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Taking Liberties Innocent Activities Could Place You in the Fed’s Anti-Terrorism Database

Alex Constantine - August 27, 2014

"... Even when the Federal Bureau of Investigation concludes that the person did not have any nexus to terrorism, a SAR can haunt that individual for decades, as SARs remain in federal databases for up to 30 years. ..."

By Elizabeth Warmerdam

Five California men recently sued the US Department of Justice, claiming they were entered into a counterterrorism database for innocent activities such as a professional photographer taking pictures, a computer consultant buying computers at Best Buy and in one case waiting for one’s mother at a train station.

The lawsuit, filed by the ACLU and the Asian Americans Advancing Justice-Asian Law Caucus on behalf of lead plaintiff Wiley Gill et al., challenges the Suspicious Activity Reports (SAR) database, which flags people with potential connections to terrorism.

The men, all US citizens, say they were put into the database for innocuous activities such as photographing landmarks, or viewing a website about videos in his home.

One says his “suspicious activity” was “standing outside a restroom at a train station while waiting for his mother.”

The reports are part of the National Suspicious Activity Reporting Initiative, in which the federal government encourages state and local law enforcement agencies to collect and report information that may be connected to terrorism. The reports are maintained in various counterterrorism databases and disseminated to law enforcement agencies across the country, according to the complaint.

“An individual who is reported in a SAR is flagged as a person with a potential nexus to terrorism and automatically falls under law enforcement scrutiny which may include intrusive questioning by local or federal law enforcement agents. Even when the Federal Bureau of Investigation concludes that the person did not have any nexus to terrorism, a SAR can haunt that individual for decades, as SARs remain in federal databases for up to 30 years,” the complaint states.

The Department of Justice and the program manager of the Information Sharing Environment, both named as defendants, specify what kind of information should be reported in the databases, as well as what types of behavior should be reported as suspicious.

“These behavioral categories range from the constitutionally protected (photographing infrastructure) to the absurd (‘acting suspiciously’),” the complaint states.

The five plaintiffs say they came under scrutiny despite doing nothing wrong.

James Prigoff, an 86-year-old internationally renowned photographer of public art, was in Boston in 2004 taking pictures of a famous piece of art called the “Rainbow Swash” when he was asked by private security guards to stop. Because of that incident, FBI agents showed up at his home several months later to question him about his activities in Boston. They also questioned one of his neighbors, according to the lawsuit.

“All I was doing was taking pictures in a public place, and now I’m apparently in a government terrorism database for decades,” Prigoff said in a statement issued by the ACLU.

“This is supposed to be a free country, where the government isn’t supposed to be tracking you if you’re not doing anything wrong. I lived through the McCarthy era, and I know how false accusations, surveillance, and keeping files on innocent people can destroy careers and lives. I am deeply troubled that the SAR program may be recreating that same climate of false accusation and fear today.”

Gill, a custodian at a state university who converted to Islam while a student, had his name put in the database after being identified as a “Suspicious Male Subject in Possession of Flight Simulator Game,” according to the lawsuit.

The report was filed after a search by the Chico Police Department in 2012. The report states that “Mr. Gill’s computer displayed a screen titled something to the effect of ‘Games that fly under the radar,’ which appeared to be a ‘flight simulator type of game.’ The SAR concludes by describing Mr. Gill’s ‘full conversion to Islam as a young WMA [white, male adult],’ ‘pious demeanor,’ and ‘potential access to flight simulation via the Internet’ as ‘worthy of note,’” the complaint states.

In reality, Gill believes he was viewing a website about a video game on his computer at home, the complaint states.

“The only reason that someone deemed Mr. Gill ‘suspicious’ is because he is a devout Muslim, not because he has done anything wrong,” Asian Americans Advancing Justice-Asian Law Caucus attorney Nasrina Bargzie said in a statement. “With such a lax standard, it’s not surprising that the result is religious profiling of this nature. Racial and religious profiling of Arab, Middle Eastern, Muslim and South Asian communities needs to stop.

Khaled Ibrahim, a US citizen of Egyptian descent who works for a computer network consulting and service company, was flagged for trying to make a bulk purchase of computers from a Best Buy retail store as a purchasing agent for his company, the complaint states.

Tariq Razak, a US citizen of Pakistani descent who works in the biotech industry, is identified in one of the reports as a “Male of Middle Eastern decent [sic] observed surveying entry/exit points” at the Santa Ana Train Depot. He is described as exiting the facility with “a female wearing a white burka head dress,” according to the complaint.

Razak was trying to find his way to the county employment resource center, inside the depot, for an appointment. The woman with him was his mother, according to the complaint.

Aaron Conklin, a graphics design student and amateur photographer, was reported in the database after private security guards prevented him from taking pictures of industrial architecture from public locations, including outside the Shell refinery in Martinez, the complaint states.

Despite tens of thousands of reports having been uploaded to the databases, a US Government Accountability Office investigation faulted the program for failing to demonstrate any actual results, such as arrests, convictions, or thwarted threats to the country, the complaint states.

Additionally, a Senate subcommittee that reviewed a year of similar intelligence reporting from state and local authorities in 2012 found “dozens of problematic or ‘useless’ reports ‘potentially violating civil liberties protections,’” according to the complaint.

Despite a 1978 Justice Department regulation prohibiting the collection and dissemination of criminal intelligence unless “there is a reasonable suspicion that the individual is involved in criminal activity,” the Justice Department’s standard for SARS requires only behavior that may be indicative of terrorism planning, according to the lawsuit.

“The Justice Department’s own rules say that there should be reasonable suspicion before creating a record on someone, but the government’s instructions to local police are that they should write up SARs even if there’s no valid reason to suspect a person of doing anything wrong,” ACLU staff attorney Linda Lye said in the statement.

The plaintiffs seek a permanent injunction requiring the Justice Department to rescind and change its standard for SAR reporting.

Also named as defendants in their official capacities are US Attorney General Eric Holder and Kshemendra Paul, program manager of the Information Sharing Environment. n

This story was first published by Courthouse News and alternet.org