San Jose Police Consider Federal Surveillance Program, Civil Rights Advocates Voice Concern

Just weeks after the San Jose Police Department announced they will be bringing on two federal immigration officers into SJPD, they say they are now considering participation in the Suspicious Activity Reporting Initiative which will call on local police and residents to be reporting agents for the FBI, Homeland Security, and a host of other federal enforcement agencies.

The participation in the national program is optional by city police departments, and in advance of making a decision, SJPD Chief Chris Moore held a forum at Pioneer High School for community representatives and city officials to learn about the program from federal officials and give input on San Jose’s potential involvement. The City of San Jose, having recently appointed Chief Moore, is in the process of trying to build back trust between local law enforcement and ethnic communities after a couple of high-profile use of force cases, and allegations of racial profiling that forced a city taskforce and changes in downtown policing policies in 2010. Due to budget cuts, the SJPD recently laid off over 100 police officers, and repeatedly messaged that they need closer partnerships with community groups to maintain public safety in a time of depleted resources. The recent decision to bring in ICE officers to the department through a Homeland Security program called Community Shield, has set of a firestorm of controversy among immigrant service organizations. Some community representatives, as well as national civil rights advocates, contend that involvement in the federal surveillance program will further undermine those trust-building efforts.

Observing Suspicious Behavior

According to material provided by the federal agencies presenting at the July forum, the Suspicious Activity Reporting Initiative is intended to create an “information sharing environment” by connecting the dots amongst law enforcement agencies. The description reads, “Every day, law enforcement officers at all levels of government observe suspicious behaviors or receive such reports from concerned civilians, private security, and other government agencies. What might not seem significant (for instance taking a picture of a ferry during loading), when combined with other actions and activity, may become a composite indicating the possibility of a criminal – even terrorist—activity.”

The initiative, which began in Los Angeles labeled as “Special Order 11” in 2008, trains officers to monitor and report “suspicious activity,” drawing from a matrix of behaviors federal analysts have created by studying the pre-operative activities of individuals who have gone on to commit terrorist acts. The local law enforcement officer would then write up a Suspicious Activity Report (SAR) that would then be sent to a “fusion center” for larger distribution to other agencies. There are 72 fusion centers nationally, four regional centers in California, and one coordinating statewide fusion center. Each fusion center has a server that stores the Suspicious Activity Reports, and is the hub for dissemination. Ron Brooks, director of the local fusion center named the Northern California Regional Intelligence Center, describes his operation as a “wagon wheel with spokes -- information comes in, then gets sent out.” He says that despite the dramatic imagery attached to his work, “it is not ‘24’”, referring to the popular television series where its star diffuses bombs with seconds to spare. “If you walked into our office, it would look like an insurance company – people sitting in cubicles.”

(From left to right) Representative from the California Attorney General's office, Tom O'Reilly: US Department of Justice, Ron Brooks: Director of the Northern California Regional Intelligence Center.

Concerns of Racial and Religious Profiling

A number of the community and city representatives present at the forum raised a series of concerns centrally revolving around racial profiling and civil liberties. San Jose Independent Police Auditor, Judge LaDoris Cordell, whose department audits complaints lodged against police officers, including those that allege racial or ethnic bias, expressed concern around the program’s potential impact on community trust with local police. She noted that, “It is very different for a person of color to be stopped by police,” and highlighted that the training given to participating police departments did not have significant racial sensitivity training in the curriculum.

When asked, Tom O’Reilly, from the US Department of Justice, said that despite the repeated fears expressed at other similar forums held with other cities around the program’s vulnerability to be a vehicle for racial profiling, they have not conducted any data analysis along lines of race, and could not tell the group estimates of percentage breakdowns of SARs based on racial or religious belief identifiers. O’Reilly and Brooks did commit to produce such a report for the San Jose group.

The trepidation around the SARs’ potential for racial, ethnic, and religious profiling is one which bears particular weight in San Jose, as a minority-majority city with large immigrant populations, including those from South Asian and Muslim communities. The South Bay made national news last year with the story of Yassir Afifi, a 20-year-old Muslim community college student and City of Santa Clara resident, who found a Global Positioning System on his car, planted by the FBI, without a warrant. When discovered by Afifi, who was not under any criminal investigation, the FBI demanded their property back.

