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The Problem With The Bush Administration's Proposed "Operations TIPS"


Monday, Aug. 05, 2002

Did you know that the cable installer, your FedEx deliveryperson, or your electricity meter reader might soon be spying on you? They may be preparing to alert the federal government to any signs of suspicious activity as they install cable, ask you to sign for a package, or check your meter.

This Orwellian future may occur quite soon unless Congress acts to outlaw the government's Operation Terrorist Information and Prevention System (TIPS). According to the White House, TIPS is scheduled to be introduced as a pilot project in August 2002. By fall, up to one million U.S. service workers in ten cities may be recruited as volunteer citizen informants, assisting the government in its hunt for the terrorists among us.

Not everyone is happy with the prospect of citizen spies. Indeed, both civil liberties groups and conservative organizations have expressed outrage. As a result, the government's description of the TIPS plan has become vaguer and more ambiguous. But that should only make the public's concerns more intense.

The House of Representatives' version of the Homeland Security legislation - spearheaded by majority leader Dick Army (R-Tex) - which passed just a few days ago, would prohibit TIPS. But the Senate Homeland Security bill, due to be debated next week, is currently silent on the subject.

It is crucial that the Senate bill be amended to mirror the House bill and outlaw TIPS. We should not accept a society in which we must live in fear - worrying about whether our next catalog delivery is from someone who is a citizen spy.

What is Operation TIPS?

TIPS is one of five component programs of the Bush Administration's Citizen Corps. The Bush Administration has proposed that it be administered by the U.S. Department of Justice and run in partnership with several other federal agencies.

Most of the other Citizen Corps functions relate to assisting with disaster relief and emergency preparedness in the event of an act of terrorism or crime. TIPS, as described above, is very different - and intensely threatening to basic civil liberties. Shockingly, if the Bush administration's estimates are correct, under TIPS the US will have a higher percentage of citizen informants than were enlisted by the former socialist East Germany through the notorious Stasi secret police.

Here is how recruitment will occur: Industries that are interested in having their workers participate will be given flyers and brochures about the program, explaining how to contact the Operation TIPS reporting center. This information will be distributed to workers or posted in common work areas.

And here is how the citizen spies will operate: A volunteer worker recruited for TIPS will be able to report suspicious activity by calling a toll-free hotline. Information received will be referred to an appropriate government contact for further investigation if appropriate.

Many Unanswered Questions About TIPS Remain

Is there any meaningful limit imposed by the language suggesting that these workers will observe "public places"? White House spokespersons have stated that TIPS is not meant to include spying in people's homes. Yet the occupations that the Department of Justice has singled out for participation in TIPS obviously include workers who do have unique and frequent access to our homes - both from the inside and from the outside.

Even if there is some "public places" limitation, how can any such limit be maintained when it is part of the TIPS volunteers' very jobs to enter people's homes? Moreover, if a tip comes from a volunteer's on-the-job in-home observation, will the government ignore it? It seems unlikely.

If a street is a "public place," is a volunteer who looks in the window of a home from a street vantagepoint staying within proper boundaries? And again, if window-spying leads to an apparently convincing tip, will that tip be ignored under a sort of "exclusionary rule" relating to tips that come from violations of the "public space" limitation? Unlikely.

Will repairpersons who come to my home feel the need to check out my bookshelves, or take a glance at my computer screen to see what I'm working on - and if so, won't they be violating my First Amendment rights? If I am a research scientist, might a cable TV installer mistake my books for terrorist tracts on explosives and bomb-building?

What about racial profiling? If I am a single male immigrant worker - particularly from countries of which the U.S. is suspicious - will the mere fact that I share a room with several other men out of economic necessity be cause for someone to call in a tip that I am living in a terrorist enclave?

If I am Arab-American, will my every experience with a service worker turn into a search/interrogation fraught with danger for me? How will my children feel when every government employee their father or mother comes into contact with seems suspicious and distrustful? Will religious articles in my home be construed as evidence of "suspicious activities"?

An End Run Around the Fourth Amendment?

