Emily Westerfield, Associate Member, University of Cincinnati Law Review
On January 29, 2019, the Ninth Circuit upheld the federal standard used to govern the collection and circulation of terrorist-related information—known as Suspicious Activity Reports (SRIs)—among federal, state, and local law enforcement agencies. Functional Standard 1.5.5, the third revision to the standard since 2008, originated with the National Strategy for Information issued by President George W. Bush in 2007 to establish a set of requirements for the sharing of SARs among varying levels of law enforcement within what is known as the Information Sharing Environment (ISE). The method of evaluating and sharing the information among law enforcement is known as the Nationwide Suspicious Activity Reporting Initiative.
According to Functional Standard 1.5.5, any “observed behavior reasonably indicative of pre-operational planning associated with terrorism or other criminal activity” constitutes “suspicious activity.” Once a law enforcement officer creates a SAR after receiving a report of suspicious activity, an analyst evaluates the SAR by taking it through a two-prong test. If the analyst determines that the SAR (1) falls into one of the sixteen behavioral categories which has been specified as “suspicious activity” under the Functional Standard and (2) has a “potential nexus to terrorism,” the SAR becomes an ISE-SAR. At that point, the SAR is made available to all law enforcement agencies within the NSI, the FBI classified system, and the Department of Homeland Security Office of Intelligence.
In Gill v. United States DOJ, five United States citizens, all of whom were the subjects of an SAR or ISE-SAR but not yet charged with a crime on that basis, brought suit against the Department of Justice, the Attorney General, and the Program Manager of the ISE based on the argument that Functional Standard 1.5.5 violated the Administrative Procedure Act (APA). The “suspicious activity” described in the reports include potential access to a flight-simulation video game, converting to Islam, studying the exit and entry points in a train station, an attempt to purchase a “large amount of computers,” and photographing a work of public art. The court noted that three of the plaintiffs became aware that they had SARs when they were either personally questioned by the FBI or discovered that a family member or neighbor was questioned by the FBI in relation to the behavior reported in the SAR.
The plaintiffs challenged the Functional Standard on two grounds, arguing that the Functional Standard was unlawful because (1) it was established without the notice and comment procedure required for the passage of legislative rules by the APA and (2) it failed to rise to the “reasonable suspicion” standard required for the dispersement of criminal intelligence information under 28 C.F.R. §23.20. The Ninth Circuit rejected the first argument based on the reasoning that the Functional Standard serves as more of a policy statement than a legislative rule, and is therefore not subject to the APA’s notice and comment requirement. According to the APA, “interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice” need not meet the notice and comment requirement. The Ninth Circuit previously held that the issue of whether a particular directive is considered a legislative rule or a policy statement is determined by the amount of discretion it provides to the implementing agency or official. The two-part analysis set forth by the Functional Standard requires the analyst to determine whether the behavior in the SAR falls into one of the sixteen behavioral categories “and then make a judgment as to whether, given the context, facts, and circumstances available, there is a potential nexus to terrorism (i.e., to be reasonably indicative of pre-operational planning associated with terrorism).” Because of the significant level of discretion possessed by the analyst, the Ninth Circuit concluded that the Functional Standard does not amount to a legislative rule.
The Ninth Circuit rejected the plaintiffs’ second argument on the basis that the information contained in SARs is distinct from criminal intelligence information. According to 28 C.F.R. §23.20, the statute governing the dissemination of criminal intelligence information, “criminal intelligence systems can retain criminal intelligence information ‘only if there is a reasonable suspicion that the individual is involved in criminal conduct or activity.’” The Functional Standard, however, requires that the SARs which are made available to law enforcement agencies contain information that is “reasonably indicative of pre-operational planning associated with terrorism or other criminal activity.”
Thus, the Functional Standard is less
stringent than the standard for criminal intelligence information pursuant to 28 C.F.R. §23.20. According to the Ninth Circuit, this inconsistency is
cured by the distinction between criminal intelligence information and the
information compiled within ISE-SARs.
While criminal intelligence information is derived from past and present
criminal investigations, ISE-SARs contain reports of possible criminal activity
compiled and shared among various law enforcement agencies with the purpose of
determining whether to begin an investigation into potential terrorist
activity. On that basis, the
Ninth Circuit reasoned that the compiling of SARs under the guidelines provided
in the Functional Standard is not arbitrary and capricious in violation of the
 Gill v. United States DOJ, 2019 U.S. App. LEXIS 2941, 4-5 (9th Cir. 2019)
 Id. at 5.
 Id. at 4.
 Id. at 5.
 Id. at 5-6.
 Id. at 6-7.
 Id. at 14-15.
 5 U.S.C. § 553(b)(3)(A).
 Colwell v. Dep’t of Health & Human Servs. 558 F.3d 1112, 1124 (9th Cir. 2009).
 National SAR Initiative, Information Sharing Environment (ISE) Functional Standard (FS) Suspicious Activity Reporting (SAR) Version 1.5.5, https://nsi.ncirc.gov/documents/SAR_FS_1.5.5_PMISE.pdf
 Gill, 2019 U.S. App. LEXIS 2941 at 13-15.
 Id. at 21.
 Id. at 15 (quoting 28 C.F.R. § 23.20(a)).
 Id. at 5.
 Id. at 18-19.
 Id. at 21.