Suit over ‘suspicious activities’ data tossed

A San Francisco federal judge dismissed an American Civil Liberties Union challenge Monday to a federally assembled police database of “suspicious activities” allegedly linked to terrorism, saying the government has broad authority to keep track of potential threats.

The lawsuit was filed in 2014 on behalf of five Californians who said they landed on the list for innocent conduct. The lead plaintiff, a Muslim student at Cal State Chico, said police came to his home in 2012 looking for someone else, saw a flight-simulation video game on his computer screen, and reported him for having a “pious demeanor” and potential access to a flight simulator. Another plaintiff said he was flagged for taking a photo of artwork on a gas storage tank.

The ACLU said the U.S. Government Accountability Office reported in 2012 that none of the tens of thousands of suspicious-activity reports had led to an arrest or conviction, or had thwarted a terrorist plot.

In the lawsuit, the ACLU argued that the FBI, which compiles the list from police reports, was violating the legal requirement of at least a “reasonable suspicion” of criminal activity to justify government data collection.

But U.S. District Judge Richard Seeborg said the FBI had justified using a lessdemanding standard, established in 2008: sharing reports of behavior that was “reasonably indicative” of “planning associated with terrorism or other criminal activity.”

Seeborg quoted a government report that said the “reasonably indicative” standard would enable police to “identify and address, in a more efficient manner, potential criminal and terrorism threats” while protecting privacy and civil rights.

While the ACLU challenged that conclusion, Seeborg said, the civil liberties group had not shown a “clear error of judgment” or an “arbitrary” action, as required to overturn the government’s decision. He also said the FBI could adopt the standard without advance public notice and comment because it was only a “policy guidance statement” and not a law or regulation.

ACLU attorney Linda Lye said her clients were considering an appeal.

“The Suspicious Activity Reporting program brands innocent Americans as potential terrorists,” she said. “If the federal government wants to amass huge volumes of data about innocent Americans, at the very least it must give a reasoned basis for doing so and provide the public with an opportunity to comment on the proposal.”

The program, established by President George W. Bush’s administration, is based on reports by state and local law enforcement officers and private citizens to 78 regional “fusion centers,” information-sharing offices jointly managed by the Justice and Homeland Security departments.

The FBI screens the reports and identifies those it classifies as suspicious activities, which it forwards to a database available to law enforcement agencies nationwide.