Several misguided DHS intelligence programs reveal that DHS is overreaching in its efforts to establish an effective role in the Intelligence Community.
Laptop Searches. In July 2008, CBP issued a new “Policy Regarding Border Search of Information,” which permits CBP to search, copy, and retain the content of traveler’s electronic devices – such as laptops, cell phones, blackberries, and external hard drives – without any suspicion of wrongdoing. These highly intrusive government searches into a traveler’s most private information, without any reasonable suspicion, are a threat to the most basic privacy rights guaranteed in the Constitution. Suspicion-less searching or retention of the vast array of personal data, documents, pictures and communications typically stored on a traveler’s laptop or other electronic storage device could also have a chilling effect on the free exchange of ideas and beliefs. For more about the ACLU’s lawsuit challenging laptop searches, see here.
Behavioral Profiling. Another dubious DHS program that is justly beingcriticized as an ineffective waste of resources with serious implications for the rights of innocent travelers is the Transportation Security Administration’s behavioral assessment program, Screening Passengers by Observation Technique (SPOT). Like the suspicious activity reporting program, SPOT is based on the theory that observable behavioral and appearance indicators can be used to detect terrorists and other threats to aviation before they act. A 2010 Government Accountability Office (GAO) study revealed that TSA trained and deployed about 3,000 behavioral detection officers, some of which are private contractors, to 161 airports nationwide at a cost of over $200 million per year, despite the fact that no behavioral detection program has ever been scientifically validated and there is considerable doubt among scientists about the methodology. In fact, GAO reported that behavioral detection officers referred 152,000 travelers to secondary inspection without ever identifying a terrorist, while at least 16 individuals allegedly involved in terrorism plots moved at least 23 different times through eight airports where the SPOT program has been implemented. In addition to the unnecessary secondary screening of tens of thousands of innocent passengers, profiled based on their appearance and behavior, flawed assumptions about what is “suspicious” has led to illegal detentions of travelers based on their mere possession of Arabic flash cards or their possession of a few thousand dollars in cash. Untested behavioral detection theories pose a serious risk to civil liberties, because these behaviors are so commonplace they open the door to suspicion based on pre-conceived biases. TSA Behavioral Detection Officers have been found to have engaged in racial profiling in airports in Newark, Honolulu, andBoston.
Targeting Peaceful Political Groups. DHS intelligence analysts have also unfairly targeted non-violent protest groups from all sides of the political spectrum for scrutiny over the last several years with inappropriate and factually flawed intelligence products. For example, in 2007 DHS intelligence analysts conducted an eight month study of the Nation of Islam, even though they later admitted the organization neither advocated nor engaged in violence. In 2009, DHS published an assessment warning that abortion and immigration opponents and “disgruntled military veterans” might become right-wing extremists. Similarly, a private contractor produced an intelligence report for DHS that smeared environmental organizations like the Sierra Club, the Humane Society and the Audubon Society as “mainstream organizations with known or possible links to eco-terrorism.” A DHS analyst at a Wisconsin fusion center prepared a report about protesters on both sides of the abortion debate, despite the fact that no violence was expected at the protest. A number of similarly faulty reports were produced at DHS-funded fusion centers. Maligning peaceful political organizations not only infringes on the rights of these groups and those who associate with them, it also wastes security resources and undermines public confidence in the government.
Monitoring Lawful Protests. DHS has also been involved in monitoring lawful protests. In 2008 the ACLU of Maryland uncovered a Maryland State Police (MSP) intelligence operation that targeted 23 non-violent political advocacy organizations – such as anti-death penalty and peace groups – based solely on the exercise of their First Amendment rights. DHS originally denied that it had any information regarding these local investigations, but documents obtained by the ACLU of Maryland later revealed that DHS was involved in collecting and disseminating the e-mails of one of the peace groups subjected to the MSP spying. A DHS spokesman quoted in the Washington Post then admitted that law enforcement agencies exchange information regarding planned demonstrations “every day.”
Indeed, a March 2006 “Protective Intelligence Bulletin” issued by the Federal Protective Service (FPS) lists several advocacy groups that were targets of the MSP operations, and contains a “civil activists and extremists action calendar” that details dozens of demonstrations planned around the country, mostly peace rallies. FPS apparently gleans this information from the Internet. However, it is still not clear under what authority DHS officials monitor the Internet to document and report on the activities of “civil activists”, since there is no indication anywhere in the document to suggest illegal activity might occur at any of these demonstrations. What is clear is that FPS spying operations targeting peaceful activists serve no legitimate law enforcement, intelligence or homeland security purpose.
Domestic Satellite Surveillance. In 2007 DHS, in cooperation with the Director of National Intelligence (DNI), established the National Applications Office to facilitate domestic law enforcement access to U.S. military spy satellite technology and imagery. The ACLU and key members of Congress stronglyobjected to the use military satellites to spy on Americans inside the United States and DHS finally shut the program down in 2009.