Information Sharing Environment Notices

Today the Department of Homeland Security published two notices in the Federal Register. The first notice announced the establishment of a new system of records that will be maintained by the Department while the second notice is a required notice of proposed rule making (NPRM) notifying the public that it intends to exempt portions of that new record system from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

The new record system that will be maintained by DHS is the Information Sharing Environment (ISE) Suspicious Activity Reporting (SAR) Initiative System of Records. This will allow currently collected Suspicious Activity Reports from various agencies within DHS to be collected, analyzed and shared. The information is expected to be shared “with authorized participants in the Nationwide Suspicious Activity Reporting Initiative, including other DHS components, federal departments and agencies, state, local and tribal law enforcement agencies, and the private sector” (75 FR 55335).

The compilation of the SARS will be authorized as long as those reports meet the established ISE Functional Standard for Suspicious Activity Reporting. According to the program notice that standard “defines an ISE-SAR as official documentation of observed behavior determined to have a potential nexus to terrorism (i.e., to be reasonably indicative of criminal activity associated with terrorism)” (75 FR 55336).

The exemption to Privacy Act rules is being claimed because some of the information being collected analyzed and disseminated relates “to official DHS national security, law enforcement, immigration, intelligence activities, and protective services to the President of the U.S. or other individuals pursuant to Section 3056 and 3056A of Title 18” (75 FR 55291). The NPRM notes that the “exemptions proposed here are standard law enforcement and national security exemptions exercised by a large number of federal law enforcement and intelligence agencies” (75 FR 55291).

Public comments on both the establishment of the system of records (Docket DHS-2010-0075) and the claimed law enforcement exemption to provisions of the Privacy Act (Docket DHS-2010-0076) may be filed via the Federal e-Rulemaking Portal. Such comments need to be filed by October 12th, 2010.

HS Committee Hearing on Bottom-Up Intelligence

What was billed as a hearing on DHS intelligence efforts (“Homeland Security Intelligence: Its Relevance and Limitations”) turned out to be more about local police forces and their place in the counter-terrorism intelligence picture. While only one question was addressed to civilian and private sector input into the process, many of the issues discussed in this forum were of some importance to intelligence activities supporting high-risk chemical facility security. Suspicious Activity Report One of the major focuses of the discussions at this hearing was the Suspicious Activity Report (SAR) intelligence collection tool developed by the Los Angeles Police Department. Joan McNamara from the LAPD described the program she helped develop for the Subcommittee on Intelligence, Information Sharing and Terrorism Risk Assessment. She described how the program worked and the civil liberties safeguards that were built into the program. The program relies on the observations and reports from patrol officers to help detect the indicators of potential terror attacks or other criminal actions. Officers are trained to look for signs of potential surveillance activities as well as other indicators of preparations for a terrorist attack. These observations are intended to be part of their every day patrol activities not actual counter-terrorism investigations. The SAR is reported on a standard form using pre-set codes to indicate the observed behavior or indicator along with the officer’s notes about the details of the observation. Once the report is reviewed and approved by a supervisor it is entered into an electronic data base that allows for analysis. One of the analysis tools available is the integration of the reports with a GIS that allows for a map display of the different types of activity. If there is a physical concentration of reports around a potential target area, additional investigation efforts are initiated. Civil Liberties Protections The biggest concern with the SAR program is the fact that most of the SAR reports turn out to have nothing to do with terrorism or other criminal activities. What might be a potential indicator of terrorist surveillance activities usually turns out to be innocent or even protected activities. Terrorist are certainly likely to photograph a targeted high-risk chemical facility as part of their planning process, but so are environmental activists gathering evidence of illegal chemical discharges. Gregory T. Nojeim, the Director of the Project on Freedom, Security & Technology of the Center for Democracy & Technology recommended that SARs be limited by the ‘criminal predicate’ standard. This means that unless there was evidence of actual criminal activity, the SAR would not be entered into the intelligence database. This would prevent the legitimate tourist taking pictures of a critical bridge from showing up in the database. The civil liberties advocates in the second panel were not so much concerned with an innocent’s appearance in the database, but with potential actions that could be taken against people found in the database. They noted a number of notorious examples of the abuse of police investigative powers directed against people practicing their protected freedom of speech and association. One of the main problems in this debate is that frequently there is not a clear distinction between protected freedom of speech and ‘terrorist’ activity. There is a continuum of political expression that runs from freedom of speech, thru lawful dissent and civil disobedience to terrorism. Where an action falls within that spectrum is frequently a matter of perspective. Finding the Balance As many post 9/11 reports noted, proper and efficient collection and analysis of information that, in retrospect, was readily available might have allowed authorities to intercept the hijackers before they boarded the planes that were turned into weapons. The SAR process has the potential of collecting the dots necessary to prevent the next major terrorist attack. The difficulty will be in developing a process for collecting and analyzing the necessary data without compromising the legitimate expectation of privacy of the vast number of innocents identified in the collection process. The protection of political expression is every bit as important at preventing terrorist attacks. I wish Chairwoman Harmon and her colleagues the best of luck in crafting rules that will successfully address both issues.