The ACLU has cautioned that law enforcement may use civilian volunteers as an end run around the warrant requirements of the Fourth Amendment.

Police cannot routinely enter people's homes without first obtaining a search warrant. But the occupant's consent to a search allows an exception to that rule. So now, by consenting to have cable television installed or have your water meter read, and being unlucky enough to have let in a TIPS informant, you might be held to have effectively "consented" to a search - without any notice to you that this is what you have done.

Search resources that in the past have been limited will suddenly become virtually unlimited - with millions of new searchers enlisted as unpaid volunteers - and prioritizing serious crime may thus give way to a dragnet free-for-all. Sadly, it is that the Arab-American family on the block that is most likely to be under constant suspicion. Why bother to detain people when you can use constant volunteer surveillance instead?

Lack of Accountability For TIPS Could Lead to Abuses

There are no restraints or checks and balances in place to create accountability for Operation TIPS. For instance, the current plan does not provide for any judicial or Congressional oversight of TIPS. Nor does it specify the consequences if "tips" consist of false or wrong accusations - raising the specter of a neighbor's vendetta being allowed to put the FBI on another neighbor's track, with no penalty for anyone if the latter neighbor ends up being a wrongly-targeted Richard Jewell figure.

Nor will Congress be asked to review the types of information being reported through TIPS, or to examine whether abuses have occurred. Finally, there is no way to assess whether the program is effective or a waste of federal resources.

Sometimes too much information can actually hinder government efforts, when every tip - no matter how unreliable - must be run down. If volunteers can become heroes in their workplaces by submitting tips, they may report even the most minor of suspicions or the most questionable "evidence." Checking out bad tips costs time and money.

The Government Remains Vague on Important Aspects of TIPS

As mentioned above, neither the Citizen Corps website's text nor any other government releases make clear what the type of activity the volunteer workers will be encouraged to report, or in what places surveillance will take place. More troublesome still is the vagueness about how long the information will be retained and by which government agencies.

Attorney General John Ashcroft recently testified before the Senate Judiciary committee about TIPS. Under questioning, he noted that there would be no central database for information collected by TIPS volunteers. Rather, Ashcroft stated that the program would merely "be a referral agency that sends information that is phoned in to appropriate federal, state and local law enforcement agencies."

But that leaves an important question: How would the data be used? The answer, again, is a vague one: it all depends.

Programs such as highway watch or coast watch have a more geographically defined scope, and generally involve the observation of truly public activities. (It's too bad for you if someone sees you throw a beer can out of your car window, but what if a TIPS volunteer, seeing too many beer cans in your house, deems you suspicious?)

Moreover, the government did not recruit an elite corp of volunteers for watch programs; they rely on general public participation. Through actively recruiting Americans to serve as informants for TIPS, the Department of Justice runs the risk of creating a group of overzealous vigilantes.

Volunteers who are untrained, and who are not experts in law enforcement, will not necessarily exercise restraint. And the consequences of lack of restraint may be particularly serious if volunteers are inclined to engage in racial profiling, or if they have an axe to grind with respect to a particular person or family in the neighborhood.

Living in Fear: The Perils of Creating a Nation of Spies and Snoops.

For TIPS, the truly apt comparisons are not highway watch or coast watch - or even neighborhood watch - programs. Rather, the proper analogies are much darker and more threatening.

Senator Patrick Leahy, (D-VT.), the chair of the Senate Judiciary Committee, has compared TIPS to a "ghetto informant" program created in the 1960s by the FBI under J. Edgar Hoover. The FBI hired neighbors of suspected political protesters to spy on them.

Operation TIPS also seems reminiscent of the use of citizen informers in countries of the former Soviet Union - where neighbors, and even husbands and wives, were encouraged to spy on one another.

One lesson we can learn from history is that if citizen spies walk among us, we will live in a constant state of fear and distrust. In the land of the free and the home of the brave, that will be nothing less than a tragedy and a betrayal of our national character.

Anita Ramasastry is an Assistant Professor of Law at the University of Washington School of Law in Seattle and the Associate Director of the Shidler Center for Law, Commerce & Technology.

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