Protecting Civil Liberties for Suspicious Activity Reports

In the United States, First Amendment rights protect the privacy, civil rights, and civil liberties of citizens. However, in the absence of legal requirements for establishing prior probable cause or reasonable suspicion when reporting suspicious behavior, questions arise about the degree to which the suspicious activity reporting, Nationwide SAR Initiative, and Information Sharing Environment (SAR-NSI-ISE) process safeguards those making reports.

To address this issue, the program manager for the Information Sharing Environment (ISE) developed a comprehensive Privacy Protection Framework in July 2010 that must be adopted by any agency before it is allowed to post or access SARs. Participants in the process must adhere to standardized vetting, which “emphasizes a behavior‐focused approach,” and identifies types of observed behavior that may be “reasonably indicative of criminal activity associated with terrorism,” thus “mitigating the risk of ‘profiling’ based upon race, ethnicity, national origin, religion, etc.”

Notwithstanding these efforts, serious privacy issues continue to plague the NSI-SAR system from its inception. News articles in 2010 explained that this nationwide domestic surveillance effort, “collects, stores and analyzes information about thousands of U.S. citizens and residents,” who have been identified as “acting suspiciously,” without adjudication, evidence, or reasonable suspicion that any wrongdoing had been committed. On 10 July 2014, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of citizens identified in SARs, arguing that this program violates First Amendment-protected activities. In seeking to counter government moves for dismissal, the ACLU also argued that guidelines governing the program are at odds with the Department of Justice’s official standard, which prohibits “the collection, maintenance, use, and dissemination” of terrorist-related intelligence information, unless there is reasonable suspicion of potentially prosecutable activities. It is not clear that any changes were made to the SAR program “despite repeated calls from a coalition of civil rights and other organizations.”

The Effectiveness of SAR

In an effort to assess the value of the SAR system, in April 2015, The National Consortium for the Study of Terrorism and Responses to Terrorism (START) completed a study that sought to validate the effectiveness of the 16 ISE-SAR preoperational planning behaviors put forth by the latest Functional Standard that “describes the structure, content, and products associated with processing, integrating, and retrieving . . . SARs by ISE participants.”  After examining 48 cases by employing an elaborate methodology and extensive data, the study concluded that many of these indicators were in fact observed and reported, causing law enforcement officials to intercept terrorist planning before violent activities occurred.

In addition, the study noted many missed opportunities in situations when relatively clear indicators of preoperational planning related to terrorism were never reported and thus could not be acted upon. Relatives, friends, and work colleagues might notice a person’s strange behavior, such as a recent penchant for violence, purchase of assault-type weapons, an interest in converting to Islam, or trips to the Middle East, but fail to report their suspicions to authorities for reasons including concerns over protecting familial ties, fear of being associated with a violent act, or lack of trust in law enforcement. What was not mentioned were the many situations where there were no potentially observable indicators of a violent extremist act, such as someone becoming self-radicalized by sitting in front of a computer and reading terrorist propaganda or in other unnoticeable ways, and then committing a “lone wolf” terrorist act.

A 2011 Congressional Research Service (CRS) report, “Terrorism Information Sharing and the Nationwide Suspicious Activity Report Initiative,” stressed the need to determine how well the SAR campaign is working by developing “metrics to measure the success of the NSI program.” This issue was underscored in 2013 when the Federal Bureau of Investigation was faulted by the Government Accountability Office (GAO) for not tracking whether SARs inserted into the NSI actually helped to thwart terrorism by leading to arrests and convictions or had no value whatsoever. This GAO investigation also “found that the SAR program had failed to demonstrate any arrests, convictions, or thwarted threats, even though tens of thousands of SARs have been uploaded to government databases.” The result was that the program has been ineffective while threatening the legal privacy protections of the people mentioned in the reports and never giving the public an opportunity to comment on this governmental effort.

In general, ordinary citizens have difficulty determining the types of behavior manifested by actual terrorists or violent extremists planning an attack or radicalizing someone else. Critics point to the fact that too many SARs have ended up in the ISE when observed individuals have been merely conducting innocuous activities – for example, looking through binoculars to view beautiful scenery, using smartphones to take pictures of their families, or just wearing unusual clothing. The result has been an ever-expanding array of information stored in the SAR-ISE about people who have done nothing wrong, thus flooding this database with meaningless or distracting material. These developments have led to a high rate of false alarms with innocent people being arrested, peaceful facilities being evacuated, and hundreds of police hours being wasted on invalidated claims.

The CRS report mentioned above, noting the vast amount of information being entered into the ISE, observed that it has become more difficult for federal analysts to “‘connect the dots’ . . . when there is an increasingly large volume of ‘dots’ to sift through and analyze,” which could lead to “‘pipe clogging’ as huge amounts of information are . . . gathered without apparent focus.”

