FUSION CENTERS: Spying on Citizens Without Cause, Warrants, or Even Suspicion

By Amanda Hackett, RWG Researcher

March 2012

As previously reported on a RWG blog, fusion centers are a worrisome and expansive way for the government to monitor citizens without cause - all in the name of "protecting" us. My task was to uncover how fusion centers are funded, the money trail, to better understand this rapidly developing "advancement" in counter-terrorism protection and I couldn't. What I did uncover was alarming.

What is a Fusion Center?

The government has a new buzzword in the expanding lexicon of its counterterrorism agenda campaign - data fusion. A fusion center accumulates information from a wide range of governmental and non-governmental sources, analyzes it, and supposedly turns it into actionable intelligence to protect the US from another terror attack. This is happening at 72 fusion centers throughout the United States. The centers are run by state, local, and tribal governments, but receive resources and funding from the federal and State government. (Department of Homeland Security (DHS) grants, the assignment of Federal Bureau of Investigations (FBI) agents, Department of Justice (DOJ) grants, etc.)

These data aggregation centers operate largely outside of the law and have no one checking them - in part, because most people do not even know they exist, yet. Their funding is classified. The checks put on federal intelligence gathering on U.S. citizens is effectively removed1, because the data that the private sector is allowed to collect and then share with the centers operates outside of the warrant requirement. As a result, the federal government is able to accumulate unprecedented amounts of data as they scour for "terrorist" activity predicators without the very minimal restriction that they have a reasonable belief of wrongdoing on the part of the accused. Because there is no accused.

These centers have information on everyone. If you own a home, they know it. If you used social services, they know it. If you were booked, they know it. If a stranger thinks you behaved suspiciously, so often a codeword for being the "wrong" color or wrong "religion" in the "wrong" place, they know it. For national security reasons, no one outside of the centers know what a predicator of terrorist activity is precisely, but something as innocuous as taking a photograph of the Washington Monument could lead to a Suspicious Activity Report, which would become data that could later lead to an investigation.  Other "suspicious activities" include: using binoculars, taking notes, and espousing extremist views. We must not forget that people's opinions, no matter how objectionable, are protected under our constitutional framework. Now, having the wrong opinion can trigger an investigation. Multiple fusion centers have investigated university student groups, Muslims, and Ron Paul supporters without cause or justification.

The original funding for fusion centers was intended to solve the "connecting the dots" problem federal agencies had prior to September 11th, 2001. However, most centers have veered away from that mission and focus instead on anticipating and preventing criminal activity NOT terrorism. In large part, this switch occurred because there is simply not enough data related to terrorism activity since there is not enough terrorism activity to justify their existence. Centers have switched to an "all crimes/all hazards" approach rather than a terrorism approach. All hazards include responding to natural and man-made disasters, drugs, street crime, etc. This switch means that the mission is substantially broader than the homeland security mission envisioned in the formation of the fusion centers. The "justification" for this unprecedented assault on privacy was to prevent terrorism, but is being used in some areas to confront pick-pocketing. Big Brother has never been clearer.

The Fusion Center Data Sources

Fusion center data comes from:

  • Suspicious Activity Reports, fire safety reports, utility records, public health records, social services records, credit reports, mortgage records, tips, medical records, public works records, from private industry, etc.

Sectors reporting activity include:

  • education (from pre-school to university), banking and finance, hospitality and lodging, private security, retail, and many others.  

Much of this data the federal government cannot legally acquire on its own because of privacy protections in the law. However, fusion centers do not operate on a reasonable suspicion of wrongdoing standard. No one has to think you have done anything wrong before collecting this information on you.  Some centers have "protections" in place that require that the non-governmental suppliers of data assure the fusion centers that they have a written policy of following federal, state and local privacy laws. A written policy or assurance of a written policy will not protect people’s information.

Who is in charge of Fusion Centers?

According to federal sources, when fusion centers handle local issues (drugs, crimes), their privacy processes and procedures are their own. There is no clear chain of authority with this mishmash of federal, state and private employees. There is no federal statutory basis for these centers to clarify their purpose and chain of command. The private sector actors operate outside of federal guidelines/rules preventing the unwarranted gathering of information by the government. What would be illegal spying if done by the government, is just market research or record-keeping when done by corporations – the fact that people do not anticipate that the information gathered about them by the services they use will ultimately be shared with the government is important.  Not only are the roughly 800,000 state and local law enforcement officers turned into the "eyes and ears of the network" – so are phone companies, banks, and private security personnel. The analysts provided by DHS are supposed to limit their activities in fusion centers to authorized intelligence activities including the prevention of terrorism and terrorism related activities. The free-flow of information makes this limitation unlikely in reality.

