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Government Surveillance

The Fusion of Paranoia and Bad Policy

Last week, the Missouri Information Analysis Center (the Missouri fusion center) retracted a report entitled "The Modern Militia Movement" which said that support for mainstream third party presidential candidates was indicative of involvement in violent militia groups. The Missouri fusion center’s characterization of people engaged in legitimate political activity as potentially dangerous drew public condemnation and raised questions about oversight of fusion center activities.

The report put red flags on those supporting former candidates Ron Paul, Bob Barr and Chuck Baldwin. In addition, the report’s list of indicators for militia involvement included such relatively commonplace activities as discussion of conspiracy theories, bumper stickers depicting U.S. agencies in a bad light, and opposition to controversial government policies like NAFTA and restrictive gun laws. A section of the report entitled "You are the Enemy" encouraged police officers to view individuals with such characteristics as possible violent threats.

The Missouri fusion center is one of about 60 such state or local centers created across the country since 9/11, often with federal funding. Fusion centers gather crime and terrorism-related information from a variety of sources, including law enforcement officers, private sector entities and anonymous tipsters. They analyze or "fuse" this data in an attempt to identify patterns of terrorist or criminal operations and to provide reports to a range of organizations, such as other government agencies at the state, local and federal level. Federal strategy calls for sharing fusion center data nationwide. Fusion centers are, according to DHS Secretary Napolitano, "the centerpiece" of the information sharing movement that is currently transforming the practice of law enforcement and domestic intelligence in the U.S.

Fundamental Misunderstanding
That is why the Missouri fusion center’s report was of such concern, since it showed a fundamental misunderstanding of the difference between legitimate dissent and violent extremism, and highlighted the lack of controls and oversight on fusion centers. Most people that fit some or all of the report’s criteria are not violent and not members of militias, yet "The Modern Militia Movement" does not suggest any evidence to back up its assertions. Nor does the report refer to any safeguards police should apply, such as requiring a criminal predicate before gathering data on individuals who fit the profile. In his March 18, 2009 testimony, CDT senior counsel Greg Nojeim cited a similar report from a fusion center in Texas that warned against religious tolerance and asked police officers to gather information on lobbying activities of Muslims. The repeated appearance of such misguided intelligence reporting calls into question the effectiveness of rules that are supposed to guide domestic intelligence and information sharing.

"The Modern Militia Movement" was leaked the very same day Secretary Napolitano visited the Missouri fusion center. Her visit coincided with a conference in which Missouri Governor Jay Nixon and senior staff for the federal "Information Sharing Environment" program touted the strong protections fusion centers afford privacy and civil liberties. Initially, officials at the Missouri State Highway Patrol defended the report’s contents. However, the Highway Patrol retracted the report following the issuance of indignant letters from the third party candidates and public uproar over the report’s contents. Gov. Nixon blamed the "overzealousness" of a Highway Patrol unit and revealed that no one in his administration had reviewed the report before it was distributed to police statewide. Evidently, however, the report had been reviewed by the fusion center director.

In retracting the report, the superintendent of the Missouri Highway Patrol stated that the report did not meet the agency’s quality standards. Instead, both the superintendent and Gov. Nixon framed the shortcomings of "The Modern Militia Movement" as an oversight issue. Although Gov. Nixon stated that no one in his administration had reviewed the report, it is unclear whether Nixon’s administration had an existing duty to do so, or whether the usual oversight had been applied in this case. After all, the director of MIAC had himself reviewed and approved of the report before distributing it to police departments statewide. It remains to be seen whether adding Nixon’s administration as an extra layer of oversight will be effective in correcting "overzealous" reports in the future.

Chronic Flaw in Sharing Efforts
This episode demonstrates a chronic flaw in information sharing efforts, and that is a lack of adequate guidance on how domestic intelligence should be gathered with respect for political rights. The sharing relationships between law enforcement agencies appear to lack a clear chain of authority, resulting in oversight that is spotty at best. Higher-level government agencies are not adequately overseeing law enforcement’s information sharing activities, just as the Nixon administration was not overseeing MIAC. And just as MIAC’s report did not meet the Highway Patrol’s quality standards, many agencies’ databases already store and share information that falls below their own internal quality standards.

Missing from the Missouri fusion center debacle is a substantive discussion about political profiling and oversight, rather than just corrective measures proposed as damage control in response to public outrage. A transparent system of comprehensive guidelines and independent oversight is necessary for information sharing to work on the scale the government envisions. Digital technology enables fusion centers to gather, analyze and share more data than ever before; these powerful investigative and analytical tools require more robust privacy protections. Providing for oversight on paper is not enough, since agencies already have data quality policies to which they are not adhering.

Keep in mind that "The Modern Militia Movement" is just one of only a few such reports that have been made public. With numerous reports generated and shared through the fusion centers in nearly every state, it is likely that more "overzealous" reports are being produced and circulated and may be improperly influencing law enforcement activity. No one seemed to know this particular report was a problem until it was leaked to the internet and the public expressed anger and astonishment. Had that not happened, "The Modern Militia Movement" might still be quietly circulating among police departments while government officials continued to laud the integrity of their civil liberties protections.