At the time, it seemed one of the unanimous lessons of the tragedy of Sept. 11 — law enforcement agencies at all levels of government have to do a better job of sharing information with each other in order to prevent terror plots. Making that actually happen, of course, is easier said than done, which is why newfangled, multi-organizational agencies were set up to promote cooperation and overcome turf battles. But now critics claim that these so-called fusion centers are making it all too easy for government to collect and share data from numerous public databases.
Organizations like the American Civil Liberties Union are pushing bills to restrict fusion centers’ access to data, most notably in New Mexico, where opponents hope to make government snooping a costly offense. Legislation has been introduced in Santa Fe that would prohibit any New Mexico law enforcement agency from collecting information about the religious, political and social associations of law-abiding New Mexicans. And in what would be a first for the nation, the bill would allow private citizens to sue law enforcement agencies for damages over the unauthorized collection of such data.
Privacy advocates point to a scandal in the state of Maryland, where last summer it was revealed that in 2005 and 2006 undercover members of the Maryland State Police had carried out surveillance of war protesters and death penalty opponents. Some of the intelligence gathered on the subjects, according to logs obtained by the ACLU last summer, may have found its way into databases shared with local, national and federal agencies through the state’s fusion center. An investigation found the data collection represented a serious lapse in judgment, but the victims had little recourse, except public outrage.
“The lack of proper legal limits on the new fusion centers not only threatens to undermine fundamental American values, but also threatens to turn them into wasteful and misdirected bureaucracies that, like our federal security agencies before 9/11, won’t succeed in their ultimate mission of stopping terrorism and other crime,” the national ACLU notes in its report on the centers. There are federal and state privacy laws governing the centers, but a recent report by the Department of Homeland Security’s own Privacy Office suggested that the multi-governmental nature of the centers allows the staffers to pick and choose a policy that suits their needs. The report, issued in late December, echoed some of the concerns laid out in earlier congressional and Government Accountability Office reports that warned of the potential for “mission creep” by the fusion centers.
There are approximately 60 “fusion centers” nationwide, with some focusing exclusively on criminal activity, others on both criminal and terrorist threats, and some on very specific acts, such as human smuggling, gang activity, online predators or drug trafficking. Much of the funding for the large state centers comes from the federal government, including a new infusion of $250 million courtesy of the stimulus package to be spent by 2010 on “upgrading, modifying, or constructing” state and local fusion centers. The latest fusion center, the $21 million Port of Long Beach facility, opened last month. Staffed by local, state and federal officials, it sits on a small swath of land inside the nation’s second largest port and utilizes state of the art surveillance technology, including cameras that can read a badge from two miles away. Every state but Idaho and Pennsylvania has at least one fusion center; Texas, for instance, has its Texas Intelligence Center within the Texas Department of Public Safety “to collect, analyze, and disseminate intelligence information related to terrorist activities” covering the entire state. The state also has the North Central Texas Fusion System, covering a 16 county-area around the Dallas metro area that includes “regional homeland security, law enforcement, public health, fire, medical providers, emergency management, and private security”.
Different missions and different mixes of manpower make each center unique.”If you’ve seen one fusion center — you’ve seen one fusion center,” says Jack Tomarchio, former deputy director of intelligence for the Department of Homeland Security, who oversaw the development of most of the country’s state fusion centers during the Bush Administration. Tomarchio says the centers have proved their value in fighting both crime and terrorism — sometimes exposing the link between the two, as in the case of cigarette smuggling in the Carolinas which funded terrorist groups abroad. They also have provided valuable information in preventing further attacks, he claims, adding that while he is not at liberty to disclose the kind of information mined, fusion center intelligence did reach the level of the daily presidential briefing in the Bush Administration.
The model for the centers grew out of “intelligence-led policing” — a British initiative with its roots in the early 1990s. It has evolved into “a management philosophy that places greater emphasis on information-sharing and collaborative, strategic solutions to crime problems,” according to Dr. Jerry Ratcliffe, a former British police officer and currently a Temple University professor who has lectured and written extensively on the subject. “It facilitates holistic crime prevention,” Ratcliffe says. Rather than each department, or even squad, having its own databases, fusion centers allow access to multiple databases and sources of intelligence; the drug squad in one community can share information with the anti-gang task force in another, picking up on patterns that may indicate an emerging threat as gangs set up to move into a new market, or distribute new contraband, for example.
But that sharing of information troubles critics. New Mexico’s All Source Intelligence Center, housed in an old National Guard building, has access to 240 state, regional and federal agencies and their databases, including agricultural and parks agencies, according to Peter Simonson, executive director of the state’s ACLU chapter. Establishing what kinds of information is being processed by fusion centers can be difficult, Simonson says, since they do not store the records, or even collect them, but simply mine them through digital gateways. Records are accessed, not retained as they would be in specific case or investigative files. Simonson says the New Mexico chapter of the ACLU has filed several open records requests seeking to find out what kind of information is being reviewed, but has been stymied by the lack of a “material product.” Other state ACLU chapters are pressing open records requests aimed at casting light on fusion center activities.
Groups like the ACLU have sued law enforcement agencies in the past aimed at exposing domestic spying, but individuals whose privacy has been violated have little recourse — “suing is a shot in the dark,” Simonson says, given current state and federal laws. “There aren’t any legal remedies and we are trying to create one,” Simonson says, acknowledging that it may take more than one legislative session to pass the bill in New Mexico.
One of the most well regarded fusion centers was created under the leadership of former Arizona Governor Janet Napolitano, now Secretary of Homeland Security. During her confirmation hearings Napolitano highlighted her leadership in creating one of the first state anti-terrorism law enforcement fusion centers in the country, and her first directive at DHS ordered a thorough review of intelligence-sharing programs and methods aimed improving the flow of information to states, local and tribal governments. But in her testimony to Congress, she also cited her commitment to privacy: “As Governor, I created the Statewide Information Security and Privacy Office to ensure adequate controls and safeguards are in place for all State of Arizona government technology systems and business practices.” However, Napolitano’s appointment gives Simonson pause. “I think the Obama Administration has a much greater sensitivity to these issues than the previous Administration, but the track record from Arizona would suggest that we still have good reason to be concerned.”
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