The Advent of the Surveillance Society

Written by Nancy Murray and Kade Crockford Thursday, 08 September 2011 Surveillance in the Homeland

Surveillance now is everyone's business, as the line between intelligence-gathering and crimefighting rapidly fades and the public is conditioned to play its part.

The work of Deputy Police Chief Michael Downing of the Los Angeles Police Department (LAPD) exemplifies the new surveillance paradigm. The head of the 750-strong counterterrorism force within the LAPD, he is on the hunt for "people who follow al-Qaeda's goals and objectives and mission and ideology." He says his officers collect intelligence and practice the "essence of community policing" by reaching out to Muslims and asking them to "weed out" the "hard-core radicals."

He adds that he is pleased that many Muslims have adopted the LAPD's iWatch program and are prepared, along with the general public, to call in tips about suspicious activity. With "violent Islamists" as his main target, Chief Downing is also keeping track of "black separatists, white supremacist/sovereign citizen extremists and animal rights terrorists." If threats materialize, he can draw upon the LAPD's "amazing" backup capacity - SWAT units, direct-action teams, air support, counterassault teams and squads that specialize in disrupting vehicle bombs.

Here we see several of the components of the new surveillance society. A militarized police force no longer leaves intelligence work to federal authorities. It seeks out information about anything that can be connected to "suspicious" activity and is keeping track of certain individuals and groups whether or not there is evidence that they are engaging in criminal activity. Police are expected to chase down unsubstantiated tips from the public, and not just to pursue evidence of wrongdoing. A new notion of "community policing" has emerged, where monitoring communities - with all the trust issues that this implies - has taken the place of winning community support by being accountable to residents and solving crimes.

The LAPD is one of some 3,984 federal, state and local agencies now collecting information about "suspicious activity" that could be related to terrorism. The Washington Post's "Top Secret America" series states that 854,000 people now hold "top-secret" security clearance. We estimate that's about one for every 215 working-age Americans. An additional 3 million people reportedly hold "secret" security clearance.

The federal government spends more annually on civilian and military intelligence than the rest of the world put together - $80 billion is a conservative figure, according to the October 28, 2010, Post. This is in addition to the $42-plus billion allocated to the Department of Homeland Security (DHS) and the spending on intelligence activities by the LAPD and other state and local police forces. The homeland security industry is flourishing, with lucrative contracts being awarded to Lockheed Martin, Raytheon, Boeing, Northrop Grumman and other major defense contractors.

What exactly is being built with these funds?

The "Information Sharing Environment"

Essentially, the "total information awareness" assumption that the nation can be made safe by applying advanced technology to massive databases has been married to the call for a "unity of effort in sharing information" issued by the bipartisan 9/11 National Commission. The commissioners had recommended a fundamental change in how the nation's 16 intelligence agencies carried out their business. They urged that the "need to know" culture be replaced with a "need to share" imperative, with information being transmitted horizontally among agencies, not just vertically within agencies. They further recommended that the FBI be equipped to assume prime responsibility for domestic intelligence-gathering, that it incorporate a "specialized and integrated national security workforce," and that it form collaborative relationships with state and local police for this purpose.

To construct a new domestic surveillance network, theIntelligence Reform and Terrorism Prevention Act of 2004mandated the creation of an Information Sharing Environment (ISE) under the director of national intelligence. Defined as "an interrelated set of policies, processes and systems," ISE was intended to facilitate the sharing of terrorism-related information with stakeholders at all levels of government and the private sector. Eventually, foreign governments are supposed to be brought into the ISE loop. The ISE requires the standardization of information systems and technology to provide access to the burgeoning number of databases that serve as its connective tissue, the enlistment of mission partners across federal, state, local, and tribal agencies and the private sector to keep the databases supplied with the information that is its lifeblood, and the use of "analysts, operators and investigators" from "law enforcement, public safety, homeland security, intelligence, defense and foreign affairs" to extract, analyze and disseminate timely intelligence.

Fusion Centers and Suspicious Activity Reports

The nerve centers of the ISE are the nation's 72 regional and state fusion centers, which were in part a response to the FBI's reluctance to share threat information with state and local law enforcement because of turf and security clearance issues. With considerable variation in what they do and how they do it, fusion centers were established over the past seven years with DHS funding to "fuse" and analyze information from a wide variety of sources and databases and facilitate information-sharing among themselves through the FBI's eGuardian database. The secretive fusion centers represent a significant departure from traditional law enforcement objectives and methods, with few legal limits on what they can and cannot do, little respect for long-established jurisdictional boundaries between local, state, federal, military and private entities and a notable absence of accountability mechanisms. Given the scarcity of domestic terrorism plots, it is not surprising that most fusion centers almost immediately changed the focus of their data collection from fighting terrorism to a broad "all crimes, all hazards" mission. Many now use federal counterterrorism funds to collect, store and share data that has little or no relation to terrorism and, often, no relation to actual crimes.

