Senate: Counterterrorism ‘Fusion’ Centers Invade Innocent Americans’ Privacy and Don’t Stop Terrorism

Chicago: One of 70 counterterroism fusion centers

Mark M. Jaycox and Trevor Timm
EFF

The Department of Homeland Security’s 70 counterterrrorism “fusion” centers produce “predominantly useless information,” “a bunch of crap,” while “running afoul of departmental guidelines meant to guard against civil liberties” and are “possibly in violation of the Privacy Act.”

This may sound like the words of EFF, but in fact, these conclusions come from a new report issued by a US Senate committee. At the cost of up to $1.4 billion, these fusion centers are supposed to facilitate local law enforcement sharing of valuable counterterrorism information to DHS, but according to the report, they do almost everything but.

DHS described its fusion centers as “one of the centerpieces of [its] counterterrorism strategy” and its database was supposed to be a central repository of known or “appropriately suspected” terrorists. In theory, local law enforcement officers, in conjunction with DHS officials, conduct surveillance and write up a report—known as a Homeland Intelligence Report (HIR)—for DHS to review. If credible, DHS would then spread the information to the larger intelligence community.

Yet, the Senate report found the fusion centers failed to uncover a single terrorist threat.

Instead, like so many post 9-/11 surveillance laws passed under the vague guise of “national security,” the system was overwhelmingly used for ordinary criminal investigations, while at the same time, facilitating an egregious amount of violations of innocent Americans’ rights.

An entire section of the Senate report is dedicated to Privacy Act violations and the collection of information completely unrelated to any criminal or terrorist activity in the HIRs. In one instance, a DHS intelligence officer filed a draft report about a US citizen who appeared at a Muslim organization to deliver a day-long motivational talk and a lecture on positive parenting. In another, one intelligence officer decided to report on two men who were fishing at the US-Mexican border. A reviewer commented, “I…think that this should never have been nominated for production, nor passed through three reviews.” A report was even initiated on a motorcycle group for passing out leaflets informing members of their legal rights. A reviewer commented, “The advice given to the groups’ members is protected by the First Amendment.”

Over and over again the Senate report quotes reviewers chastising DHS officials for recording constitutionally protected activities and for publishing such reports. One reviewer wrote, “The number of things that scare me about this report are almost too many to write into this [review] form.” In some cases, DHS retained cancelled draft reports that may have contained information in violation of the Privacy Act for a year or more after the date of the reports’ cancellation. Worse, the intelligence officials responsible “faced no apparent sanction for their transgressions.”

While it’s commendable the Senate exposing these civil liberties violations, the problems detailed in the report are not new. Since the government started its various information sharing programs after 9/11, media organizations have extensively documented how, when they’re not being outright abused by local law enforcement, are overwhelmingly used for ordinary investigations that had nothing to do with terrorism. EFF has long warned that completely innocent Americans’ privacy has become be collateral damage in the government’s thirst to collect more and more digital information on its own citizens.

Even DHS’ own internal audits of the fusion centers showed they did work, according to the Senate report. The privacy disaster is also a boondoggle for taxpayers: DHS can’t account for much of the money it spent on the program, estimating they spent between $289 million and $1.4 billion—a discrepancy of more than $900 million dollars.

Despite these facts, Attorney General Eric Holder issued new guidelines in March for National Counter Terrorism Center (NCTC) that allowed dramatically expanded the NCTC’s information sharing powers. The NCTC can now mirror entire federal databases containing personal information and hold onto the information for ten times longer than they could before—even if the person is not suspected of any involvement in terrorism. Journalist Marcy Wheeler summed up the new guidelines at the time, saying, “So…the data the government keeps to track our travel, our taxes, our benefits, our identity? It just got transformed from bureaucratic data into national security intelligence.”

Now that the Senate’s Permanent Subcommittee on Investigations has issued this unusually harshly worded report, lambasting the same type of information sharing centers, Eric Holder should also rescind his new data retention guidelines for NCTC counterterrorism centers until new safeguards are put in place. EFF also joins the ACLU’s call for full Congressional hearings on the DHS fusion centers. In fact, the government should issue a moratorium on all fusion centers until this problem is fixed. Local governments can also prevent their law enforcement agencies from participating.

While “information sharing” centers were sold to the American people as providing “a vital role in keeping communities safe all across America,” it’s clear all they’ve done is play a vital role in violating American’s civil liberties.

For more information on privacy and electronic surveillance, please visit the Electronic Frontier Foundation