Fusion Centers: America’s Domestic Spying Facilities

Today I offer something a little different. A guest post by one of my favorite libertarians:

By Odie

When Bill invited me to write an article for his blog, I was quite flattered. As part of his invitation, he requested that I “try not to go all crazy ass Austrian School economist on [him].” Since I don’t want to take advantage of his hospitality, I’ll do my best to avoid those tendencies. (For those of you that don’t know me, I used to practice law, but now I’m an economist—I have an M.A. in economics and I’m working on a Ph.D.)

Therefore, I decided to pick a topic that on which he and I (and hopefully you) will probably agree. There’s a new institution in American life that hasn’t attracted much attention, but should: The Fusion Center. If you haven’t ever heard of fusion centers, you’re in the majority. Contrary to the implication of their name, fusion centers are not hubs of scientific inquiry about physics. In reality, they are data gathering and data mining facilities that combine the resources of government and law enforcement agencies at the federal, state and local levels in order to effectively and efficiently disseminate security information. While that might sound relatively benign, the implementation is potentially insidious.

In essence, fusion centers are facilities for domestic spying. According to the ACLU,

"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."

One of the scariest aspects of fusion centers is that they encourage law enforcement to profile and report any activity that seems slightly suspicious, even if it’s not criminal in any way. For example, the Los Angeles Police Department issued Special Order #11 on March 5, 2008. This special order states that it is a policy of the LAPD to “gather, record and analyze information of a criminal or non-criminal nature, that could indicate activity or intentions related to either foreign or domestic terrorism,” [Emphasis mine] and it lists 65 behaviors that LAPD officers “shall” report. Included in the list are activities like:

• using binoculars
• taking pictures or video footage with “no apparent aesthetic value”
• drawing diagrams
• taking notes
• taking measurements

(A copy of the LAPD Special Order can be found in the Findings and Recommendations of the Suspicious Activity Report (SAR) Support and Implementation Project, June 2008, Appendix B.)

This special order directs LAPD officers to file a suspicious activity report (SAR) when they observe any of the listed activities. Unsurprisingly, both the Department of Homeland Security (DHS) and the Director of National Intelligence praised the LAPD for Special Order #11. DHS, in partnership with the Major City Chiefs Association, issued a report recommending expanding the LAPD SAR program to other major cities. (DEPARTMENT OF JUSTICE, GLOBAL JUSTICE INFORMATION SHARING INITIATIVE, MAJOR CITY CHIEFS ASSOCIATION
AND DEPARTMENT OF HOMELAND SECURITY, FINDINGS AND RECOMMENDATIONS OF THE SUSPICIOUS ACTIVITY REPORT (June 2008).)

You may be wondering how the LAPD SAR program is linked to fusion centers. Consider the following: DHS , the Department of Justice, the National Intelligence Agency, the FBI and other federal agencies routinely partner with state and local agencies through fusion centers. The question is not whether the LAPD SAR program is being implemented in your locale, but rather which similar program is being implemented in your area.

At this point, it seems appropriate to ask whether there are any rules governing the operation of fusion centers. The answer is, “Yes.” The Department of Justice (DOJ) has established some guidelines for the operation of fusion centers. These guidelines are available online here. But some of the guidelines seem more problematic than protective. If you don’t have time to read all of them, let me bring to your attention some of the more troublesome guidelines. For example, the guidelines include a 6-page list (which it says is “not comprehensive”) of potential information the fusion centers could incorporate. Some of the sources the list includes are:

• Preschools, day care centers, universities, primary & secondary schools and other educational entities providing information on suspicious activity.
• Private physicians, pharmaceutical companies, veterinarians.
• Internet service and e-mail providers, the FCC, telecom companies, computer and software companies, and related government agencies.
• Apartment facilities, facility management companies, housing authorities.
• Private sector entities such as food/water production facilities, grocery stores and supermarkets, and restaurants.
• The gaming industry, sports authority, sporting facilities, amusement parks, cruise lines, hotels, motels, resorts and convention centers.
• State and child welfare entities.

Maybe I’m paranoid, but I’d rather that DHS, DOJ and other law enforcement agencies stay out of my son’s day care unless it’s completely necessary.

As of December 2007, there were fusion centers active in 40 states. Of the 10 state without active fusion centers, fusion centers were under development in 8. The only two states without any fusion centers active or underdevelopment were Hawaii and Idaho. The issue is not whether any information about you is collected, but which information, how much, and the manner of its collection. Once fusion centers acquire information, they compile it and distribute it to law enforcement and government agencies at all levels. What information do they have? We don’t know because of the secrecy surrounding fusion center. But we know they exist. Hopefully the sun will shine on this operation sooner rather than later.

Odie is an economist and lawyer in Milwaukee, where he lives with his adorable son and somewhat annoying wife.