The attention of most in Congress, the media, and the privacy rights community has been focused this spring on the looming Foreign Intelligence Surveillance Amendments (FAA) Act Section 702 reauthorization fight, generally for good reasons. However, other expansions of domestic surveillance powers and data sharing are getting far less attention—and one such measure before the House today may dramatically expand the kind of information state and local law enforcement agencies can get from the federal government.
Introduced on April 26 by Rep. John Katko (R‑NY), the “Improving Fusion Centers’ Access to Information Act” (HR 2169) is designed to plug any “information gaps” in state “fusion centers” by modifying the Homeland Security Act of 2002 to require DHS to
identify Federal databases and datasets, including databases and datasets used, operated, or managed by Department components, the Federal Bureau of Investigation, and the Department of the Treasury, that are appropriate, in accordance with Federal laws and policies, to address any gaps identified pursuant to paragraph (2), for inclusion in the information sharing environment and coordinate with the appropriate Federal agency to deploy or access such databases and datasets;
If the sound of this makes you feel uncomfortable, it should for several reasons—not the least of which is the last‐minute decision by the Obama administration to make more raw (and thus potentially unverified or inaccurate) intelligence from the National Security Agency available to the FBI, and thus other law enforcement agencies the FBI decides need the data.
What makes Katko’s bill—which is coming to the House floor under expedited consideration via a legislative procedure known as “suspension of the rules”—even worse is that it ignores the 2012 findings of a Senate Homeland Security Committee report that found that state fusion centers were at best worthless, and at worse Bill of Rights violation factories.
In the press release on the committee report, then chairman Senator Tom Coburn (R‑OK) stated, “It’s troubling that the very ‘fusion’ centers that were designed to share information in a post‑9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.”
Coburn went on to note:
Unfortunately, DHS has resisted oversight of these centers. The Department opted not to inform Congress or the public of serious problems plaguing its fusion center and broader intelligence efforts. When this Subcommittee requested documents that would help it identify these issues, the Department initially resisted turning them over, arguing that they were protected by privilege, too sensitive to share, were protected by confidentiality agreements, or did not exist at all. The American people deserve better. I hope this report will help generate the reforms that will help keep our country safe.
Among the report’s findings:
- The Department of Homeland Security estimated that it had spent somewhere between $289 million and $1.4 billion in public funds to support state and local fusion centers since 2003, broad estimates that differ by over $1 billion.
- The investigation found that DHS intelligence officers assigned to state and local fusion centers produced intelligence of “uneven quality – oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already‐published public sources, and more often than not unrelated to terrorism.”
- DHS officials did not provide evidence to the Subcommittee showing unique contributions that state and local fusion centers made to assist federal counter terrorism intelligence efforts that resulted in the disruption or prevention of a terrorism plot.
- The investigation also found that DHS did not effectively monitor how federal funds provided to state and local fusion centers were used to strengthen federal counterterrorism efforts. A review of the expenditures of five fusion centers found that federal funds were used to purchase dozens of flat screen TVs, two sport utility vehicles, cell phone tracking devices and other surveillance equipment unrelated to the analytical mission of an intelligence center. Their mission is not to do active or covert collection of intelligence. In addition, the fusion centers making these questionable expenditures lacked basic, “must‐have” intelligence capabilities, according to DHS assessments.
I don’t for a minute doubt John Katko’s patriotism or desire to protect Americans from legitimate threats. What I do question is exactly how much research he and his staff did on how useless these fusion centers are and how giving them access to even more information on innocent Americans will only increase the risks that people with no connections to terrorism will become victims of state and local law enforcement “counterterrorism” witch hunts. That the bill is considered “non‐controversial” by the House leadership is a testament to how little regard they have for the Fourth Amendment rights of the citizens they were elected to represent.