What Laws Govern them/Protect You?

State and local privacy laws govern the fusion centers, but there is no true oversight of the centers. There are guidelines that the federal government thinks the fusion centers should follow, but these guidelines are not enforceable. More troubling, there is no way to know what information has been collected about you. You won't know if there is misinformation on you. Should you learn of misinformation, there are also no mechanisms for removing false information. One can try calling DHS or the local fusion center, but there is no record of that having any effect. What oversight mechanisms exist to make sure the government does not single out minority groups is unclear.

The laws designed to protect citizens from governmental overreach do not appear to apply to this data, which is shared with federal agencies. The federal government has a history of illegal spying in the name of national security on such so-called "subversives" as the NAACP, the National Lawyers Guild, peace activists, and Albert Einstein who was a member of several civil rights groups.

Supposedly personally identifying information (PII) is stripped from the data before being shared, but it is acceptable to re-apply the PII if a credible threat is imagined/detected. Furthermore, the privacy rights training given to fusion center workers and private entities that share their information is minimal. As fusion centers operate under State and local law, the federal officers and information sharing networks they grant access to, do not feel it is their job to examine most of the privacy concerns arising from their presence there. DHS states that the local governing authorities should look into the concerns, but provides no funding for this, nor any consequences if they fail to address the concerns.

Do Fusion Centers Serve a Purpose?

There have been few instances of fusion center success stories shared with the public. Those reported do not seem to actually stand for the proposition their supporters are claiming they do. A case in California, the Torrance case, is trumpeted as a success of the fusion center, but the story as told does not support that claim2. According to reports, there was a string of gas station robberies. The police knew this, but did not realize that the robberies were being staged in order to finance jihad until one of the robbers dropped a phone, which led to his apartment, which had jihadist material in it. That is standard police work. The data collected into the center did not solve this case. It could not solve this case. Police work solves cases.

This unprecedented amount of data, besides the very serious privacy implications, actually hinders investigations. Sifting through millions of completely unnecessary pieces of information is a waste of analysts' time, and the infrastructure necessary to do such data mining shifts finite counterterrorism resources away from actual investigatory work. There is far too much irrelevant and incorrect data. Further, local officials at the fusion centers still complain that they are not being given relevant information to prevent attacks, because the usual battle over jurisdiction is happening at the information level.  

How Are Fusion Centers Funded:

The funding for fusion centers is dispersed and classified. Sources include: DHS, DOJ, State, Local and Tribal governments. In DHS's FY2012 budget request, one of the only line items without a numerical value attached is for fusion centers. DHS is less secretive about previously allocated money, and has disclosed that in FY 2004-2006, it provided a total of $131 million to "...establish or enhance a fusion center or fusion cell."3 In Dec 2006, DHS reported that it had provided over $380 million in support to these centers.4 The money from DHS is just a portion of the funding for fusion centers.

The Federal funding comes largely in the form of Homeland Security Grant Programs (HSGP), but some of the contributions are personnel and access to databases. By 2008, over 250 FBI Analysts were working at fusion centers & DHS was in 15 centers.5 The HSGP grant program for Law Enforcement Terrorism Prevention (LETPP) mentions fusion centers and the overall LETPP received $363,750,000 in FY 2007, but the portion specifically for fusion centers is not publically available.6

A congressional researcher was granted access to some of the secret information about fusion centers and in a 2008 report stated that annual budgets for the fusion centers ranged from the tens of thousands to several million (with one center receiving over $15 million).7 That same CRS report stated that over the previous two years the federal government had provided financial support to the fusion centers with the states paying for approximately 80% of fusion center budgets. Some fusion centers received 100% of their funding from the federal government, but the average amount of federal funding for the centers was 31% with the rest coming from existing state and/or local sources.

What Can Advocates Do?

