MANHATTAN (CN) – The ACLU sued the FBI and National Security Agency for information on the FBI’s eGuardian monitoring system, by which it collects information on “suspicious activity” from law enforcement officials across the country. More than 7,100 “Suspicious Activity Reports” have been collected, the ACLU says, for activities that may include “taking photographs of prominent buildings.”
The ACLU says the FBI took more than a year to answer its FOIA request and improperly withheld materials, and the NSA blew off its request altogether.
The ACLU claims in a federal FOIA complaint that “these records will significantly contribute to the public’s understanding of how local, state and federal authorities have interpreted the broad mandate of the eGuardian program, how they have used the potentially invasive ‘suspicious activity’ reporting system, and whether effective safeguards are in place to protect Americans against unwarranted privacy invasions or discriminatory surveillance based on their race, ethnicity, national origin, religion, or protected beliefs or activities.”
The ACLU says the government cannot regain public confidence in its integrity unless it releases the information.
“The public is increasingly concerned about the ways in which federal, state and local governments collect and use reports of Americans’ ‘suspicious activity’ and the ways in which nationwide programs for sharing such information may violate civil rights and civil liberties,” the complaint states.
“In January 2009, the FBI launched the eGuardian program to track and share information about potential terrorist threats and ‘suspicious activity’ nationwide. Through the eGuardian system, the FBI collects ‘Suspicious Activity Reports’ or ‘SARs’ from local, state, and federal enforcement and intelligence agencies. According to the FBI’s own description of the program, ‘suspicious activity’ that law enforcement officials across the country report, collect, and share includes ‘observed behavior that may be indicative of intelligence gathering or pre-operational planning related to terrorism, criminal, or other illicit intention.’ This vague and broad description may encompass activity as innocuous and commonplace as taking photographs of prominent buildings.”
The ACLU has challenged eGuardian since its inception, claiming the program may expose innocent Americans to racial profiling and other improper police practices.
The complaint states: “The eGuardian system of tracking, analyzing, and widely disseminating Americans’ ‘suspicious activity’ raises grave privacy concerns. Unless carefully implemented and closely monitored, it may encourage illegal and inappropriate profiling on the basis of race, ethnicity, national origin, religion and/or beliefs and activities protected by the First Amendment.
“Although eGuardian has been in effect since January 2009, the public has little information about how local, state, and federal authorities have interpreted the program’s broad mandate and have used the potentially invasive ‘suspicious activity’ reporting system. Americans remain unaware of the kinds of activity that may be deemed ‘suspicious’; how eGuardian information is used; whether effective safeguards are in place to protect Americans against unwarranted privacy invasions or discriminatory surveillance based on their race, ethnicity, national origin, religion, or protected beliefs or activities; and whether the eGuardian system has been abused.
“The public is increasingly concerned about the expansion of government surveillance powers and the concomitant collection and dissemination of information about innocent Americans in ways that violate civil rights and civil liberties. Nationwide ‘suspicious activity’ reporting and information-sharing programs like eGuardian – whether operated by the FBI or another federal agency – have inspired public concern since such programs were first introduced in 2006.”
The complaint cities several media sources that discuss the balance between preventing potential terrorist attacks by focusing on precursor conduct which may not itself be criminal, and protecting privacy and civil rights.
A December 2010 article in The Washington Post by Dana Priest & William M. Arkin, “Monitoring America,” stated that “within the FBI and other intelligence agencies there is much debate about the effectiveness of the bottom-up SAR approach, as well as concern over the privacy implications of retaining so much information on U.S. citizens and residents who have not been charged with anything,” according to the complaint.
The ACLU says similar programs that preceded eGuardian, such as the Pentagon’s TALON system, which monitored activity that qualified as “terrorist threats,” led to widespread abuse.
“TALON was terminated in September 2007 after it was discovered that information on nearly four dozen anti-war meetings or protests was included in the system,” according to the complaint.
The ACLU claims available statistics show eGuardian’s potential for abuse.
“In December 2010, it was reported that some 890 state and local agencies had submitted 7,197 SARs for inclusion in eGuardian, but that only 103 SARs resulted in investigations,” the complaint states. “… Nothing is known about how many of the 7,197 SARs were entered into eGuardian, what standards governed these decisions, how the information was or is being shared, or what protections guard against unwarranted privacy invasions or discriminatory surveillance based on subjects’ race, ethnicity, national origin, and/or religion.”
The ACLU says that “although the use of this nationwide so-called ‘suspicious activity’ reporting and information-sharing program has been the subject of widespread public attention, concern, and debate, the details of eGuardian’s implementation have been shrouded in secrecy.”
In March 2010, the ACLU asked the FBI and the NSA to release all eGuardian-related documents created since January 2006, including incident reports, training materials, intra-agency correspondence and abuse complaints.
The ACLU says the FBI approved its request for expedited processing, but still took more than a year to release records, and withheld the vast majority of them, releasing only 48 of the 226 pages it said it had reviewed.
The ACLU appealed and the FBI failed to produce any additional documents.
The NSA ignored its request and its appeal.
The ACLU wants to see the records. It is represented by Nusrat Jahan Choudhury.
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