Quality, Not Quantity (Unless You’re a Fusion Center, Spending Taxpayer Money)

Nadia Kayyali
Electronic Frontier Foundation

Who pays for government surveillance? Taxpayers. And we should all heed the age-old message: buyer beware. Fusion centers are an excellent example of why.

The point of fusion centers is to enable intelligence sharing between local, state, tribal, territorial, and federal agencies. But because they involve actors from various jurisdictions and agencies, the price is a lack of clarity around lines of responsibility and accountability. Fusion centers have been criticized by Congress for wasting taxpayer dollars on “’intelligence’ of uneven quality – oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections.” But because of the way they are organized, it’s unclear who is responsible for these problems. That’s why fusion centers deserve additional public scrutiny and reform.

The Government Accountability Office (GAO) has come out with a new report that exposes the lack of accountability for use of federal funds at fusion centers. But it doesn’t address the most serious issue with fusion centers: that they’re yet another weapon in the government’s bloated surveillance arsenal—and there’s virtually no oversight for what they’re doing and how they may be violating peoples’ rights. To make matters worse, although spying by the federal government is a serious problem, the sheer numbers of local law enforcement are staggering, and enlisting them in the surveillance state exponentially multiplies the potential for privacy and civil liberties violations.

The most obvious conclusion from the report is that fusion centers are a waste of taxpayer dollars. And a lot of dollars are being spent. Although the Federal Emergency Management Agency (FEMA, which administers the federal grants that partially fund fusion centers) has no system in place to accurately account for how much is spent, the report notes: “According to federal cost inventory reports, federal agencies provided fusion centers with non- personnel support totaling about $32.8 million in fiscal year 2011 and about $18 million in fiscal years 2012 and 2013.” Federal agencies also have deployed 288 staff to these centers.

The government’s accounting of how much is spent is flawed. But there’s even less accounting for whether those expenditures are useful.

That’s because the Department of Homeland Security (DHS) has been simply assessing the capabilities of fusion centers, “such as implementing specified policies and procedures,” rather than their impact or efficacy. As the report notes, “developing an analytical production plan may not equate to effectively meeting the plan’s targets or producing the types of reports identified therein.”

The GAO report notes that DHS is developing “performance” measures. But many of these measures look at numbers that aren’t necessarily meaningful, for example:

• Number of threat tips and leads processed by fusion centers
• Number of suspicious activity reports submitted by fusion centers
• Number of suspicious activity reports vetted and submitted by fusion centers that result in the initiation or enhancement of an investigation by the FBI
• Percentage of requests for information from the Terrorist Screening Center (TSC) for which fusion centers provided information for a TSC case file

As we’ve written before, suspicious activity reports (SARs) are based on standards ripe for abuse of discretion: the specific set of behaviors listed in the national SAR standards include innocuous activities such as “demonstrating unusual interest in facilities, buildings, or infrastructure.” And they have been abused. Public records act requests have shown that people of color make up a disproportionate number of SARs filed.

Yet fusion centers’ performance measures are mainly a numbers game. With little examination of outcomes, this simply encourages submission of more (flawed) SARs, rather than improved efficiency or accuracy, especially as fusion centers compete for federal dollars. And where the measures go beyond numbers, they still don’t look at the outcomes most people would care about, such as “Number of lives saved by intelligence information from a fusion center.”

What’s more, the report confirmed the extent to which fusion centers host staff from federal agencies: “As of June 2014, the FBI had deployed 94 intelligence analysts, special agents, and others to 58 fusion centers, and had installed its secure data system (FBINet) at 51 centers.” This is unsurprising. What may be more surprising is that the centers also host approximately 30 Immigrations and Customs Enforcement staff, and approximately 20 Customs and Border Patrol Officers. This makes it clear: fusion centers truly are a local arm of the surveillance state.

The report also noted that fusion centers have their own lobbying association, the National Fusion Center Association. The NFCA issued a 2014-2017 National Strategy [pdf] for the National Network of Fusion Centers, which the GAO report references.

That’s not where the lobbying ends, though. The report notes that the DHS has highlighted the need for “expanded involvement in local government bodies to promote improved collaboration.” What does that mean? Northern California provides an example. The director of the Northern California fusion center fusion center has attended city council meetings to encourage implementation of automated license plate readers (a technology we’ve been concerned about for years now), and to oppose implementation of civil liberties protections in Berkeley.

There’s no leap needed to show why accountability at fusion centers is necessary. Fusion centers facilitate political repression and racial profiling, all while making the separation between local law enforcement and the federal law enforcement agencies engaging in unconstitutional surveillance negligible. And they do it without even providing a tangible benefit.

It’s possible that the Privacy and Civil Liberties Oversight Board will take a close look at fusion centers, per EFF’s comments on the Board’s agenda.[1] But if it doesn’t, it might be time to start thinking about state and local fights. Federal funding for fusion centers is decreasing. But you can still tell your elected representative in Congress that you are concerned. And what’s even easier, you can take action at the local level, by making public records act requests, engaging in grassroots organizing to get regulations on fusion centers passed or funding decreased, and educating your community members about this issue.

[1] It’s worth noting that PCLOB was supposed to be involved in the development of the DHS’ Fusion Center Initiative. But at the time fusion centers were being expanded, PCLOB had been effectively destroyed by Congress.

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