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'Ask' without 'task': legal circumvention of Posse Comitatus and Privacy Act of 1974

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If the reader has reached past the title to this point, he or she has likely arrived with a predisposition of good or evil, with some fulminating as to how such an event come to pass. I am not so certain, but I have leanings as implementation depends upon user discretion rather than force of law.

The three keys to preventing DoD from violating Posse Comitatus, statute law and its internal policies are:

  • Voluntary "participation by state and local law enforcement" such that any party -- local, state, or federal -- can ask for information or support, the Pentagon included
  • No DoD agency will task any other organ with specific collection requirements (Posse Comitatus prohibition on assumption of domestic law enforcement powers)
  • Data storage on local PCs rather than centralized on DoD computers (Privacy Act of 1974 prohibition on capturing data on US citizens without their knowledge)

This inspired exploitation takes form in the web-based Joint Regional Information Exchange System (JRIES), originally created in 2002 by DIA, the California Anti-Terrorism Information Center (CATIC), and the New York Police Department, transferred to DHS in February 2004, and then renamed (even as the DoD project manager, Tom Marenic, was seconded to DHS, DoD retained an executive board seat, and DoD entities remain JRIES participants).

A JRIES developer, Jonathan Duecker, noted:

"For obvious statutory and directive reasons and rules and laws and things, [DoD] couldn’t do the same type of collection in the United States we could do overseas… We started looking at various laws and perceived prohibitions that impacted the type of information the military could receive from law enforcement and determined that there was no prohibition from the Department of Defense receiving this information from state and local law enforcement."

With domestic US law enforcement reporting as a "legal way of getting information on threats in the U.S.," any JRIES participant at any level can launch an informal query, known as "requesting," to the network for aid on any topic. While "present and former Defense officials involved with the project make clear that DIA analysts are not interested in any information that is not clearly terrorism-related, [for] some local police, the lines between terrorist-related behavior and political activity remain blurry."

The current JRIES executive board director, Ed Manavian, "believes information on political protests can be considered legitimate terror intelligence," while CATIC "distributed numerous warnings on the actions of peaceful anti-war protesters." 'When asked if JRIES had ever carried information on political protests, Marenic responded, "As far as political protesters — I can’t honestly say that there’s been absolutely none."'

That said, and with the knowledge that as yet JRIES has no privacy officer nor formal data vetting process, I find the system of great value to law enforcement at any level and, as a data miner, would find JRIES useful in fuzzy searches for unspecific relationships that a voluntary contribution might be able to shed great value. I harbor a hunch, for example, that such groups as single interest terrorists will leave weak, fuzzy patterns during their run-up to violence that can be exploited. Yes, the project could go the way of 1960s domestic spying by US Army intelligence, and again speaking as an analyst, I would find it temping to accumulate JRIES data for forward and backward chaining. If such accumulation occurred, the issue would be where. It would be a violation of the 1974 Privacy Act if it occurred on federal computers.

Given that interagency cooperation is hard enough to get at any time, I would for the moment allow self-policing to insure that posted data is relevant to anti-terrorism.

Pentagon Has Access to Local Police Intelligence Through Office in Homeland Security Department
CQ HOMELAND SECURITY – INTELLIGENCE
July 6, 2004 – 9:22 p.m.
By Justin Rood, CQ Staff

Gordon Housworth



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