However, this might be less of a  problem, according to a 2010 article by Dr. James E. Steiner, a public service professor at Rockefeller College, entitled “More Is Better: The Analytic Case for a Robust Suspicious Activity Reports Program,” because “the probability of any single SAR being an indicator of an actual terrorist plot is so small that it is insignificant. But the greater the number of SAR[s], the greater the overall probability that at least a few real indicators of threat exist within the total body of SAR reporting.” On balance, the SAR-NSI-ISE process does not seem to be working efficiently or effectively, lacks the means to accurately measure its value, and risks being smothered in a sea of information, thus becoming broken and useless unless improvements can be made.

The Future of SAR

In articles with provocative titles such as “New Study Proves Your Neighbors Are Spying on You,” critics have termed the SAR program “a vast domestic intelligence apparatus to collect information about Americans.” In September 2010, the national security editor for the Guardian, Spencer Ackerman, pointed to “a handy pamphlet prepared by federal law” that he called a “Feds’ Guide To Snitching on Your Terrorist Neighbor.” Ackerman went on to explain that the guide contained warnings by the government that anyone’s next door neighbor could be a terrorist and to look for “behavior that could indicate participation in surveillance of potential targets” or help by reviewing “websites and reading materials that advocate violence and then initiating action in support of this activity.” This was no joke, but a real brochure, entitled “Identifying Homegrown Violent Extremists Before They Strike: An Information Needs Review,” published on 21 September 2010 by the U.S. Department of Homeland Security, the Federal Bureau of Investigation, and the National Counterterrorism Center (NCTC) – along with a special spy-class designed for easy and accurate neighborhood snitching and snooping!

Notwithstanding the urge to poke fun at some aspects of the government’s strategy to deal with violent extremism, this danger is on the rise and the SAR-NSI-ISE regime remains a useful if not essential tool for dealing with this threat, but with a need for improvement. This means that federal agencies should continue to tone down their rhetoric, not state the obvious, and urge citizens to contact authorities if and only if they see something genuinely suspicious happening in their neighborhoods. This can help lower the numbers of false alarms that contribute to the overflow of information in the ISE, hampering officials from accessing the system for information leading to interventions that can stop violent actions before damage is done.

There also needs to be a streamlining of the system to more accurately identify suspicious behaviors leading to appropriate interventions before acts of violence occur, those that reflect possible leads to be kept for potential future use, and information that should be discarded as having nothing to do with violent extremism. Standardized SAR training should be provided for law enforcement officers as well as interested citizens, with the focus on striking a balance between being too aggressive and being overly cautious in what to look for and what to report, while continuing to protect First Amendment rights. A model for improvement at the local level is the policy adopted by the Los Angeles Police Department (LAPD) to ensure that, in seeking to identify terrorists, its SAR program, “doesn’t cast suspicion on individuals whose only ‘offense’ is to exercise their right to free speech or belong to a particular ethnic or religious group.”

Given recent incidents across the nation of violent behavior with terrorist influences, the program manager for the ISE should take steps to enhance information sharing on suspicious individuals among law enforcement officers and fusion centers.  In addition, all relevant entities should not only enter data on domestic extremists with radical tendencies into the ISE, but also send this  information to the Federal Bureau of Investigation for placement into the Terrorist Watch List.

It is useful for citizens to pay more attention to observing other citizens in an effort to spot and report suspicious activities related to violent extremism, as long as this does not cause men and women going on a stroll or shopkeepers along the way to stare at passers-by or customers with their notepads deployed ready to report suspicious behavior to government authorities. Lovers of liberty are justifiably concerned when the federal government, in the name of national security, posts signs advertising SAR everywhere, ensures that If You See Something, Say Something™ appears on the nightly news, and induces internet pop-up reminders for users to always be on the watch. In this connection, a December 2010 Washington Post article, called Big Brother USA: Monitoring America, explained that the FBI is “building a database with the names and certain personal information, such as employment history, of thousands of U.S. citizens and residents whom a local police officer or a fellow citizen believed to be acting suspiciously . . . many of whom have not been accused of any wrongdoing.”

More than five years later, the ACLU and other civil rights groups are still fighting to prevent the SAR program from developing a life of its own and challenging the freedom of Americans – but to no avail. Without any change, citizens may soon find themselves in an Orwellian world where “big brother is watching you” becomes reality and not fiction.

Jerome Kahan is an independent analyst with over 40 years of experience on national and homeland security issues, including senior positions in the Foreign Service, the Brookings Institution, and the Homeland Security Institute. In addition to his publications, he has been an adjunct professor in the graduate school at Georgetown University and a member of the Council on Foreign Relations, with BS and MS degrees from Columbia University.

Jerome H. Kahan

Jerome H. Kahan is an independent analyst with over 40 years of experience in national and homeland security, having held senior positions in the State Department, including the Policy Planning Staff and Counselor at the U.S. Embassy in Turkey. He has also worked with various research organizations, including senior fellow with the Brookings Institution. He has written or contributed to books and articles, taught as an adjunct professor at Georgetown University, and been a member of the Council on Foreign Relations, and the International Institute of Strategic Studies. He has a master’s degree from Columbia University in electrical engineering.



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