Participating agencies that create SARs have the discretion of not including personal information in the report as another privacy protection. Generally that decision is based on state privacy laws if they’re more strict than federal law. O’Reilly says that about 75 percent of all SARs do not contain PII. According to the SAR functional standard, even reports that do not include PII contain enough information to “support sufficient trending and pattern recognition to trigger further analysis” by NSI participants.
There are also methods of redress for individuals who were the subject of a SAR, notes O’Reilly. Persons who feel that they were inappropriately placed into the network can file a request with the appropriate fusion center to purge their information from that SAR report.
O’Reilly says the federal government instituted these safeguards after incidents where local, state, and federal law enforcement singled out nonviolent groups for investigation without evidence of criminal wrongdoing. While the number of transgressions are viewed as “de minimus out of the overall level of traffic that we’re dealing with,” explains O’Reilly, the NSI-PMO understands that the only way SAR programs will be effective is if people trust that law enforcement and federal domestic intelligence agents will not abuse their power.
After listening to complaints about SAR programs from civil liberties groups in 2008, O’Reilly notes that the federal government revised its SAR functional standard the next year to restrict law enforcement officers from creating a SAR unless there is a reasonable connection to terrorism. It also affirmed that activities like photography are protected under the First Amendment and that officers must be able to articulate why they stopped someone for engaging in activities that are ordinarily viewed as innocent.
Former FBI Agent Mike German, the ACLU’s national security, immigration, and privacy counsel, states that while his organization appreciates that NSI-PMO is open to working with the civil liberties and privacy community, the ACLU doesn’t believe “collecting innocuous behaviors of people is a good methodology.”
Rather, the ACLU believes that the SAR initiative only leads to more improper police stops of people who are doing nothing more than engaging in constitutionally protected activities such as photography.
He points to an incident last winter where a photographer in front of the White House was confronted by the Secret Service for taking pictures of them. In the video posted on YouTube, the photographer asks the officer whether he can stop him for taking pictures. “We do that a lot,” the officer tells the photographer, adding that the photographer looks suspicious.
German said such incidents demonstrate why SAR programs should not exist. “But if they’re going to exist,” he said, “the ACLU is pleased government takes its concerns seriously.”
Currently, the NSI-PMO is creating a SAR training program for employees who work at privately owned U.S. critical infrastructure facilities. The goal is to encourage private security personnel and employees to report to local law enforcement or their nearest fusion center any suspicious activities they encounter.