Ninth Circuit Upholds Use of Feds’ Terror-Reporting Tool

SAN FRANCISCO (CN) – The Ninth Circuit on Tuesday upheld the government’s use of a terror-reporting tool that critics say puts innocent Americans on a watch list just for being Muslim or engaging in innocuous activities like taking photos in public.

A unanimous three-judge panel held that “reasonable suspicion” is not required to share information about people suspected of engaging in terrorism-linked activities because suspicions are not “the product of investigation” subject to a higher standard.

“Tips and leads required only ‘mere suspicion,’ a lower standard than the reasonable suspicion required for criminal intelligence data,” U.S. Circuit Judge Milan Smith wrote for the panel in a 19-page opinion.

Lead plaintiff Wiley Gill and four other California men sued the government in 2014, claiming police questioned some of them and their neighbors after their names landed on a terror watch list just for practicing their religion, buying computers at Best Buy and, in one case, waiting for one’s mother at a train station.

Launched in 2007 under then-President George W. Bush, the National Suspicious Activity Reporting Initiative (NSI) aimed to fill in gaps in intelligence sharing to help law enforcement identify terror suspects and thwart potential terror plots in the wake of 9/11.

The program operates at three levels. The so-called front lines are local police, who report suspicious activity to “fusion centers.” Fusion center analysts then follow a “functional standard” to decide if an activity meets the criteria for one of 16 defined behaviors and if it has a potential link to terrorism. With those requirements met, a suspicious activity report (SAR) is generated and shared with the FBI and other law enforcement agencies through the federal government’s eGuardian system.

The Ninth Circuit agreed with U.S. District Judge Richard Seeborg’s March 2017 finding that a third version of the “functional standard,” released in 2015, did not require public notice and comment. Finding the standard serves as a mere guideline for field agents rather than a directive, the panel concluded it was therefore exempt from notice-and-comment requirements under the Administrative Procedure Act.

“The functional standard aids agencies in determining whether an individual is engaged in suspicious activity, but the final decision to disseminate an SAR rests in the analyst’s discretion,” Smith wrote.

The panel also rejected plaintiffs’ claims that the standard was arbitrary and capricious for failing to adhere to a “reasonable suspicion” standard required by a separate federal regulation. The information shared did not qualify as “criminal intelligence” subject to a higher standard because it was not “the product of investigation,” the panel concluded.

“From the outset, the [information sharing environment] has consistently pronounced that [a suspicious activity report] need not meet the reasonable suspicion standard in order to expand the base of information gathered,” Smith wrote.

U.S. Circuit Judge Andrew Hurwitz joined Smith on the panel, as did U.S. Court of International Trade Judge Richard Eaton, sitting on the panel by designation.

The U.S. Department of Justice and plaintiffs’ lawyers with the American Civil Liberties Union of Northern California did not immediately respond to emails and phone calls seeking comment Tuesday.

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