Responding to complaints, police in Los Angeles will change how they collect and store so-called “suspicious activity reports” that authorities argue could reveal the planning stages of a terrorist attack. Civil liberties groups have long been critical of the now-nationwide initiative, pioneered in part by a former commander at the Los Angeles Police Department who identified more than 60 behaviors and activities considered to be typical for terrorists.
Many of the behaviors do not violate known rules or laws, particularly those on a list distributed internally at the department in 2008 that included “espousing extremist views” and taking photographs and video “with no apparent aesthetic value.”
Groups like the Muslim Public Affairs Council are calling changes the department recently agreed to a victory for civil liberties. They and others have worried that the initiative would disproportionately affect racial and religious minorities. Practitioners of Sikhism from India, for instance, are sometimes confused with Muslims, who are themselves often perceived to be the primary perpetrators of terrorism.
“Putting in specific and explicit language that says officers can only retain information if there is a situational context and facts to back up such a claim, which reasonably indicate criminal activity might be taking place – this helps to strengthen civil liberties protections,” said Alejandro Beutel, a policy analyst at the council. “Without that kind of language, our officers are essentially running on hunches and ‘gut instincts,’ not evidence. To us, that is very substantive change.”
The Center for Investigative Reporting last year partnered with National Public Radio to examine a suspicious activity reporting program at the sprawling Mall of America in Minnesota. Documents showed that shoppers were questioned for leaving a cellphone behind in a food court, taking photographs and writing in a notebook. One Pakistani family received a visit from the FBI at their home following a run-in at the mall.
Attempts by CIR in 2010 to obtain and examine suspicious activity reports from Los Angeles under the state’s open-government laws were denied. But authorities did turn over limited statistics to community groups. Those figures show that Los Angeles police by 2010 had forwarded 2,670 suspicious activity reports to a regional intelligence fusion center, one of dozens created after the Sept. 11, 2001, hijackings for police to collect and analyze terrorism tips. “Noncriminal” activities were among those commonly reported, advocates contend.
According to the Muslim Public Affairs Council, the compromise in Los Angeles includes a requirement that reports that target groups or individuals have a connection to criminal activity, law enforcement surveillance more generally must have a nexus to terrorism, and reports that don’t meet the standards shall be purged. Advocates also say a local watchdog office in Los Angeles known as the inspector general will audit suspicious activity reports in the future and make the results public.
Suspicious activity reports are shared among law enforcement agencies across the country – an idea that took on a sense of urgency when it was discovered that plans by the 9/11 hijackers could have been identified sooner.
Records documenting suspicious activity can contain names and other types of personal information belonging to people who have been stopped and questioned but have done nothing wrong. Other reports involve things like bomb threats that might not contain a name but could indicate a larger pattern over time. That's what authorities hope to accomplish: detect threats across an array of reports that might on their own describe only innocuous activity.
Homeland Security Secretary Janet Napolitano has turned suspicious activity reporting into a national campaign, with new formal participants announced regularly, including industry organizations that represent private security and professional athletic associations that hold major sporting events. Hot-dog vendors were even trained to spot potential terrorism at the February Super Bowl in Indianapolis.
It remains to be seen how much the reforms in Los Angeles will truly alter the work of everyday patrol officers. Despite community groups calling their efforts a success, the LAPD’s counterterrorism head, Michael Downing, told a trade publication that “there is no real substantive change.” Officials adopted a boilerplate definition of suspicious activity used by the federal government and included a note on “reasonable suspicion” – a legal concept established by the Supreme Court in 1968 to regulate when police could frisk someone on the street without probable cause.
Any battle over the constitutional implications of such programs is likely to continue.
“This would be constitutional under existing law, as long as the government is not doing this in a discriminatory manner,” said University of Chicago law professor Geoffrey Stone. “There may be some constitutional limitations on the government’s use or preservation of such information, but at present, such limitations do not exist, except perhaps in truly egregious circumstances.”