surveillance is mainly oversight, governing, policing, and the protection of private property. Mann sees it as almost always repressive. The b-side would be about undersight, about looking back—often through wearable computing, like body cameras and cellphone cameras.

There are other forms of surveillance and sousveillance. Uberveillance is surveillance through bodily data, like a chip. Dataveillance is the use of surveillance through aggregate data algorithms. In the book, I also coined the term “redditveillance” [to talk about crowdsourced review of surveillance] using publicly accessible CCTV, Flickr, and 4chan. You saw redditveillance, for example, during the Boston bombing, but there it misidentified [innocent] people.

So for me it wasn’t particularly useful to think of surveillance as always repressive or always liberatory. It’s not necessarily good or bad.

There was a low-tech equivalent of “redditveillance” during slavery where people would be “open-sourcing” which slaves had escaped lately, right?

Yes. Collective eyes and watching. Of who’s really Black? Or who’s passing? Or who’s meant to be enslaved? You can also think of that in terms of women fighting online harassment. Women are being doxxed and being “swatted” (law enforcement teams maliciously sent a person’s house through collective sousveillance online).

When Black Lives Matter protesters bring their own cameras to Donald Trump rallies to document abuses, is that sousveillance?

I think it would be. The other question is: To what end?

You sent me a story about Adedayo Adeniyi,2 who wasn’t even a protester. [Editor’s note: Adeniyi is a Black Nigerian student who attended a Donald Trump rally in Fayetteville, North Carolina in March 2016. He was unfairly ejected by security after two strangers started arguing next to him, but not before 70-year-old Trump supporter Jason Wilton Wetzel hit him in the face. Adeniyi recorded the assault on his cellphone.] I watched the video. I could hear him saying, “That’s not me, I’m not with them. I don’t even know those people.” And he still got punched by a Trump supporter.

It’s clear from the video [that Wetzel] must have known the camera was on him. The camera might have become an invitation. So the idea of having a recording is important, but it gets tricky for a couple of reasons, even with those videos, since there’s still an anti-Black lens that those videos are watched through. Rodney King raising his arms to protect himself gets interpreted as a form of violence, as a hand about to hit. Ramsey Orta, who had recorded the killing of Eric Garner, there are reports of him being harassed by NYPD after Garner was killed and the video went viral. Last fall in Sacramento, a man recorded a SWAT team raiding a house across the street. Police shot him on his own property. They said the camera could have been a gun.3  A camera can make a person the target of more harassment from police, or literally target practice for police.

You write about the ways in which surveillance changes our subjectivity. We start acting as if we’re being watched. Do you think Wetzel felt like he had to perform White aggression because the camera was on him?

It’s possible. We’d have to ask him what he felt. He later said he didn’t know what came over him, that he’s not a racist. So, there was a performance of an excuse for it after the fact.

In the book I was talking about how Black hyper visibility shapes Black people’s ways of being—shopping while Black, walking while Black, driving while Black—and what that might do to the psyche.

You write about modern biometrics and Black bodies, how these devices are calibrated, and what they see and don’t see. Some devices read stereotypically White features with ease, reliably picking up on the subtle nuances that distinguish one blue eye from another, but failing to register stereotypically Black features. Being “legible” to a security system can make the difference between entering effortlessly and being shut out.

Teej Meister, “Whites Only?,” YouTube video, uploaded September 2, 2015.

Teej Meister, “Whites Only?,” YouTube video, uploaded September 2, 2015.

Think of biometrics doing a few things. Identification: Who are you? Are you enrolled in this database? Verification: Are you who you say you are? Are you the person whose biometric is encoded in this passport or Green Card? Automation: Is anybody there? Like a sensor on a faucet in a washroom.

In some cases you have certain bodies that, in biometric parlance, “fail to enroll” or “become illegible.” Earlier technology would read light irises quite successfully but darker irises might not be read.

So the question becomes who is the prototype? I called it prototypical Whiteness. There’s a famous video4 of a sink in a convention center. You have a seemingly Black hand, and soap dispenser is not working. With a White hand, soap appears. How are these technologies designed to serve particular bodies?

It’s interesting that racialized surveillance has made Black people more visible in some ways, but then you’ve got all these technologies that are decreasing Black visibility because they’re calibrated to capture the nuances of White bodies.

That’s the conundrum. It might be quite liberatory to be unseen by these technologies.

I close the book looking at a YouTube video5 with about three million views. It was of two workers in Texas testing the face-tracking camera of an HP computer. One worker, he calls himself Black Desi, asks us to watch what happens “when [his] Blackness enters the frame.” The camera doesn’t pan or zoom or tilt of follow him. But when his White colleague enters the frame, it seemingly works just fine. I use the question “what happens when my Blackness enters the frame?” What happens when Blackness enters discussions of the discussions of surveillance, what does it do to those very discussions?


About the Author

Lindsay Beyerstein is an award-winning investigative journalist and In These Times staff writer who writes the blog Duly Noted. Her stories have appeared in Newsweek, Salon, Slate, The Nation, Ms. Magazine, and other publications. Her photographs have been published in the Wall Street Journal and the New York Times’ City Room. She also blogs at The Hillman Blog, a publication of the Sidney Hillman Foundation, a non-profit that honors journalism in the public interest.


Endnotes

1 Trump’s campaign manager appears to have been caught assaulting a reporter on his own campaign’s security system. “I’m rich,” Trump told his supporters, “So, I have tapes.” Trump claims his footage vindicates the campaign’s version of events. Meanwhile footage was being posted, reposted, and critiqued all over social media. The police reviewed the tapes and charged the campaign manager with misdemeanor battery, but prosecutors ultimately dropped the charge. See: Eli Stokols, Hadas Gold, and Nick Gass, “Trump Turns Blame on Reporter in Battery Case,” Politico, March 29, 2016, http://www.politico.com/story/2016/03/trump-campaign-manager-charged-with-misdemeanor-battery-221336. Also, Dylan Byers, Tal Kopan, and Tom LoBianco, “State will not prosecute Donald Trump’s campaign manager,” CNN, April, 14, 2016, http://www.cnn.com/2016/04/13/politics/corey-lewandowski-donald-trump-charges-dropped/.

2 Shaun King, “Trump Supporter’s Sorry Excuse After Assaulting Black Teen At Rally Undeserving of Sympathy,” New York Daily News, March 14, 2016, http://www.nydailynews.com/news/national/king-charge-trump-supporter-assaulted-black-student-article-1.2563579?cid=bitly.

3 “Police Shoot Man For Recording Them With Phone, Claim They Feared For Their Lives,” Counter Current News, September 12, 2015, http://countercurrentnews.com/2015/09/police-shoot-recording-man/.

