Lawsuit Over DHS First Amendment-Violating Suspicious Activity Reports Given Green Light By Judge
from the Get-a-job,-terrorist! dept
Say what you will about the internet, but the nation’s best conspiracy theorists are employed by the US government. A case involving five individuals who ended up in DHS Suspicious Activity Reports (SARs) is being allowed to move forward. What’s remarkable about the lawsuit’s allegations is how little it takes to find yourself on the receiving end of extra surveillance and attention.
At the heart of the lawsuit are the SARs themselves — the paperwork generated with the assistance of “see something, say something” tips from civilians, anything law enforcement/security guards consider to be a “bit off,” and the many scattered DHS Fusion Centers’ desire to appear useful and fundable.
Lead plaintiff Wiley Gill is a white man who converted to Islam as a student at California State University, Chico, and he drew the attention of the Chico Police Department in May 2012. (Chico is about 180 miles due north of San Francisco.) According to the SAR about Gill, the officer entered Gill’s residence in response to an apparent domestic violence incident (Gill was home alone). The officer then saw on a webpage “titled something similar to ‘Games that fly under the radar’” on Gill’s computer.
“Coupled with the fact he is unemployed, appears to shun law enforcement contact, has potential access to flight simulators via the Internet which he tried to minimize is worthy of note,” the SAR, entitled “Suspicious Male Subject in Possession of Flight Simulator Game,” concludes.
Unemployed. Doesn’t hang out with cops. Plays games and uses the internet. All inherently suspicious because of this tenuous thread: the 9/11 terrorists used flight simulators to train for their attacks. (The SAR guidelines warn that “acquisition of expertise” related to “aviation activity” is suspicious enough to be awarded a capital “S.”) Had the Chico Police Dept. bothered to toss a little respect the Fourth Amendment’s way, Gill would likely be nothing more than just some guy looking for a job rather than currently involved in a federal civil rights lawsuit over government surveillance.
This tiny bit of unrelated “data” was gathered by the Chico PD, which entered Gill’s residence without a warrant or his consent. According to the lawsuit filed by the ACLU, the “domestic violence call” that predicated the search of Gill’s residence was likely bogus and only used as justification to search a residence the CPD planned to search anyway. For the better part of two years, Gill had several previous “interactions” with Chico police officers, almost all of them based solely on his appearance (“full beard and traditional garb,” “pious demeanor”) and religious activities.
Gill did nothing more than “look Muslim” and play videogames. Other plaintiffs did little more than commit photography.
Internationally-renowned photographer (and former Sara Lee/Levi’s executive), James Prigoff, became the subject of a Suspicious Activity Report for trying to take photographs of something that has been previously photographed hundreds of times without incident: the “Rainbow Swash” painting that adorns a Boston oil refinery’s storage tank. Prigoff was approached by the company’s security guards and told he couldn’t photograph the oft-photographed storage tank. Despite leaving and providing no contact information, Prigoff was visited by a member of the FBI’s Joint Terrorism Task Force shortly after returning to his home in Sacramento.
Plaintiff Aaron Conklin, a graphic design student, was approached by sheriff’s deputies while photographing a refinery. He was told he would be put on a “NSA watchlist.”
Sometimes, all it takes to appear suspicious enough to report is to stay in the same area for an indeterminate amount of time. Another plaintiff, Tariq Razak, was described by the reporting agency as “surveying entry/exit points” of the Santa Ana Train Depot before leaving with a woman wearing “a white burka head dress.” In reality, he was really waiting for mother (“white burka”), who was using the restroom.
Khaled Ibrahim is a U.S. citizen of Egyptian descent who works for a computer network consulting and service company in Silicon Valley, California. Mr. Ibrahim is the subject of a SAR that the ACLU of Northern California obtained through a Public Records Act request. The SAR describes a “[s]uspicious attempt to purchase large number of computers.” Mr. Ibrahim had attempted to make a bulk purchase of computers from Best Buy in his capacity as a purchasing agent for his company.
The government’s ideas of what might be terrorist-related activity continues to expand. And even as the DHS plumbs the depths of absurdity with its SARs, the real terrorists remain unaffected. As the ACLU notes in its lawsuit on behalf of the five plaintiffs, the GAO itself has called the program worthless, noting that it has produced nothing in the way of “results-oriented outcomes” (arrests, indictments, thwarted attacks) but has done plenty of damage to Americans’ civil liberties.
But the DHS clearly wants to continue violating rights while producing no results. The government moved to dismiss this lawsuit, claiming none of the plaintiffs can prove a “legally cognizable injury” and attempted to put the blame back on the shoulders of local law enforcement agencies. This didn’t sit well with Judge Richard Seeborg.
Defendants primarily frame their challenge to plaintiffs’ standing as a purported failure to allege facts showing causation and redressability. Defendants’ argument characterizes plaintiffs’ supposed injuries as arising, if at all, primarily from the actions of the “front line” state and local law enforcement authorities. Defendants contend plaintiffs have not alleged, and credibly cannot, that the scrutiny they purportedly received from state and local police, or even from private security personnel, was the result of the challenged protocols or other conduct of defendants.
The allegations of the complaint, however, show that the gravamen of the alleged injuries lie not in actions of “front line” authorities standing alone, but in the fact that those authorities, pursuant to the guidance and training provided by defendants, submit SAR reports under criteria and circumstances that are allegedly inconsistent with legal principles and policies embodied in other law. Plaintiffs’ cognizable challenge is not to the conduct of law enforcement or private security officers during the alleged encounters per se, although there is at least some implication that plaintiffs believe Defendants’ Standards lead front line personnel to overreach even at the point of making initial observations. Plaintiffs are claiming injury from what occurs AFTER the encounters, pursuant to the Standards. As such, defendants’ contentions as to causality and redressability both fail.
The harms plaintiffs seek to remedy arise directly from the existence of Defendants’ Standards. If plaintiffs can show those standards violate the APA, they will be declared invalid.
While invoking causality and redressability as the main purported shortcomings of plaintiffs’ standing, defendants also imply that merely being the subject of an SAR, in the national database, should not be deemed a cognizable injury. In light of the privacy and reputational interests involved, however, this argument is not tenable.
The lawsuit will move forward, dragging along with it the tattered reputation of the DHS and its GAO-condemned “Fusion Centers.” When it takes little more than a religious belief and a browser window containing details on flight sim software to raise someone to the level of “terrorist,” the underlying system is not only broken, but swiftly becoming an easy-to-use tool for racial and religious profiling. And when the fear of terrorist attacks is used as a crutch to shut down First Amendment activity, the government itself has gone as far off the rails as those who remain convinced the 9/11 attacks were an inside job. They both gather around the same rally point — the smoking ruins of a terrorist attack — and see nothing in their fellow citizens but enemies on the verge of violence.