Massachusetts Bay Transportation Authority subway
platform, Cambridge, Massachusetts. (Photo: Logan
Williams)
Early in the morning on March 13, 2008,
Australian-born Peter Watchorn, one of the world’s foremost harpsichordists,
was standing on a subway platform in Cambridge, Massachusetts, with a
professional cellist from Australia who had his instrument with him. They were
on their way to Logan International Airport to catch a plane.
After going a few stops, all the trains in the
Massachusetts Bay Transportation Authority (MBTA) subway system were brought to
a halt while theirs was searched with sniffer dogs. They thought they
still could make their plane when their train started up again and they made it
to the connecting bus. But before they reached their terminal, they were hauled
off the bus and subjected to an abusive search - by no fewer than eight
officers - during which the cello, valued at $250,000, was nearly tipped out of
the case.
After they were interrogated for 30 more minutes, one
state trooper told them they had been overheard at the Cambridge station, “having
conversations we were not supposed to be having.” They missed their plane and
never got any kind of apology from the police. The incident left Watchorn
wondering whether he had done the right thing becoming an American citizen.
On the basis of an anonymous tip - possibly a hoax,
or maybe just an overreaction from a well-intentioned “if you see something, say
something” citizen spy - the MBTA police decided that these travelers posed a “credible
threat.” The MBTA had been preparing for years to disrupt such threats by
creating a robust intelligence unit that partners with the fusion center, the
Joint Terrorism Task Force (JTTF), numerous other state and federal agencies
including Immigration and Customs Enforcement (ICE), the Drug Enforcement
Administration (DEA), and the Metropolitical Transportation Authority (MTA)
Interagency Counterterrorism Task Force in New York City. By 2005, the unit was
maintaining 14 stand-alone databases to track all suspicious activity and
crime, information which was forwarded directly to the JTTF. It had a weekly
bulletin, “Reporting on Terrorism-Related Activity,” that was disseminated
across the nation, and it was working with Raytheon and Draper Labs to develop
special software to track people, since the facial recognition software
available at that time was not effective in the subways.[1]
The MBTA had also introduced a “Security Inspection
Program” to search passengers on a random basis at the time of the 2004
Democratic National Convention and made it permanent in October 2006. Even as
the subway infrastructure deteriorated and the MBTA ran out of funds to pay
injury and damage claims, groups of four or five transit officers were paid to “deter
terrorists” by inspecting the bags of randomly selected passengers at various
stations on a rotating basis - activity that security expert Bruce Schneier
calls “security theater.” The MBTA also announced the deployment of “behavior
recognition teams” with the authority to stop anyone anywhere for unspecified
reasons.
The airport to which the musicians were heading
piloted such teams shortly after two of the planes involved in the 9/11 attacks
took off from its runways. The American Civil Liberties Union (ACLU) challenged
the precursor of the Screening of Passengers by Observation Techniques program
(SPOT) when the head of its national Campaign against Racial Profiling – a tall
African-American man with a beard - was spotted behaving “suspiciously” by
talking on a pay phone after deboarding an airplane. A jury agreed that he had
been wrongly detained.
Evidence that “behavioral profiling” is just another
term for racial profiling did not prevent SPOT from being rolled out at other
airports, at a cost of some $400 million. In a 2010 report, the Government
Accountability Office (GAO) claimed the program had no scientific validity and
caught no terrorists, despite the fact that some 16 individuals alleged to be
involved in terrorist plots (including the would-be Times Square bomber, Faisal
Shahzad) moved through airports deploying SPOT on at least 23 occasions.[2]
Nevertheless, an additional $1 billion was designated
for the next version of SPOT, which was unveiled at Logan beginning in August
2011. It involves the Israeli-style screening of passengers who are asked
questions to see if they seem unduly nervous or display evidence of Orwell’s “facecrime.”[3]
The $14 billion spent by the Transportation Security Administration (TSA) on
airport security has been handed over to dozens of contractors, with little
attention paid to what actually works, and even less to notions of privacy and
the Fourth Amendment’s ban on unreasonable searches - especially in the case of
“backscatter” whole-body screening, which is bringing a hefty commission to the
company headed by former Department of Homeland Security (DHS) chief Michael
Chertoff.