Zarha Billoo, an attorney and Executive Director of the San Francisco chapter of the Council on Islamic-American Relations, cited active civil rights cases of Muslim Bay Area residents, to give context of the potential dangers of SARs if operationalized in San Jose. CAIR is the nation’s largest Muslim civil liberties and advocacy organization. In response to questions brought up by Billoo and others regarding the possibilities of reports being generated on people without merit, O’Reilly says, “Most things are innocent, but doesn’t mean we shouldn’t take a look at it.”

Reshaping Law Enforcement Standards

Veena Dubal, staff attorney with the Asian Law Caucus, who has represented South Asian residents in the Bay Area in racial discrimination lawsuits, also attended the forum, and was invited to similar discussions with the cities of Oakland and San Francisco. She says challenging local law enforcement participation in SAR is vital if communities want a stop to racial and religious profiling. "Many of the 'suspicious behaviors' that the initiative lists as indicators of possible terrorism are everyday, First Amendment-protected activities like taking pictures and drawing diagrams. Casting such a wide net increases the chances that innocent people will be reported to law enforcement and have their personal information collected for intelligence databases,” says Dubal.

Though the pilot city of SAR, Los Angeles, was touted by O’Reilly as a model for the benefits of the program, community leaders from that city are the ones leading the national movement to sound out alerts regarding the civil liberty violations they say are inherent in the initiative. Hamid Khan, former Executive Director of the South Asian Network – a Los Angeles based advocacy organization – is now studying the civil rights impacts and human rights violation of SAR nationally, and how it is re-shaping the fabric of the criminal justice system. He says, "The fundamental premise of the Suspicious Activity Reporting Initiative (SAR) is that each and every person is a suspect and hence a threat to national security. Furthermore, by local law enforcement's reporting on benign daily activities based upon “observed behavior” and “reasonable indication,” SAR criminalizes non-criminal activity and clearly exacerbates an already flawed system that normalizes racial profiling and places the brunt of these policies on immigrants and communities of color." Khan is a contributor to a larger report produced by the Political Research Associates entitled, “Platform for Prejudice: How the Nationwide Suspicious Activity Reporting Initiative Invites Racial Profiling, Erodes Civil Liberties, and Undermines Security.” The comprehensive study, authored by a number of prominent civil liberty researchers and scholars from across the country, states that there are two major frameworks of profiling that SAR invites. The study says, “It creates a platform for prejudice that targets two major groupings as potential terrorists: 1) Arabs, Middle Eastern persons, South Asians, and Muslims living in the United States; and 2) people with dissident views across the political spectrum.” Both Dubal and Khan say the standard used for SARS lowers the bar and protections California law enforcement agencies have traditionally used for engaging in surveillance and reporting activities.

The broad swath of activities which can trigger reporting was exampled in a SAR given to Seattle community leaders at a similar forum. In the single page report is a picture of a black male (according to the report in his 30-40’s), a photo of a car, and the label “highly suspicious” near the top of the page. In the description of the incident which prompted the report, the person is said to have taken pictures “using an Iphone, with a light red/pink gel protector” of several buildings in Seattle. The report reads that further investigation “revealed” the male had driven on a number of streets and concluded that, “It is believed the male was involved in suspicious photography. He has not committed a crime.” Khan says the reporting, such as the one filed in Seattle, show SAR as an ineffective methodology to identifying and stopping terrorist attacks. He says, “One way would be to look at the massive data mining - storage of massive amount of information and then based upon that, conducting pattern analysis, is trying to predict the future. All this leads to ‘false positives’ and is a waste of resources, time, and staffing.”

According to O’Reilly, cities that elect not to participate in the SAR initiative will still be given information if relevant to that city’s local law enforcement. Both he and Brooks repeatedly stated that the participating in the SAR initiative does not change what local law enforcement has already been doing for years – being vigilant to monitoring crime and alerting respective agencies when they see a potential threats. Some civil rights advocates in the forum, such as Dubal, say then that the SAR initiative is redundant – giving cities little new added value, yet leaving them largely susceptible to civil rights violations.

Chief Moore has not made a decision yet on San Jose’s participation with SAR’s, and says that the forum was an important first discussion.