IntroductionThe Department of Homeland Security (DHS) and the Federal Emergency Management Agency (FEMA) have been seeking the assistance of the private sector in identifying, preparing for, and responding to risk for some time. Former DHS Secretary Michael Chertoff has stated, “September, 11th, 2001 taught us the importance of strong public-private partnerships and information sharing.” (DHS, 2006). Eight years later as H1N1 became a very real threat to the U.S., FEMA Director Janet Napolitano told the Associated Press; “As we work together to move our country forward, it has become more apparent than ever that we all share a responsibility for our common future… We all have a role to play.” (Associated Press, 2009).
How does the public-private partnership take form and deliver intelligence and response capabilities in a cost effective, secure, and constitutionally ethical manner? The Private Sector could follow the Public Sector’s lead and create Private Fusion Centers that integrate threat intelligence, planning and mitigation while communicating their findings with Public Fusion Centers. Many of the challenges faced by the Public Sector are not found in the Private Sector and many are. Are Private Fusion Centers a component of the Public and Private partnership equation?
In the 911 Commission Report, Thomas Keene famously stated that the U.S. intelligence community suffered from “a failure of imagination,” in anticipating, preparing for, and mitigating the risk of an asymmetrical terrorist attack on U.S. soil. The statement made for a great sound byte in the wake of 911. Further study into the problem revealed that traditional means of information sharing across public safety, intelligence, and emergency management communities was no longer effective in the modern threat environment. Thus, the concept of the Fusion Center was born. “Officials cited a variety of reasons why their state or local jurisdiction established a fusion center. To improve information sharing—related to homeland security, terrorism, and law enforcement—among federal, state, and local entities and to prevent terrorism or threats after the attacks of September 11 were the most frequently cited reasons.” (GAO, 2009).
An Overview of Public Fusion Centers and their Effectiveness Fusion Centers consolidate, analyze, and distribute information through many organizations (or silos within an organization) in order to enhance the ability to foresee and hopefully to forestall acts of terror, natural disasters, and other emerging risk. There are approximately fifty-eight fusion centers in operation at the federal and state level today. Many of them are connected to the Homeland Security Data Network (HSDN) and have access to the National Counterterrorism Center (NCTC). There are also three metropolitan Fusion Centers in operation in New York, Los Angeles, and Dallas (DHS, 2009).
Fusion Centers are effective. State and Local Program Office, Office of Intelligence and Analysis Director Robert Riegle testified before Congress: “Fusion Centers are force multipliers. They leverage financial resources and the expertise of numerous public safety partners to increase information awareness…” (Testimony to the Committee on Homeland Security, 2009). Based on his testimony, Public Fusion Centers have curried much political and funding traction in the past five years.
Another assessment of the functionality, capabilities and challenges of Public Fusion Centers found that fifty-eight Fusion Centers are now operational and a massive increase in professionals (will be) deployed into them by the end of 2009 (DHS, 2009). In addition, three metropolitan fusion centers are discussed by the more recent DHS report, leading one to believe that the potential of a logical step into the Private area is feasible. There is demonstrated growth in concept and understanding of Public and Private Fusion Center Nation-wide and an overall trend towards adoption. The growth seems to be driven by a more flexible model implemented by DHS for the creation of Fusion Centers.
“The Department (DHS), through the Office of Intelligence and Analysis, provides personnel with operational and intelligence skills to the fusion centers. This support is tailored to the unique needs of the locality and serves to:
• Help the classified and unclassified information flow,
• Provide expertise,
• Coordinate with local law enforcement (DHS, 2009).
DHS’ approach seems to be working; however, the implementation of Public Fusion Centers is not without its challenges.
Public Fusion Center ChallengesThe utility of Fusion Centers in the Public-Private Partnership is centered on the performance of Public Fusion Centers and their challenges. Addressing issues found in the implementation and operation of Public Fusion Centers will speed the creation of Private Fusion Centers. At issue is the long-term sustainability of Public Fusion Centers and the near-term integration of intelligence with State and National Command and Control capabilities.
