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Civil Rights and Privacy in the
Law Enforcement Intelligence Process
In the process of providing public safety, an inherent responsibility of all law enforcement agencies is the protection of citizens’ civil rights—intelligence activities are no exception. One of the most important and fundamental aspects of American life is the freedoms afforded to every citizen through civil rights protections. Despite the perceptions of some, law enforcement officials accept this responsibility. They understand that the protection of civil liberties is just as important as protecting the community from crime and terrorism. While this is a fundamental truth, there is debate on where the line should be drawn with respect to the degree of intrusion allowed to the government on privacy and personal liberty in order to protect America’s citizens and the country’s sovereignty from external threats, such as terrorism.
One question that has been debated is whether some civil liberties should be reduced to protect America from terrorism. This issue is embodied in the philosophical question of which is more important—protecting Americans from a terrorist attack that may kill thousands of people or protecting individual civil liberties which are the lifeblood of America’s most sacred principles? In truth, when examined objectively, there is no unequivocal right or wrong answer to this question because it is philosophical in nature and depends on each individual’s personal philosophy and life’s experiences.
Fortunately, the working law enforcement officer does not have to deal with this philosophical debate. Rather, the officer must focus on fairly explicit rules that ensure that constitutional protections for citizens remain intact. These include the following:
• Law enforcement cannot collect information on individuals for intelligence activities unless there is a criminal predicate. The law enforcement officer must have reliable, fact-based information that reasonably infers that a particularly described intelligence subject has committed, is committing, or is about to commit a crime.
• All information collected about an individual for intelligence purposes must be done in a manner that is consistent with the law of criminal procedure.
• Collected information cannot be retained indefinitely. Instead, it may be retained only if there is reliable information that provides sustained evidence of a criminal predicate.
• The law enforcement agency has the responsibility of protecting the privacy of information they collect about individuals in the course of intelligence operations. This protection of privacy extends to the dissemination of information only to officials who have the right to know and a need to know the information to further a criminal inquiry.
• When there is no evidence of a sustained criminal predicate, all intelligence records about an individual must be purged (destroyed).
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Each issue will be discussed in the coming pages. Because of the importance and emotions on both sides of the debate, there has been a significant increase in the scrutiny of law enforcement intelligence activities to ensure that information is being collected, used, retained, and disseminated in a proper manner. Indeed, many law enforcement agencies have been criticized for their intelligence function, not only because of perceived abuses, but even for the potential for abuse. This last point deserves special attention.
The “potential for abuse” does not mean abuse will occur, rather it means that the opportunity for abuse exists if there are no control factors in place to prevent abuse. The three most salient factors are these:
1. Policy.
2. Training.
3. Supervision and accountability.
Policy establishes the agency philosophy, standards, expectations, and decision-making boundaries of any organizational task and responsibility.
Training provides the knowledge, skills, and abilities to perform any particular occupational task. It specifies the method of performing, what must be done, how it should be done, and what should not be done. It demonstrates the application of policy and typically informs personnel of implications and sanctions if the task is not performed correctly.
Supervision and accountability are organizational mechanisms to ensure that policy is followed and performed in the manner specified by the training.
Subordinates’ activities and behaviors are monitored by a supervisor to hold the individuals accountable for performing their responsibilities only in a manner that is sanctioned by the agency.
With clearly defined policy, effective training, and responsible supervision, the potential for abuse is dramatically reduced. Two additional factors that can also affect the potential for abuse are systemic to the organization. First is the type of people the agency employs. What are the requirements? What characteristics are sought in new employees? What factors in the selection process shape the type of person who is hired? The clay used to mold the law enforcement officer will significantly influence the effectiveness of policy, training, and supervision.
The second factor is agency leadership. The tone that the leader establishes for the department, as well as expectations of the leader, will be reflected in the behaviors of the employees. A leader who establishes clear expectations of personnel performance and supports those expectations with both rewards and sanctions, as appropriate, will also significantly lower the probability of abuse from occurring.
The potential for abuse exists with all types of law enforcement assignments, not just intelligence. Modern law enforcement seeks to perform all law enforcement responsibilities in a lawful, professional manner. To conclude that the law enforcement intelligence unit or an intelligence fusion center is inherently flawed simply because of the potential for abuse is a fallacious argument.
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