by Michael Maharrey
By joining joint law enforcement task forces run by the federal government, local cops can often ignore stringent state and local laws governing surveillance and engage in warrantless spying.
It’s well-known that a federal program known as “Equitable Sharing” allows local prosecutors and police to bypass more restrictive state asset forfeiture laws by passing cases off to the federal government through a process known as adoption. A Department of Justice directive issued last summer by Attorney General Jeff Sessions reiterates full support for the equitable sharing program, directs federal law enforcement agencies to aggressively utilize it, and sets the stage to expand it in the future.
Through the adoption process, local police claim cases are federal in nature to justify transferring them to federal jurisdiction. Under these arrangements, state officials simply hand cases over to a federal agency, participate in the case, and then receive up to 80 percent of the proceeds.
Participation in federal joint law enforcement task forces gives state and local police a similar means to circumvent restrictive state surveillance laws and conduct warrantless spying with immunity.
How Local Cops Can Ignore Local Laws
When state or local law enforcement officers join a federal joint task force, they are deputized as federal agents. As a result, they can operate under the exact same parameters as an FBI or DEA agent. That means they are no longer bound by state laws governing surveillance. In practice, this allows local cops to ignore state laws as they collect information on people in their communities.
For instance, last year, Illinois passed the most restrictive law on cell site simulators in the country. Commonly referred to as “stingrays,” these devices essentially spoof cell phone towers, tricking any device within range into connecting to the stingray instead of the tower. This allows law enforcement to sweep up communications content, as well as locate and track the person in possession of a specific phone or other electronic device.
Under the Illinois law, police must get a warrant before using a stingray to track an individual’s location in most situations, and they are barred from using the devices to access data on electronic devices or listen to conversations. But an Illinois police officer serving on a joint task force can ignore the warrant requirement and deploy a stingray despite the state law.
According to a report by the Century Foundation, Joint Terrorism Task Forces (JTTFs) are particularly invasive due to their broad and sweeping mandate to “prevent terrorism.”
The War on Terror Expands Law Enforcement’s Reach
Prior to 9/11, there were about 30 JTTFs scattered around the US. Today, more than 180 such task forces operate all across the US. According to memoranda of understanding (MOUs) obtained by the ACLU, state and local law enforcement officers assigned to JTTFs follow federal rules for intelligence gathering.
According to the New Century report, these JTTFs also allow state and local cops to operate in virtual secrecy and with little or no local oversight.
Partnerships on JTTFs may also enable local and state police to conduct activities in secret, under cover of federal law protecting ‘classified information,’ where their activities would otherwise be subject to public scrutiny through state open records laws. Sometimes, local officers deputized to work as federal agents on JTTFs aren’t even subject to ordinary chain-of-command requirements, for example, if their local commanding officer doesn’t have security clearance to access information held by the JTTF member. These frameworks make it impossible to hold local and state law enforcement officials accountable for their work on JTTFs.
In 2008, the DOJ established rules allowing FBI agents to conduct “assessments”—essentially an investigation without any indication of terrorist or criminal activity. Any FBI agent can unilaterally initiate an assessment for up to 30 days without any oversight. After 30 days, the agent must report to a supervisor. From that point, the supervisor can renew the assessment every 30 days. An agent does not have to have probable cause or even reasonable suspicion to open an assessment. He only needs to have an “authorized purpose” and a “clearly defined objective.” According to the Brennan Center for Justice, agents can engage in the following activities, among others, during the assessment phase.
- Recruit informants to monitor the subject.
- Question people without revealing their identity.
- Search commercial and government databases.
- Conduct physical surveillance of a person’s public movements.
When operating within a JTTF, a local law enforcement officer can engage in all of these activities, regardless of state law or department policy.
The Warrantless Collection of Data
Deputization and membership in a JTTF also opens the door for local cops to access federal databases holding information that was collected without a warrant.
Local and state police assigned to JTTFs and deputized as federal agents may even have access to information collected by the CIA, NSA, or foreign intelligence agencies, as their FBI counterparts do. Indeed, FBI guidelines allow agents to ask the CIA and NSA for information on people agents are investigating during an assessment. Again, agents and task force members do not even need to suspect someone of involvement in criminal activity before opening such an assessment. Local police assigned to the JTTF may therefore have access to information about Americans that was collected by the NSA without any judicial process, even if the targets of the spying aren’t suspected of any crime—let alone a serious offense connected to terrorism.
The FBI calls JTTFs “our nation’s front line on terrorism: small cells of highly trained, locally based, passionately committed investigators, analysts, linguists, SWAT experts, and other specialists from dozens of U.S. law enforcement and intelligence agencies.”
The New Century report came up with a much less glowing assessment.
Communities and individuals who have been monitored, harassed, or threatened by JTTF operations or their task force officers may see their role differently. To those groups, the JTTFs likely appear more interested in solidifying and expanding the power of their own bureaucracy, and protecting the political, social, and economic status quo—often at the expense and on the backs of marginalized communities. And despite the FBI’s claim that the JTTFs are the nation’s “front line on terrorism,” the FBI doesn’t have much to show, in terms of benefits to public safety, for the vast expenditures of public funds poured into them.
State and Local Governments Need to Step Up
Joint task forces further detach local peace officers from the communities they ostensibly serve. Federal deputization allows your local cops to operate outside of state law with virtually no local or state oversight or accountability. They can surveil you with impunity, even if your state has passed laws to protect your privacy.
Joint task forces should not serve as a vehicle to circumvent state law. State and local governments need to take steps to regain control over their police departments. They should refuse to lend their officers to any joint task force that does not operate within the limits of state surveillance laws. They should also insist on having an oversight role when any of their officers are involved in joint investigations.
Despite revelations by Edward Snowden and other whistleblowers revealing the total disregard of the Fourth Amendment by federal agencies like the NSA, Congress has shown no inclination to rein in the federal surveillance state. State and local government may not be able to completely shut down the federal surveillance state, but they certainly don’t have to participate.
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Michael Maharrey is the national communications director at the Tenth Amendment Center.