4 Teej Meister, “Whites Only?,” YouTube video, uploaded September 2, 2015, https://www.youtube.com/watch?v=WHynGQ9Vg30.

5 Wzamen01, “HP Computers Are Racist,” YouTube video, uploaded December 10, 2009, https://www.youtube.com/watch?v=t4DT3tQqgRM.

When Secure Communities Meet Border Security

Looking at Michigan’s Fusion Centers

Detroiters March Without Fear August, 2011 (Photo by Peace Education Center/Flickr)

Detroiters March Without Fear August, 2011 (Photo by Peace Education Center/Flickr)

In the Winter 2009/Spring 2010 edition of The Public Eye, we reported on the rise of Intelligence Fusion Centers, created to coordinate the national security intelligence efforts of the Department of Homeland Security, US Department of Justice, CIA, FBI and the Department of Defense. The initiative was designed to allow officials to collect and share “seemingly unrelated” data about incidents that might – or might not — be precursors of terrorist activity, and if needed, coordinate responses to such attacks.Public Eye’s Thomas Cincotta raised questions about the centers’ potential for racial and ethnic profiling, violations of free speech, and noted their lack of transparency and intrusive power. Amid escalating reports of racial profiling by immigration and border control officials in the Detroit area, and reports of the redirection of Homeland Security funding for local police operations, we asked journalist Eartha Melzer to report on how Michigan’s fusion centers are operating in proximity to the United States’ northern border and one of the largest, oldest and most diverse Arab-American communities in the country.

This past August, a broad coalition of community groups held a “March Without Fear” in Southwest Detroit. Their rally in Clark Park drew 2,000 attendees: unions, including locals of the United Auto Workers, United Food and Commercial Workers and Service Employees International Union; civil liberties groups, like the American Civil Liberties Union and the Detroit Coalition Against Police Brutality; immigrant rights groups and faith-based organizations, including the Council on American-Islamic Relations (CAIR) and the Washtenaw Interfaith Coalition for Immigrants Rights. Congressmen John Conyers and Hansen Clarke gave speeches, along with UAW President Bob King and NAACP President Reverend Dr. Wendell Anthony.

The protesters were shining a light on a rise of complaints of racial profiling by the Border Patrol acting in Detroit’s neighborhoods and by the Office of Field Operations charged with immigration at the Detroit/Windsor border.

At the same time, they were drawing a connection between what they saw as the uptick in harassment of local Arabs and Latinos and the “information gathering” practices of the state’s secretive fusion centers. Calling for a redirection of funding from ineffective, abusive enforcement programs into job-creation, education, and blight elimination,1 the protestors demanded community oversight of federal funds.

The previous spring, the U.S. government had opened such a fusion center in Harrison Township near Lake St. Clair. The $30 million Coast Guard and Border Patrol Operational Integration Center (OIC) is located at Michigan’s Selfridge Air National Guard Base at the Canadian border. The Selfridge OIC has a binational staff: officers from the U.S. and Canadian Border Patrol, members of the U.S. Office of Field Operations and Office of Air and Marine, U.S. Coast Guard and Michigan State Police, and officers of the Royal Canadian Mounted Police and the Ontario Provincial Police.

When it opened in May, the facility promised to provide, “a centralized location for Customs and Border Protection (CBP) …to gather, analyze and disseminate operational and strategic data in the Great Lakes region of the Northern border for use by frontline agents and officers.”2 The concerns of Homeland Security were centered on recognition that Detroit is the busiest trade crossing on the U.S.-Canadian border. Detroit is also home to the region’s water infrastructure and a major oil refinery.

At the time, the Dept. of Homeland Security asserted that the limited amount of law enforcement at the Canadian border, coupled with active trade and traffic, makes the terrorist threat on the northern border greater than that faced on the border between the U.S. and Mexico. Barriers to information sharing between customs enforcement and border control personnel, a later report would note, could be a weak link in northern border security.

In 2011, U.S. Customs and Border Protection Commissioner Alan D. Bersin referred to the OIC as a “demonstration project.”3 He described the complex technology and techniques being deployed for information sharing. The OIC brings together information feeds, including radar and camera feeds, blue force tracking, database query from databases not previously available to CBP, remote sensor inputs, RVSS [Remote Video Surveillance Systems] and MSS [Mobile Surveillance System] feeds, and video from various POEs [Points of Entry] and tunnels. Additional information feeds such as local traffic cameras and MSS will be added in the near future. “This level of personnel and technology integration may serve a model forcollaboration and technology deployments in other areas of the northern border.”4

The Selfridge IOC site houses the control room for an elaborate, eleven-camera system that can transmit live video from locations across the Detroit metropolitan area. According to Sentrillion Corp, which installed the system, the video system provides long range (18 Km) video surveillance day and night in all weather environments, and also has an optional on-the-ground radar function. The new video surveillance system can observe activities four miles in from the border, including most of the city of Detroit. Most residents of the region are unaware that those watching the video feed also will have access to state/local databases and traffic cameras. The nearby St. Clair Shores Police Dept. reports that the OIC is helping to monitor the movements of the boats in the city marina and allows the department to use OIC databases to track movement of people and boats, including low lying “submarine” boats that are difficult to detect.

The Road to the Border

How did Michigan and the city of Detroit, a state and city in desperate financial straits, come to make such a large investment in such an intelligence gathering infrastructure?

In 2006, a group calling itself the Southeast Michigan Urban Area Security Initiative was formed to receive homeland security funding which had been earmarked for the area through the federal Urban Area Security Initiative. The group included representatives from the City of Detroit and the Counties of Macomb, Monroe, Oakland, St. Clair, Washtenaw, and Wayne.

Then-Governor Jennifer Granholm established The Michigan Intelligence Operations Center (MIOC) by executive order on December 20, 2007. MIOC’s mission was to “collect, evaluate, collate, and analyze information and intelligence and then, as appropriate, disseminate this information and intelligence to the proper public safety agencies so that any threat of terrorism or criminal activity will be successfully identified and addressed.”5,6 The MIOC was built in East Lansing and has been awarded $8.5 million in federal grants since 2006.7

Much of this funding has gone into the creation of complex database systems that can store data, including biometric information, and generate local and regional maps. Asked about how the existence of such a database system could help protect public safety, Dale Peet, former Commander of the MIOC, shared an anecdote

There was a threat, it was out of Flint or Genesee county high school, in which a student had posted on a blog or a web page on the Friday that on a Monday he was going to enter the school and kill a lot of people. The fusion center obtained that information, […] tracked the residence where it was [uploaded], and local authorities obtained a search warrant.

