Suspicious to Whom? Reforming the Suspicious Activity Reporting Program to Better Protect Privacy and Prevent Discrimination

Introduction

“The threat from terrorism is real, but we will overcome it. . . . Our success won’t depend on tough talk, or abandoning our values, or giving into fear. That’s what groups like ISIL are hoping for. Instead, we will prevail by being strong and smart, resilient and relentless, and by drawing upon every aspect of American power.”

When President Barack Obama spoke these words in 2015, the United States’ primary conduit for sharing anti-terrorism information within the law enforcement and intelligence community—the National Network of Fusion Centers (“NNFC”)—was already nearly ten years old. The NNFC had been created to connect law enforcement agencies nationwide and to help them share information that would allow them to combat terrorism in the post-9/11 world. By 2015, the collection and dissemination of reports intended to document terror-related incidents and observations, also known as Suspicious Activity Reports (“SARs”), had become critical to this nationwide strategy.

Some say the NNFC has proven itself capable of linking agencies as intended. For example, by 2015, the NNFC already helped connect police agencies nationwide to thwart a domestic terrorist in Minnesota, identify a bombing suspect in Colorado, and convict an individual that was believed to have been planning a “Virginia Tech style” attack in Illinois. Yet, despite these successes, the NNFC remains largely invisible to the American public. Where the NNFC has received attention, it has often been for scandals related to alleged violations of civil liberties, some of which have even resulted in litigation over the collection of information on innocent Americans. In 2012, the U.S. Senate Permanent Subcommittee on Investigations described the program as a “pool[] of ineptitude.” Today, the same fundamental problems that have plagued the NNFC and the SAR Program remain, including the white noise caused by an overabundance of reports, the ambiguity of its rules for enforcement, its over-surveillance of racial and religious minorities, and the potential for privacy harms against any report’s target.

For as long as the SAR program has existed, it has been criticized by lawyers, academics, and social scientists. Some critiques stem from civil liberties groups external to the government, while other critiques arise from within the law enforcement community itself. This Article takes up those critiques and builds on them to suggest workable solutions that will benefit both law enforcement and the American public. Importantly, this Article does not address whether the SAR Program should exist in the first place. Rather, after examining SAR’s origins and touching lightly on the important functions it serves, this Article focuses instead on how the SAR Program can be improved to better protect people’s privacy and prevent discrimination.

The Article proceeds in four parts. Part I explains how the SAR Program arose in the wake of the September 11, 2001 attacks as a solution to a critical flaw in American law enforcement—an inability to share information effectively. Part II describes how the SAR Program functions. This Section analyzes the Functional Standard—the policy framework which undergirds the SAR Program—and reviews how SARs are collected, analyzed, and disseminated. Part III examines the SAR Program’s major criticisms. The Section questions whether the SAR Program meaningfully prevents terrorism, whether its analysts can cope effectively with the “white noise” created by overbroad collection, and whether its reports are, in fact, reliable. This Section also touches on the discriminatory impact of the current SAR Program, including its effects on racial and religious minorities as well as how it can deter free expression. Lastly, Part IV provides various avenues for reform. This Section first examines potential constitutional challenges to the current system. Then, the Section examines various policy recommendations the NNFC could implement, including changing the standards for publishing reports, adopting a heightened review for reports with sensitive information, and implementing a process for notifying targets and providing them with the opportunity to challenge reports pertaining to them. It is my hope that this analysis will help provide insight into how this secretive, but incredibly important, program functions today and how its stakeholders can rectify its shortfalls.

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