Is an upside down American flag a reasonable indication of criminal activity? What about a group of young Middle Eastern men speaking a non-English language? Does the presence of Muslim women at a shopping mall suggest an intent to commit a crime? Is an artist photographing buildings necessarily a terrorist threat? According to the FBI, these first amendment protected actions are suspicious activities. These are all examples from the summaries of Suspicious Activity Reports (SARs) acquired by the ACLU and originally produced by the Central California Intelligence Center and the Joint Regional Intelligence Center. The stated purpose of SARs is to collect information about criminal activity that may be related to “terrorist pre-operational planning,” which can then be shared among the different levels of the government. These reports could be issued by local law enforcement officers or could be the result of tips from the public.
In 2008, the federal government started several programs to collect and store Suspicious Activity Reports from fusion centers and local law enforcement agencies nationwide. The ACLU filed a Freedom of Information Act (FOIA) request for documents on one of these collection programs called eGuardian. In August 2011, the ACLU filed a lawsuit in support of that FOIA request and eventually acquired thousands of pages of documents about eGuardian. The documents provide further evidence of the FBI’s alarming abuse of power and extensive invasions of privacy. Most significantly, they reveal that the FBI failed to give a clear definition of suspicious activities. This lack of guidance confused local agencies and paved the way for profiling based on race, religion, or politics. The FBI also facilitated the collection and storage of vast amounts of data on people who have done nothing but exercise their constitutional rights.
The documents show that local law enforcement agencies are confused about how to use SARs. In a 2009 report, the Boston Police Department and the Miami-Dade Police Department both expressed the need for a clear definition of suspicious activity, highlighting concerns that this confusion would lead to profiling and gathering the wrong information. Other agencies like the Minnesota Joint Analysis Center refused to participate in eGuardian because of uncertainty about how the information would be used.
Amid this confusion and lack of clear standards, local agencies can issue reports based on bias rather than legitimately concerning behavior. The examples from California illustrate the frightening potential for criminalizing first amendment protected activities by profiling racial and religious minorities and targeting free speech. By vaguely defining suspicious activity and collecting reports through programs like eGuardians, the FBI has built a substantial database full of irrelevant information that violates privacy and first amendment rights. These practices display a profound disregard for civil liberties, but they also make it harder to find useful intelligence and get in the way of law enforcement agencies doing their jobs. Understanding how programs like eGuardian work is an important first step in pressing for changes that will respect constitutional rights and enable law enforcement to effectively identify threats. The ACLU issued a set of recommendations to reign in this program, which include a requirement of reasonable suspicion of criminal activity for reports, a prohibition on collecting information on first amendment protected activities, and limits on the longterm storage of SARs.