Maryland police surveillance: “Case Explorer” and civil liberties
Posted by Thomas Nephew on July 25th, 2008
Washington-Baltimore High Intensity Drug Trafficking Area
(WB HIDTA) “Case Explorer” listing for Max Obuszewski, June 2005.
Via ACLU-MD “MSP Documents” dump, 7/17/08.
On July 17th, the American Civil Liberties Union (ACLU) of Maryland released documents “…revealing that the Maryland State Police (MSP) engaged in covert surveillance of local peace and anti-death penalty groups for over a year from 2005-2006.”
As the Washington Post reported the next day,
A well-known antiwar activist from Baltimore, Max Obuszewski, 63, was singled out by the undercover agents and entered into a “Washington-Baltimore High Intensity Drug Trafficking Area” database. His entry indicates a “Primary Crime” of “Terrorism-anti-government” and a “Secondary Crime” of “Terrorism-Anti-War Protesters,” according to the documents.
In the following, I summarize the story so far, and then pursue one aspect that may not yet have received sufficient attention: the “Case Explorer” database and its implications.
The story so far
Among the meetings monitored by the Maryland State Police Homeland Security and Intelligence Division was one between then-Representative and current Maryland Senator Ben Cardin and a Baltimore peace group.
Ex-governor Bob Ehrlich claims not to have known of the program; for what it’s worth, the state police chief at the time, Thomas Hutchins, confirmed that for the Washington Post. Hutchins later reiterated his contention that the program was legal to the Montgomery Gazette’s Mike Meno, “In the position I held, I would have not approved anything that was unconstitutional, that’s for darn sure.”
Hutchins’s claims notwithstanding, what’s “darn sure” is that the reaction to the story has been swift and negative; Governor O’Malley said surveillance had ceased before he came to office, that when “investigations are based on the political views or policy views of one group or another, the police are not doing their job,” and that his administration “does not and will not use public resources to target or monitor peaceful activities where Maryland citizens are exercising their First Amendment rights.” State legislators have also weighed in; the Gazette reports that State Senator Brian Frosh (District 19; chair of the Judicial Proceedings Committee) has promised hearings on the issue as early as September.
Similarly, State Senator Jamie Raskin (District 20) wrote in an e-mail that he is “working on legislation to specify that the State Police cannot undertake any investigations of political groups without preexisting reasonable grounds to believe there is actual criminal activity being conducted by the group, [and that] no group may ever be targeted simply because of its political viewpoint.”
As the Gazette reports, Raskin also “questions how effective Maryland is in using grants from the U.S. Homeland Security Department, which provided much of the money that paid for the surveillance.” That’s an excellent question — and one Maryland legislators can address.
But another question — and one that may require Congressional oversight (dream with me) — is just how and why a “High Intensity Drug Trafficking Area” database application was involved in archiving this surveillance.
“Case Explorer”
The database in question is called “Case Explorer“; it was developed by the Washington-Baltimore High Intensity Drug Trafficking Area (W/B HIDTA) program. The W/B HIDTA is one of the earliest of over two dozen regional “HIDTA” programs established by the Office of National Drug Control Policy (ONDCP), providing participating state, local, and federal agencies with “coordination, equipment, technology, and additional resources to combat drug trafficking and its harmful consequences in critical regions of the United States.”
Though developed and disseminated for drug enforcement purposes (or at least with ONDCP funding), the software appears to be an all purpose database for storing and (it is claimed) intelligently processing law enforcement related data. A term that arises often in discussions of “Case Explorer” is “deconfliction” — determining (or suggesting) that two leads are really the same, or that two suspects are really the same. One of the first well known uses of “Case Explorer” was during the “DC sniper” incidents of 2001*; the software was used to organize the great number of tips and leads amassed during the investigation.
While the software may have features making it well suited to law enforcement data “deconfliction” and other needs, the “Case Explorer” web page also touts its value as a database standard for inter- and intraagency use and communication. Among the noted features:
- Easily collect, analyze, and disseminate intelligence within and between organizations. [...]
