Deputy Chief Michael Downing told commissioners that terrorist plots… (Mariah Tauger / Los Angeles…)
In Los Angeles, as elsewhere in this country, fear of enemies in our midst — be they Communists, trade unionists or foreign terrorists — too often has led to violations of the privacy of law-abiding Americans. Given that history, civil libertarians and members of the Muslim community were right to press the Los Angeles Police Department to ensure that a program designed to detect possible terrorist activity doesn't cast suspicion on individuals whose only "offense" is to exercise their right to free speech or belong to a particular ethnic or religious group.
The result is an amended set of guidelines approved by the city Police Commission for the handling of "Suspicious Activity Reports." Though the new guidelines don't go as far as the American Civil Liberties Union would like, they make it less likely that police will record the identities of persons whose conduct is neither criminal nor reasonably suggestive of possible terrorist connections. That's an important step forward.
So-called SARs are controversial because they are not limited to criminal activity; they can also be filed if a person behaves in a manner that, while legal, may be suspicious — such as abandoning luggage in a railway station or taking photographs of a power plant. Especially since 9/11, citizens often alert police to such activities. (They also may pass on "information" rooted in paranoia or prejudice, such as the fact that a new neighbor wears a turban or speaks Arabic. Police insist they will promptly discard such reports as "unfounded.")
The new policy reaffirms that racial profiling has no place in documenting suspicious activity, provides for regular audits of the SARs program and proposes a community advisory board to help ensure against abuse. The policy advises officers against reporting activity generally protected by the 1st Amendment "unless additional facts and circumstances can be clearly articulated that support an officer's or agency's determination that the behavior observed is reasonably indicative of criminal activity associated with terrorism or other criminal activity." The ACLU would prefer a higher standard than "reasonably indicative"; it says information should be retained only if there is a "reasonable suspicion" of illegal activity.
Even outside the terrorism context, unusual but legal behavior can alert the police to the possibility of a threat that requires further investigation consistent with constitutional protections. It's impossible to pursue information about an individual without, however briefly, recording his name. The crucial question is whether law enforcement holds on to personal information for too long after it is clear that it doesn't point to criminal activity. A report not quickly deemed "unfounded" is kept by the LAPD for a year even if it doesn't lead to an investigation, but it is also shared with a Joint Regional Intelligence Center that retains the information for five years. Even in a post-9/11 world, that is too long for someone to remain in a database because of "suspicious" activity that proved harmless. The dialogue that produced the new LAPD policy needs to continue at the national level.