Blog of Rights

FBI Official Agrees with ACLU: Suspicionless Surveillance is Ineffective and Counterproductive

By Michael German, Senior Policy Counsel, ACLU Washington Legislative Office at 4:11pm

This week a high-level FBI official made some welcome comments on the NYPD's spying on New York City's Muslim communities and organizations that mirror the ACLU's own position on the suspicionless surveillance.

As you know, we at the ACLU we have long raised concerns about increasing levels of suspicionless surveillance by law enforcement and intelligence agencies, whether enabled though legislation, like the Patriot Act, Foreign Intelligence Surveillance Amendments Act, or proposed cybersecurity bills; or though policy and programs, like the amendments to Attorney General Guidelines (AGG) governing the FBI, state and local intelligence fusion centers, and "suspicious activity reporting" programs, to name but a few.

The ACLU's argument is suspicionless surveillance inappropriately invades the privacy of innocent persons and failing to require a factual basis creating reasonable suspicion and probable cause before initiating surveillance opens the door to biased policing, leading to unconstitutional racial and religious profiling and spying on political activists in violation of their First Amendment rights.

Based on my experience in law enforcement, I have also argued that suspicionless surveillance is ineffective and counterproductive as a security measure because it fills intelligence databases with useless information and undermines community support for legitimate law enforcement and intelligence activities directed at real threats.

Now, we are heartened to hear that the FBI agrees with us (or at least one high-level FBI official does). Newark, N.J., FBI Special Agent in Charge (SAC) Michael Ward has spoken out in opposition to the NYPD spying program:

"But (the NYPD) coming out and just basically mapping out houses of worship and minority-owned businesses, there's no correlation between the location of houses of worship and minority-owned businesses and counterterrorism" work, he continued. Ward also said there should be "an articulable factual basis" for domestic intelligence collection, such as a 'specific reason why we're looking at this location, this person'."

He went on to describe the negative impact these types of operations have on the FBI's relationship with the Muslim community. We couldn't agree more and are pleased to have an FBI official of Ward's stature and experience making such a clear denunciation of suspicionless surveillance.

Unfortunately, the view that both Ward and the ACLU share isn't reflected in the FBI's policies, or its practices. To the contrary, FBI policies permit the kind of surveillance Ward rightly criticizes. The FBI's guidelines were changed in 2008 to remove the requirement of any factual predicate before the FBI initiates intrusive investigations, and the FBI has a "racial and ethnic mapping" program targeting racial, ethnic and religious groups all across the country. In Newark, the FBI used census data to identify and map Latino communities throughout New Jersey in an attempt to assess the threat from MS-13. (We're suing in N.J. because the Newark FBI refused to release other documents in response to our Freedom of Information Act request for racial mapping data).

In fact, the FBI's modified guidelines allow the same type of abusive surveillance the NYPD engaged in, without any factual predicate, and our nationwide FOIA has revealed FBI agents targeting Muslim communities in Detroit, the Chinese and Russian-American communities in San Francisco, and tracking the growth of the Black population in Georgia. The FBI also used community outreach programs as a guise to collect information about the First Amendment activities of peaceful Muslim groups in Northern California for intelligence and investigative purposes.

Also heartening this week were Attorney General Eric Holder comments before the Senate Appropriations Committee characterized the NYPD's behavior as "disturbing" this week while testifying before Congress. We've asked Holder to rein in these abusive racial and ethnic mapping programs and to revise the AGG to require reasonable suspicion before the FBI starts investigations. We've also called on Mayor Bloomberg to investigate the NYPD and for a federal investigation into the use of White House funding in the NYPD's surveillance program. We agree with SAC Michael Ward that suspicionless surveillance is abusive, ineffective and counterproductive, and we appreciate his outspokenness. It's time to put an end to racial, ethnic and religious mapping in all forms, and by all agencies.

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