James Prigoff one of the people suing over 'McCarthy era' tactics after the FBI monitored him for photographing public art

The man from the FBI left his card on James Prigoff's door in Sacramento. When Prigoff, a photographer, returned Agent Ayaz's call, he learned that he had attracted the attention of a terrorism investigator, all for attempting to frame an ideal image of a piece of public art on the other side of the country.



Months earlier, Prigoff had travelled to Boston to photograph the Rainbow Swash, a series of bright, colorful stripes painted on a 140-foot gas storage tank in Dorchester. But two private security guards became agitated and told him – incorrectly – that he was on private property. After some hassle, Prigoff opted to snap the shot from a suboptimal location, into the sunlight.

Now, in August 2004, Ayaz wanted to know if Prigoff had ever been to Boston. The agent had already knocked on his neighbor's door, seeking information. Prigoff explained his Rainbow Swash incident, the only thing that came to mind from Boston that he reasoned could have prompted Ayaz's contact. Nothing further happened. As it happens, the Rainbow Swash is readily visible on Google Images.

But the most likely reason that Ayaz, a federal agent in California attached to a joint terrorism task force, could have known about Prigoff or his Boston trip in the first place is the result of post-9/11 laws intended to help law enforcement connect the metaphorical dots ahead of a terrorist attack. The security guards filed what is known as a suspicious activity report, an account of observed behavior striking the observer as questionable.

Suspicious activity reports – over 35,000 of which have been generated as of 2013, according to the government – go from their locations into terrorism databases like the FBI's eGuardian. There, they are visible not only to federal agents but to state and local police around the country through the Department of Homeland Security's controversial fusion centers. Reports on people like Prigoff reside there for up to 30 years.

Generating them requires observers to have neither probable cause nor reasonable suspicion of criminal activity – merely the law enforcement equivalent of the "see something, say something" vigilance mantra post-9/11.

"This is supposed to be a free country, where the government isn’t supposed to be tracking you if you’re not doing anything wrong. I lived through the McCarthy era, and I know how false accusations, surveillance, and keeping files on innocent people can destroy careers and lives. I am deeply troubled that the SAR program may be recreating that same climate of false accusation and fear today," Prigoff said in a statement.

Prigoff is one of five plaintiffs filing a lawsuit in California, represented in part by the ACLU, against attorney general Eric Holder and a Justice Department colleague. They seek a "permanent injunction" on the current lax standards of the suspicious activity reports and to end law-enforcement training on them. The standards "opens the door to and encourages religious profiling", reads the suit, filed on Thursday and shared with the Guardian.

According to a 2013 annual report from the Nationwide Suspicious Activity Report Initiative – comprising the FBI, Justice Department and Department of Homeland Security – some 296,000 law enforcement personnel nationwide had been trained in the guidelines for the reports, which were said to include civil liberties protections.

But their utility for preventing terrorism is in question. A March 2013 Government Accountability Office study found that the Justice Department office in charge of managing the suspicious-activity initiative does not track "their role in deterring terrorist activities or the number of arrests or convictions achieved".

The standards undergirding a suspicious activity report are defined as: "Observed behavior reasonably indicative of preoperational planning related to terrorism or other criminal activity." The lawsuit filed Thursday notes that such a standard is well below that of reasonable suspicion, let alone probable cause.

Examples of such suspicious behavior at US hotels listed in a DHS-FBI bulletin from 2010 included: "Abandoning a room and leaving behind clothing, toiletries, or other items"; "Refusal of housekeeping services for extended periods"; and "Multiple visitors or deliveries to one individual or room."

The use of suspicious activity reports across the government is substantial. The 2013 annual report found that all 78 DHS fusion centers can contribute or share the reports; 21 of the fusion centers automatically share the reports with the FBI, according to the GAO. Training on a search tool to comb through them increased to the point where law enforcement and intelligence personnel have conducted over 76,400 searches.

One of those reports concerned Placentia, California, bio-tech worker Tariq Razak – or, as his suspicious activity report referred to him, "Close Cropped Beard … Male/Arab." (The repot was incorrect: Razak is of Pakistani descent.)

Razak visited the Santa Ana train depot in May 2011, where he had an appointment with the Orange County employment resource center, located in the station building. His mother, who was wearing a headscarf, accompanied him. After initially getting lost within the building, they ultimately finished their business and were on their way.

But not before they caught the attention of a security officer, Karina De La Rosa, who rode the elevator with Razak and his mother.

De La Rosa would later tell a Santa Ana police department's terrorism liaison officer that she grew suspicious when Razak "appeared to be observant of his surroundings and was constantly surveying all areas of the facility". He "meticulously" studied the "entry/exit points … where large groups of passengers gather". De La Rosa noticed him standing by the restroom, where "a female wearing a white burka head dress" [sic] would emerge. She watched as their 2007 Honda Accord drove away, northbound.

That description came from the suspicious activity report the terrorism liaison officer ultimately filed, which noted the make, model and license plate number of Razak's car and contained a detailed physical description of Razak himself. Razak's lawyer later sued for it.

De La Rosa would later say in the suspicious activity report on Razak that everything she did complied with the terrorism training she received.

"Karina said the behavior depicted by the male was similar to examples shown in her training raising her suspicion and making the decision to notify police," the report reads.

