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A post-9/11 national system of "fusion centers" has been under construction for several years. -- Fusion centers are state or local intelligence-gathering bodies linked to law enforcement agencies and also, in many cases, to private entities, including corporations). -- In October 2007 they numbered 43, with plans for more. -- In April 2003, as an ad hoc Senate subcommittee tasked specifically with monitoring fusion centers met to hear testimony about an October 2007 GAO report entitled "Federal Efforts Are Helping to Alleviate Some Challenges Encountered by State and Local Information Fusion Centers," [117-page PDF file] the ACLU released a statement warning that "Fusion centers have the potential to be privacy nightmares."[1] -- The ACLU, which published its own 27-page report on fusion centers in December 2007, complained that "Though several recent reports have confirmed fusion centers’ growing role in law enforcement and revealed their expanding ties to private industry, including relationships with massive data-brokering companies, no third parties were set to testify." -- "There’s simply too much we don’t know," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. -- The executive summary of the ACLU report is posted below.[2] -- It states that although fusion centers were supposed to be concerned with terrorism, "the scope of their mission has quickly expanded — with the support and encouragement of the federal government — to cover 'all crimes and all hazards.' The types of information they seek for analysis has also broadened over time to include not just criminal intelligence, but public and private sector data, and participation in these centers has grown to include not just law enforcement, but other government entities, the military and even select members of the private sector." -- The ACLU pointed to a number of factors conjoining to "undermine fundamental American values" and also to "turn [fusion centers] into wasteful and misdirected bureaucracies": ambiguous lines of authority, dubious private sector participation, troubling military participation, privacy-threatening data mining, and excessive secrecy. -- The ACLU has also published a set of 39 "questions to ask about fusion centers."[3] -- Despite their imporatnce, most people are unaware of the existence of fusion centers, because corporate-owned media rarely refer to them. -- The ACLU's news release generated not a single news article, a Google news search indicates. -- The only recent mention of the ACLU and fusion centers in mainstream media of which we are aware was a May 1 squib in the Tucson Citizen announcing an ACLU-sponsored talk at the Univ. of Arizona on "Domestic Surveillance in Your Back Yard."[4] ...

WASHINGTON, D.C. -- As a Senate subcommittee met today to get a "progress report" on fusion centers, the American Civil Liberties Union once again voiced its concerns with the intelligence-gathering institutions. The Senate Homeland Security and Governmental Affairs Subcommittee on State, Local, and Private Sector Preparedness and Integration heard testimony from government and intelligence officials on a recent report issued by the Government Accountability Office (GAO) regarding the centers. Though several recent reports have confirmed fusion centers’ growing role in law enforcement and revealed their expanding ties to private industry, including relationships with massive data-brokering companies, no third parties were set to testify. The ACLU released a report last year outlining serious concerns with fusion centers.

"Fusion centers have the potential to be privacy nightmares," said Caroline Fredrickson, director of the ACLU Washington Legislative Office. "Every inch of privacy we surrender gives the government a mile of latitude to invade it further. There’s simply too much we don’t know. Strict guidelines must be put in place and enforced. We urge the subcommittee and all of Congress to keep a close eye on those who are keeping a close eye on us."

The ACLU enumerated many of the threats fusion centers pose to Americans’ privacy in a November report, "What’s Wrong With Fusion Centers." Many of those warnings have been borne out in news reports over the last six months. Cases of overzealous intelligence gathering, hostility to open government laws, and other lax information sharing practices -- which are characteristic of Fusion Centers -- have gone from being exceptional to pervasive. Examples of this troubling trend include:

• The Wall Street Journal and the Los Angeles Times have both recently reported on the Los Angeles Police Department’s extensive list of "criminal and non-criminal" suspicious behaviors, which LAPD officers are instructed to report. The list includes such potentially innocuous, clearly subjective, and First Amendment protected activities as "taking pictures or video footage with no apparent esthetic value," "drawing diagrams and taking notes," "espousing extremist views," and "engaging in suspected coded conversations or transmissions."

