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Analysis

Big Brother’s Little Siblings: How Local Police Departments are Spying on Us Now, Too

It’s not just the NSA. State and local police have been busy collecting data on our daily activities as well — under questionable or nonexistent legal pretenses.

  • Michael Price
January 2, 2014

Cross­pos­ted in Salon.

By now, it’s well known that the National Secur­ity Agency (NSA) is collect­ing troves of data about law-abid­ing Amer­ic­ans. But the NSA is not alone: a series of new reports show that state and local police have been busy collect­ing data on our daily activ­it­ies as well — under ques­tion­able or nonex­ist­ent legal pretenses. These revel­a­tions about the extent of police snoop­ing in the U.S. — and the lack of over­sight over it — paint a disturb­ing picture for anyone who cares about civil liber­ties and privacy protec­tion.

The tactics used by law enforce­ment are aggress­ive, surrepti­tious, and surpris­ing to even long­time surveil­lance experts.  One report released last month made front page news: an invest­ig­a­tion by more than 50 journ­al­ists that found that local law enforce­ment agen­cies are collect­ing cell phone data about thou­sands of inno­cent Amer­ic­ans each year by tapping into cell­phone towers and even creat­ing fake ones that act as data traps.

A new report by the Bren­nan Center for Justice at NYU School of Law details how police depart­ments around the coun­try have created data “fusion centers” to collect and share reports about resid­ents. But the inform­a­tion in these reports seldom bears any rela­tion to crime or terror­ism. In Cali­for­nia, for example, officers are encour­aged to docu­ment and imme­di­ately report on “suspi­cious” activ­it­ies such as “indi­vidu­als who stay at bus or train stops for exten­ded peri­ods while buses and trains come and go,” “indi­vidu­als who carry on long conver­sa­tions on pay or cellu­lar phones,” and “joggers who stand and stretch for an inor­din­ate amount of time.” In Hous­ton, Texas, the criteria are so broad they include anything deemed “suspi­cious or worthy of report­ing.” Many police depart­ments and fusion centers have repor­ted on consti­tu­tion­ally protec­ted activ­it­ies such as photo­graphy and polit­ical speech. They have also demon­strated a troub­ling tend­ency to focus on people who appear to be of Middle East­ern origin.

Like the NSA – their heavy-handed Big Brother – these fusion centers cast a wide net and risk civil liber­ties for paltry returns. And all of it is happen­ing without suffi­cient over­sight or account­ab­il­ity. In other words, no one is watch­ing Little Brother.

How did it come to this?  In the after­math of the Septem­ber 11, 2001 attacks, all levels of govern­ment – federal, state, and local – embarked on a massive effort to improve inform­a­tion shar­ing. Federal taxpayer dollars fueled the trans­ition into a new role for state and local police as the eyes and ears of the intel­li­gence community.

The ad-hoc system that has developed — of indi­vidual police depart­ments feed­ing inform­a­tion to federal author­it­ies — has been plagued by vague and incon­sist­ent rules. For one thing, there’s a lack of agree­ment about what counts as “suspi­cious activ­ity” and when that inform­a­tion should be shared.

The goal, in theory, is to reveal poten­tial terror­ist plots by “connect­ing the dots” of dispar­ate or even innoc­u­ous pieces of inform­a­tion. But in prac­tice, such programs often infringe on civil liber­ties and threaten safety, produ­cing a din of data with little or no coun­terter­ror­ism value. In Boston, for example, the regional fusion center fixated on monit­or­ing peace activ­ists and Occupy Boston protest­ers but may have been unaware that the FBI conduc­ted an assess­ment of bomb­ing suspect Tamer­lan Tsarnaev based on a tip from Russia, or that local author­it­ies had implic­ated him in a grue­some triple homicide on the anniversary of 9/11.

In fact, a 2012 report by the Senate Home­land Secur­ity Commit­tee found that much of the inform­a­tion produced by fusion centers was not only useless, but also possibly illegal. Indeed, more than 95 percent of so-called “suspi­cious activ­ity reports” are never invest­ig­ated by the FBI.

We can do better. First and fore­most, there must be a consist­ent, trans­par­ent stand­ard for state and local intel­li­gence activ­it­ies based on reas­on­able suspi­cion of crim­inal activ­ity – the tradi­tional bar for open­ing an invest­ig­a­tion. The federal govern­ment should make this stand­ard a prerequis­ite for shar­ing suspi­cious activ­ity reports on its networks. State and local police should adopt it as well.

Second, stronger over­sight and account­ab­il­ity is neces­sary across the board. At the federal level, Congress should tie contin­ued fund­ing for fusion centers to regu­lar, inde­pend­ent, and publicly avail­able audits to assess compli­ance with privacy rules. State and local elec­ted offi­cials should also consider creat­ing an inde­pend­ent police monitor, such as an inspector general, to safe­guard privacy and civil rights.

To be sure, cooper­a­tion between levels of govern­ment is essen­tial, and state and local law enforce­ment have an import­ant role to play in keep­ing Amer­ic­ans safe. But the current system is inef­fect­ive, waste­ful, and harm­ful to consti­tu­tional values.

It is time to recal­ib­rate the system and make the state and local role in national secur­ity effi­cient, rational, and fair.