Fusion Centers: A Dangerous Part of the Surveillance StateNadia Kayyali Fusion centers are a local arm of the so-called intelligence community, the 17 intelligence agencies coordinated by the National Counterterrorism Center (NCTC). The government documentation around fusion centers is entirely focused on breaking down barriers between the various government agencies that collect and maintain criminal intelligence information. Barriers between local law enforcement and the NSA are already weak. We know that the Drug Enforcement Agency gets intelligence tips from the NSA which are used in criminal investigations and prosecutions. To make matters worse, the source of these tips is camouflaged using parallel construction, meaning that a different source for the intelligence is created to mask its classified source. This story demonstrates what we called one of the biggest dangers of the surveillance state: the unquenchable thirst for access to the NSAs trove of information by other law enforcement agencies. This is particularly concerning when NSA information is used domestically. Fusion centers are no different. In fact, in early 2012, the Foreign Intelligence Surveillance Court approved the sharing of raw NSA data with the NCTC. The intelligence community overseen by the NCTC includes the Department of Homeland Security and FBI, the main federal fusion center partners. Thus, fusion centersand even local law enforcementcould potentially be receiving unminimized NSA data. This runs counter to the distant image many people have of the NSA, and its why focusing on fusion centers as part of the recently invigorated conversation around surveillance is important. How many are there? Who works at fusion centers? What do fusion centers do? Fusion centers are also key to the National Suspicious Activity Reporting Initiative (NSI), discussed below. What is suspicious activity reporting? What is the National Suspicious Activity Reporting Initiative? The evaluation project included so-called Building Communities of Trust (BCOT) meetings which focused on developing trust among law enforcement, fusion centers, and the communities they serve to address the challenges of crime and terrorism prevention. BCOT community events involved representatives from local fusion centers, DHS, and FBI traveling to different areas and speaking to selected community representatives and civil rights advocates about NSI. These were invite only events with the clear purpose of attempting to engender community participation and garner support from potential opponents such as the ACLU. So whats wrong with Suspicious Activity Reporting and the NSI? In fact, the specific set of behaviors listed in the National SAR standards include innocuous activities such as: taking pictures or video of facilities, buildings, or infrastructure in a manner that would arouse suspicion in a reasonable person, and demonstrating unusual interest in facilities, buildings, or infrastructure beyond mere casual or professional (e.g. engineers) interest such that a reasonable person would consider the activity suspicious. Examples include observation through binoculars, taking notes, attempting to measure distances, etc. These standards are clearly ripe for abuse of discretion. Do fusion centers increase racial and religious profiling? Furthermore, once an investigation into a SAR has been initiated, existing law enforcement bias can come into play; SARs give law enforcement a reason to initiate contact that might not otherwise exist. Unsurprisingly, like most tools of law enforcement, public records act requests have shown that people of color often end up being the target of SARs: One review of SARs collected through Public Records Act requests in Los Angeles showed that 78% of SARs were filed on non-whites. An audit by the Los Angeles Police Departments Inspector General puts that number at 74%, still a shockingly high number. A review of SARs obtained by the ACLU of Northern California also show that most of the reports demonstrate bias and are based on conjecture rather than articulable suspicion of criminal activity. Some of the particularly concerning SARs include titles like Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water and Suspicious photography of Folsom Dam by Chinese Nationals. The latter SAR resulted in police contact: Sac[ramento] County Sheriffs Deputy contacted 3 adult Asian males who were taking photos of Folsom Dam. They were evasive when the deputy asked them for identification and said their passports were in their vehicle. Both of these SARs were entered into FBIs eGuardian database. Not only that, there have been disturbing examples of racially biased informational bulletins coming from fusion centers. A 2009 North Central Texas Fusion Center Prevention Awareness Bulletin implies that tolerance towards Muslims is dangerous and that Islamic militants are using methods such as hip-hop boutiques and online social networks to indoctrinate youths in America. Do fusion centers facilitate political repression? A series of public records act requests in Massachusetts showed: Officers monitor demonstrations, track the beliefs and internal dynamics of activist groups, and document this information with misleading criminal labels in searchable and possibly widely-shared electronic reports. The documents included intelligence reports addressing issues such internal group discussions and protest planning, and showed evidence of police contact. For example, one report indicated that selfnewss arrested for trespassing at a consulate were interviewed by three surveillance officers in the hopes that these activists may reach out to the officers in the future. They were asked about their organizing efforts and for the names of other organizers. Who oversees the National Suspicious Activity Reporting Initiative? If this all sounds confusing, thats because