• The Director of National Intelligence issued functional standards for suspicious activity reports that the LAPD program and others like it would generate. These standards make it easier for state and local law enforcement to report non-criminal suspicious activities to the intelligence community and other participants in the Information Sharing Environment. The DNI's ISE standards re-define "personally identifiable information" to allow the collection and retention of specific data that could be used to distinguish or trace an individual's identity.

• According to comments by the commander of the Virginia State Police Criminal Intelligence Division and the administrative head of the center, the Commonwealth of Virginia passed a law shielding the Virginia Fusion Center from state open government laws, purportedly under pressure from the federal government.

• The Georgia legislature passed a law, which is currently under review by Gov. Sonny Perdue, to notate all drivers’ license applicants in the state who present any form of foreign identification, and to allow access to these tagged records by the Georgia Crime Information Center.

• The Massachusetts fusion center (known as the Commonwealth Fusion Center) released standard operating procedures that authorize inquiries and investigations when "oral or written statements advocate unlawful or violent activity, to determine whether there exists a real threat." These guidelines allow undercover police officers to attend public meetings to gather intelligence even when there is no reasonable suspicion of illegal activity. The hazards of such a policy were revealed in a recent incident at Harvard University, where a plain-clothes Harvard University detective was caught photographing people at a peaceful protest for "intelligence gathering" purposes. A university spokesman refused to say what the HUPD does with the photographs.

"We can’t afford to be in the dark about fusion centers," said Michael German, ACLU National Security Policy Counsel and co-author of the ACLU fusion center report. "It’s up to our members of Congress and state legislators to make sure our privacy is meticulously guarded. Given the broad scope of information housed by fusion centers, it would be irresponsible not to enforce vigorous oversight. There can’t be any grey area when it comes to Americans’ privacy."

WHAT'S WRONG WITH FUSION CENTERS -- EXECUTIVE SUMMARY
By Michael German and Jay Stanley

A new institution is emerging in American life: Fusion Centers. These state, local, and regional institutions were originally created to improve the sharing of anti-terrorism intelligence among different state, local, and federal law enforcement agencies. Though they developed independently and remain quite different from one another, for many the scope of their mission has quickly expanded -- with the support and encouragement of the federal government -- to cover "all crimes and all hazards." The types of information they seek for analysis has also broadened over time to include not just criminal intelligence, but public and private sector data, and participation in these centers has grown to include not just law enforcement, but other government entities, the military and even select members of the private sector.

These new fusion centers, over 40 of which have been established around the country, raise very serious privacy issues at a time when new technology, government powers and zeal in the "war on terrorism" are combining to threaten Americans' privacy at an unprecedented level.

Moreover, there are serious questions about whether data fusion is an effective means of preventing terrorism in the first place, and whether funding the development of these centers is a wise investment of finite public safety resources. Yet federal, state, and local governments are increasing their investment in fusion centers without properly assessing whether they serve a necessary purpose.

There's nothing wrong with the government seeking to do a better job of properly sharing legitimately acquired information about law enforcement investigations -- indeed, that is one of the things that 9/11 tragically showed is very much needed.

But in a democracy, the collection and sharing of intelligence information -- especially information about American citizens and other residents -- need to be carried out with the utmost care. That is because more and more, the amount of information available on each one of us is enough to assemble a very detailed portrait of our lives. And because security agencies are moving toward using such portraits to profile how "suspicious" we look.[Note 1: Jay Stanley and Barry Steinhardt, *Even Bigger, Even Weaker: The Emerging Surveillance Society: Where Are We Now?* American Civil Liberties Union, (Sept. 2007), available at www.aclu.org/pdfs/privacy/bigger_weaker.pdf.]

New institutions like fusion centers must be planned in a public, open manner, and their implications for privacy and other key values carefully thought out and debated. And like any powerful institution in a democracy, they must be constructed in a carefully bounded and limited manner with sufficient checks and balances to prevent abuse.

Unfortunately, the new fusion centers have not conformed to these vital requirements.

