April 24, 2012 1:03 am

ACLU Report: When can Chicago police spy on protesters?

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Without making an arrest, Chicago police might disrupt or chill First Amendment activity by spying on it. This might occur during protest planning, or at a protest itself.

From the 1920s through the 1970s, the Chicago Police Department’s notorious “Red Squad” spied on and maintained dossiers about thousands of law-abiding individuals and groups, even going as far as to infiltrate the meetings and memberships of political and civil rights organizations. Many groups sued. They eventually entered a settlement agreement with the City that regulated collection of information about people based on their First Amendment activity, such as joining a political or civil rights group, or marching in a parade. Most significantly, this agreement usually required police to have “reasonable suspicion” of crime before investigating First Amendment activity. Unfortunately, these regulations were lifted in 2009.

Today, the City allows its police officers to investigate First Amendment activity based on a mere “proper law enforcement purpose.” This nebulous standard is far less protective of protest than the previous reasonable suspicion standard: it allows fishing expeditions absent a criminal predicate. Under this standard, the Chicago police in 2002 improperly spied on the efforts of the famously nonviolent American Friends Service Committee to plan a lawful protest against the upcoming meeting in Chicago of the Trans-Atlantic Business Dialogue. Unfortunately, it appears that in the future, undercover Chicago police officers will continue to attend protest planning meetings without identifying themselves.

Further, Chicago has the nation’s largest and most integrated system of video surveillance cameras, according to a former U.S. Secretary of Homeland Security. These cameras blanket the downtown Chicago area. The City’s camera system now has sophisticated zoom and automatic tracking technologies, and the City has sought a facial recognition system. Unfortunately, the City’s applicable General Order allows police to use this camera system to film protests based on the insufficiently protective “proper law enforcement purpose” standard. The Chicago police should instead adopt a policy requiring reasonable suspicion of crime before police may aim a camera at First Amendment activity, or zoom any activity. Also, there should be an even higher “probable cause” standard for any automatic tracking or facial recognition.

Finally, Chicago operates a “fusion center” known as the Crime Prevention Information Center. Its purpose is to gather, store, and share information about suspected criminal activity. In other states, fusion centers have improperly gathered, stored, and shared information about lawful groups and their political beliefs and activities. The City should adopt a “reasonable suspicion” standard for this fusion center, to avoid the kinds of abuses committed by fusion centers in other states, and in the past by Chicago’s Red Squad. Unfortunately,the controlling Chicago policy allows its fusion center to collect, disseminate, and store “suspicious activity reports” based on “a level of suspicion that is less than ‘reasonable suspicion,’” namely, a mere “potential terrorism nexus,” or activities only “consistent with” terrorism. Notably, the Illinois State Police has adopted a reasonable suspicion standard for its fusion center, and the Director of National Intelligence has adopted that standard for its nationwide database of suspicious activity reports from state and local police.

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