Tag: electronic surveillance

Fusion Centers

Most people don’t care about government surveillance – just so long as they are not affected by it.  We want the police to be on lookout for trouble – so some surveillance is necessary for the work they do.  But how much?

After 9/11, state officials said they had difficulty “connecting all the dots.”  Fusion centers are supposed to remedy that problem.  Police departments around the country are creating databases (“fusion centers”) and the objective is to link them together so that the police can spot patterns of behavior so that crimes or terrorist attacks can be thwarted.

The goal seems sensible and worthwhile but as the details emerge on how fusion centers operate, the concept gets controversial fast.  Who will be monitored? What kind of information will be  collected?   And who decides when pieces of information should be discarded or entered into a massive database?  If false information about, say, YOU, goes into the database, will you ever learn about it?  Have an opportunity to erase it or correct it?

Fusion centers are springing up all over the country and they are coordinating the efforts of some 800,000 American law enforcement officers to collect information about anyone deemed suspicious. One problem is that terrorists are not of a monolithic character. Terrorists can be extremely religious or secular; they may be Arab, white, black or any other race; terrorists come from both rich and poor backgrounds; they come from the far right, the far left – and some are simply against society generally. And when criminals are added to the mix, the potential dragnet for this casual government surveillance potentially covers scores of people.

Behaviors that make someone eligible for government monitoring are quite broad. As noted by Bruce Fein in his testimony before Congress in April, citing a July 2008 ACLU report on fusion centers, such suspicious behaviors in one LAPD directive include “using binoculars,” “taking pictures or video footage “with no apparent aesthetic value,” “drawing diagrams,” and “taking notes,” among others.

Former vice-president Cheney might argue that the monitoring is not extensive enough.  He recently said (pdf): “When just a single clue goes unlearned … can bring on a catastrophe – it’s no time for splitting differences.  There is never a good time to compromise when the lives and safety of the American people are in the balance.”  National security, it seems,  requires that we get everyone into the central database for scrutiny.  We can’t afford any ”gaps” in the surveillance matrix.

I will be moderating a Cato event about fusion centers on Thursday, June 11, at noon.  The panel will include attorney Bruce Fein, the ACLU’s Mike German (who co-authored the report linked above), and Harvey Eisenberg, Chief of the National Security Section in the Maryland Division of the U.S. Attorney’s office. 

DoJ Fails to Report Electronic Surveillance Activities

Unlike with wiretaps, law enforcement agents are not required by federal statutes to obtain search warrants before employing pen registers or trap and trace devices. These devices record non-content information regarding telephone calls and Internet communications. (Of course, “non-content information” has quite a bit of content - who is talking to whom, how often, and for how long.)

The Electronic Privacy Information Center points out in a letter to Senate Judiciary Committee Chairman Patrick Leahy (D-VT) that the Department of Justice has consistently failed to report on the use of pen registers and trap and trace devices as required by law:

The Electronic Communications Privacy Act requires the Attorney General to “annually report to Congress on the number of pen register orders and orders for trap and trace devices applied for by law enforcement agencies of the Department of Justice.” However, between 1999 and 2003, the Department of Justice failed to comply with this requirement. Instead, 1999-2003 data was provided to Congress in a single “document dump,” which submitted five years of reports in November 2004. In addition, when the 1999-2003 reports were finally provided to Congress, the documents failed to include all of the information that the Pen Register Act requires to be shared with lawmakers. The documents do not detail the offenses for which the pen register and trap and trace orders were obtained, as required by 18 U.S.C. § 3126(2). Furthermore, the documents do not identify the district or branch office of the agencies that submitted the pen register requests, information required by 18 U.S.C. § 3126(8).

EPIC has found no evidence that the Department of Justice provided annual pen register reports to Congress for 2004, 2005, 2006, 2007, or 2008. “This failure would demonstrate ongoing, repeated breaches of the DOJ’s statutory obligations to inform the public and the Congress about the use of electronic surveillance authority,” they say.

It’s a good bet, when government powers are used without oversight, that they will be abused. Kudos to EPIC for pressing this issue. Senator Leahy’s Judiciary Committee should ensure that DoJ completes reporting on past years and that it reports regularly, in full, from here forward.