What are the chances that Watchorn and his fellow
musician now have a permanent record of being regarded as “credible threats”?
Given what the ACLU of Massachusetts has been able to discover through its
multiple public records requests, it seems quite likely. For Massachusetts,
which has received at least $170 million from the DHS for surveillance-related programs,
has been at the forefront of efforts to build the new, data-hungry intelligence
apparatus, thanks to the efforts of its governor from 2003 to 2007, Mitt
Romney.
As lead governor on homeland security issues at the
National Governors Association and a member of the DHS Homeland Security
Advisory Council, Romney was ardent about enlisting the public “to be on the
lookout for information which may be useful” and expanding government
surveillance: “Are we wiretapping, are we following what’s going on, are we
seeing who’s coming in, who’s coming out, are we eavesdropping, carrying out
surveillance on those individuals that are coming from places that have
sponsored domestic terror?”[4]
So, it is not surprising that Massachusetts had two
of the earliest fusion centers in the country. The Commonwealth Fusion Center
(CFC) was established under the supervision of the state police in 2004 without
any public notice or legislative process. The Boston Regional Intelligence
Center (BRIC) was set up the following year, also under cover of official
silence.
The CFC, which soon moved from a terrorism focus to
an “all hazards, all threats, all crimes” mission, is staffed by members of the
FBI, the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Massachusetts
National Guard, the US Army Civil Support Team, the DEA, the Department of
Correction, the DHS Office of Intelligence Analysis, the Geographic Information
Systems Department and at least one private corporation, CSX Railroad. In
addition, local police officers with security clearance work at the CFC.
Under the CFC standard operating procedures, police
officers attached to the CFC behave more like FBI agents than local cops. They
are permitted to conduct “preliminary inquiries,” during which “all lawful
investigative techniques may be used” (including the use of undercover
operatives or informants) without reasonable suspicion that a target is
involved in criminal activity.[5]
If they go undercover “to attend meetings that are open to the public for
purpose of observing and documenting events,” they are not required to identify
themselves or leave the gathering if it is requested that police officers make
themselves known, and they don’t have to leave the room if legal advice is
being given.
The CFC shares data with local police departments,
with state police in other states, with various state agencies and through the
national Information Sharing Environment (ISE) with federal and state agencies
around the country. Its personnel have been granted clearance by the DHS and the
FBI to access classified information.
BRIC is under the supervision of the Boston police
and staffed by the MBTA transit police, employees from various local police
departments, the Suffolk County Sheriff’s Office and various business
interests. A pioneer of Suspicious Activity Reporting (SAR), the Boston Police
Department, through BRIC, shares information with the CFC and the FBI, and has
entered into information-sharing agreements with agencies as far away as Orange
County, California via COPLINK, police information-sharing software designed to
“generate leads” and “perform crime analysis.”
Massachusetts has developed other databases to aid
information-sharing. Among them is “MassGangs,” which collects a vast range of
personal and associational information on anyone and everyone who could be a
member of a “gang” - defined as an “association or group of two
[emphasis added] or more persons, whether formal or informal, whose members or
associates engage, either individually or collectively, in criminal activity.”[6]
There is also SWISS (the Statewide Information Sharing System), which enables
multiple agencies to contribute police reports in real time to a state
repository and then access and search reports remotely through a computer. The
database creates a permanent record not only of arrests, but of all incidents
based on “calls to service” - from fighting neighbors to a barking dog - as
well as information about each time a police officer stops someone on the
street and makes a search.[7]
As the CFC and BRIC steadily expand the number of
public and private sources from which they collect information and the mountain
of data grows ever larger, accessing agencies have less knowledge about the
kind and quality of information that they retrieve. The CFC disclaims any
responsibility for the accuracy of the data it collects and shares. Its privacy
policy does more to shield its operations from public scrutiny than it does to
protect individual privacy, and it creates no enforceable rights.[8]
Without any independent oversight mechanism or public reporting, Massachusetts’
fusion centers have been left to police themselves, even though they have every
incentive - as well as the stated intention - to sidestep laws they find
inconvenient.