According to DHS head Janet Napolitano, along with fusion centers, the Nationwide Suspicious Activity Reporting Initiativeserves as the "heart" of the government's effort to keep Americans safe from "homegrown terrorism." The idea behind the initiative is to collect as much data about anything "suspicious" that just may (or may not) be related to criminal activity. Or, to quote the government's own alarmingly broad definition: a Suspicious Activity Report (SAR) is "official documentation of observed behavior that may be indicative of intelligence gathering, or preoperational planning related to terrorism, criminal, or other illicit intention."

SARS programs, piloted by the LAPD, Boston and a handful of other cities, vary from place to place and are often in competition with one another for federal dollars. Today some 800,000 state and local law enforcement officers are encouraged to file SARs on even the most common everyday behaviors, such as looking through binoculars, taking pictures of buildings, taking notes in public and espousing "radical" beliefs.

The ISE program manager recommended that SARs are reviewed within the police department before being sent to a fusion center for further review by an intelligence analyst. If it "meets SAR criteria," it is then entered into the ISE for wide distribution and "fusion with other intelligence information." But a January 2010 evaluation of the ISE and National SAR Reporting Initiative has shown little uniformity in how SARs are being collected, vetted and shared, and how much personably identifiable information is being aggregated and disseminated through the fusion center network and sent to the FBI’seGUardian system, which is now serving as "an ISE/SAR shared space." In an effort to address criticisms voiced by civil liberties groups, ISE adopted a policy requiring that only behavior indicating some kind of connection to criminal activity or terrorism should be shared among federal intelligence agencies. But this civil rights protection does not apply to sharing by state and regional fusion centers.

A New Policing Paradigm

In addition to writing up SARS, police departments, often working directly with the FBI through its multi-agency Joint Terrorism Task Forces (JTTFs), sift "tips and leads" provided in field reports, through public tip lines, by private entities, by confidential and anonymous sources, or culled from media sources. Time that used to be spent investigating reasonable suspicion of criminal activity is now allocated to assessing randomly collected information to decide whether it is credible enough to be deposited in the Information Sharing Environment (ISE) and sent to the FBI’s eGuardian database for preliminary analysis before being sent to fusion centers for further analysis and wide distribution.

When local police work with the FBI in JTTFs, they become federal officers who are no longer under the supervision of and accountable to their local departments and communities, and instead must act in conformity with the FBI's guidelines on domestic investigations - regulations that are now so loose that they allow agents to conduct "assessments" involving monitoring of meetings and people, infiltration of groups, and personal interviews with no suspicion of wrongdoing - some 11,667 assessments were conducted just in the four-month period beginning in December 2009, with only a fraction leading to full investigations. And when local police participate with fusion centers in information collection and the building of personal files about activities that can be wholly innocent and may be constitutionally protected, they are integrated into a domestic surveillance network that is national in scope, beyond accountability, and far removed from community policing and public trust.

In the process, the line between traditional crimefighting and terrorism detection has been erased and something new has been born: a concept of policing that is no longer primarily reactive and focused on solving crimes or on collecting concrete evidence that a crime might be about to be committed. In "predictive policing,"local police officers serve as a resource for gathering information on a range of potential threats and situations on the assumption that criminal activity can be stopped before it develops. They are trained to use advanced technologies and tools, including powerful surveillance cameras provided through DHS grants, to monitor broad sections of the population, looking for indicators of future crimes before they are committed.

When the net is cast so wide, everything and anything begins to look like "terrorism-related activity," forcing police officers to waste time checking out dead-end tips. It is not surprising thatleaks from fusion centers have revealed that files compiled on individuals and groups are full of inaccurate information and focus on activities that may be both entirely innocent and constitutionally protected.

Constitutional lawyer Bruce Fein, a former associate deputy attorney general in the Reagan administration, told Congress in 2009 that fusion centers and SARs were worthy of the Soviet Union's KGB and East Germany's Stasi, and should be abandoned: "To an intelligence agent, informant, or law enforcement officer, everything unconventional or unorthodox looks like at least a pre-embryonic terrorist danger."