The next time you want to take a photograph in public, take pause, for that snapshot may land your personal information in federal counter-terrorism databases for the next 30 years.
Photographers, both amateur and professional, as well as tourists, artists, college students, contractors, engineers, journalists, activists and others, have been secretly reported to the FBI by Los Angeles County sheriff’s deputies for nothing more than taking pictures, according to documents obtained from a public records request filed by the ACLU of Southern California. (See below.)
The request comprises 104 Suspicious Activity Reports, or SARs, a type of report that is filed when law enforcement believe they have witnessed behavior that may be linked to terrorism. Anyone who takes photographs of what might be considered critical infrastructure, such as cityscapes, public transportation or industrial facilities, are subject to being reported.
Peter Bibring, a senior staff attorney for the ACLU of Southern California, said photography is the second most common reason SARs are filed, the first being abandoned packages. He has two concerns about connecting photography to terrorism. First, he said, is a person’s encounter with law enforcement, such as being detained and questioned for engaging in lawful activity.
“You take an officer who has been trained that photography indicates terrorism and ask that officer to interact with somebody taking pictures, the concern is they are going to unjustifiably act as if the person is a terrorist,” he said. “What we are seeing is officers acting as if simply taking photographs on a public street gives them reason to believe you are a terrorist and then therefore detain you.”
Secondly, Bibring questions what will happen to a person once their personal information is in counter-terrorism databases. For instance, it is not yet known if such SARs will lead to future police detentions, difficulty in traveling or finding government work.
“There is concern that by including such innocuous information in a database of potential terrorists, the government will convey the impression that where there is smoke there is fire,” he said. “It’s just unclear what effect being listed in those databases may have.”
Since the creation of the SAR program, the Dept. of Justice had been concerned with civil liberties, stressing the need to properly train officers for reporting on suspicious behavior. In 2012, 700 law enforcement officers were surveyed by the program’s Program Management Office regarding its SAR Line Officer Training. Eighty-four percent said they were provided “abundant information on the protection of privacy, civil rights, and civil liberties.”
“Ensuring that SAR information is properly reviewed and vetted is critical to … protecting citizens’” rights and liberties, states the program’s 2012 yearly report. But, what the Justice Department thinks is protecting rights and liberties differs with those on the receiving end of the SAR program.
The ACLU of Southern California is currently suing the sheriff’s department for violating the rights of photographers, which is why the SARs they have obtained focus solely on photography. The lawsuit concerns three LA-area photographers who had been detained and questioned numerous times by deputies. One such encounter was recorded in 2009 and posted on YouTube by Shawn Nee, one of the plaintiffs in the lawsuit.
Nee was taking photographs of the Hollywood-Western Metro station when approached by a deputy. Although Nee was doing nothing illegal, he was told he was being detained because taking photographs was “against MTA rules,” which it is not. Nee was asked for his ID and questioned as to why he was taking photographs.
“I want to know if you are in cahoots with al-Qaida,” explained the deputy in the video.
One notable trait of the SARs obtained by the ACLU was the aggressiveness with which some deputies would approach subjects. In some cases, after deputies obtained an individual’s personal information via their vehicle license plates, they would contact the subjects at home, asking for an explanation of their photography. One SAR documents how two subjects felt compelled to email their photographs to law enforcement in an effort to clear their names.
Deputies at times would ask for possession of a subject’s camera to view the photographs. If a subject refused, it appeared only to heighten their suspicions of the subject. In some cases, subjects were informed, either by deputies or private security, their photography was not allowed and told to leave the area.
“Most of the problems arise on public streets, where people have a right to be and there is no law limiting photography,” said Bibring. “Too often that takes the form of an actual detention, even when there is no basis to think that the person is violating any law.”
Part of the problem with the SAR system, said Bibring, is in its loose legal language. Critics in the legal community have said the FBI’s standard for initiating a SAR, that observed behavior must be “reasonably indicative” of planning a terrorist attack, is vague and outside the long-standing, legal norm of “reasonable suspicion.”
“To a lawyer, the fact they say “reasonably indicative” instead of “reasonable suspicion” is very obvious,” said Bibring. “They are deliberately avoiding a legal term that courts, civil liberties advocates and police officers all know how to define and are instead using a new term, the meaning of which is not clear or not known.”
