By Yaman Salahi, Arthur Liman Fellow
Anyone snapping a photograph or taking notes in a public place is a potential threat to public safety.
That is the message that the LAPD continues to send to its officers and the general public through its Suspicious Activity Reporting (SAR) program.
Launched in 2008, the LAPD’s SAR program identifies a number of “suspicious activities” that officers should report to the department’s counterterrorism division. But LAPD identifies not only criminal acts like possessing fake IDs, but also “suspicious activities” including taking photographs or video, making notes, drawing diagrams — even making friends (or building “contacts,” in the language of the order).
SAR reports are reviewed not only by the LAPD counterterrorism squad, but also sent to the Joint Regional Intelligence Center in Norwalk. At this “fusion center,” an intelligence clearinghouse, staffed by various state, local, and federal agencies, the reports can be uploaded to a national database accessible by law enforcement agencies across the country.
This kind of information sharing might sound good in theory, but a recent study from George Washington University, co-authored by the LAPD’s very own Deputy Chief Michael Downing, the head of the LAPD’s Counter-Terrorism and Special Operations Bureau, found that suspicious activity reporting has “flooded fusion centers, law enforcement, and other security entities with white noise.” In practice, the profusion of SAR reports “complicates the intelligence process and distorts resource allocation and deployment decisions.”
It’s not hard to understand why filling counterterrorism databases with files on people taking photographs makes those databases less useful. But the harm done by SAR is more than just inefficiency: by identifying lawful activities like photography as “suspicious,” police subject people who are doing nothing wrong to police encounters and questioning. Their identifying information is then shared in counterterrorism files that lead to difficulty traveling, problems with naturalizing, or inability to obtain government jobs or security clearances. Harassment of photographers by police, for example, has spiked nationally as departments across the country have adopted SAR programs modeled largely on LAPD’s.
The ACLU of Southern California has repeatedly advocated for safeguards that would limit SAR’s focus to criminal activity. Innocent people shouldn’t get detained for lawful activity, and personal information shouldn’t end up in an intelligence database when police have no reason to suspect that someone is involved in criminal activity.
The best way to prevent that from happening is for LAPD to refrain from filing SAR reports about individuals unless an officer has reasonable suspicion of criminal activity. That’s a standard that has been well-defined by courts, and one on which police officers receive exhaustive training that would make it easy to implement. And it’s a low standard: it requires only that officers be able to articulate a reason to suspect criminal activity. And that standard is what police need to detain an individual temporarily, or pat someone down, acts that police manage to accomplish regularly all across Los Angeles.
But in proposing changes to the SAR policy at the Los Angeles Police Commission meeting on Tuesday, the LAPD expressly refused to include that guarantee, and the civilian Police Commission didn’t press them on it. The department insisted that they should be allowed to fill databases with information where there isn’t an articulable basis to believe that criminal activity is afoot. and the civilian Police Commission approved a policy that will let them do just that.
This battle isn’t over yet. The LAPD’s Inspector General is currently auditing the SAR program, and will issue a report back to the Police Commission within the next couple of months. That report should shed some light on the effects of the program, and whether it would really hurt the department’s efforts to require reasonable suspicion. When that happens, the Police Commission will have an opportunity to restore the balance between law enforcement powers and the public’s civil liberties.
The head of LAPD’s own counterterrorism bureau knows that low value SAR reports hurt counterterrorism efforts more than they help. So we should ask the LAPD to take the simple steps necessary to protect our free speech and privacy rights, and to stop harassing people engaged in perfectly lawful — and often, constitutionally protected — activities.
Civil liberties are most vulnerable at times of crisis