The Government Accountability Office, in a review focused on issues and challenges encountered at the State and Local level conducted an in-depth review of the current status of operational Public Fusion Centers. There are forty-three Centers reviewed in the report and the ‘top-of-mind’ concern for those Public Servants interviewed for the report was the long-term direction of Public Fusion Centers. “Officials in 43 of the 58 fusion centers contacted reported facing challenges related to obtaining personnel, and officials in 54 fusion centers reported challenges with funding, some of which affected these centers’ sustainability. The officials said that these issues made it difficult to plan for the future and created concerns about the fusion centers’ ability to sustain their capability for the long-term.” (The GAO, 2009).
Nearly all Public Fusion Centers have DHS and FBI personnel assigned to them. Cross Agency representation and intelligence dataflow by and between varied agencies appears to be robust. The DOJ seems to be slow to integrate; however, DHS and the DOD are working to solve this challenge. The GAO recommends that more be done in the area of long-range mission planning and resource review to ensure sustainability of the Fusion Centers. Specifically, the “GAO is recommending that the federal government determine and articulate its long-term fusion center role and whether it expects to provide resources to help ensure their sustainability. DHS and PMISE reviewed a report draft and agreed with our recommendation.” (GAO, 2009).
As ongoing efforts are made to address the long-term sustainability of Public Fusion Centers, the near-term reality of a Public Fusion Center lack of response looms. While the patriots whom currently work within Public Fusion Centers are doing everything within their means to share information, another catastrophic event not responded to well could lead to immediate and fatal results. America’s temperament around disaster response is on a tight trigger, and failure to participate in response activities could be a real blow to the Public Fusion Center program. A Katrina-like event, without deeper integration and role-playing beyond intelligence sharing by National Fusion Centers, could become a major policy and funding issue.
Public Fusion Centers must be seen by citizens and policy-makers to play a direct role in the response to disasters as well as intelligence gathering. They cannot remain in the intelligence-sharing role only and not take some of the spotlight when their good work prevents or lessens the impact of America’s next disaster. One might consider how The National Infrastructure Protection Plan (NIPP) might be more deeply integrated into the Public Fusion Center model to avoid such calamity.
NIPP is a key piece of policy that “…provides the coordinated approach that will be used to establish national priorities, goals, and requirements for critical infrastructure/key resources protection so that federal funding and resources are applied in the most effective manner to reduce vulnerability, deter threats, and minimize the consequences of attacks and other incidents," (Biesker, 2007). NIPP ties directly to DHS’ Guidance to the Private Sector for areas of assessed as Key Resources and Critical Infrastructure (KR/KI), among them, privately held hospitals, banking systems, and utility companies.
The Department of Homeland Security (DHS) has identified Key Resources and Critical Infrastructure in the Private Sector. They have issued guidance on how Private business’ can monitor, gather intelligence on and have a response strategy in place for possible or probable attacks on the same. Yet, the Federal Sector Specific Agencies (SSA’s) involved in the day-to-day operations of Public Fusion Centers have not been reviewed to determine the utility, potential and reality of their individual proactive response capabilities. In short, SSA’s do not provide a sound point of reference for Private Fusion Centers.
Federal Sector Specific Agencies are regulated by a key piece of legislation, the Posse Comitatus Act (Posse Comitatus is Latin for ‘power of the county’). This Act presents a unique challenge in enabling fusion centers to play a key role in response efforts, even though they are fully functional, high tech information centers for threat recognition and analysis. Again, Public Fusion Centers lack a reference guideline for Private Fusion Center’s because they have not addressed this issue. For Public Fusion Centers, Posse Comitatus is the core challenge and not providing clear guidance to the Private Sector on how it affects them deters from Private Fusion Center creation.
While some may argue that recent Army operations and scope of control statements bypasses the need for Posse Comitatus, it should be clearly noted that any statement by the U.S. Army does not constitute law nor does it effectively augment or change Posse Comitatus. Specifically, the announcement that the 3rd Infantry Division’s 1st Brigade Combat Team (CBT) will be under the command of U.S. Army North or NORTHCOMM and may be “called upon to help with civil unrest and crowd control or to deal with potentially horrific scenarios such as massive poisoning and chaos in response to a chemical, biological, radiological, nuclear or high-yield explosive (CBRNE) attack." (Army Times, 2008). does not change The Posse Comitatus Act.