MIOC has a privacy policy that specifies that records be kept that show what information has been accessed, by whom and for what purpose. However, it is unclear how well it is following that policy or who is monitoring its performance. Daniel Levy, chief legal officer for the Michigan Dept. of Civil Rights, is a member of the MIOC advisory board, which typically meets every other month. He said that the center itself is responsible for ensuring that the privacy policy is followed.

That said, it remains unclear what information is being gathered by Michigan’s fusion centers, and who has access to that information. Terrence L. Jungel, executive director of the Michigan Sheriff’s Association and a retired county sheriff said that MIOC was like “Google for police” and expressed his belief that anyone who enters data in the system can also run searches. Jungel said that the MIOC database is a “tremendous tool” that can help law enforcement officers see patterns. “Investigating is good,” he said. “We investigate to clear and exonerate as much as anything.” Beat cops, he said, should know the data and surveillance tools available to them through MIOC.

High resolution surveillance at the Operational Integration Center (OIC) on Selfridge Air National Guard Base (Photo by U.S. Coast Guard/Flickr)

High resolution surveillance at the Operational Integration
Center (OIC) on Selfridge Air National Guard Base (Photo by U.S. Coast Guard/Flickr)

There are also questions about the required level of clearance for users. In a Feb. 2011 article for Homeland Security Today magazine, titled “Building a Better, More Effective Fusion Center” Dale Peet said that one of his greatest accomplishments as commander of MIOC was creating a system for interns to do data entry into the system, thereby sparing officers for more important jobs.

The MIOC in East Lansing shares information with the Selfridge OIC. Kapp was eager to emphasize that intelligence fusion could improve public safety services in an era of diminishing resources. There is little doubt that Michigan’s two fusion centers have been subject to “mission creep” – allocating monies originally earmarked for “terrorism prevention” to a broader public safety agenda. A recent CBS news analysis found that the ongoing recession has forced Michigan to cut more police officers than any other state.8 Recent FBI statistics indicate that the state now has four of the nation’s ten most dangerous cities.

Is Fusion Center Data Being Used By ICE and for Racial Profiling?

Dale Peet, the former MIOC Commander, dismissed the idea that the MIOC database could be used to unfairly target people based on race, national origin, or visa status. As of October 2010, when he retired, he said, MIOC did not collect border patrol information. He asserted that neither Immigration and Customs Enforcement (ICE) nor Canadian Border Patrol (CBP) had access to the system. However, this assertion was contradicted by his successor, Gene Kapp. Canadian border patrol does have access to MIOC information, he said, and always did.  Kapp went on to explain that ICE can make a request of MIOC, but “visa status is not information that we retain or get involved in.”

The retired sheriff and Michigan Sheriff’s Association director Terrence Jungel dismissed the idea that, for instance, crossing to Canada while wearing a headscarf would be enough to trigger suspicion. “Profiling has a bad rap,” he said. “We bend over backward to avoid profiling. We go where the facts lead.”

Immigrants and their advocates in the Detroit community disagree with these types of official statements. Lena Masri, staff attorney for the Michigan chapter of Council on American-Islamic Relations (CAIR), said that she is receiving an average of four reports each week from people who say they were abused at the border. Muslims, she said, have been stopped and detained at the border for several years, but recently the types of mistreatment being alleged have become much more severe.  She says,

People are being handcuffed. Their cars are being surrounded by armed agents. The men are taken inside and detained in a cell for several hours, up to 12 hours at a time. There are questions that pertain to religion, where they pray, whether they have received terrorism training.

CAIR MI has filed complaints about the treatment with the Dept. of Homeland Security and the Dept. of Justice.

Immigrant rights advocates report increasing use of joint task forces and ICE enforcement actions that involve Detroit police and the Wayne County Sheriff’s department, and they say that authorities intentionally mislead people about which agency they represent. Hispanic Bar Association president Lawrence Garcia said that Southwest Detroit’s large minority population makes it a hunting ground for immigration enforcement activities and racial profiling. “Whenever ICE needs to show some resolve,” he said, “rounding up people in Southwest Detroit is just too convenient of a way to do that.”

One event that especially outraged locals was a situation in which ICE agents conducted an enforcement action at a local elementary school called Hope of Detroit Academy in March, 2011. According to Alliance for Immigrants Rights and Reform Michigan director Ryan Bates, Jose Maldonado Plasencia had just dropped off his child at the school when ICE agents detained him without having obtained prior authorization for performing enforcement at a school. Later that morning, agents in SUVs and sedans with tinted windows followed two other families from their homes to the school. After the families took refuge in the school, they surrounded the building. When Bates intervened and asked whether the agents had a warrant, the agents acknowledged that they did not and, left in a convoy. Weeks after the incident, school attendance remained low because parents were afraid to bring their children to school. Five months later, the ICE Office of Professional Responsibility released a report on the investigation into these incidents that found that officers did not engage in any abuse or professional misconduct.

Rep. John Conyers (D-Detroit) said his office is reviewing ICE’s investigation of the Hope of Detroit incident. “Allegations of warrantless searches, racial profiling, and unlawful detentions must be taken seriously,” he said. “I have some concerns about the thoroughness of ICE’s review.”

 

Sidebars

Michigan Intelligence Operations Center (MIOC) Partners

Michigan Operational Integration Center’s (MOIC) Response to Environmental Threat

Endnotes

1 Statement from organizer Bart Kumor, Aug. 19, 2011.

2 April 24, 2001 CBP announcement, http://www.cbp.gov/xp/cgov/newsroom/news_releases/archives/april_2011/

04242011.xml.

3 05/17/2011 Testimony of Alan D. Bersin, Commissioner, U.S. Customs and Border Protection, Department of Homeland Security, Before the Senate Judiciary Committee Subcommittee on Immigration, Refugees and Border Security Regarding Northern Border Security http://www.cbp.gov/xp/cgov/newsroom/congressional_test/bersin_testifies.xml.

4 Ibid.

5 Mission statement provided by Michigan State Police.

6 http://www.michigan.gov/mioc.

7 Interview with MIOC Commander Gene Kapp, Sept. 12, 2001.

http://www.hstoday.us/blogs/best-practices/blog/building-a-better-more-effectivefusioncenter/6ae6cd36764f17ba8a19d94fd8c01813.html.

