Federal officials are closer to establishing what amounts to a nationwide database of so-called "suspicious activity reports" that describe possible evidence of terrorist attack planning. Reports will be submitted not just by state and local police and agencies within the Department of Homeland Security, but also by private corporations that control economic and infrastructure assets considered high-profile targets for terrorists.
A required public notice surfaced one day before the nine-year anniversary of Sept. 11 confirming that DHS would be finished implementing its own internal database of suspicious activity reports by mid-October. Contents will flow in from DHS personnel at the Coast Guard, Border Patrol, Transportation Security Administration and other agencies housed in the department.
The larger system or "portal" would include access to these DHS reports, but be overseen by the Justice Department. It's designed to allow searches for reports of suspicious activity across multiple repositories and for making the data available to authorities at every level, one of innumerable attempts after the 2001 hijackings to promote stronger information sharing between law enforcement and intelligence experts. Several more states announced their involvement in the program this past Sept. 1.
They call it "connecting the dots," and the idea is to avoid overlooking otherwise disparate pieces of information that together form a clearer portrait of terrorists conspiring to carry out an attack. Today's effort at a more collaborative atmosphere includes security at privately-owned companies, many of which have fostered deeper ties to the government as part of the war on terror.
The definition of "suspicious activity," however, remains under fire from civil liberties advocates who worry that the legal basis is shaky for tracking behavior that merely happens to resemble what a terrorist might do prior to an assault.
A senior homeland security official, John Cohen, told Elevated Risk in an interview that investigators and analysts would be able to view the reports through a read-only portal made up of numerous repositories rather than a single database, allowing those who create the records to maintain control over them.
Cohen stressed that authorized users of the system are instructed on how to distinguish between behavior that warrants scrutiny and lawful conduct that doesn't justify attention from the government. He added that users would need a legitimate reason for searching the reports, and they would have to document the justification.
"It's not illegal to take pictures of a monument," he said. "What you want to do is provide training on how terrorist organizations plan and operate and the tactics they use."
The American Civil Liberties Union is nonetheless critical of the initiative's premise. Guidelines for the program show that up to 30 points of potentially sensitive identifying data could end up in a report, things like your driver's license or passport information, employee ID, date of birth and social security number. According to the ACLU:
[Suspicious activity] programs increase the probability that innocent people will be stopped by police and have their personal information collected for inclusion in law enforcement and intelligence databases. They also open the door to racial profiling and other improper police practices by giving police unwarranted discretion to stop people who are not reasonably suspected of wrongdoing.
Outcry over similar programs led Congress to pull the plug on a Bush-era plan called Operation TIPS that would have enlisted utility workers, mail carriers and others with some measure of access to people's homes to report conduct considered suspicious. Democrats and Republicans alike found common ground in opposing it even then, shortly after 9/11 when leaders were terrified the next attack could occur at any moment.
But don't expect brief controversies to curtail the federal government's push now for greater suspicious activity reporting. It's been a priority for Homeland Security Secretary Janet Napolitano, and on her watch the federal government in recent months has encouraged parking-lot attendants, shopping retailers, Amtrak employees and campers near the Canadian border to report suspicious people. Bridge workers in New York are also being trained to spot bad guys.Video encouraging retailers to report suspicious behavior.
The concept isn't new, to be sure. Banks have long been required to notify the government of major cash transactions that suggest an attempt at money laundering. When applied to homeland security, the painfully bureaucratic definition of suspicious activity is as follows: "Observed behavior reasonably indicative of pre-operational planning related to terrorism or other criminal activity." A secondary definition is suspicious behavior, activity or incidents "that have a potential terrorism nexus."
On the street in Los Angeles where police developed a program that influenced the national model, officers are instructed to complete a special form when they observe one of several types of conduct. Among them are drawing diagrams of buildings, taking measurements near them, stockpiling currency without explanation, "espousing extremist views" and "engaging in suspected pre-operational surveillance."
But perhaps the best known example of an activity treated with skepticism by police post-9/11 is snapping images of sites regarded as sensitive, from airstrips and chemical manufacturing facilities to metro train stations and large shopping malls. A photographer in Miami runs an entire blog dedicated to tales of harassment artists and photojournalists have endured by police and private security.
Amtrak guards infamously handcuffed a man in 2008 for refusing to delete images he'd taken from a public train platform at New York City's Penn Station. It turned out he was competing in a photo contest organized by Amtrak itself called "Picture Our Trains." JetBlue told a passenger that taking photos inside an airliner was prohibited, despite the company's own contest encouraging travelers to capture images while in-flight.
More recently, local police and BP security guards in Texas City, Texas, aggressively questioned a freelance photojournalist named Lance Rosenfield working on assignment for the investigative nonprofit ProPublica. Rosenfield says he hardly had time to capture images of a public sign situated near BP's Texas City refinery before his car was blocked in at a gas station.
"I did intend to take pictures of the refinery, but I never got to that point," Rosenfield told Elevated Risk. They demanded to see his photos and eventually concluded that the images didn't represent a terrorist threat. But his name, driver's license, date of birth and social security number were all documented anyway.
The question then is whether such personal information becomes part of a suspicious activity report made available to multiple law enforcement agencies through a database or repository. When posed as a hypothetical to Cohen of DHS, he said it was unlikely such a case would end up in the portal of reports once authorities learned the individual was a journalist.
But Rosenfield said that even after the group questioning him determined the photos posed no threat, a BP guard asked for his personal information. When he refused, local police handed it over.
Federal authorities piloted a suspicious activity program in several states and issued findings earlier this year. They showed that of more than 5,700 reports compiled by the Florida Department of Law Enforcement, only a dozen met the standard Washington is promising to enforce for inclusion in the nationwide portal. In Virginia, only seven of nearly 350 met the standard.
Boston police worried that large volumes of useless information would be dumped into the system if a threshold for inclusion wasn't established, something the federal government took into account when finalizing the rules, Cohen said.
There's still the issue of whether anyone will stumble across enough evidence of wrongdoing to warrant an untold number of reports from across the country. Cohen said the reports have led to "significant" investigations. A commander for the LAPD told Congress last year, however, that of nearly 1,400 reports there, just 50 were referred to a Joint Terrorism Task Force for follow-up and four led to arrests. She didn't say whether charges were terrorism-related.
G.W. Schulz joined the Center for Investigative Reporting in 2008 to launch its ongoing homeland security project. Read the project's blog, Elevated Risk, here.