The public is not just being left in the dark about the
operation of fusion centers. It has little solid information about the
network of DHS-funded surveillance cameras that has been installed in cities
and towns of the Greater Boston Urban Area Security Initiative. These powerful
cameras have the capacity to pan, tilt, and zoom, rotate 360 degrees in a
fraction of a second, and “see” for a mile. They could eventually be fitted
with facial recognition software, eye scans, radio frequency identification
tags, and other forms of software, and connected to large law enforcement
databases - if they are not already.
Like other states and cities, Massachusetts and
Boston law enforcement officials have received federal funding for a broad
range of other surveillance-related technologies. Some, at first glance, may
seem like sensible policing tools. For instance, automatic license plate
readers - provided to state and local police through a federal Department of
Transportation grant - can help police spot stolen cars and parking violators.
But they also capture digital images of thousands of
license plates per minute and store this information in databases, along with
travel information indicating the time and place a particular vehicle was “pinged.”
In Massachusetts, this information is required to be submitted to the state’s
criminal justice information services database, which can be freely accessed by
other states’ and federal law enforcement. Absent a formal policy on data
retention and sharing - which the state does not have - the personal travel
information of millions of Massachusetts residents can be shared with agencies
throughout the nation.
Massachusetts police may soon have an even more
powerful tool at their disposal - if they do not already. Imagine a
database containing billions of data entries on millions of people, including
(but not limited to) their bank and telephone records, email correspondence,
biometric data like face and iris scans, web habits and travel patterns.
Imagine this information being packaged “to produce meaningful intelligence
reports” and made accessible via a web browser from a handheld mobile or police
cruiser laptop.
In 2003, the Massachusetts State Police put out a
request for proposals to create just such an “Information Management System”
(IMS). In May 2005, they awarded a $2.2 million contract to Raytheon to build,
install, troubleshoot and maintain the IMS.[9]
Welcome to policing in the age of total information awareness.
1.
This information was presented by the MBTA at
the Anti-Terrorism Advisory Council Meeting held on May 18, 2005, at the
Moakley federal courthouse and attended by a wide array of federal (including
military) and state agencies, local police, and private partners.
2.
According to the GAO report, between May 2004
and 2008, 152,000 people were identified for secondary screening by SPOT teams.
Of this number, 14,000 people were referred to law enforcement, resulting in
1,100 arrests - most for being “illegal aliens” or having “fraudulent
documents.”
3.
“It was terribly dangerous to let your thoughts
wander when you were in any public place or within range of a telescreen. The
smallest thing could give you away. A nervous tic, an unconscious look of
anxiety, a habit of muttering to yourself - anything that carried with it the
suggestion of abnormality, of having something to hide. In any case, to wear an
improper expression on your face (to look incredulous when a victory was
announced, for example) was itself a punishable offense. There was even a word
for it in Newspeak: facecrime, it was called.” (George Orwell, “1984”).
4.
Governor Mitt Romney, speech to the Heritage
Foundation, September 14, 2005.
5.
Document obtained via a Freedom of Information
Act (FOIA) request: Standard Operating Procedure, Commonwealth Fusion Center,
Number CFC-04, effective date March 5, 2008.
6.
Document obtained via a Freedom of Information
Act (FOIA) request: MassGangs: Project Overview, Draft of December 14, 2007.
7.
Meeting with Commonwealth Fusion Center
officials, April 7, 2009.
8.
Document obtained via a Freedom of Information
Act (FOIA) request: CFC-05, July 1, 2006 (CFC Privacy Policy).
9.
Document obtained via a Freedom of Information
Act (FOIA) request: Massachusetts State Police Request for Information re: Data
base software.
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