Citing Potential for Abuse, ACLU of Florida Asks Governor to Postpone Plans for Statewide 'Intelligence' Database

MIAMI – Citing great ‘potential for misuse’ in the creation of intelligence files on Floridians, the American Civil Liberties Union of Florida today asked Governor Jeb Bush to postpone the implementation of a statewide intelligence database to monitor ‘domestic security.’

In a letter to the governor sent today, ACLU of Florida Executive Director Howard Simon outlined concerns with a provision of Executive Order #01-300, issued by Gov. Bush on Oct. 11, that directs the Florida Department of Law Enforcement to “”establish a dedicated Statewide Domestic Security Intelligence Database for use by all Florida law enforcement officers under appropriate security.””

The ACLU asked that implementation of the plan be postponed until the law enforcement officials can be directed to develop standards that ensure that only information about suspected criminal activity is entered into the database.

“”America has seen the creation of intelligence files on ordinary citizens not for their involvement in suspected criminal activity, but for activities that are lawful and fully protected under both the United States and Florida Constitutions,”” wrote Howard Simon, Executive Director of the ACLU of Florida.

“”When law enforcement databases and intelligence files include information on individuals because of their political beliefs or activities, or their association with dissident causes, core First Amendment values are violated.””

In the letter, the ACLU also urges the Governor to refrain from creating exemptions to the Public Records Act and to instead seek authorization from the Florida Legislature, as required by the Florida Constitution, which would permit public debate.

“”There is grave danger in governing by executive order,”” said Simon. “”When the legislature is excluded from exercising its proper oversight responsibilities, and there is no opportunity for appropriate public input, democratic principles are jeopardized.””

The full text of the two-page letter to Gov. Bush, copied to Senate President John MacKay, House Speaker Tom Feeney and the FDLE Commissioner Tim Moore, follows.

October 19, 2001

The Honorable Jeb Bush
PL 01 The Capitol
Tallahassee, FL 32399-0001

Re: Executive Order # 01 – 300
Statewide Domestic Security Intelligence Database

Dear Governor Bush:

The horrific September 11 attacks on the World Trade Center and the Pentagon as well as the crash of the airplane outside of Pittsburgh are indelibly etched in the collective minds of the American people. The daily reports here in Florida and across the nation of persons exposed to anthrax, and the fear of the use of hazardous biological weapons makes the formulation of appropriate security measures paramount. On this, all Americans agree.

Nonetheless, any law enforcement measures that are under consideration to enhance the safety of the American people must be judged not only by its effectiveness in maximizing security, but also by whether they minimize intrusions on civil liberties.

Executive Order # 01 – 300, issued on October 11, while containing several appropriate steps toward those goals, contains a provision that the American Civil Liberties Union (ACLU) of Florida finds troubling because of its potential for misuse. Section 1(d) of the Executive Order states “”FDLE shall establish a dedicated Statewide Domestic Security Intelligence Database for use by all Florida law enforcement officers under appropriate security.””

The overarching concern of the ACLU regarding the creation of this database is the apparent lack of any standards for the creation of a file or the information about an individual or organization that is to be placed in the file. If the new database is simply a mechanism to share already existing, legitimately gathered, law enforcement records, there is little cause for concern.

The establishment of this new database, however, seems to call for far more information gathering. If that is the case, then a new database without any articulated standards gives rise to serious concerns. The FDLE must be directed to enter information into the new database that only reflects evidence of suspected criminal activity.

The creation of intelligence files on individuals by law enforcement agencies as well as other surveillance techniques has an unfortunately long and discredited history in our country and in this state. America has seen the creation of intelligence files on ordinary citizens not for their involvement in suspected criminal activities, but for activities that are lawful and fully protected under both the United States and Florida Constitutions.

When law enforcement databases and intelligence files include information on individuals because of their political beliefs or activities, or their association with dissident causes, core First Amendment values are implicated. Failure to take seriously the record of abuses of the intelligence gathering activities of local, state and federal law enforcement agencies over the past several decades guarantees that constitutional violations will be repeated.

The ACLU’s second concern lies in the exclusion of the Legislature’s proper oversight responsibilities. As we have stated publicly, every Floridian can understand your September 11th Executive Order #01 – 262, which declared a state of emergency at a time when no one knew the extent of the terrorist attack or whether there would be additional attacks. Nonetheless, the conditions that exist today to justify a continued state of emergency are likely to exist into the indefinite future. Governing by executive order places enormous authority in the FDLE to act without legislative oversight, with its attendant public hearings, and without opportunity for appropriate public and legislative response.

Oversight by the Legislature, including discussion at public hearings, to develop the principles that your Executive Order seeks to implement, should not be seen as an inconvenience or an impediment to an effective response to the threat of terrorism. Such measures are essential to avoid the unnecessary expansion of government powers or the granting of new powers to government that are unrelated to the need to protect Florida from future harm.

Indeed, a critical issue underlying the creation of a Statewide Domestic Security Intelligence Database is a two-part expectation that it is to have restricted use – first, limited to “”law enforcement”” and second, limited by “”security restrictions.””

The presumption that records created by government in Florida are open records, available for review by the public, has its source in the Florida Constitution, Article I, Section 24. Moreover, Florida’s Constitution makes clear that any exception to the open nature of public records must derive from the Constitution itself (Article I, §24(a)) or by exemption granted by the Legislature (Article I, §24(c)). The directive for the creation of a public database, limited in scope as to accessibility by Executive Order, usurps the Legislature’s role in carrying out this Constitutional responsibility.

We therefore urge you to direct FDLE to draft criteria that would outline the standards to be utilized for inclusion of persons and information in such a database as well as the rules governing access to the information in the database. These rules should be in place before the FDLE undertakes the task of creating such a database.

Finally, it is our understanding that FDLE proposes that Chapter 119 (Public Records Act) be indefinitely suspended not only as it relates to the statewide database, but also as to a vast array of information now clearly within the public domain. We urge you not address this issue via executive order. Any records or information contained in such records should be exempt from public access only after a vigorous debate by the members of the House of Representatives and Senate, as the Florida Constitution requires. Changes to the public records law, if any, can be addressed fully at either the Special Session or the Regular Session.

Sincerely,

Howard L. Simon
Executive Director

cc: Senate President John McKay
House Speaker Tom Feeney
FDLE Commissioner Tim Moore