The federal/state balancing act

The push to gather and share more security information to prevent terrorist attacks has created a new category of intelligence information: homeland security intelligence. 

Congressional hearings, laws, working groups, strategies, executive orders and information technology investments during the past eight years have created programs to share data among different levels of government, Those programs extend beyond terrorism-related intelligence to law enforcement data and information related to public health and disasters. Information sharing is part of the solution to handling homeland security risks, but it also creates problems, some privacy protection advocates say.

Proponents of involving nonfederal authorities in counterterrorism efforts say local law enforcement officers are best suited to stop terrorist activity because they are working in their own communities, which gives them the ability to detect suspicious behaviors more easily than federal authorities can.

However, some critics worry that because of homeland security intelligence’s broad scope, those collection efforts encourage local authorities to track activities that are constitutionally protected and not criminal. They also say that local authorities are being encouraged to collect too much information.

Caroline Fredrickson, an American Civil Liberties Union lobbyist, recently told a House subcommittee that “taking such an unfocused ‘all crimes, all hazards’ approach to intelligence collection poses significant risks to our individual liberties, our democratic principles and, ironically, even our security.”

Gregory Nojeim, director of the Project on Freedom, Security and Technology at the Center for Democracy and Technology, told the same panel that there should be rules governing the ways in which homeland security-related data can be collected, retained, shared and used. He said “huge amounts of information are being gathered without apparent focus,” while IT solutions that make it easier to use information in personally identifiable ways continue to develop. Fredrickson and Nojeim made those statements at a hearing held by the House Homeland Security Committee's Information Sharing and Terrorism Risk Assessment Subcommittee.

Homeland security and law enforcement officials say the all-crimes, all-hazards approach to information sharing is necessary to support homeland security efforts — despite privacy concerns — because the links to terrorist activity might not be immediately evident in what appear to be common crimes. They also say threats that affect communities extend beyond terrorism, and police officers benefit from analyses that include the risks posed by organized crime, gangs, public health hazards and other threats besides terrorism.

The federal government is looking to include nonfederal authorities in counterterrorism efforts through the Suspicious Activity Reporting (SAR) program run through the Office of the National Director of Intelligence’s Program Manager for the Information Sharing Environment (PM-ISE). That effort, which is in an evaluation phase at test sites across the country, is intended to standardize how police officers report and share information that they suspect might be linked to terrorism.

A similar program used by the Los Angeles Police Department is considered a model for the national program. Both efforts have a mandatory training program, and the leaders of each are collaborating with civil liberties groups to deal with privacy concerns.

Joan McNamara, assistant commanding officer at LAPD's Counter Terrorism and Criminal Intelligence Bureau, testified that her department has had success with its SAR initiative. She said fusing the SARs-related information with an “all-crimes picture” can provide decision-makers with the statistical support to allocate resources, close gaps in training and reveal potential threat patterns.

John Cohen, a senior adviser to the PM-ISE, said the goal of the SAR program is to get police the training and information they need to discern between noncriminal behaviors and those associated with criminal activity related to terrorism.

“We don’t want people collecting information on people who are engaged in constitutionally protected activities,” Cohen said. “What we do want to do is find people who are engaged in criminal activity, particularly criminal activity associated with terrorism in this case.”

Michael German, policy counsel for ACLU, said the problem with listing some behaviors as being potentially suspicious is that too many of them are common and innocuous. For example, one of the behaviors that the PM-ISE first identified as potentially indicative of pre-operation planning for terrorism was the photographing of facilities.

German, a former FBI agent, said the police already have ample authority to investigate anyone they reasonably suspect to be involved in criminal behavior. “I think it’s very simple: Law enforcement should focus on people engaged in misconduct,” he said.

German and Nojeim said they worry about the recording and retention of suspicious activity reports that don’t meet the criminal intelligence threshold of reasonable suspicion. That standard is used to determine how criminal intelligence data can be gathered, stored and shared in the federally funded criminal intelligence systems operated by state and local authorities.

“There is considerable concern that the protections of the reasonable suspicion standard are diluted when federally funded [intelligence] fusion centers collect and share vast amounts of SAR information that does not meet the standard,” Nojeim said.

Documents from the PM-ISE that describe the SAR program advocate the use of existing criminal intelligence database regulations for SARs, when applicable. However, because criminal intelligence processing differs across jurisdictions, PM-ISE documents say nonfederal agencies need to clearly define at what point that standard applies to their SAR reports.

Cohen said the SAR process doesn’t create new sets of information. Rather, he said it gives a more rigid structure to how police officers can use information they already gather each day.