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Everyday Shoppers Reported as "Suspicious" in Counterterrorism Databases

Jay Stanley,
Senior Policy Analyst,
ACLU Speech, Privacy, and Technology Project
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September 8, 2011

Yesterday NPR and the Center for Investigative Reporting released the results of an investigation into “suspicious activity” reports (SAR) at the Mall of America in Minnesota. What they found was that the private “counterterrorism” guards at the mall had stopped and questioned on average up to 1,200 people each year, and that at least 125 people were the subject of SAR, many of which were forwarded to the FBI, the Joint Terrorism Task Force, Immigration and Customs Enforcement (ICE), or the Minnesota fusion center.

There are several elements that make this story noteworthy:

  • Suspicious activity reporting. This Mall of America incident is part of a much larger program of federal-to-local suspicious activity reporting of recent years that encourages law enforcement officers, intelligence and homeland security officials, emergency responders, and even the general public to report the “suspicious activities” of their neighbors to the government. And, these programs often list as “suspicious” a broad array of innocuous and commonplace activities, such as using a camera or binoculars, taking notes, taking measurements, asking questions, or having three young persons in a boat.
  • Racial profiling. With such broad criteria for “suspicion” being pushed, the result is predictable: racial profiling. NPR’s analysis of the suspicious activity reports found that 65% of the subjects were non-white – Middle Eastern, Black, Hispanic, Indian or Asian. Yet, whites make up more than 70 percent of the U.S. population.
  • The war against photographers. In 47 of the 125 cases, the subjects of these reports were stopped because they were taking photographs or video – a dramatic illustration of the fact that American police and security personnel continue to think that taking photographs is a precursor to terrorist activity. This despite the fact that it’s nonsense – neither the 9/11 terrorists nor any other terrorists in recent memory seem to have utilized photography as part of their plots. Because we’ve been seeing this problem across the country, yesterday we published a set of resources on the rights of photographers.

We at the ACLU have been warning against overzealous “suspicious activity” reporting for many years, from our 2004 Surveillance Industrial Complex report, to our 2007 and 2008 Fusion Center reports and elsewhere. We successfully worked to push the Office of the Director of National Intelligence to improve its “suspicious activity” reporting guidelines. Recently, we filed a lawsuit seeking information about the FBI’s eGuardian “suspicious activity” reporting program because of our concern that it permits improper surveillance.

While new, concrete evidence that abuses are continuing to take place is troubling, it is gratifying to see that these abuses are being made public through solid investigative reporting such as the NPR and Center for Investigative Reporting investigation.

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