The FBI is Seeking Extended Powers to Snoop into our Electronic Communications

It’s well known that the FBI has historically abused its power to investigate non-criminal Americans—in the 1960s, the FBI relied on informants and undercover agents to burglarize the offices of the Socialist Workers Party and other movement organizations to steal membership lists, bank accounts, and other sensitive data. Now, a proposed amendment to the Electronic Communications Privacy Act would allow the FBI to bypass judicial review and obtain this same information on demand.[1]

Including “electronic communication transactional records” into the wording of the legislation would allow the FBI to infiltrate internet activity such as social networking, inquiries from search engines, and sales from online vendors. [2] While the content of emails are (theoretically) private, the FBI could legitimately access the recipients’ names of within an individual’s emails, along with the time and date that any online form of communication was sent. [3]

To get this information, the FBI simply has to ask for it in the form of a National Security Letter, or NSL, an administrative subpoena that does not require judicial oversight or probable cause.

This development is troubling, to say the least, especially since about 50,000 NSLs are already being issued per year. The Justice Department Inspector General has complained that the FBI is failing to adequately justify the reasons for requesting all this information. [4] Similarly, the FBI director has admitted that “suspicion of wrongdoing is not required” in order for the FBI to issue surveillance on an individual. Essentially, the FBI is able to investigate Americans who have no criminal engagement or inclination. [5]

Individuals who come under the FBI’s scrutiny have included Muslims, animal rights activists, and other protestors who have not participated in extralegal activities. The use of NSLs to target these noncriminals is reminiscent of the counterintelligence program (COINTELPRO), whose objective was “to expose, disrupt, and otherwise neutralize the New Left organizations, their leadership and adherents,” except in this era, the issue is combating terrorism, not communism.[6]

The Washington Post’s two-year investigation on FBI surveillance abuses, Top Secret America, is a worthy read This exposure, in addition to civil rights and civil liberty activist organizations’ protests, has brought this issue closer to the forefront and put pressure on Congress in how to respond to the FBI’s demands to expand their domain. A group of 46 progressive nonprofits, including Political Research Associates, recently wrote a letter to the Senate urging for further oversight of the FBI.

The $75 billion private surveillance industry has skyrocketed since 9/11, and it is a reasonable request that greater oversight is in place for the government’s part in investigating American citizens. [7] However, it is not Congress that has the cleared access necessary to inspect the FBI. Like The Washington Post whose investigation could only go so far due to confidentiality restrictions, Senators are not given full disclosure of FBI activities. Therefore, the Government Accountability Office (GOA) may be the only hope for keeping the FBI in check since a significant portion of staffers are cleared at the top-secret level. In addition, the GOA answers to Congress, not the president, making it less influenced by executive preferences. [8] If America has a chance of a future with FBI transparency, it lies within the GOA.

Sources
1. Ellen Nakashima, “White House proposal would ease FBI access to records of Internet activity,” 29 July 2010, Washington Post, accessed 7 August 2010.
2. Julian Sanchez, “Obama’s Power Grab,” 29 July 2010, accessed 7 August 2010.
3. Bob Jacobson, “Obama Is Becoming the Most Anti-Privacy President Ever,” 9 August, 2010, Huffington Post, accessed 13 August 2010.
4. Ellen Nakashima, “Plaintiff Who Challenged FBI’s National Security Letters Reveals Concerns,” 10 August, 2010, Washington Post, accessed 13 August, 2010.
5. Associated Press article- Matt Apuzzo and Adam Goldman “FBI Director Defends Bureau over Test Cheating,” 28 July, 2010, Associated Press, accessed 10 August, 2010.
6. see Thomas Cincotta, “From Movements to Mosques, Informants Endanger Democracy
7. “Why the Intelligence Community Needs GAO Oversight,” Newsweek, accessed 7 August 2010.
8. “Why the Intelligence Community Needs GAO Oversight

Intelligence Fusion Centers: A De-Centralized National Intelligence Agency

President GeorgeW. Bush signs the Homeland Security Appropriations Act of 2004 in October 2003, launching fusion center financing. (Paul J. Richards/AFP/Getty Images)

President GeorgeW. Bush signs the Homeland Security Appropriations Act of 2004 in October 2003, launching fusion center financing. (Paul J. Richards/AFP/Getty Images)

In a 2007 article for the FBI Law Enforcement Bulletin, Colonel Bart Johnson explained how state-level intelligence “fusion centers” collect data from a range of sources and connect “seemingly unrelated” incidents that could be precursors of terrorist activity. At the time, Colonel Johnson led the New York State (NYS) Intelligence Center in Albany, where officers from a range of federal, state and local police agencies as well as civilian analysts function as a “nerve center” for all calls into a statewide terrorism tip line. He explains how in July 2004, his fusion center received an anonymous call warning of a college senior leading the campus Muslim Student Association, who, the caller claimed, had expressed hatred for America and was only in the country to teach Islam.

While researching the case, a state trooper found a link between this student and a report of a traffic stop involving two Middle Eastern men, who claimed to be Israeli musicians looking for a nearby synagogue where they were to perform for a wedding. A license plate check of their vehicle linked the registrant to the same address as the university student.1 The intelligence analysts then forwarded this information to the FBI Joint Terrorism Task Force to investigate further.

We don’t know what happened next because Colonel Johnson ends his story there. But even with these sparse details, his story raises concerns about racial and ethnic profiling, violations of free speech, and the intrusive power of fusion centers. These concerns loom even larger now that former Colonel Bart Johnson oversees the entire nationwide network of 72 fusion centers as Principal Deputy Under Secretary for Intelligence and Analysis of the U.S. Department of Homeland Security (DHS).

Despite a chorus of official assurances that fusion centers focus solely on illegal acts, this incident shows how police forces can blur the distinctions between activists and terrorists, and between immigrants and violent extremists.2 Here, the NYS intelligence center not only prompted a State Police investigation into a university student, whose politically oriented speech and religious identity triggered suspicion, but also initiated an investigation by the FBI Joint Terrorism Task Force based on national origin, a traffic stop, and tenuous links to the original “suspect.” Even worse, it is likely that all these details reside somewhere in a government database, easily retrievable using names and other key words.

The New York and 71 other statewide intelligence bureaus scattered across the country vastly extend the breadth and penetration of government surveillance of our society. Now six years old, the structure of this network is becoming clearer despite the woefully inadequate public exposure of its activities. This network constitutes a nascent de facto national intelligence agency, whose decentralized structure diminishes transparency and accountability. Without effective oversight, a narrowly defined mission, and new legal structures, the capacity of fusion centers to undermine fundamental freedoms could grow unchecked.

A Locally Owned and Operated Intelligence Machine

The Department of Homeland Security’s network of fusion centers operate under the auspices of state police or even large local police forces, thus sidestepping the guidelines enacted under the Privacy Act of 1974 that limit information sharing by federal agencies. Yet fusion centers have a national command center feel, with mosaics of television monitors, and desks for all the police agents assigned to work together and enjoy face time — the county sheriff, local police officers, the FBI, National Guard (restricted by law to drug-related missions), state police, Department of Homeland Security, and the civilian intelligence analysts. The FBI field office may rent space to fusion centers, and even helps run the Los Angeles fusion center, but it rarely plays a visibly lead role. Still, all the analysts are tied into federal information-sharing networks.

