Suing to Defend Americans' Right to Take Pictures in Public

What does an 86-year-old art photographer have in common with a young man with a video game habit?

Not just a proclivity for perfectly innocuous hobbies, unfortunately. These days, engaging in either activity can get the FBI on your case.

Today, the ACLU and our partners at Advancing Justice–Asian Law Caucus and Bingham McCutchen are taking the federal government to court over a surveillance program that targets people even if they are engaging in entirely innocent and constitutionally protected activity, and encourages religious profiling. As if that weren’t enough, the Suspicious Activity Reporting (SAR) program also violates the government’s own rules for the collection of criminal intelligence.

James Prigoff is one of our clients. He is 86 years old, and a renowned photographer of public art. He has lectured at universities and had his work exhibited at museums around the world. In 2004, he was stopped by security guards in Boston while attempting to take photos of a famous piece of public art called the Rainbow Swash, which is painted on a natural gas storage tank. Several months later, the FBI tracked him down at his house in Sacramento to question him about his activities in Boston.

Tariq Razak, a young scientist and Pakistani-American, is another plaintiff in our case. He became the subject of a SAR after a visit to a train depot in Santa Ana, California, where he had an appointment with the county employment resource center. He walked around the depot looking for the resource center, and his mother, who was wearing a hijab, accompanied him. He later discovered that this conduct led to a SAR describing him as “a male of Middle Eastern descent” who was suspicious because he was “constantly surveying all areas of the facility” and because he met up with a “female in a white burka head dress.”

Our other clients were also unfairly targeted, falling under government scrutiny for activities ranging from buying computers to playing video games. Several of them were profiled due to their perceived religious beliefs.

Click here for more on our plaintiffs.

These “suspicious activities” may be absurd, but there’s nothing funny about the program. The Department of Justice (DOJ) and the Information Sharing Environment, a post-9/11 agency tasked with coordinating national security intelligence-sharing, have adopted lax standards for what constitutes “suspicious activity.” These standards violate a DOJ regulation from 1978 that prohibits law enforcement from sharing “intelligence” about individuals unless the information is supported by reasonable suspicion of criminal activity. The 1978 regulation was adopted in the wake of prior domestic surveillance abuses.

Predictably, eschewing those protections has turned back the clock. The government is ignoring sensible limits on criminal intelligence collection and actively encouraging not just law enforcement, but also private security guards, shopkeepers, hotel owners, and even neighbors, to collect and share information about innocent conduct.

For example:

• Hotels are advised to be on the lookout for guests who "request specific room assignments or locations" or use "payphones for outgoing calls."
• Rental car companies are instructed that "providing multiple names" on rental paperwork is to be "considered suspicious."
• Hobby shops should be wary of customers with an "unusual interest" in remote-controlled aircraft and those who pay in cash.
• The general public is cautioned to report "unusual activity," including "people acting suspiciously" and "people in places where they do not belong."

If “acting suspiciously” or being somewhere someone thinks you don’t “belong” is enough to put people into federal counter-terrorism databases, it’s no wonder the databases are full of irrelevant information and reports targeting Muslims, South Asians, and Arab Americans. As you may remember from last year, actual SARs we obtained through Public Records Act requests include reports with subjects like “Suspicious ME [Middle Eastern] Males Buy Several Large Pallets of Water.” It’s also no wonder law enforcement experts criticize the SAR program for “flooding” law enforcement with “white noise.”

Today our clients are challenging a program through which innocuous and even constitutionally protected activity is being reported as “suspicious” and leading to federal law enforcement scrutiny. This program not only violates federal privacy protections for “intelligence” sharing. It encourages a culture of fear and distrust, undermining our freedom with no known benefit to our safety.

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