  1. Find out more information on the fusion center near you.
  2. Request that DHS publish a list of all private sector data sources used in collection and analysis.
  3. Ask your local fusion center what they are doing to prevent illegal spying based on ethnicity, religion or national origin and other 1st Amendment guarantees.
  4. Ask if they are operating on an all-hazards basis or terrorism prevention basis. If all hazards, ask what new privacy protection features were included with the new approach.
  5. Ask what federal help is being accepted, whether monetary, personnel, or other contribution.
  6. Ask your local government about the budget allocated from the State.
  7. Ask your Congressional representatives why they continue to fund fusion centers through the Homeland Security Grant Program and the National Foreign Intelligence Program.
  8. Request that State officials require that the information collected comply with the Federal Privacy Act of 1974.
  9. Join the Racial Profiling: Face the Truth campaign and ask your Congressional representative to sponsor the End Racial Profiling Act (ERPA) of 2011, legislation that would prohibit the use of racial and religious profiling in law enforcement surveillance activities.

Additional Resources:

  1. CRS Report for Congress, Fusion Centers: Issues and Options for Congress Updated January 18, 2008
  2. DHS, Office of Grants and Training, Fusion Centers: DHS Funded Activities — Fiscal Years 2004-2006, April 2007
  3. ACLU's Questions to Ask About Fusion Centers
  4. ACLU Report: What's Wrong With Fusion Centers
  5. Article: Intelligence Fusion Centers: A DE-CENTRALIZED NATIONAL INTELLIGENCE AGENCY

 

WORKS CITED

1The federal government is limited in its spying activity when US citizens are involved in a number of ways.  Two major ways are the 1978 Foreign Intelligence Surveillance Act, and the Attorney General’s Guidelines for FBI National Security Investigations. The 1978 Foreign Intelligence Surveillance Act, requires the NSA to obtain warrants for domestic spying from a special intelligence court. Warrants are supposedly not granted unless there is a reasonable belief that the person to be spied upon committed a crime, but the Special Intelligence Courts are secret, and the only thing they report to the outside world is the number of warrants requested and the number denied. Since their inception until 2006, the last year for which data is available, they have approved 22,985 warrants and denied 5. (see http://epic.org/privacy/wiretap/stats/fisa_stats.html).The FBI’s authority for collecting intelligence comes from the Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection. “These Guidelines specifically provide that all activities by the FBI must be carried out in conformity with the Constitution […]  The Guidelines prohibit investigating or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other constitutional rights...” See Fact Sheet Attorney General’s Guidelines for FBI National Security Investigations and Foreign Intelligence Collection available at http://www.fas.org/irp/agency/doj/fbi/nsi-fact.html   The federal government is required to obey the Constitution when they spy on US citizens, and thus the Warrant Requirement applies and it is impermissible to use a factor like a person’s religion upon deciding suspicion or guilt.  The Warrant Requirement means that the federal government may not search or seize a person unless the government has a reason to believe the person searched has committed a crime.  Here, fusion centers are supposedly to prevent crimes, which means that they have not happened, and thus the federal government’s ability to spy on citizens should not exist according to their own rules.

2 Levar Haley Washington and Gregory Vernon Patterson, were sentenced on June 23 and July 21, 2008, The men, who were arrested in 2005, (conspiracy to levy war against the United States through terrorism)

3 Fusion Centers: DHS Funded Activities Fiscal Years 2004 – 2006 April 2007, Office of Grants and Training Preparedness Directorate U.S. Department of Homeland Security , at 5-6 available at www.ok-safe.com/.../Fusion_Centers_DHS_Funded_Activities_2

4 CRS Report for Congress, Fusion Centers: Issues and Options for Congress Updated January 18, 2008 , at 41 available at http://www.fas.org/sgp/crs/intel/RL34070.pdf

5 CRS Report for Congress, Fusion Centers: Issues and Options for Congress Updated January 18, 2008 , at 46 available at http://www.fas.org/sgp/crs/intel/RL34070.pdf

6 FY 2007 Homeland Security Grant Program, published by the US Department of Homeland Security, at page 2 available at www.dhs.gov/xlibrary/assets/grants_st-local_fy07.pdf

7 CRS Report for Congress, Fusion Centers: Issues and Options for Congress Updated January 18, 2008 available at http://www.fas.org/sgp/crs/intel/RL34070.pdf