Commonwealth Fusion Center Violates Constitution, New Report Says

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Massachusetts has two “fusion centers”, mostly state-funded, which aggregate enormous amounts of data on innocent Massachusetts residents, with the notion of preventing terrorist attacks. When you call the “See Something, Say Something” line, the information goes into “Suspicious Activity Reports.” The ACLU of Massachusetts documented that the Boston fusion center (“BRIC”) had actually spent its time harassing peaceful activists rather than thwarting terrorism, which is one of the reasons why there will be nationwide protests against fusion centers on April 10, including in Boston.

In response to the ACLU revelations, Rep. Jason Lewis (now the newly elected Sen. Jason Lewis) filed a fusion center reform bill on Beacon Hill. Disconcerted at the prospect of more sunshine on their work, the Commonwealth Fusion Center, the fusion center in Maynard, offered him and other legislators a courtesy tour of their facility, to try to explain what good work they were doing. As an example of that work, they cited their First Amendment-violating harassment of an Arlington man who was not actually planning any violent crime, but who had tweeted about it being a good idea to shoot statists. They also provided to Rep. Lewis copies of various policies that they follow, including their Privacy Policy (updated 06.13.2013) and their policy on First Amendment investigations. Rep. Lewis then asked Digital Fourth to evaluate the policies they had provided, to assess whether they were constitutional. We enthusiastically agreed, and the resulting report is here.

Here are our main recommendations:

– Amazingly, the CFC publishes two different missions, one limited to disrupting domestic and international terrorism, and the other including all criminal activity. We recommend that the CFC should adopt the narrower mission and restrict their collection of data accordingly.
– We do not have enough information on implementation of the privacy policy, to fully evaluate the effectiveness of the internal checks and balances at CFC in protecting privacy and civil liberties. We are submitting a Freedom of Information Act request (Appendix A and Appendix B in the report) covering what the public needs to know from both CFC and BRIC.
There should be a mechanism for public access to CFC data. Quality control depends in part on allowing individuals to review and correct information relating to them. Using the example of credit reporting agencies, we identify ways the CFC could allow such access without impairing active investigations.
– We propose a series of statutory reforms, some of which are included in Sen. Lewis’s fusion center reform bill, that would significantly improve the quality and constitutionality of the fusion centers’ work:
(a) Assigning some responsibility to CFC for the quality of the data it holds;
(b) Requiring warrants for searches of digital data;
(c) Requiring probable cause as an evidentiary standard for warrants;
(d) Eliminating administrative subpoenas;
(e) Tightening the “reasonable suspicion” standard used by CFC in line with the standard in Terry v. Ohio, to cover only situations where law enforcement officers suspect that an actual crime has been committed, is being committed, or is about to be committed;
(f) Introducing clearer rules governing the retention of data and the conduct of investigations on the basis of collected data;
(g) Narrowing the statute relating to “unlawful assembly” to cover only assemblies of “subversive organizations” aiming at the violent overthrow of the government;
(h) Eliminating “resisting arrest”, “failure to disperse” or “obstructing an officer” as criminal predicates for inclusion in CFC databases.
– Last, we recommend deletion of CFC data that is not terrorism-related or not supported by this narrower definition of reasonable suspicion.

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