Since no two fusion centers are alike, it is difficult to make generalized statements about them. Clearly not all fusion centers are engaging in improper intelligence activities and not all fusion center operations raise civil liberties or privacy concerns. But some do, and the lack of a proper legal framework to regulate their activities is troublesome. This report is intended to serve as a primer that explains what fusion centers are, and how and why they were created. It details potential problems fusion centers present to the privacy and civil liberties of ordinary Americans, including:

* Ambiguous Lines of Authority. The participation of agencies from multiple jurisdictions in fusion centers allows the authorities to manipulate differences in federal, state and local laws to maximize information collection while evading accountability and oversight through the practice of "policy shopping."

* Private Sector Participation. Fusion centers are incorporating private-sector corporations into the intelligence process, breaking down the arm's length relationship that protects the privacy of innocent Americans who are employees or customers of these companies, and increasing the risk of a data breach.

* Military Participation. Fusion centers are involving military personnel in law enforcement activities in troubling ways.

* Data Fusion = Data Mining. Federal fusion center guidelines encourage wholesale data collection and manipulation processes that threaten privacy.

* Excessive Secrecy. Fusion centers are hobbled by excessive secrecy, which limits public oversight, impairs their ability to acquire essential information and impedes their ability to fulfill their stated mission, bringing their ultimate value into doubt.

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 information in this report provides a starting point from which individuals can begin to ask informed questions about the nature and scope of intelligence programs being conducted in their communities. The report concludes with a list of recommendations for Congress and state legislatures.

Is the Fusion Center located within law enforcement facilities, in other government facilities, or [in] private space?

Under what authority does the Fusion Center operate (state law, local law, or federal law)?

Who is responsible for ensuring all federal, state, and local laws protecting privacy and civil liberties are enforced?

What state or local sunshine laws or open meeting laws apply to activities taking place at Fusion Centers?

What information, intelligence, and/or data are collected at the Fusion Center and how is it stored?

Who has access to this data at the Fusion Center? How is it protected from misuse?

What does the Fusion Center do to ensure the accuracy of the data it receives and disseminates?

Do all databases associated with the Fusion Center comply with 28 C.F.R. Part 23?

How is private, personally identifiable information received by the Fusion Center protected?

What databases/data sets does the Fusion Center have access to, and how does it access them?

Do any non-law enforcement entities participate in Fusion Center activities? If so, who?

Do any private sector entities participate in the Fusion Center activities? If so, who?

How are private sector entities selected to participate in the Fusion Center? May private sector entities not selected to participate in Fusion Centers receive the same information that is made available to those private entities that are selected? How would they get access to this information?

Do these non-law enforcement entities have access to law enforcement information or databases through their participation in the Fusion Centers? If they are co-located with law enforcement personnel, what safeguards are in place to prevent unauthorized access?

Who is responsible for overseeing the non-law enforcement and private sector personnel, and who are these individuals accountable to?

Who receives data, intelligence reports, or other products from the Fusion Centers?

Do any private companies handle, store, or analyze data received from or processed through the Fusion Center? How is that data protected once it is out of government control?

Have any private sector entities been given security clearances or access to sensitive information at the Fusion Center?

Does the use of classified information at the Fusion Center limit intelligence sharing with state and local law enforcement agencies in our cities, towns and communities? How is this problem being addressed?

Does the National Guard participate in the Fusion Center, and if so, under what authority?

Are the National Guardsmen limited in what data they may collect, analyze, or review at the Fusion Centers?

Do any active-duty military personnel participate, and if so under what authority?

How is activity of the National Guardsmen and military personnel monitored to ensure compliance with applicable laws regarding the use of the military in domestic law enforcement?

An expert on intelligence gathering will discuss information "fusion centers" Monday, including the Arizona Counter Terrorism Information Center.

Michael German, a former FBI agent on the American Civil Liberties Union's national security counsel, will address "Domestic Surveillance in Your Back Yard," from 6 to 8 p.m. in Room 146 at the University of Arizona Rogers College of Law, 1201 E. Speedway Blvd. It's open to the public at no charge.

According to the Department of Homeland Security's Web site, there are more than 58 fusion centers in the country. Nineteen fusion centers have the Homeland Security Data Network to allow the federal government to share information on a secret level.

Arizona's fusion center in Phoenix, run by the Department of Public Safety, was the first in the nation, the ACLU said. Call Vera Berkman at 615-5144 for more information.