Beyond Counterterrorism: Data Sharing, Privacy, and Organizational Histories of DHS Fusion Centers

Background on Fusion Centers

DHS fusion centers coordinate data sharing among state and local police, intelligence agencies, and private companies. These public-private partnerships became a central component of the U.S. homeland security framework in the wake of 9/11, and they have continued in importance under President Obama’s administration (Monahan, 2011). Fusion centers are seen as a critical component of the response to the problem identified by the 9/11 commission, and within the intelligence community generally, that various agencies did not work in concert to “connect the dots” that are necessary to combat terrorism and that an environment of information sharing should be fostered (Kean et al., 2004). As DHS Secretary Janet Napolitano (2009) stated at a conference of fusion center officials:

Based on DHS data, the U.S. Government Accountability Office estimated that states have used approximately $426 million in DHS grant funding from FY 2004 to 2009 and that about 60% of fusion center funding is from federal grants, 30% from state funds, and 10% from local funds (Government Accountability Office, 2010, pp., 14-16). More recent figures outlined in a Senate report put the total spending on fusion centers at up to $1.4 billion since 2003 (Permanent Subcommittee on Investigations, 2012). The difficulty in identifying precisely how much has been spent on these entities is reflective of the varied and complex nature of these sites and their federal, state, and local funding sources, which suggests an accountability problem that is reproduced in attempts to oversee the activities of fusion centers more generally.

Given the data-sharing mission of fusion centers, one might expect that they would have taken off rapidly after 9/11, but this was not the case. Instead, after the passage of the USA Patriot Act in 2001, a controversial proposal was put forward for the creation of a federal-level “Total Information Awareness” program that would keep tabs on everyone in the U.S. (Regan, 2004). After significant public backlash, TIA was scuttled in 2003. Fusion centers then emerged to conduct some of the activities proposed by TIA, but in an ad-hoc and decentralized manner, therefore relatively insulated from public awareness or critique. After the release of the 9/11 Commission report in 2004, fusion centers became an explicit response to the failures in intelligence sharing outlined in that report, whereupon DHS invested more heavily in funding their operations and working toward a fusion-center presence in every state. Since President Obama took office in 2009, 19 more fusion centers have come online, illustrating the ongoing commitment of DHS to this organizational and technological approach to counterterrorism and crime control (Monahan, 2011; Permanent Subcommittee on Investigations, 2012).

Fusion centers have origins in a number of law enforcement and intelligence paradigms. They can be thought of as part of a crime- and terrorism-prevention approach known as “intelligence-led policing,” which involves a triage-like system where specific criminal activities or suspected criminals or terrorists are targeted explicitly for monitoring and intervention under the assumption that focusing on high-risk activities or people will reduce crime or terrorism across the board (Bureau of Justice Assistance, 2005; Ratcliffe, 2003). As a U.S. Department of Justice report puts it: “Good policing is good terrorism prevention” (Bureau of Justice Assistance, 2005). Fusion centers also have roots in “community policing,” which emphasizes partnerships and collaboration among local entities and a proactive problem-centered approach (Bureau of Justice Assistance, 1994), even if such an approach has been criticized for artificially constructing a governable subject that can be made responsible for structural problems in communities (Chesluk, 2004; Herbert, 2005; Ruben & Maskovsky, 2008). Most recently, fusion centers have been viewed as a key component of the “information sharing environment” (ISE) established after 9/11 and authorized by the Intelligence Reform and Terrorism Prevention Act of 2004 (Citron & Pasquale, 2011). The ISE is supposed to incorporate five primary areas: homeland security, law enforcement, defense, foreign affairs, and intelligence. GAO has recently reported that most of its focus to date has been on homeland security and law enforcement (Government Accountability Office, 2011).

From their inception, fusion centers have generated concern among privacy and civil liberties advocates and scholars for a range of reasons including their lack of transparency, the commingling of law enforcement and intelligence information and purposes, their involvement of the private sector in what has traditionally been government activities, the conflation of innocent or everyday behavior with terrorist or criminal behavior, and the wideapread sharing of personally identifiable information (Electronic Privacy Information Center, 2007; Geiger, 2009; German & Stanley, 2008; Monahan, 2011; Newkirk, 2010; O'Harrow Jr., 2008; Rollins, 2008).¹ Some of the known cases where civil liberties have been encroached upon include the monitoring of blog postings by and preemptive arrest of Green Party member Kenneth Krayeske in Connecticut, the infiltration and monitoring of an activist group in Maryland, the infiltration of a military agent into a non-violent, anti-war protest group in the state of Washington, the targeting of students at historically black colleges in Virginia, and the spying on of protestors involved in Occupy Wall Street events (Monahan, 2011; Partnership for Civil Justice Fund, 2012). Rather than review all these issues and the evidence that various groups and scholars have collected and analyzed, our goal in this paper is to provide some empirical information about the information sharing activities of fusion centers, to identify the conditions under which unfettered information sharing is likely to occur, and to analyze the implications of the data sharing activities we have identified.