W.Va. Bill On Data-Gathering Center Has Some Safeguards For Civil Liberties; Some Say Not Enough

Feb 21, 2020

The West Virginia House of Delegates is closer to a vote on House Bill 4176, which would add the existing West Virginia Intelligence Fusion Center into state law.

The center gathers and evaluates information on potential threats of terrorist activity for state and federal agencies, most prominently including the federal Department of Homeland Security. 

The bill and the fusion center itself -- which has existed and operated since 2008 in West Virginia through an executive order from the governor's office -- have come under fire several times this session for potential violations of civil liberties and its extremely closed-door aspects. However, delegates have said the bill will increase legislative oversight of the fusion center.

During a public hearing Thursday morning, the American Civil Liberties Union asked lawmakers to spend more time on the bill.

The ACLU’s Executive Director of the West Virginia chapter, Joseph Cohen, cited an eight-year-old report from a U.S. Senate subcommittee on investigations, which found fusion centers nationwide typically were not effective in detecting real threats.

A Wood County man who said the governor’s office used the fusion center to spy on him last year also spoke at the public hearing. Fusion center leaders and the Cabinet Secretary of the Department of Military Affairs, which oversees the center, denied the allegations.

The House Judiciary Committee passed an amended version of House Bill 4176 Thursday afternoon, including additions from the Veteran Affairs and Homeland Security Committee, which reviewed the bill weeks earlier. 

Some of the changes include protections for whistleblowers, who would inform an outside organization if the fusion center was participating in illegal activity, and the creation of an oversight committee that will monitor otherwise closed off operations at the fusion center.

At the same time, the bill exempts the fusion center from complying with Freedom of Information Act requests, withstanding any requests necessary to investigating whistleblower accusations, and it introduces felony and misdemeanor charges for employees that leak information. 

Fusion centers nationally date back to 2001, when President George W. Bush signed an executive order establishing intelligence-gathering and analyzing centers to investigate and prevent potential terroristic threats, following the Sept. 11 attacks on the World Trade Center and the Pentagon.

Former Gov. Joe Manchin authorized the creation of a West Virginia fusion center in 2008. Today that center exists under the jurisdiction of DMAPS. 

If the Legislature passes House Bill 4485 or Senate Bill 586 to divide DMAPS between the governor’s office and the state Division of Homeland Security, the state intends to send the fusion center to the latter agency. 

Del. John Shott, R-Mercer, who chairs the House Judiciary Committee, said the bill should be voted on by the Full House of Delegates sometime next week, before bills are required to cross chambers on Wednesday, Feb. 26.

Emily Allen is a Report for America corps member.