- Virtual databases allow multiple groups to work within the same physical database.
The software has become a prominently featured centerpiece of the W/B HIDTA, and is mentioned throughout the 2006 annual report; an appendix displays “performance target” successes in spreading the good word of “Case Explorer” to agency after participating agency. For purposes of this post, several W/B HIDTA performance targets are of particular interest:
- 100% OF W/B HIDTA INITIATIVES AND 10 PARTICIPATING AGENCIES WILL BE USING CASE EXPLORER TO MANAGE THEIR CASES
- ESTABLISH 100% PARTICIPATION IN EVENT DECONFLICTION FOR HIDTA INITIATIVES AND ALL LAW ENFORCEMENT AGENCIES IN THE HIDTA REGION
- ESTABLISH ELECTRONIC CONNECTIVITY WITH THE INTELLIGENCE UNITS IN BALTIMORE COUNTY, BALTIMORE CITY, MARYLAND STATE POLICE AND THE MARYLAND COORDINATION AND ANALYSIS CENTER.
On the face of it, it would appear that Max Obuszewski’s name may remain enshrined as a “Primary Crime: Terrorism Anti-Govern; Secondary Crime: Terrorism Anti-War Protestors” entry in a federally funded and overseen database — even if the Maryland State Police are required to purge it from theirs.
Regardless of whether this is in fact the case, I think it is an important point. Just as military planners are supposed to think not in terms of intentions but capabilities, so too should civil liberties advocates. The Obuszewski data exchange I hypothesize would be a foreseen and desired consequence of disseminating suitable software and protocols for the purpose to state and local agencies. Without oversight, legislation, and (likely) redesign, “Case Explorer” may be how Big Brother will descend among us, if he isn’t here already.
The national surveillance state
Case Explorer is only part of a system of Maryland databases already being used — and in the case of “Case Explorer,” abused — for surveillance purposes. A “Maryland Coordination and Analysis Center (MCAC) “overview” notes that Maryland law enforcement has “continuously expanding” set of “criminal information” which is “available to all law enforcement personnel.” The so-called “Primary Watch Section Databases” include Case Explorer as well as MCAC’s own “SONAR” data, “ACS” (Automated Case System), “Guardian” FBI data, … and Maryland Motor Vehicle Administration data. It would be nice to know just what data is being collated here, and what protocols are in place for safeguarding the civil liberties of Maryland citizens.
In his recent article “The Constitution and the National Surveillance State,”** Yale constitutional law professor Jack Balkin warns that
“…government will create a parallel track of preventative law enforcement that routes around the traditional guarantees of the Bill of Rights.”
Balkin suggests differences between a democratic information state and an authoritarian one. In contrast to the “information glutton” authoritarian state, Balkin proposes that democratic informational states should “information gourmets”:
Like gourmets they collect and collate only the information they need to ensure efficient government and national security. They do not keep tabs on citizens without justifiable reasons; they create a regular system of checks and procedures to avoid abuse. They stop collecting information when it is no longer needed and they discard information at regular intervals to protect privacy. When it is impossible or impractical to destroy information—for example, because it is stored redundantly in many different locations—democratic information states strictly regulate its subsequent use. If the information state is unable to forget, it is imperative that it be able to forgive.
(Emphases added.) Accordingly, Balkin proposes that Congress “pass new superstatutes to regulate the collection, collation, purchase and analysis of data”:
These new superstatutes would have three basic features. First, they would restrict the kinds of data governments may collect, collate and use against people. They would strengthen the very limited protections of e-mail and digital business records, and rein in how the government purchases and uses data collected by private parties. They would institutionalize government “amnesia” by requiring that some kinds of data be regularly destroyed after a certain amount of time unless there were good reasons for retaining them. Second, the new superstatutes would create a code of proper conduct for private companies who collect, analyze, and sell personal information. Third, the new superstatutes would create a series of oversight mechanisms for executive bureaucracies that collect, purchase, process, and use information.