The act of deploying National Armed resources in intelligence gathering, disaster response or for other reasons on U.S. soil is widely regarded as a ‘no-no’ by some Americans. According to the ACLU, “We’re setting up essentially a domestic intelligence agency, and we’re doing it without having a full debate about the risks to privacy and civil liberties.” (Masse & Rollins, 2007).
The Posse Comitatus Act is possibly one of our most important American legal treasures and is viewed as being adjunct to the Constitution. It clearly outlines the role of American troops; intelligence and the Federal reach within the bounds of Statehood. In addition, SSA’s at the Federal level determine state and local level boundaries that present rough legal ground when responding to a National level disaster or terror attack. The ability for Public Fusion Centers to extend themselves into Command Centers is core to our National protection; however, issues in policy, law and the practice of common sense remain as long-term challenges.
To exasperate the challenge, Federal and State funding is unclear and hard to navigate. “If overall federal funding levels for homeland security decrease, it is possible that there will be some level of decrease in Homeland Security Grant Program (which) is comprised of five interconnected grant programs:
1) State Homeland Security Program,
2) Urban Area Security Initiative (UASI),
3) the Law Enforcement Terrorism Prevention Program (LETPP),
4) the Metropolitan Medical Response System (MMRS), and
5) 5) the Citizens Corps Program (CCP).” (Masse & Rollins, 2007).
The issues impacting the long-term sustainability of Public Fusion Centers are important to contemplate as DHS seeks to use the Fusion Center concept in the Public-Private arsenal. Core among these are the underlying philosophy, Civil Liberties concerns, and the timing and funding of Private Fusion Centers. Concern around the Federal Role of Fusion Centers is a key challenge as presented under Posse Comitatus. The statement that “the concern is to what extent, if at all, First Amendment protected activities may be jeopardized by fusion center activities” (Masse & Rollins, 2007). highlights this key issue. Fortunately, the need to be respectful to Civil Liberties and privacy as a result of 28 CFR Part 23 Guidelines and recommendations by other ‘think tanks’ take further action to assure that Public Fusion Centers are not put at risk as a result of abuse or infringement of Civil Liberties.
It is possible that without the redressing of these outstanding policy issues for Public Fusion Centers, Command Centers, Incident Commanders, and First Responders will likely muddle through, as we have in the past. Unless, the threat of ill-conceived policy is taken as a clarion call to better integrate command and control with intelligence. Dr. Mosser states it clearly. We must; “Share criminal information and intelligence analysis to create a Broader Emergency Management Mitigation.” (Mosser, 2009).
Public Options Leading to Private Ease of UseBy addressing core issues and policy concerns surrounding Public Fusion Centers, DHS can create a model of ease of use and integration for the Private sector that includes information sharing and community response capability in a manner that respects both Federal and State Law including privacy issues facing the Private Corporation such as the Health Care Information Personal Protection Act (HIPPA) and Personal Credit Information Data Security Standards.
Today, Private Fusion Center Guidelines are the same as they are for Public Sector Fusion Centers and have the following limitations:
(1) “They are voluntary,
(2) The philosophy outlined in them is generic and does not translate theory into practice, and
(3) They are oriented toward the mechanics of fusion center establishment...” (Masse & Rollins 2007).
Conclusion
Lack of funding, logistics capabilities, legal concerns and apathy are serious problems impacting the effective creation of private-public information sharing and response to terrorism and other catastrophes. With few exceptions, corporations, privately held small businesses, and an array of private organizations in the areas of Critical Infrastructure and Key Resources as identified by DHS and FEMA have simply not stepped up to engage with these agencies. Determining the means, including financial, logistic and legal needed to affect the creation of Private Sector Fusion Centers is the key to enhancing Public Safety.
The first recommendation that can be drawn down from America’s Public Fusion Center experience and into the Private Sector is the message of successes and savings. DHS and FEMA can appeal to the capitalist nature of private enterprises by demonstrating that more integrated risk mitigation programs can cut cost through breaking down silos within the standard corporate risk structure. This may include corporate functions such as Security, Disaster Recovery, Business Continuity, Health and Safety and Loss Prevention. Through the delivery of case studies that support the ‘force multiplier’ argument, DHS and FEMA can garner important Private Sector support and executive ‘buy-in.’
