Gill v. DOJ (Challenge to Federal Suspicious Activity Reporting)

The ACLU Foundations of California filed a lawsuit challenging the federal government’s Suspicious Activity Reporting program - a vast expansion of the federal government’s domestic intelligence network. The SAR program targets First Amendment-protected activity, encourages racial and religious profiling, and violates federal law. The plaintiffs are five U.S. citizens whose information has been entered into counterterrorism databases for engaging in lawful conduct.

The ACLU Foundations of California, the ACLU, Asian Americans Advancing Justice-Asian Law Caucus, and the law firm Morgan Lewis have filed a lawsuit challenging the federal government’s Suspicious Activity Reporting program — a vast expansion of the federal government’s domestic intelligence network. The SAR program supposedly facilitates the collection and sharing of information about activity that appears “suspicious,” but in practice it targets First Amendment-protected activity, encourages racial and religious profiling, and violates federal law. The plaintiffs are five U.S. citizens whose information has been entered into counterterrorism databases for engaging in lawful conduct, and who have been subject to unwarranted law enforcement and scrutiny. The lawsuit was filed in July 2014 in the U.S. District Court for the Northern District of California.

Since at least 2008, the federal government has encouraged state and local law enforcement agencies, as well as members of the general public, to collect and report information that appears “suspicious” and that might have a nexus to terrorism. These “Suspicious Activity Reports,” or “SARs” are stored and shared through intelligence databases that make up the Nationwide Suspicious Activity Reporting Initiative.

Troublingly, the standards defining “suspicious activity” do not require any reasonable suspicion of criminal activity, and information about innocent activities by ordinary people ends up in counterterrorism databases to which local, state, and federal law enforcement agencies have access. Because these loose standards define practically anything and everything as “suspicious,” the SAR program opens the door to racial, ethnic, and religious profiling, as we’ve repeatedly seen from actual SARs that have been revealed publicly. SARs can haunt people for decades, as they remain in federal databases for up to 30 years. An individual who is the subject of a SAR is automatically subjected to law enforcement scrutiny.

The five plaintiffs who were swept up by the SAR program or a precursor were all engaging in innocuous, lawful, and in some cases First Amendment-protected activity, such as photographing sites of aesthetic interest, playing video games, and waiting at a train station. Their experiences drive home that SARs often report activity that is anything but suspicious:

• James Prigoff is an internationally renowned photographer of public art and a former business executive. He has lectured at numerous universities and has exhibited his work at museums around the world. In 2004, the then 76-year-old was in Boston photographing a famous piece of public art called the “Rainbow Swash,” painted on a natural gas storage tank. Private security guards approached him and told him to stop. Despite the fact that he never provided the security guards any identifying information, an FBI agent came to his home in Sacramento several months later, trying to find out about his activities in Boston. The FBI agent also questioned at least one neighbor about him. Click here for more of his story.
• Tariq Razak is a U. S. citizen of Pakistani descent who graduated from UC Irvine in 2007 and now works in the biotech industry. He is the subject of a SAR obtained through a Public Records Act request. The SAR identifies Mr. Razak as a “Male of Middle Eastern decent [sic] observed surveying entry/exit points” at the Santa Ana Train Depot and describes him as exiting the facility with “a female wearing a white burka head dress.” Mr. Razak had never been to the station and was finding his way to the county employment resource center — which is located in the station — where he had an appointment. The woman he was with was his mother, whom he waited for while she was in the bathroom. Click here for more of his story.
• Wiley Gill is a custodian at California State University, Chico. He is the subject of another SAR that the ACLU Foundation of Northern California obtained through a Public Records Act request. The SAR identifies Mr. Gill as a “Suspicious Male Subject in Possession of a Flight Simulator Game” and stems from a video game Mr. Gill may have been playing when police searched his home without a warrant in 2012. The SAR emphasized Gill’s religion, stating that Gill, “based on his appearance (full beard and traditional garb) is a full convert to Islam at the young age of 26.” The SAR concludes by stating that Gill was “worthy of note” due to his unemployment, “pious demeanor,” and “potential access to flight simulators via the internet.” Click here for more of his story.
• Aaron Conklin is a graphic design student and amateur photographer living in Vallejo, California. Private security guards have twice prevented him from taking photographs of industrial architecture from public locations. In one incident, outside the Shell refinery in Martinez, California, Contra Costa County Sheriff’s deputies detained Mr. Conklin, searched his camera and car, and told him that he would be placed on an “NSA watchlist.” Click here for more of his story.
• 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 Foundation 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. Click here for more of his story.

A Department of Justice regulation implemented in 1978 allows the collection, maintenance, and dissemination of “criminal intelligence information” about someone “only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.” The government, however, has violated this regulation by adopting and implementing standards for suspicious activity reporting that do not require reasonable suspicion of criminality. The SAR standards challenged in our lawsuit were issued by the Justice Department and the Program Manager for the Information Sharing Environment (PM-ISE), which was created in 2004 in an effort to facilitate the exchange of terrorism and homeland security information among law enforcement agencies.

DOJ and PM-ISE train state, local, and tribal law enforcement agencies as well as private entities to collect information based on the standard each agency has adopted, and to submit the information in the form of a SAR, either to a fusion center or the FBI. (Fusion centers are generally operated by state or local government agencies and are meant to collect and analyze threat-related information, including SARs.) If a Suspicious Activity Report has been deemed to meet DOJ or ISE’s standards, it is uploaded to one or more national databases, such as the FBI’s eGuardian system, where it can be accessed by the FBI and law enforcement agencies across the country. As a result, innocent people swept up by the program are subject to law enforcement scrutiny at both the local and federal levels, with information retained about them for as long as 30 years – even when the FBI determines the SAR has no connection to terrorism.

This program does not keep us safe, but it certainly makes us less free. The lawsuit challenges the government’s standards for suspicious activity reporting as arbitrary and illegal because they conflict with the federal government’s own requirement that criminal intelligence information only be shared where there is reasonable suspicion of criminal activity. It is also challenging the federal agencies’ circumvention of the notice-and-comment process required by the federal Administrative Procedure Act. By holding the federal government accountable to its own rules and democratic processes, we seek to end the collection of information about innocent Americans engaged in lawful and constitutionally protected activity.

Today, the U.S. District Court Judge Richard Seeborg denied the government’s motion to dismiss. He held that the plaintiffs have standing to challenge the federal government’s Suspicious Activity Reporting standards in part because being an innocent person that is the subject of a SAR, widely disseminated through the law enforcement community, implicates “privacy and reputational interests,” and therefore constitutes a legal injury. The judge also held that federal SAR standards “alter the legal regime” under which local and state law enforcement agencies operate. In general, the court held that plaintiffs’ claims regarding the legality of SARs should be decided on the merits, with the benefit of a fuller record, rather than dismissed at the at this juncture.

Today the court held a CMC on March 12, 2015 and ordered the government to produce an administrative record on the PM-ISE SAR standard within 90 days.

The government filed an answer under seal on April 3, 2015 because it contained Privacy Act protected material pertaining to the plaintiffs. On April 24, 2015, Plaintiffs stipulated to filing the answer publicly after obtaining Privacy Act waivers from their clients.

The government certified an administrative record for the ISE on June 16, 2015. On June 4, 2015, we filed a motion to seek discovery on DOJ.

On August 14, 2015 the court denied Plaintiff’s motion for discovery. Plaintiff’s moved to file supplemental complaint on September 01, 2015. The first supplemental complaint for declaratory and injunctive relief was filed on September 03, 2015.

Today, the U.S. District Court held a hearing on the parties' summary judment motions.

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