Since Homeland Security launched the program in 2003, these centers have evolved largely independently of one another. At first glance, smaller, more diffuse centers might seem to pose a smaller threat to civil liberties than a KGB-like national force. In truth, however, this decentralized network may be more dangerous, because it obscures lines of authority, subverts Congressional oversight and privacy guidelines, and turns numerous state and local police into intelligence agents.

Around the world, the War on Terror has served as an “indispensable Trojan Horse [enabling] intensified surveillance for all sorts of purposes.”3 As early as 1978, the Public Eye reported on an effort to bring the U.S. intelligence bureaucracy under one Director of National Intelligence that unsurprisingly failed amidst fresh memories of COINTELPRO – the FBI’s spying and dirty tricks program targeting activists— and Richard Nixon’s enemies list. By the 2001 attacks, memories of the domestic spying controversies of the 1970s had dimmed and calls for a national intelligence agency reemerged. Congressional sponsors of legislation that created the Department of Homeland Security wanted a fully functional intelligence organization within DHS, but the Bush administration preferred to realign organizations already under the authority of the FBI director, director of Central Intelligence, and the new director of national intelligence. As a result, Congress did not initially give DHS itself the capacity to produce raw intelligence.4,5 But today fusion centers give DHS the capacity to produce, not just receive, intelligence.

Fusion centers constitute a new piece in a vastly more powerful police apparatus. They give the executive branch an incredible physical reach into state and local communities.

Nurtured by more than $327 million in direct grant funding from 2004 through 2008, fusion centers won an additional $250 million in President Barack Obama’s stimulus plan to be spent by 2010 on upgrading, modifying, or constructing sites. DHS currently has 41 officers deployed at fusion centers and hopes to have an officer at every fusion center in the country by the end of 2010. By the end of 2008, governors, mayors, and police chiefs had established 72 operational centers within the United States and its territories, covering 49 states, District of Columbia, and Guam. Additionally, fusion centers in Idaho, Puerto Rico, and the U.S. Virgin Islands are in the final stages of development.

What is a Fusion Center?

Fusion centers gather, mine, and “fuse” data to help police fight crime and FBI agents stop terrorism. Data streams in from multiple sources, including intelligence groups, the federal government, other states, private databases, and open sources. Moreover, analysts scrutinize daily crime and 911 reports for patterns. Tips may come in to fusion center tip lines from citizens or police officers. Fusion centers also respond to requests for analysis from law enforcement agencies in the field, primarily investigators seeking to spot trends in areas like drug crime, gang activity, or theft.

If the fusion center generates or receives information determined to have a “potential nexus” to terrorism, the center sends it upstream to the “information sharing environment” for other agencies to review.  Local police and FBI Joint Terrorism Task Forces, not the fusion centers, are responsible for field investigations; although some, such as the Massachusetts Commonwealth Fusion Center, possess an investigative capacity.6

Fusion centers also aim to transform the culture of the intelligence community by forcing agents from diverse agencies to work with each other. The civilian analysts come from a variety of backgrounds, consisting primarily of retired law enforcement personnel, former military intelligence specialists, and veteran analysts from previous information sharing networks, such as the multi-jurisdictional High-Intensity Drug Trafficking Task Force.7

While the leadership and composition of fusion centers vary state-by-state, all retain specialists in visually mapping data to discern patterns.8 The degree of private involvement in fusion centers is not known, but companies like Boeing have attended fusion center briefings and even sought high-level clearance.9 InfraGard, a partnership between the FBI and private sector, has a permanent desk at the Los Angeles Joint Regional Intelligence Center. The Illinois Infrastructure Security Alliance (ISA) seeks to link more than 70 companies to the Statewide Terrorism and Intelligence Center via the Homeland Security Information Network, a national database with information from fusion centers.10 Fusion centers also have formal information-sharing agreements with other states, nearby cities and towns, and federal agencies.

Most fusion centers are managed by the state police. In Massachusetts, the State Police commands the state fusion center, while the Boston Police Department operates its own center fewer than forty miles away, the Boston Regional Intelligence Center. In Florida, the state Department of Law Enforcement runs the fusion center, while the Miami Dade Police Department maintains an active intelligence unit in southern Florida. In jurisdictions where the state police perform largely traffic functions, a state homeland security bureau may operate the fusion center. In Los Angeles, the Joint Regional Intelligence Center is jointly led by the LA County Sheriff, LAPD, and FBI.

Some states house their centers with the FBI’s Joint Terrorism Task Force; others rent space from the FBI field office itself.  The physical integration of these agencies – for example, Maryland State Police is headquartered in the same building as DHS – makes it more likely that information gathered in the course of political spying will be shared with other agencies and private partners.

Information Collection Force

Fusion centers facilitate the collection of massive amounts of information. DHS – itself comprised of 225,000 people in 22 separate agencies – uses fusion centers, information sharing, and agency integration as a “force multiplier” to tap into the potential of 718,000 state and local police in over 15,000 departments, plus local emergency responders, who could collect more data than 12,000 FBI agents. “There is never enough information when it comes to terrorism,” says Major Steven G. O’Donnell, deputy superintendent of the Rhode Island State Police.11 Unfortunately, the intelligence could be worthless and often is.

Fusion centers ostensibly complement the FBI’s Joint Terrorism Task Forces, which bring together local law enforcement with federal law enforcement components like Immigration and Customs Enforcement, Customs and Border Patrol, the Secret Service, and Transportation Security Administration. These two parallel systems for interagency coordination – one under DHS, the other under the Department of Justice – raise questions about redundancy and waste.  At the same time, though, the information from fusion centers gives DHS leverage and access to other federal intelligence.

It is a universe marked by redundancy. Information currently flows from fusion centers into a national “information sharing environment” such as the Homeland Security Information Network (HSIN), Protected Critical Infrastructure Information (PCII) Program, and Homeland Secure Data Network (HSDN – for classified data), which all sit alongside the Department of Justice’s Regional Information Sharing System (RISS), the FBI’s Regional Data Exchange and eGuardian, the Naval Investigative Services’ Law Enforcement Information Exchange (LInX) and the Law Enforcement Intelligence Unit’s (LEIU) LEO network (LEIU is a private organization of public law enforcement officials, including chiefs of police).

