Most domestic intel centers lack privacy plans

The majority of state and local counterterrorism centers across the country do not have federally approved plans to ensure they are protecting the privacy rights and civil liberties of U.S. citizens, raising concerns among privacy advocates that they lack proper oversight.

The issue reveals the tension between government efforts to collect and analyze intelligence inside the United States in order to prevent terrorist attacks and fears that innocent Americans and law-abiding groups are being improperly spied upon.

After the Sept. 11, 2001, terrorist attacks, the U.S. government encouraged and funded a proliferation of domestic counterterrorism centers, commonly referred to as state and local homeland security fusion centers.

Although 72 centers now exist, only 28 have privacy and civil liberties plans approved by the Homeland Security Department, National Journal has learned. DHS serves as the lead federal agency coordinating and funding the centers.

To address the issue, DHS this year began restricting the ability of centers to use state homeland security grants until they have an approved privacy and civil liberties plan.

"We've been complaining about the lack of a governance structure over fusion centers for a few years now," Michael German, policy counsel for the ACLU and former FBI special agent, said in an interview.

"That the process is taking too long is worrisome, and we'll be watching to see how effective DHS is in enforcing this requirement, particularly because having a written privacy policy is only a first step toward accountability," he added.

Tom Monahan, president of the National Fusion Center Association, said candidly that he shares the concerns of privacy groups like the ACLU. The association is a nonprofit organization based in Alexandria, Va., that represents the 72 fusion centers.

"We understand that concern. We absolutely agree with that concern," Monahan said. He said all fusion centers are required to have approved plans by March 31.

Even though DHS has not approved privacy and civil liberties plans for most fusion centers, they still must comply with federal, state and local laws protecting people's rights, Monahan said.

"Much of the content of the privacy policy will simply be restating existing statutes, laws and regulations," he said. "However, it's imperative that it be codified and trained for everybody who works in the fusion centers because well-intentioned employees of the fusion centers could run afoul of the laws despite their well intentions."

But a major challenge for centers to get approval from DHS has been that state and local laws can vary widely, Monahan added. "There is no standardized language to construct this," said Monahan, who also directs the Southern Nevada Counter-Terrorism Center.

He added: "I'm not aware of any fusion center that hasn't even started. Everybody understands the importance of this; everybody understands the magnitude of not getting this done."

He also said he does not believe it would be unrealistic for DHS to define a standard policy for fusion center privacy and civil liberties plans.

DHS spokesman Bobby Whithorne said DHS is working with fusion centers to meet the privacy requirements as quickly as possible.

"Over the past several years, federal, state, and local officials have worked tirelessly to ensure that robust privacy, civil rights, and civil liberties protections are integrated into fusion center policies," he said.

The ACLU views the funding restriction by DHS as a good start, but believes more needs to be done.

"There is still no formal mechanism to oversee the fusion centers to ensure they are complying with these privacy policies, much less with other laws and regulations governing how law enforcement intelligence operations collect and handle personally-identifiable information," German said.