The Maryland State Police surveillance scandal illustrates the need for many of these statutory reforms. I hope both the Maryland legislature and Congress will consider them, and move expeditiously to enact them.
=====
* See the University of Maryland publication “World Views”, Winter 2003. That article noted that the Washington-Baltimore HIDTA was “the only one of the 28 HIDTA programs administered by a university”; the University of Maryland remains one of the fiduciaries of the WB HIDTA; the other is the Arlington County Police Department.
** Minnesota Law Review, Vol. 93, No. 1, 2008, at abstract/download site SSRN.
UPDATE, 7/28: State Senator Jamie Raskin op-ed piece in the Washington Post (”Orwellian Tactics in Maryland“): “And why was the name of at least one antiwar activist entered in a “Washington-Baltimore High Intensity Drug Trafficking Area” database under the Orwellian headings of “Primary Crime: Terrorism-anti-government” and “Secondary Crime: Terrorism-Anti-War Protesters”? Has it become standard operating procedure across the country to describe peace activists as “terrorists”?“
Category: Post. Tags: caseexplorer, free speech, maryland, md20, mspspyscandal, raskin, selected, surveillance.
Thread RSS,
Comment, Trackback.
Print This
July 25th, 2008 at 3:18 pm
Thomas, an excellent article, well researched and thoughtfully presented, as usual. It highlights a broader issue in light of the original purpose of “Case Explorer”: namely, whether the War on Drugs has been worth the effective repeal of the Fourth Amendment. Obviously, barrels of ink have been spilled on this subject, but several points seem clear: 1) the War on Drugs has driven the increasing invasion of privacy rights protected by the Fourth Amendment; 2) the War on Drugs has been largely ineffective, interdicting only a fraction of the traffic in illegal drugs; and 3) the laws banning illegal drugs have created enormous social costs in the form of violence, underground addiction, an enormous enforcement apparatus on a scale only suggested by Prohibition. From the perspective of protecting privacy and civil liberties, the War on Drugs certainly has to be reconsidered.
July 25th, 2008 at 4:34 pm
Thanks, Bill. You’re right: this is collateral damage of the “war” on (some) drugs. With all due acknowledgement of the real costs of “hard” drugs like crack or heroin… there has to be a better way than what we’re doing: blanket criminalization and incarceration, and a blanket excuse for all kinds of civil liberties violations and militarization of our own society (no knock raids, intrusive surveillance, SWAT team proliferation). I admit I go back and forth on this, but I’m more and more sympathetic to the libertarian view; at the end of the day, it’s a huge counterinsurgency at home, with real costs to liberties I hold dear. Tobacco/nicotine is addictive and destructive, too, yet we’ve managed to reduce its use and not have a drug war about it.
July 25th, 2008 at 10:36 pm
A great article about a truly disturbing topic. It’s worth noting that “Case Explorer” didn’t do a damn thing to help solve the DC sniper case.
July 26th, 2008 at 12:46 pm
No Prohibition, no J. Edgar Hoover.
“Wars” on drugs are wars on the citizenry; like real wars, they expand and expand in ways intended, semi-intended, and unforeseen.
If a serious counter-movement is to take place, we should also be casting a very cold eye on the rights-shredding going on under the sickening, saccharine screen of “[insert female name here]’s Law”, measures purportedly inspired by crimes victimizing children (child pornography, rape, abduction, murder).
One example is the proliferation, starting in Virginia, of the practice of taking DNA from anyone arrested in connection with such crimes, regardless of whether they were ever charged, and keeping it, and putting it into a national database (that last not now being done, I don’t think, but proposed).
Predictably, the categories of crimes for which this privacy invasion is being done have expanded and expanded, along with the number of states participating. It’s unjustifiable, and if presented as it actually exists today would be resisted. But the thin end of the wedge has been pious politicking “for the children” at the state legislative level; the invasion then goes on into occupation one slice at a time in subsequent sessions. Because who could be against “strengthening Jessica’s/Amber’s/Kimberly’s Law”?