Fusion Centers Fall Short

Fusion centers appear to be falling short on their original aim of detecting and preventing terrorist plots by analyzing data for patterns suggesting terrorism. In theory, fusion center analysts take information from local-level criminal activity and analyze it to determine whether any connection exists between seemingly typical low-level crime and terrorist activity.

The Virginia Fusion Center identified “subversive thought” as a marker for violent terrorism.

Caroline Fredrickson, legislative director of the ACLU, notes that fusion centers are a direct institutional outgrowth of intelligence-led policing, targeting potential crime before it happens.12 This means a shift from investigating crimes that already occurred. John Pistole, Deputy Director of the FBI, invoked two oft-cited events that provide ideological justification for tracking crimes and individuals not usually associated with terrorist activity:

For instance, fusion centers are keeping tabs on criminal activity—everything from tax evasion to cigarette smuggling to robbery. On the surface, these may seem like relatively low-level crimes that only have a local impact.

But several years ago, we uncovered a cigarette-smuggling ring operating out of North Carolina. Members of the cell were transporting the cigarettes across state borders to sell them at a profit—and were using the profits to support Hezbollah in Lebanon.

And in August 2005, police in Torrance, California, arrested two men in a gas station robbery. When they searched the men’s apartment, they found documents listing the addresses of U.S. military recruiting stations and synagogues. They called the Joint Terrorism Task Force, and together we uncovered a terrorist cell, disrupted a terrorist plot, and possibly saved many lives.

We never know when something that seems typical may be connected to something treacherous.13

In each of those instances, however, traditional police work, not fusion centers, established the links between unlawful acts and terrorism (see box on Torrance). In practice, fusion centers are using their data systems to find missing persons or solve traditional crime; they are reacting to events more than preventing crime. Their analysts respond to incoming requests, suspicious activity reports, and/or finished information/intelligence products, and rely on existing understanding of problem areas to pull out data and patterns.14

Further, the logic of this network approach means that those who commit any infraction, as well as their innocent associates and family members, may be scrutinized for possible links to terrorists. According to a National Research Council study funded by DHS, “automated identification of terrorists through data mining (or any other known methodology) is neither feasible as an objective nor desirable as a goal of technology development efforts” because it inevitably conflicts with efforts to protect individual privacy.15 Continued funding for fusion centers as an antiterrorism tool should be premised on an empirical assessment of whether data analysis at the local level truly prevents terrorism. If this approach can only identify unsophisticated criminals and terrorists, an outcome that police seem to be accomplishing without fusion center support, fusion center practices and resources are not worth the risks to privacy and civil liberties.

Mission Creep

Although originally justified as an antiterrorism initiative to improve information sharing and collection at the local level, fusion centers rapidly drifted toward an “all-crimes, all-hazards” policy that is “flexible enough for use in all emergencies,” not just those specifically linked to terrorism. Mission creep is significant because 1) it undercuts the political justification for the network as a critical counterterrorism tool, and 2) it opens the door for surveillance and repression of protected free speech activity in order to “counter radicalization” or otherwise prevent “disorder” or nonviolent civil disobedience.

The vast majority of fusion centers now track major or organized crimes such as narcotics, violence and gangs, sexual offenses, or crimes that may be used to support terrorism efforts, or not. Rather than each department or squad having its own databases, fusion centers allow access to multiple databases and sources of intelligence; the drug squad in one community can share information with the anti-gang task force in another, picking up on patterns that may suggest an emerging threat as gangs set up to move into a new market or distribute new contraband. In addition, fusion centers assist with manhunts that cross jurisdictions, as when a baby was stolen in Tennessee and a serial killer went on a shooting spree in North Carolina.16

The leaders of some fusion centers have admitted that they switched to an “all-hazards” approach so they could apply for a broader range of grants, and because there was far too little terrorism-related information to analyze.17 They were agencies in need of a mission. According to documents provided to the Massachusetts ACLU, in 2006 the Massachusetts fusion center analyzed copper theft for four outside partners, studied school violence at five schools, investigated calls for fire department service, conducted three studies for the gang working group, while also compiling reports on port security, transportation security, gang assessments, and prisoner radicalization. Counter-terrorism is not their exclusive, let alone primary, priority.

The lack of a narrowly defined mission poses unnecessary risks to civil liberties. One fusion center study postulated that “there is, more often than not, insufficient purely ‘terrorist’ activity to support a multi-jurisdictional, multi-governmental level fusion center that exclusively processes terrorist activity.”18 Consequently, there is a risk that analysts’ skills could atrophy as would their interest, from a lack of relevant work.19

In the absence of purely terrorist activity, DHS’s emphasis on “ensuring that our communities are not places where violent extremism can take root” may invite fusion centers to identify local threats based on political rhetoric that is critical of government policies.  Evidence suggests this is already happening.  In February 2009, North Central Texas Fusion System issued a “Prevention Awareness Bulletin” calling on law enforcement to report the activities of Muslim civil rights organizations and antiwar protest groups. In March 2009, the Missouri State Highway Patrol was forced to halt the distribution of a report prepared by the Missouri Information Analysis Center that linked extremists in the modern militia movement to supporters of third-party presidential candidates such as Congressman Ron Paul of Texas and former Congressman Bob Barr of Iowa. The report also said that some militia members subscribe to anti-abortion beliefs or oppose illegal immigration – suggestions that created a public uproar among law-abiding groups concerned that they were being lumped in with violent, dangerous people.20

Most government data mining today occurs in a legal vacuum outside the scope of the Fourth Amendment barring unreasonable searches.

Furthermore, the Virginia Fusion Center’s 2009 Threat Assessment identified “subversive thought” as a marker for violent terrorism and thus targeted “university-based student groups as a radicalization node for almost every type of extremist group.”21 In words reminiscent of “communist front” theory dating to the Cold War, Virginia Fusion Center analysts warned of the Muslim Brotherhood’s alleged strategy of boring from within by infiltrating different Islamic organizations and obtaining leadership roles. DHS also monitored the D.C. Anti-War Network and shared information with the Maryland State Police – most likely through the fusion center – during a year-long infiltration of Baltimore area peace and social justice organizations in 2007-2008.22

Recording Our Legal Activities – LAPD’s Special Order #11

In early 2009, casino security officers contacted the Southern Nevada Counter-Terrorism Center after witnessing three men taking photos of the casino’s ceiling on a quick visit to the building. Analysts reviewed the casino’s surveillance videos and issued a law enforcement bulletin asking other casinos to report any similar activity. Three months later, officials had nothing more to report.23

