Commentary: How to spot a law-abiding American

The American Civil Liberties UnionOctober 26, 2010 

Are you a terrorist? Do you associate with terrorists? If the answer to those questions is no — which it undoubtedly is for the overwhelming majority of Americans — collecting detailed information about your personal behavior for the sake of “intelligence gathering” would violate your rights and waste the government’s resources, but not make you any safer. Yet that’s exactly what’s happening with the government’s growing number of Suspicious Activity Reporting (SAR) programs.

SAR programs are based on the theory that collecting information about a multitude of “suspicious” behaviors will help law enforcement and intelligence agencies find criminals and terrorists. The problem, however, is that many of the behaviors these SAR programs identify as precursors to terrorism include innocuous and commonplace activities that ordinary people engage in every day.

For this reason, SAR programs not only pose civil liberties threats, but they also subvert counterterrorism efforts, as the extraneous information collected only pollutes the intelligence system and makes it less useful and reliable for law enforcement.

In an op-ed published in the New York Times on Sept. 28, John Farmer, Dean of the Rutgers School of Law, lauds SAR programs as an ideal method for catching terrorists before they act. Yet, despite acknowledging the serious civil liberties implications of these programs, he does not provide any evidence these programs have identified a single terrorist plot.

In his piece, Farmer mis-characterizes the American Civil Liberties Union’s criticism of SAR programs as a potential threat to civil liberties as something new, when the websitehe links to clearly explains the ACLU’s longstanding concerns about the civil liberties implications of these programs.

He correctly points out that the ACLU and other civil rights and privacy organizations worked with the Director of National Intelligence’s Information Sharing Environment (ISE) SAR program to improve its policy and that the ACLU applauded them when they did.

But, as we said at the time, one good SAR policy is only a first step and only solves part of the problem. It is far from clear whether the other SAR programs, like the FBI’s eGuardian or those run by state and local law enforcement fusion centers, will follow the revised ISE standards.

An evaluation of the ISE SAR program showed that only seven out of the 347 reports collected in Virginia and 12 of the 5,727 reports collected in Florida met the revised ISE standards. The ACLU submitted a Freedom of Information Act request to obtain eGuardian policies, but the FBI has yet to comply.

The civil liberties dangers posed by SAR programs are significant. Under SAR programs, engaging in everyday activities like taking photographs, drawing diagrams or taking notes or measurements could result in a policemen, FBI or Department of Homeland Security agent stopping you, demanding ID and detaining or arresting you.

After that, your information could be entered into a database of “suspicious” potential terrorists — despite the fact that you’ve done nothing wrong — simply because the government has determined that a small number of terrorists might also engage in these same ubiquitous activities.

Some SAR programs request public participation, with hyperbolic public service announcements that suggest reporting your neighbor’s photography might stop the next 9/11. Think about the implications for the average tourist shooting a photo of the Brooklyn Bridge, or the art student fascinated by the structure of the subway.

Evidence the ACLU has documented around the country reveals that, under SAR programs, wholly innocent people have been stopped and harassed by law enforcement officers for engaging in First Amendment-protected activities.

These tactics simply do not make anyone safer.

In fact, there is little evidence SAR programs find terrorists but there is plenty of evidence they are being used to violate the rights of innocent people engaged in innocuous activities, like photographing scenic railroad stations, government-commissioned art displays outside federal buildings or national landmarks.

Under SAR programs, artists and journalists have been systematically harassed or detained by federal, state and local law enforcement and, in some instances, the ensuing confrontation with police escalated to the point where photographers were arrested and their photos erased or cameras confiscated with no reasonable indication that criminal activity was involved.

In addition, because many SAR programs describe photography of security personnel or facilities as a precursor to terrorism, a growing number of cases, such as those in Maryland, Washington, Tennessee, New Jersey, Boston and Miami, have involved police harassment – including demands for identification and even arrests – of photographers for taking pictures or video documenting law enforcement officers performing their duties.

None of these incidents involved any reasonable links to terrorism or other threats to security. SAR criteria have also been used as a pretext for local law enforcement to check immigration status and have played a precipitating role the arrest of a political activist in Connecticut. A Los Angeles Sheriff’s Deputy even threatened to put a subway photographer on the Terrorist Watchlist.

A program that violates American values and fails to keep us safe is a lose-lose proposition. Law enforcement already has the authority it needs to fight crime and terrorism without sacrificing the rights of those it seeks to protect.

ABOUT THE WRITER

Michael German is a policy counsel for the American Civil Liberties Union and a former FBI Special Agent.

McClatchy Newspapers did not subsidize the writing of this column; the opinions are those of the writer and do not necessarily represent the views of McClatchy Newspapers or its editors.

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