What, Exactly, Is "Suspicious Activity?"

By Nat Hentoff
This article appeared on Cato.org on September 15, 2011.
Courtesy Of "The CATO Institute"

More of us, including the new generation, are becoming aware of what the report "Surveillance in the Homeland" (Truth Out, Aug. 22) describes as the state of our personal privacy: "Our phone calls, our emails and web site visits, our financial records, our travel itineraries, and our digital images captured on powerful surveillance cameras are swelling the mountain of data that is being mined (by the Obama administration) for suspicious patterns and associations."

This ceaseless surveillance was unimaginable to America's founders, of course, because such technology was nonexistent in their time. But can we call ourselves a self-governing constitutional republic when we are subject to this increasingly familiar government invasion by local as well as federal government officials? I heard this recently from Michael Bloomberg, mayor of New York City, where I live: "When you see something, say something!"

Like what? It's up to us to make what connection? No hint for us?

This call to report to police or the FBI suspicious behavior by anybody has led the American Civil Liberties Union to file a Freedom of Information Act (FOIA) lawsuit (ACLU.org, Aug. 25) "challenging the government's failure to release documents about the FBI's nationwide system of collecting and sharing (with other intelligence agencies) so-called 'Suspicious Activity Reports' from local, state and federal law enforcement agencies."

I make a point of following debates and releases among Republican 2012 presidential aspirants, and never once have I heard any concern about this omnivorous tracking of, as the Constitution begins, We The People. What does Gov. Rick Perry think of it? President Barack Obama, of course, thoroughly approves of this obliteration of our privacy to protect national security — without any of us being told we've been targeted.

This eGuardian program, begun in 2009, explains the ACLU, "allows the FBI to collect information about vague and expansively defined 'suspicious activity' from law enforcement and intelligence officials across the country, as well as from the public."

Yes, from the public. If one of us utterly detests a neighbor or someone where we work, why not report him or her to the authorities for "suspicious activity"?

As for any of the rest of us actually attracting the investigative notice of an intelligence agent, the eGuardian dragnet, the ACLU continues, "appears to give broad discretion to law enforcement officials to monitor and collect information about innocent people engaged in commonplace activities, and to store that data in criminal intelligence files without any evidence of wrongdoing. There are also serious concerns that the system opens the door to racial profiling."

In my city, New York, tens of thousands more blacks and Hispanics are regularly "stopped and frisked" by police than in white sections of the city. Only a very tiny percentage of them are actually arrested for "suspicious activity," but so many of the others very often are placed in databases for possible future criminal investigations.

Under the reign of Police Commissioner Ray Kelly — with not the slightest objection from Mayor Bloomberg — the presumption of innocence under our rule of law has been suspended in largely black and Hispanic neighborhoods. Nor is this happening only in New York City.

Many of the residents of, let's say, Zimbabwe, are utterly unaware of the presumption of innocence from Robert Mugabe's police, but aren't we citizens fundamentally entitled to learn from our government a lot more about how "suspicious activity" is defined?

The ACLU will stay on this case, but what will be required for us to become full-fledged citizens is sustained, insistent protest and pressure by the citizenry directed against our representatives in Congress and local and state legislatures.

Or we continue, among more vanishing liberties, to let government keep tracking our cell phones, thereby giving the FBI and others "an unprecedented ability to zero in on a person's movements every day," (Providence Journal, Sept. 9).

Can this still be the land of the free and the home of the brave?

Ringing louder in my head is Thomas Jefferson's warning to all American generations that the only guarantee of our individual liberties is the people themselves — as long as they know how to be Americans. Most public schools aren't teaching that basic subject, so individual privacy may survive only as a quaint, abandoned echo of our history.