Fusion centers encourage corporate partners and local police alike to report activities such as people taking photographs. These “suspicious activity reports” (SARs) become data, waiting to be activated by an analyst working in the fusion center system. The growing popularity of SARs are tied to a new criminal intelligence theory, supported at the highest levels of the U.S. domestic intelligence enterprise, that collecting outwardly innocuous behaviors enhances security. The Los Angeles Police Department’s “suspicious activities” program is a national model that the Office of the Director of National Intelligence (ODNI) set out to replicate and standardize at fusion centers around the country in 2008.24 LAPD had ordered its officers to report behaviors that include innocuous, clearly subjective activities clearly protected by the First Amendement’s assurances of free speech, such as:

  • taking measurements
  • using binoculars
  • taking pictures or video footage “with no apparent esthetic value”
  • abandoning a vehicle
  • drawing diagrams
  • taking notes
  • espousing extremist views

Drawing on this strategy, in January 2008, the Director of National Intelligence urged state and local law enforcement to “report non-criminal suspicious activities,” which were defined as “observed incidents or behaviors that may be indicative of intelligence gathering or pre-operational planning related to terrorism, criminal, or other illicit intention.” The standards left the meaning of “other illicit intention” and “terrorism” to people’s imaginations.25

In August 2008, the U.S. departments of Justice and Homeland Security, along with the Major City Chiefs Association, issued a report recommending the expansion of the LAPD suspicious activity program to other U.S. cities. Currently, Los Angeles, Boston, and Miami are among the sites experimenting with this standardized reporting process. As one official observes, “In many instances the threshold for reporting is low, which makes it extremely difficult to evaluate some of this information.”26 The reduced threshold for reporting also leads to too much collection. In the words of Bruce Fein, once a staffer to former Republican Congressman Bob Barr of Iowa,

Since anything might be a clue as to a possible psychological inclination to commit terrorism, everything is fair game for intelligence collection.  But when everything is relevant, nothing is relevant.  Finding something useful in the mass of undifferentiated intelligence reports and analysis is thus akin to looking for a needle in a haystack.  That may explain why there is no credible evidence that fusion centers have frustrated a single terrorist plot – their primary raison d’être.27

Data-Mining and Private Databases

Fusion centers reflect the tendency of surveillance systems to grow both in depth – with reams of information on any one person – and in breadth by broadening the variety of sources of personal data that they draw on. With unprecedented access to criminal, intelligence, and private sector databases, fusion centers give local authorities an exceptional capacity to monitor behavior and select individuals or communities for intervention. Accordingly, fusion centers responded with vigor to the FBI and Department of Homeland Security’s 2006 guidelines urging them to “obtain access to an array of databases and systems.” Although the guidelines listed only public information assets, such as motor vehicle databases, state fusion centers now contract with private data brokers to access private information like unpublished cell phone numbers, consumer credit profiles, insurance claims, car rentals, and real estate sales. In 2009, DHS announced a new arrangement with the U.S. Department of Defense that allowed select fusion center personnel to access terrorism-related information from the Department of Defense’s classified network.

The logic of surveillance systems is to grow.

The rise of cyberspace, mobile telephones, and a nearly universal reliance on credit and debit cards has, as James Rule put it, “created cornucopias of actionable personal data to tempt the surveillance appetites of institutions.”28 For instance, in Massachusetts, the Commonwealth Fusion Center website boasts access to Accurint, Lexis-Nexis, LocatePlus, and Autotrack, a product of Atlanta’s Choicepoint, the giant private data aggregator that moved aggressively into the domestic intelligence market after 9/11.29 Autotrack permits subscribers to browse through more than 17 billion current and historical records on individuals and businesses with as little as a name or social security number as a starting point. In Maryland, authorities similarly rely on a data broker called Entersect, which maintains 12 billion records on about 98 percent of Americans. Systems like fusion centers feed on steady diets of supposedly “actionable” personal information– all accessed without a warrant.

Privacy Pitfalls

State governments established fusion centers with federal dollars in the absence of any legal framework, and their data mining occurs in a legal vacuum outside the scope of the Fourth Amendment, which bars unreasonable searches.30 Although data mining can have real consequences for individuals tracked, there are no legal guarantees for the accuracy or appropriateness of the data or the searches, no redress for people injured by being falsely identified as posing a threat, and no judicial or legislative oversight. Some fusion centers purge data searches after one or five years, but no one is responsible for doing so. Fusion center records are also beyond the reach of the Privacy Act of 1974, which regulates and gives individuals access to the files of federal agencies.

The main federal regulation governing criminal intelligence databases is 28 CFR Part 23.  Congress enacted Part 23 in a series of reforms initiated during the 1970s to curb widespread abuses of police investigations for political purposes.  It is designed to ensure that police intelligence operations focus on illegal behavior by requiring that criminal intelligence systems “collect and maintain criminal intelligence information concerning an individual only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.”

Fusion centers receiving federal funds are required to abide by Part 23, but the federal government actively promotes the violation of the regulation by encouraging fusion centers to collect noncriminal intelligence and to draw on public and private sector data. Not only is the government failing to enforce or intensely monitor compliance with Part 23, but this regulation may not go far enough to protect privacy and free expression in the current environment.

Part 23 may not apply to data-mining and access functions of the fusion center since it regulates collection rather than the processing of information held by other parties. For example, New Mexico’s All Source Intelligence Center has access to 240 state, regional, and federal agencies in their databases, including agricultural and parks agencies. Establishing what kinds of information fusion centers are processing can be difficult, according to Peter Simonson, executive director of the New Mexico ACLU chapter, because they do not store the records nor even collect them, but simply mine them through digital gateways. Records are accessed, not retained as they would be in specific case or investigative files.31 Therefore, fusion centers may technically comply with Part 23, but still actively assault the right of individuals to be free from government surveillance and its concomitant social pressures to conform.

The lack of a narrowly defined mission poses unnecessary risks to civil liberties.

In their 2005 book, Protecting Liberty in an Age of Terror, Juliette Kayyem and Philip Heymann argue that we need new protections for individuals against what appears to be the unrestricted authority of the government to collect and mine information. They recommend a system where courts must give authorization before agencies can collect and access data on individuals, Congress sets standards for the various types of authorization, and the legislative branch oversees the whole process. To date, no such protections exist.32 Perhaps there is “hope” in the fact that Kayyem now serves as Assistant Secretary of Intergovernmental Programs at DHS.