July 26th, 2008 at 2:35 pm
Those are good points too. I think in the Maryland case, though, maybe sticking to the particular incident and legislating about that will be good — establish/re-establish principles that
(a) no surveillance without real probable cause (it’s still not established what that was for either anti-death-penalty or anti-war groups; there’s just talk of “fear of violence” accompanying an execution in MD.)
(b) personal- or group-level records via inconclusive surveillance (and records via *any* illegitimate surveillance) to be expunged.
Re (b) “personal- or group-level”, I’m trying to get around the problem of wanting to keep track of the fact of bad surveillance without keeping the stigmatizing surveillance records (about, say, Mr. Obuszewksi or the groups he’s in) themselves.
July 26th, 2008 at 2:44 pm
Hi Aviva! (I assume you’re FISA Amendment Act activist/facebook friend Aviva?) I hadn’t checked the “new comments” filter thing here until just now, sorry for the delay in your comment’s appearance.
Yeah, I was wondering about the DC sniper claim, it didn’t seem to ring a bell as being a big part of the apprehension of Malvo and Muhammad. Didn’t go down that rabbit hole in researching the post; thanks for mentioning it.
July 27th, 2008 at 11:23 am
TN: I think in the Maryland case, though, maybe sticking to the particular incident and legislating about that will be good
Oh, definitely. The whole database subject just makes me think about all the heavy-duty erosion that’s gone on in the last decade.
The expunging, from all databases, is a key. And while they’re at it, clarify the nonexistence of crimes like “terrorist - antiwar”. Which is closely related to the nonexistence of probable cause.
I’m truly mystified about the attention to the anti-death-penalty group. Sounds like some cops just deciding they don’t agree and going for it. Plowshares is more comprehensible, given the long history — totally unjustified, but offering more excuse because of focus on “security” targets and tendency to creative resistance.
Which raises another concern in the Maryland focus, that I think Max O. talked about on Democracy Now: no way the state police were the only cops involved. Records need to be flushed out of all the likely units.
July 27th, 2008 at 1:30 pm
truly mystified about the attention to the anti-death-penalty group. Sounds like some cops just deciding they don’t agree and going for it.
Yeah, that’s what gets me about the story too. Violence is the opposite of what most death penalty opponents I know of are about. It’s why I think Ehrlich was involved — he was catching a lot of criticism for death penalties, and I think he (or, backing off, his state police chief) were mainly out for whatever they could smear opponents with, whether there was anything illegal about it or not. (There’s precedent for that in MD history, it turns out, they may have just been dusting off an old playbook; links to be provided later.) And petty, vindictive stuff like that was Ehrlich’s m.o., in my opinion. But that’s just speculation.
September 2nd, 2008 at 11:08 am
[...] one no longer excusable (if it ever was) by the fears of those days. In Maryland, in 2005-2006, the Maryland State Police infiltrated and surveilled anti-death penalty and anti-Iraq war groups with no reasonable basis for doing so. Note not just the risible “Terrorist” part of [...]
October 2nd, 2008 at 12:08 pm
[...] was the part of the scandal I singled out for scrutiny in late July when the story broke (”Maryland police surveillance: “Case Explorer” and civil liberties“), and I’m pleased to see it got detailed attention in the Sachs [...]
October 13th, 2008 at 9:33 pm
[...] times now about the Maryland State Police spying scandal (”Sachs Report…”, “Maryland Police Surveillance: Case Explorer and Civil Liberties“). This Saturday, I attended a forum about it organized by the Washington Peace Center and [...]
February 20th, 2009 at 5:22 am
[...] passage of information was. It’s as if… as if… why, it’s as if there was some kind of federal database that would enable far-flung agencies to be aware of a mutual interest in a given [...]