In “Review Assails Spying in Md. By State Police,” the Washington Post’s Lisa Rein reports:
The Maryland State Police “significantly overreached” when they spied on peaceful opponents of the death penalty and the Iraq war and were oblivious to their violation of the activists’ rights of free expression and association, an independent review concluded yesterday.
Calling the 14-month monitoring during the administration of then-Gov. Robert L. Ehrlich Jr. (R) a “systemic failure,” former U.S. attorney and state attorney general Stephen H. Sachs said the police violated federal regulations and showed a “lack of judgment” when they entered personal information about some activists into a federal anti-terrorism database.
(Emphasis added.) This 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 report.
From that report (“Review of Maryland State Police Covert Surveillance of Anti-Death Penalty and Anti-War Groups from March 2005 to May 2006“; .PDF, 149 pages, link added):
Second, MSP [Maryland State Police -ed.] violated federal regulations when it transmitted some of its investigative findings to a database maintained by the Washington-Baltimore High Intensity Drug Trafficking Area (HIDTA) program, a federally-funded initiative to promote cooperation and information-sharing among federal, state, and local law enforcement agencies. Regulations promulgated by the United States Department of Justice permit MSP, when participating in the HIDTA project, to collect and maintain intelligence information concerning an individual “only if there is reasonable suspicion that the individual is involved in criminal conduct or activity and the information is relevant to that criminal conduct or activity.” See 28 C.F.R. § 23.20(a). Again, no such reasonable suspicion existed with respect to the investigation at issue here. To its credit, in late 2005 MSP discontinued, on its own initiative, its practice of sharing this type of information with HIDTA. [...]
While the MSP employees with whom we spoke recognized that the individuals and groups under investigation here were not “terrorists,” under any reasonable and accepted definition of that word, none who were aware of the use of the designation seemed to consider that a government agency’s decision to label someone a terrorist, particularly when that label is included in an external database, could cause serious harm to that person’s reputation, career, and standing in the community.
While this is absolutely no reflection on Mr. Sachs’s excellent report, that last part seems so implausible that I wonder if any of this was based on depositions under oath; if not, that’s a step I would then hope is not long in coming.*
Setting that aside, the Sachs report provides a wealth of information about the decision to use Case Explorer, and the ramifications of that decision; I’ll be studying that part of the report and writing about it separately.
Meanwhile, Sachs recommends that the Maryland State Police “formulate binding regulations that govern covert surveillance of “advocacy” or “protest” groups” which respect their constitutional rights. But Sachs also makes several specific database- and “Case Explorer”-related recommendations (emphases added):
2. MSP should establish standards for the collection and dissemination of criminal intelligence information; provide for periodic auditing of the contents of MSP’s intelligence database; and require that information inappropriately entered as criminal intelligence information be purged promptly and that other information be purged on an appropriate cycle. Numerous law enforcement agencies around the country, including in Maryland, have promulgated regulations that address these issues. In Section IV below, this report identifies several models from which MSP may choose to draw.
3. MSP should revise, and possibly discontinue, its use of the Case Explorer database in connection with its intelligence-gathering activities. If funds are available, it should separate its criminal intelligence database from the information that it maintains in Case Explorer for other purposes. As presently employed by MSP’s Homeland Security and Intelligence Division, Case Explorer encourages the overinclusion of individuals and groups in the database, does not facilitate supervisory review of ongoing investigations, and, for a variety of technical reasons, frustrates the troopers, civilian analysts, and supervisors who have to use it on a regular basis.
He also recommends that MSP allow surveilled individuals who aren’t suspected of violent crime to see their files and then purge those files.
These recommendations echo those by constitutional law professor Jack Balkin in “The Constitution and the National Surveillance State”, which I outlined in my “Case Explorer and civil liberties” post: “…create a regular system of checks and procedures to avoid abuse … stop collecting information when it is no longer needed … discard information at regular intervals to protect privacy.“ If the Sachs recommendations are enshrined in state law and regulations, Maryland will have turned an deeply disturbing civil liberties failure into a historic civil liberties success, one that can show the way for other states and even the nation.
I’ll be forwarding these comments to all of my Maryland state representatives, and to any others who seem to have a role to play in enacting reforms. I hope other Maryland citizens will add their voices in support of the Sachs recommendations.
* UPDATE, 10/2: Sachs notes that he could not take testimony under oath, but got full cooperation from the MSP. From the introduction: “As you know, I was not asked to conduct a formal investigation. I had no power to issue subpoenas and no authority to take testimony under oath. That said, my colleagues and I consider it important to note that we have received full cooperation from the State Police in [making MSP personnel] available for interviews, and giving us full access to all of the many documents we sought to examine…”