CHARLESTON, W. Va. (Jan. 31, 2023) – A bill introduced in the West Virginia House would restrict information gathering and sharing by the state’s fusion center and require detailed reporting on its activities. Enactment of the law would increase the transparency of surveillance activities in the state and could set the stage for future reforms.

A coalition of nine Republicans, including the House speaker, introduced House Bill 3157 (HB3157) on Jan. 30. The proposed law would prohibit any federal agency employee or contractor from remotely accessing fusion center assets or infrastructure absent a valid warrant from the U.S. District Court for the Southern District of West Virginia.

Language in HB3157 would also limit the scope of the fusion center’s information gathering and sharing.

“No information may be gathered or collected for any purpose other than legitimate law enforcement purposes. No information gathered or collected may be used for any non-law enforcement intelligence operations against U.S. citizens as set forth in any federal or state law or in contravention of the Constitution of the United States.”

The legislation would establish criminal penalties for any person who “intentionally, willfully, or knowingly violates any of the restrictions and prohibitions governing the operation of the Fusion Center or takes any action prohibited or restricted.”

HB3157 would also require the West Virginia Fusion Center to provide a detailed annual report on its activities to the Joint Oversight Committee.

As the Department of Homeland Security describes them, “Fusion Centers are state-owned and operated centers that serve as focal points in states and major urban areas for the receipt, analysis, gathering and sharing of threat-related information between State, Local, Tribal and Territorial (SLTT), federal and private sector partners.”

In practice, fusion centers serve as clearinghouses where state, local and federal law enforcement agencies gather and share massive amounts of private information gathered through various surveillance networks including automatic license plate readers, facial recognition technology, stingray devices, surveillance cameras and more.

The report would be required to include:

(i) an unclassified general narrative about the types of cases, crimes, incidents, and reports the West Virginia Fusion Center has reviewed and evaluated in a manner that protects the personal privacy of West Virginia citizens and the operational integrity of the West Virginia Fusion Center; the unclassified narrative must include both privacy audits performed in the prior year and de-identified information from those audits regarding the cases, crimes, incidents and reports on which the West Virginia Fusion Center worked during the prior year that were reviewed during the audits

(ii) a classified specific narrative of any and all federally or state-targeted individuals in the state of West Virginia and the nature of any known or suspected criminal or terrorist activity that such targeted individual are known or believed on probable cause to have conducted or to be conducting.

Fusion centers operate under a veil of secrecy. The passage of HB3157 would increase transparency and give West Virginians a better understanding of how surveillance is being conducted and used in the state. As the saying goes, sunlight is the best disinfectant. It could also set the stage to limit data sharing and rein in the ever-growing national surveillance state, as transparency often creates the momentum needed to drive future change.

IMPACT ON FEDERAL PROGRAMS

It has become standard practice for law enforcement agencies to upload warrantless surveillance data gathered at the state level. As already noted, fusion centers serve as clearinghouses for all kinds of information shared between federal, state and local law enforcement agencies. The DHS helps fund and supports 79 fusion centers across the U.S. The DHS describes homeland security intelligence/information fusion as the ”…process of managing the flow of information to support the rapid identification of emerging terrorism-related threats requiring intervention by government and private-sector authorities.”

Fusion centers were sold as a tool to combat terrorism, but that is not how they are being used. The ACLU pointed to a bipartisan congressional report to demonstrate the true nature of government fusion centers: “They haven’t contributed anything meaningful to counterterrorism efforts. Instead, they have largely served as police surveillance and information sharing nodes for law enforcement efforts targeting the frequent subjects of police attention: Black and brown people, immigrants, dissidents, and the poor.”

Fusion centers operate within a broader federal system known as the “information sharing environment” or ISE. According to its website, the ISE “provides analysts, operators, and investigators with information needed to enhance national security. These analysts, operators, and investigators…have mission needs to collaborate and share information with each other and with private sector partners and our foreign allies.” In other words, ISE serves as a conduit for the sharing of information gathered without a warrant. Known ISE partners include the Office of Director of National Intelligence which oversees 17 federal agencies and organizations, including the NSA. ISE utilizes these partnerships to collect and share data on the millions of unwitting people they track.

Fusion centers serve as a vital cog in the rapidly expanding national surveillance state. Limiting their operation and data sharing is crucial to reining in surveillance. Passage of HF41/SF186 would take a small first step in that direction.

WHAT’S NEXT

HB3157 was referred to the House Veterans Affairs & Homeland Security Committee where it must get a hearing and pass by a majority vote before moving forward in the legislative process.

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