ACLU: fusion centers need more oversight

Editor's note: This story was updated with additional information on July 31, 2008 at 9:59 a.m. EST.

The extent of data available to authorities through the nationwide network of intelligence fusion centers raises legal and privacy questions that require increased congressional oversight, according to a report released today by the American Civil Liberties Union.  Authorities in those centers have access to numerous intelligence databases.

The civil liberties group said the activities of state and local fusion centers, which the Bush administration identified as the primary way for sharing terrorism related information between state, local and federal authorities, represent part of “a nascent domestic surveillance system.” State and local authorities started forming the centers after the terrorists attacks of September 2001 to upgrade information sharing. The centers are partially funded through grants from the Homeland Security Department.

The ACLU said the use of the centers as a way to pass on suspicious activity reports (SARs) gathered by local authorities and federal efforts to standardize SAR reporting amount to deputizing local and state law enforcement authorities.

Federal authorities have been working to set SAR standards as well as further functional guidance for the centers, which officials say will improve information sharing and protect privacy rights.

However, in a conference call ACLU officials called for Congress to play a greater role in regulating the centers.

National authorities have become increasingly involved — particularly DHS and the FBI, who have officials assigned to many of the centers. There are more than 50 centers in states and major urban areas around the country.

“Rather than letting these fusion centers continue to grow in an organic or ad-hoc way — in a way that can lead to flagrant abuses and violations of rights — Congress really needs to have a debate and discussion and to impose controls,” said Caroline Fredrickson, director of the ACLU Washington Legislative Office.

However, John Cohen, a senior advisor to the Office of the Director of National Intelligence's Program Manager for the Information Sharing Environment (PM-ISE), said authorities in his office and in the Justice Department are in the process of putting out increased guidance and controls to address many of the issues brought up in the ACLU report. The examples used in the report predated these efforts, he said.

“We are building into this process multiple levels of vetting…this comes from training and the development of a standardized approach that is clearly defined to all participants in the system,” Cohen said.

The ACLU said that because activities that could be described as suspicious are “non-criminal" and are often protected by the First Amendment, policing those activities opens the door to “racial profiling and other inappropriate police behavior.”

“It has becoming increasingly clear that fusion centers are part of a new domestic intelligence apparatus,” Fredrickson said.

However, Cohen said his office is developing SAR standards specifically so local police have instructions and guidance that are more clear.

“The SAR process is not a mechanism to create a centralized repository that includes innocent people involved in innocent activities, it’s not a system that links into the intelligence community, it’s not a system to promote ethnic or racial profiling,” he said. “In fact it’s being designed specifically to counter those things.”

Cohen said the SAR-sharing environment, once completed, will also have regulations for how information can be shared and how long it can be held rather than the ad-hoc environment that currently exists.

However, Fredrickson said a recent revelation that the Maryland State Police conducted surveillance of non-violent activists shows “the mission creep particularly demonstrated by f usion centers of the focus from terrorists to peace activists.”

The ACLU said it does not know if intelligence gathered by that operation was used by the Maryland state fusion center. However, the ACLU said the data was uploaded into a federal drug task force database that is available to fusion center authorities.

Thomas Carr, the director of the Washington-Baltimore High Intensity Drug Trafficking Area program (HIDTA), which runs the database where the data collected through the surveillance was entered, said that the file was not accessed by the Maryland fusion center or by anyone else. 

He explained that the HIDTA's database, called Case Explorer, is organized by case files whose data is not made accessible to other users of the system through the interface. Instead, when a new case file is entered in to the system, it notifies the user if other files exist that are determined to match the data being entered. The user can then contact the official who entered the file with similar data and decide whether to collaborate in an investigation.

Carr said that files in Case Explorer are reviewed and purged every few years.

The ACLU said that it also decided to release today’s report, an addendum to a previous study the group released last November, because there has been increasing efforts by authorities to exempt fusion centers from open government laws.