The American Civil Liberties Union has filed a lawsuit on behalf of five United States citizens challenging a domestic surveillance program, which involves the collection of “suspicious activity reports” on individuals.
The federal government has a National Suspicious Activity Reporting Initiative (NSI) that, according to the ACLU’s filed complaint [PDF], “encourages state and local law enforcement agencies as well as private actors to collect and report information that has a potential nexus to terrorism in the form of so-called ‘suspicious activity reports [SARs].’”
Any individual who is flagged as having a “potential nexus to terrorism” will automatically be subject to “law enforcement scrutiny, which may include intrusive questioning by local or federal law enforcement agents.” Plus, “Even when the Federal Bureau of Investigation concludes that the person did not have any nexus to terrorism, a SAR can haunt that individual for decades, as SARs remain in federal databases for up to 30 years.”
NSI consists of one central database launched a few years ago effectively enables a network of domestic spying activity where reports from various US law enforcement agencies are pooled together. Homeland Security fusion centers also facilitate the distribution of these SARs.
The ACLU argues that the standards, which govern collection of reports for this domestic surveillance program, conflict with the Justice Department’s own standards. The Justice Department “prohibits the collection, maintenance and dissemination of criminal intelligence information unless there is reasonable suspicion of criminal activity.” But reasonable suspicion of criminal activity is not required for reports.
The initiative will accept reports which stem from constitutionally protected conduct, such as photographing of infrastructure. Or, more generally, reports of any individual “acting suspiciously,” which could mean anything depending on what prejudice or bias a person holds.
Tariq Rezak, a US citizen of Pakistani descent and one of the plaintiffs in the lawsuit, was seen by Security Officer Karina De La Rosa while he was at the Santa Ana Train Depot in California. He became the subject of a SAR submitted by De La Rosa on May 16, 2011. It reads, “Male of Middle Eastern decent [sic] observed surveying entry/exit points.”
De La Rosa further explained in the SAR that her “suspicion became aroused because the male appeared to be observant of his surroundings and was constantly surveying all areas of the facility. The male’s appearance was neat and clean with a closely cropped beard, short hair wearing blue jeans and a blue plaid shirt.” She added that he moved where the restrooms were located and departed with “a female wearing a white burka head dress” after she came out of the restroom.
She considered this “suspicious activity as related to terrorism training’” she had received. “The behavior depicted by the male was similar to examples shown in her training raising her suspicion and making the decision to notify the police,” according to the SAR.
There are probably few better examples of how this domestic surveillance system can enable prejudice and racism to influence law enforcement operations.
“The woman he was with was his mother,” the complaint explains. “He had an appointment at the county employment resource center, which is located in the station building. He had not been to the station before and spent some time locating the office before meeting up with his mother by the restrooms and leaving. His mother was wearing a hijab (head scarf), and not a burka.”
Another plaintiff is Khaled Ibrahim, a US citizen of Egyptian descent who lives in San Jose, California. He works as a purchasing agent for Nordix Computer Corporation. He went to Best Buy in Dublin, California, as part of his job. Management would not allow him to purchase computers in bulk. He became the subject of a SAR submitted on November 14, 2011, regarding attempts to purchase “large amounts of computers.”
Wiley Gill, who is also a plaintiff, lives in Chico, California, and works at Chico State University as a custodian. He is white and recently converted to Islam in 2009 after he took a religion course while enrolled at Chico State.
A SAR the Chico Police Department submitted on May 23, 2012, indicated Gill’s “full conversion to Islam as a young WMA [white, male adult],” “pious demeanor,” and “potential access to flight simulators via the internet” were “worthy of note.” Police had visited him in the mosque where he worships. They allegedly claimed they were making a domestic violence call as a pretext to enter his home and conduct a search. They saw something on his computer screen that said something like “Games that fly under the radar” and interpreted as a “flight simulator type of game.”
The two other plaintiffs are photographers who were harassed by private security guards for trying to take photographs of private property from public areas.
James Prigoff was in Boston, Massachusetts, and wanted to photograph a piece of well-known public art that is known as the “Rainbow Swash.” It is on a natural gas storage tank. Security guards shooed him away from two locations before he finally was able to take a photograph from a third location.
He returned home to Sacramento, California, and four months later, on August 19, 2004, he found a handwritten note on his door. Agent A. Ayaz of the Joint Terrorism Task Force had left him a message, which read, “Mr. Prigoff, please call me. Thanks.”
Aaron Conklin was trying to photograph the Valero Refinery in Benicia, California in 2011 or 2012. He was there at 10 pm because he wanted to “capture the refinery illuminated against the dark knight sky.” He was sternly warned by a private security guard and told he could not take a photograph. Conklin left the refinery.
In November 2013, he tried to photograph the Shell Refinery at about 10 pm. Security guards came out to inform him photography was prohibited and taking a photo was “somehow connected to terrorism.”
Even though Conklin complied, the Contra Costa County Sheriff’s Department was called and two deputy officers arrived. They searched through his photos on his camera and searched his car. The deputies told Conklin that he would be placed on an “NSA watch list.” This went on for at least forty-five minutes before he was allowed to leave.
All of the US citizens suing the Justice Department are, according to the ACLU, “deeply troubled by what may result from the collection, maintenance, and dissemination in a national database of a report describing” them as “engaging in suspicious activity with a potential nexus to terrorism.”
It’s their understanding that these SARs will be maintained in national databases for years and shared between various agencies.
“All I was doing was taking pictures in a public place, and now I’m apparently in a government terrorism database for decades,” Prigoff said. “This is supposed to be a free country, where the government isn’t supposed to be tracking you if you’re not doing anything wrong. I lived through the McCarthy era, and I know how false accusations, surveillance, and keeping files on innocent people can destroy careers and lives. I am deeply troubled that the SAR program may be recreating that same climate of false accusation and fear today.”
Linda Lye, a staff attorney with the ACLU of Northern California, further declared, “This domestic surveillance program wrongly targets First Amendment-protected activities, encourages racial and religious profiling, and violates federal law.”
“The Justice Department’s own rules say that there should be reasonable suspicion before creating a record on someone, but the government’s instructions to local police are that they should write up SARs even if there’s no valid reason to suspect a person of doing anything wrong.”