Building on the first recommendation, tax-exempt business-to-business transactions that involve technology vendors, business analysts, and public sector advisors may be considered to offset the cost burden of creating Private Fusion Centers. This proposed Federal Tax offset would incite businesses to seek out expertise while lowering their cost by making the creation of Private Fusion Centers effectively tax deductible. The upside for the Federal Government is an influx of Private “eyes and ears” that can pass information to the Public Fusion Centers.
Finally, this paper recommends that clear guidance be published by DHS or FEMA that clarifies that Posse Comitatus has no bearing on Private Enterprises. In addition, clear and precise guidelines on how to share information with Public Fusion Centers should be documented. A great model for such intelligence sharing could be based on the current voluntary model followed by Internet Service Providers (ISPs). In this model, the ISPs describe the behaviors and facts surrounding private customers using the Internet illegally without revealing their identity. In these cases, the private issuance of a ‘user agreement’ along with the lack of overt personal identification until after a private hearing or investigation occurs. This system has worked for AOL, COX Broadband Services and others in North America with little or no dispute from the American Civil Liberty’s Union or others.
By outlining the clear success, incentivizing the creation, and providing guidance for Private Fusion Centers, DHS and FEMA can ‘force multiply” the ‘force.’ Thousands of businesses in North America are seeking ways in which to lower their risk while lowering their costs. Demonstrating success, offsetting costs, and providing clear guidance to them are sure ways to increase voluntary acceptance and adaptation of Fusion Centers in the Private Sector. The Public-Private Partnership has the potential to begin with vigor and intensity over the next few years if such incentives, guidance and messages are parsed to the American Private Sector. If DHS and FEMA are truly seeking such a partnership then leveraging what works and providing guidance on what to steer clear of is a key step in making the partnership a reality.
ReferencesBiesecker, Calvin. "DHS Releases National Infrastructure Protection Plan." Defense Daily 230.65 (05 July 2006): 4-4. International Security & Counter Terrorism Reference Center. EBSCOhost. http://ezproxy.library.capella.edu/login?url=http://search.ebscohost.com.library.capella.edu/login.aspx?direct=true&db=tsh&AN=21804410&site=ehost-live&scope=site Retrieved 21 Aug. 2009
Biddeck, Michael, IT Fusion Centers (2009) http://www.informationweek.com/blog/main/archives/2009/06/it_fusion_cente.html;jsessionid=HXPSK35XVPNEZQE1GHPSKHWATMY32JVN. Retrieved on August 16, 2009.
Department of Homeland Security, Pandemic Influenza Preparedness, Response, and Recovery Guide for Critical Infrastructure and Key Resources, 2006. Retrieved April 25th, 2009 from the Internet at http://www.flu.gov/plan/pdf/cikrpandemicinfluenzaguide.pdf
Government Accountability Office, 2007. "Homeland Security: Federal Efforts Are Helping to Alleviate Some Challenges Encountered by State and Local Information Fusion Centers." GAO Reports (November 29, 2007): i-109. International Security & Counter Terrorism Reference Center, EBSCOhost. Retrieved August 16, 2009.
Masse, Todd, and John Rollins. "A Summary of Fusion Centers: Core Issues and Options for Congress: RL34177." Congressional Research Service: Report (September 19, 2007): 1. International Security & Counter Terrorism Reference Center, EBSCOhost. Retrieved on August 16, 2009.
Mosser, Miriam, PHD. “Intelligence Has No Value” (2009) Speech Given to George Washington University. Retrieved on August 14, 2009.
The Department of Homeland Security Office. State and Local Fusion Centers. (2009, April 1st) http://www.dhs.gov/files/programs/gc_1156877184684.shtm. Retrieved on August 16, 2009.
The Department of Homeland Security Office, Testimony of Director Robert Riegle, State and Local Program Office, "The Future of Fusion Centers: Potential Promise and Dangers" 2009 http://www.dhs.gov/ynews/testimony/testimony_1238597287040.shtm. August 16, 2009.
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