Michael Dever

Bureau of Justice Assistance

810 7^th^ St. NW

Washington, DC 20531

RE: Comments on Department of Justice Proposed Rule on Criminal
Intelligence Systems Operating Policies (OJP Docket No. 1473)

On behalf of the Defending Dissent Foundation, I am writing to express
our concern about several proposed changes to 28 C.F.R. Part 23, and to
urge the Department of Justice NOT to enact these changes.

We understand that the intent of these changes is to make information
sharing between federal and state agencies easier. Clearly cooperation
between different law enforcement bodies in pursuit of specific suspects
when there is reasonable suspicion of a crime is appropriate and
necessary. But such information sharing is already allowed under the
current version of 28 C.F.R. Part 23, and no change to the regulation is
necessary.

The proposed changes to 28 C.F.R. Part 23 will undermine constitutional
rights by allowing and even encouraging information gathering and
sharing in the absence of any reasonable suspicion of criminal activity.
As drafted, the proposed rule unduly expands the perception of the scope
of information that can and should be gathered and shared regarding the
activity of law-abiding citizens, and requires the information to be
stored, without review or re-validation, for an unjustifiably long time.

We are specifically alarmed about the following proposed changes:

-   Section 23.2 adds a problematic new category to the list of examples
    of criminal activities, "domestic and international terrorism,
    including the material support thereof". We are concerned that the
    expansion to include the ill understood term "material support" in
    particular will expand local and state law enforcement agencies'
    perceptions of what can be collected to include
    constitutionally-protected speech and association activities.
    Already we have seen the federal government endorse Los Angeles
    Police Department recommendations about "suspicious activity
    reporting" that treat First Amendment protected activities such as
    taking notes, pictures or videos or espousing "extremist views" as
    indicative of terrorist activity.

-   Section 23.20(a) adds new language to "clarify that criminal
    intelligence information can be collected and maintained about
    organizations as well as individuals." We believe this expansion of
    authority will harm First Amendment rights of free association by
    encouraging local and state police to create "blacklists" of suspect
    organizations.

-   Section 23.20(e) and (f) of the proposed change expands the
    permissible purposes of dissemination of information to include
    information that may assist in preventing crime or violence or "any
    conduct dangerous to human life or property." This creates an
    alarming open-ended standard, which would arguably allow a law
    enforcement agent to disseminate information that "might" assist in
    preventing "dangerous" conduct. This would destroy any privacy and
    civil liberties protections for individuals merely suspected of
    "dangerous" behavior.

-   Section 23.20 (f)(2) drops the word "imminent" from the rule to
    allow the dissemination of an assessment of criminal intelligence
    information "to a government official *or any other individual*,
    when necessary to avoid danger to live or property." Deleting the
    crucial word "imminent", while retaining the permission to share
    information with "any other individual" would allow dissemination of
    information to anyone when the potential danger is merely
    speculative and not criminal in nature. Given the frequency with
    which local and state police unjustifiably confuse protected First
    Amendment activities with potentially dangerous behavior, we believe
    this change will encourage police to monitor political activists and
    share intelligence with non-government entities.

-   Section 23.20(h) doubles the length of time that data can be stored
    without review or re-validation to ten years. This will undoubtedly
    increase the volume of obsolete, incorrect and useless information
    sitting in intelligence databases.

History has shown that police often mistake political activism with
criminal activity. Indeed, documents recently released show that
Maryland State Police investigated, gathered and disseminated
information about anti-death penalty activists without any evidence of
criminal activity. 28 C.F.R Part 23 is necessary to focus police on
criminals, including terrorists, and not political activists. Altering
28 C.F.R is unnecessary and risks upsetting the balance necessary to
keep law enforcement officers focused on legitimate threats to the
safety of the communities they serve.

The Defending Dissent Foundation strongly urges the Department of
Justice NOT to enact the proposed changes to 26 C.F.R. Part 23.

Thank you,

Susan Udry

Director

Defending Dissent Foundation