it is: the entire intelligence community is a plethora of duplicative agencies with overlapping areas of responsibility. What kind of information do fusion centers have? Fusion centers have access to the FBIs eGuardian database, an unclassified companion to the FBIs Guardian Threat Tracking System. The Guardian and eGuardian systems . . . have a bi-directional communication ability that facilitates sharing, reporting, collaboration, and deconfliction among all law enforcement agencies. Fusion centers also have access to DHS Homeland Security Data Network and its companionHomeland Security Information Network. These systems provide access to terrorism-related information residing in DoDs classified network. It is worth noting that HSIN was hacked in 2009 and was considered so problematic that it was briefly decommissioned entirely. Fusion centers have access to other information portals including the FBIs Law Enforcement Online portal, Lexis Nexis, the Federal Protective Service portal, and Regional Information Sharing Systems . What federal laws apply to fusion centers? 28 Code of Federal Regulations Part 23 governs certain federal criminal intelligence systems. The Fusion Center Guidelines . . . call for the adoption of 28 CFR Part 23 as the minimum governing principles for criminal intelligence systems. 28 CFR 23.20 requires reasonable suspicion to collect and maintain criminal intelligence and prohibits collection and maintenance of information about First Amendment protected activity unless such information directly relates to criminal conduct or activity and there is reasonable suspicion that the subject of the information is or may be involved in criminal conduct or activity. Finally, it prohibits inclusion of any information collected in violation of local law. Section 552(a)(e)(7) of the Privacy Act prohibits federal agencies, in this case DHS personnel who work at fusion centers, from maintaining any record describing how any individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity. A 2012 U.S. Senate Permanent Subcommittee on Investigations report on fusion centers stated: The apparent indefinite retention of cancelled intelligence reports that were determined to have raised privacy or civil liberties concerns appears contrary to DHSs own policies and the Privacy Act. What state or local laws apply to fusion centers? The Northern California Regional Intelligence Center, located in San Francisco, CA, serves as a good example of how state and local regulations can apply to a fusion center. NCRIC works with law enforcement partners around the region and stores criminal intelligence information. The California constitution has a right to privacy and California has other laws that address privacy and criminal intelligence. These should cover NCRIC. The San Francisco Police Departments relationship with NCRIC also serves as a good example of the applicability of local laws. SFPD participates in suspicious activity reporting, but is also bound by a number of restrictions, including Department General Order 8.10, which heavily restricts intelligence gathering by the SFPD, as well as the sanctuary city ordinance, which prohibits working with immigration enforcement. While the fusion center would not be bound by these regulations on its own, the SFPD is. Who funds fusion centers? For 2014, the Homeland Security Grant Program, which is the federal grant program that funds fusion centers, has $401,346,000 available in grant funds. The grant announcement emphasizes that funding fusion centers and integrating them nationally is a high priority. This is an approximately $50 million increase over last years allocationsomewhat shocking in light of the critiques around fusion center funding that have been raised by Congress. A 2008 Congressional Research Service report states that the average fusion center derives 31% of its budget from the federal government. Those numbers may have changed now.Has there been any discussion about fusion centers at the federal level? Yes, but not enough. In October of 2012, fusion centers were the subject of an extremelycritical report from the U.S. Senate Permanent Subcommittee on Investigations. The bipartisan report focused on the waste, ineptitude, and civil liberties violations at fusion centers. The report revealed that fusion centers spent tax dollarson gadgets such as shirt button cameras, $6,000 laptops and big-screen televisions. One fusion center spent $45,000 on a decked-out SUV Regarding the information produced by fusion centers, the report noted that fusion centers produced intelligence of uneven quality oftentimes shoddy, rarely timely, sometimes endangering citizens civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism. This report recommended a hard look at fusion center funding, but that clearly has not happened. They are still operating across the country with federal funding. In fact, their funding has even been increased. What about at the local level? Have any regulations been passed or proposed? Massachusetts is also considering changes to fusion centers. SB 642 would strictly limit collection and dissemination of criminal intelligence information and would require a yearly audit of the Massachusetts Commonwealth Fusion Center. What can I do? On April 10, activists across the country will be participating in Stop the Spy Centers: anational day of action against fusion centers. These activists have three demands: 1. Shut down fusion centers, 2. De-fund fusion centers, and 3. Release all suspicious activity reports and secret files. While April 10 is one day of action, the conversation around fusion centers must continue hand in hand with our national discourse around NSA, CIA, and FBI surveillance. Where can I get more information about fusion centers? Please visit and support the Electronic Frontier Foundation for digital privacy and freedom. 