Resist Mass Surveillance

The logic of surveillance systems is to grow.  Because there is no “natural limit” to the incorporation of personal information in systems of mass surveillance, our only defense is collective action to impose limits on the post-9/11 intelligence apparatus.33

Russell Porter of the Iowa Fusion Intelligence Center keeps a copy of the Bill of Rights posted near the front door of the center’s office, and he insists that fusion centers are only interested in investigating criminal activity. That should provide little comfort.  The good intentions of some government officials will not protect the public from abuse that will inevitably occur given lax oversight, ill-defined missions, and inadequate legal protections. Executive-branch repression of dissent using personal data stretches back as far as the Palmer Raids after World War I. More recently, President Ronald Reagan used tax audits to pressure critics of his Central American policies and George W. Bush enacted his secret warrantless wiretap program. Based on the historical record, American intelligence agencies have not earned the trust of Congress, the courts, or the people when it comes to domestic surveillance.

An engaged Congress which takes its oversight role seriously must enact a new series of legal protections on the scale of those of the 1970s. (See box on Constitution Project proposals.) Just as Americans’ fought for reform in the 1970s, it will take investigations by Congress, state legislatures, attorneys generals, journalists, and citizens to expose the current practices of fusion centers and build the political pressure necessary for change. Lawyers representing protestors and defendants in terrorism cases can also play a key role in discovering how these institutions are monitoring their clients. Lastly, just as DHS engages academia in promoting troublesome theories of intelligence-led policing and violent radicalization, civil libertarians must respond in kind. In a free society, civil liberties must be the cornerstone of antiterrorism policy, not an afterthought, as it has been in the development of fusion centers.

Sidebars

Torrance:  A Genesis Fable for Fusion

Bipartisan Call for Oversight

[div class=”foot-notes”]

Endnotes

1 Bart C. Johnson, “A Look at Fusion Centers Working Together to Protect America,” FBI Law Enforcement Bulletin, December 2007, pp. 28, 30.

2 See, e.g., Bart Johnson, Testimony before the House Committee on Homeland Security (June 24, 2009), stating, “As a former law enforcement professional who well understands the critical importance of the rule of law in making our people and places truly safe, I pledge to you that strict adherence to privacy, civil rights and civil liberties laws and regulations will be the starting, mid and end points of [Intelligence and Analysis’] homeland security intelligence work under my watch.

3 James B. Rule, Privacy in Peril(New York: Oxford University Press, 2007), p. 14.

4 Bruce Berkowitz,“Homeland Security Intelligence:  Rationale, Requirements, and Current Status,” inAnalyzing Intelligence, ed. Roger George and James Bruce, (Washington, DC: Georgetown University, Center for Peace and Security Studies, 2008), pp. 281-293.

5 See EPIC’s website for a timeline of the development of fusion centers.

6 Massachusetts Commonwealth Fusion Center, “Guidelines for Investigations Involving First Amendment Activity,” No. CFC-04, March 5, 2008.

7 Joseph Straw, “Smashing Intelligence Stovepipes,” Security Management, March 2008.

8See, e.g., Neil MacFarquhar, “Protest Greets Police Plan to Map Muslim Angelenos,”CommonDreams.org, November 9, 2007.

9 Joseph Straw, “Smashing Intelligence Stovepipes,” Security Management, March 2008.

10 Joseph Straw, “Fusion Centers should work with ISACs,” Security Management, November 2007.

11 Robert O’Harrow, “Centers Tap into Databases: State Groups Were Informed After 9/11,” Washington Post, April 2, 2008.

12 Fredrickson.

13 John S. Pistole, “Remarks” at National Fusion Center conference, March 7, 2007.The Torrance gas station robberies were connected to a terrorist plot only after a search of a suspect’s home revealed jihadist literature and indicia of planning; the Norwalk-based fusion center did not predict such a connection based upon the string of robberies.

14 John Rollins, Congressional Research Service, “CRS Report for Congress:  Fusion Centers: Issues and Options for Congress,” updated January 18, 2009, p. 25. (PDF)

15 Fredrickson, p. 7, quoting, “Protecting Individual Privacy In The Struggle Against Terrorists: A Framework For Program Assessments,” Committee On Technical And Privacy Dimensions Of Information For Terrorism Prevention And Other National Goals (2008).

16 Jeanie Powell, “Tennessee Authorities Determine Stolen Baby Wasn’t For Sale,” WAFF48 News, October 5, 2009; Craig Peters, “Manhunt for killer intensifies after the fifth victim dies,” GoUpstate.com, July 5, 2009.

17 Todd Masse, Siobhan O’Neil and John Rollins, “CRS Report for Congress:  Fusion Centers:  Issues and Options for Congress,”Congressional Research Service, July 6, 2007, 22, n.45, cited in Caroline Fredrickson, “Statement Before the Subcommittee on Terrorism and Homeland Security, Senate Committee on the Judiciary,” April 21, 2009. (PDF)

18 Milton Nenneman, “An Examination of State and Local Fusion Centers and Data Collection Methods,” Thesis, Naval Postgraduate School, March 2008, pp. 2-3.

19 Nenneman.

20 ACLU, “Fusion center encourages improper investigations of lobbying groups and anti-war activists,”CommonDreams.org, February 25, 2009.

21 See Stephen Webster, “Fusion center declares nation’s oldest universities possible threat,” The Raw Story, April 6, 2009.

22Matthew Rothschild, “ACLU Highlights Risk of Fusion Centers,” The Progressive, July 30, 2008.

23 Jeff German, “Fusion center’s attention on prevention,” Las Vegas Sun, May 22, 2009.  The Las Vegas center opened with the help of a $4.6 million federal grant and costs an estimated $1 million a year to operate.

24 LAPD Order #40 compels LAPD officers to report “suspicious behaviors” in addition to their other duties in order to create a stream of “intelligence” about a host of everyday activities that will be fed to the LA-based Joint Regional Intelligence Center (JRIC).

25 Under pressure from civil libertarians ODNI revised its directive in April 2009 to require that non-criminal activities have a “potential nexus to terrorism.”  It is not clear how “Version 1.5” of this directive has been implemented or if officers have been retrained in light of the change.

26 Brian Jackson, ed., The Challenge of Domestic Intelligence in a Free Society, (New York: RAND Corp., 2009), p. 31 (internal citation omitted). (PDF)

27 Bruce Fein, Statement before the Subcommittee on Intelligence Sharing & Terrorism Risk Assessment Committee on Homeland Security, April 1, 2009.

28 Rule, p. 37.

29 See Robert O’Harrow, No Place to Hide (New York: Free Press, 2006).

30 O’Harrow.

31 Hilary Hylton, “Fusion Centers: Giving Cops the Right Information?” Time, March 9, 2009.

32 Philip B. Heymann and Juliette N. Kayyem, ed. Protecting Liberty in an Age of Terror (Cambridge, MA:, MIT Press, 2005).

33 ACLU, “What’s Wrong With Fusion Centers,” December 5, 2007.