The vague language, said Bibring, invites an officer’s biases into the equation. As an example of such biased intelligence gathering, Bibring cites a sheriff’s department SAR on four Middle Eastern-looking men that were taking photographs of LA’s skyline while driving along the 110 freeway. The car’s license plate was taken down. The owner’s name was later checked “in all databases,” but the search revealed no hits.
“The fact that somebody is taking a photograph from a moving car doesn’t suggest they are engaged in terrorism,” said Bibring. “That raises some concern that what motivated that report was the ethnicity of the people involved.”
An LA Activist review of the SARs revealed that 58 percent of the sheriff’s department SARs did not identify the subject’s race. Of those that did, however, half were on people who were described as Middle Eastern. Whites made up the second biggest racial group, with 27 percent. The Stop LAPD Spying Coalition, which is working to rescind the LAPD’s SARs policy, has found LAPD SARs to focus mostly on non-whites.
Eighty-seven percent of the reported subjects by deputies were males.
Of the subjects reported in the SARs, 44 percent were identified, either because the subject relinquished their ID or their vehicle license plate numbers were written down. Though more than half of the reports were originated by sheriffs, 38 percent came from informants, such as private security.
Not all of the SARs were accepted by the FBI, but a majority — 55 percent — were entered into databases where the reports are shared with law enforcement across the country. Twenty-one percent of the SARs did not say specifically if they were entered into databases. However, whether or not a person’s behavior is believed to be connected to terrorism or not, their personal information will remain in one of the FBI’s databases for 30 years anyway.
The reporting done by the sheriff’s department or LAPD is not an anomaly; it’s nearly everywhere. It is part of the Nationwide Suspicious Activity Reporting Initiative. The program, which was launched by the Dept. of Justice in 2007 and spearheaded by the LAPD in 2008, has local law enforcement reporting on people’s behavior they believe may have a relationship to terrorism, whether criminal or innocent.
A total of 14,200 local law enforcement agencies in 46 states, as well as Washington, D.C. and two U.S. territories are involved in the program. There are currently 296,000 law enforcement personnel trained in the SAR program, including an additional 72,500 non-law enforcement or private sector personnel.
The goal of the program is to track trends and locate potential threats. The FBI currently has no means of tracking the program’s success, according to a March 2013 audit by the Government Accountability Office. Thus, despite more than 1,200 SARs-initiated investigations as of September 2012 and a 750 percent increase in reporting from January 2010 to October 2012, it is difficult to know if SARs are doing much of anything.
The best the Justice Department can offer is anecdotal evidence of its success, but, in light of the Boston Marathon Bombing this year, it’s not much to get excited about.
In the SAR program’s 2012 annual report, one such story concerns Los Angeles. An acting Terrorism Liaison Officer at LA’s local fusion center wrote a SAR on a man who identified himself as an information technology contractor. After the contractor asked several questions concerning the buildings, floor plans and equipment located at a NASA-related facility in LA County, the individual was deemed suspicious. As a result of the SAR, the contractor was denied access to the information.
Although the report does say this story “shows the importance of recognizing behaviors” associated with terrorism, it does not explain if the contractor was connected to terrorists or terrorist organizations or if the individual had been doing anything illegal.
Critics argue the SARs program marks a shift in law enforcement. Their traditional role of peace officers has morphed into their becoming part-time intelligence agents, and as a person may have once expected to be treated innocent until proven guilty, being viewed with suspicion puts a reported subject between a rock and a hard place.
These criticisms of the SAR program are probably not heard louder than in Los Angeles, which has become a bastion of resistance to the program. This city might be the nation’s best hope for those wanting substantive changes in the SAR program.
In addition to the ACLU’s pending lawsuit against the sheriff’s department, the LAPD was forced to revise their standards for writing SARs in 2012 after taking heat from the ACLU and various Muslim groups.
Due to pressure from the Stop LAPD Spying Coalition, the city’s Human Relations Committee will be opening up the LAPD’s participation in the SAR program for public discussion. Whether the committee agrees to have hearings or forums is yet to be determined, but they are expected to begin early next year.
“We really hope that these are content-driven and evidenced-based hearings that allow a real examination so that people are aware of what this program is in depth and how it affects us,” said Esteban Gil, a researcher for the coalition.
The Stop LAPD Spying Coalition is currently planning how best to approach these future hearings or forums. They are also reaching out to neighborhood councils for support in building a broader movement.
“We have a right to not be profiled based on how we look and not have our privacy violated,” said Gil. “We have a right not to be held to meaningless, undefined standards, like ‘reasonably indicative,’ for what triggers investigations on us by the state.”