SAN FRANCISCO (CN) – The attorney for five men targeted as potential terrorists by the U.S. Department of Justice told a federal judge Thursday that the government cannot adequately justify its reasons for violating their privacy.
“If the government wishes to adopt a program that brands innocent Americans that have engaged in no wrongdoing as potential terrorists it must provide a reasonable basis for doing so and allow notice and comment,” said Linda Lye, a senior attorney with the ACLU.
The five men, all U.S. citizens, were put into the DOJ’s Suspicious Activity Reports (SAR) database, which flags people with potential connections to terrorism for innocuous activities like photographing landmarks, buying computers in bulk or playing a flight simulator video game.
One of those men was James Prigoff, an 86-year-old internationally renowned photographer of public art who was in Boston in 2004 taking pictures of a famous art piece called the “Rainbow Swash” when he was asked by private security guards to stop. Because of that incident, FBI agents showed up at his home several months later to question him about his activities in Boston. They also tracked him to his home in Sacramento and questioned one of his neighbors, according to the lawsuit.
In their lawsuit filed in July 2014, the men claim the government’s “functional standard” of what constitutes suspicious activity allows the collection and dissemination of their activities even in the absence of reasonable suspicion. In doing so, the men say it violates the Administrative Procedures Act because it is arbitrary and capricious, and was implemented without notice or comment.
At a hearing on the government’s motion to dismiss, attorney Steven Myers with the Justice Department U.S. District Judge Richard Seeborg that the Nationwide Suspicious Activity Reporting Initiative, in place since 2008, encourages the reporting of suspicious activities in the form of tips and leads, and that not all of these reports lead to criminal investigations.
“The functional standard makes clear that suspicious activities are not criminal behaviors, but SARs can be vetted without finding criminal activity,” Myers said, noting the example of someone who takes flying lessons but skips the lesson that covers landing the plane.
Such a report could eventually lead to a criminal investigation as it makes its way up the chain of law enforcement. Myers said that to impede such reports “would preclude law enforcement from ever writing down the basic building blocks of a case investigation.”
Lye disagreed, arguing that in order to protect constitutional and privacy rights the Code of Federal Regulations Part 23 prohibits law enforcement from disseminating criminal intelligence without reasonable suspicion, a regulation that the government’s suspicious activity reports appear to ignore.
She said the plaintiffs’ issue is not with the gathering of information in the field by law enforcement, but the retention of that information in a government database.
“If they’re not disseminating it outside of themselves, there’s not a problem,” she said.
Seeborg took the matter under submission.