Privacy SOS

After Boston, the FBI needs tighter rules to govern investigations

The FBI has too much power, and it is negatively impacting both our freedom and our security. When agents don’t need to demonstrate factual predicate before opening an investigation into our private lives, they open too many investigations—largely into completely innocent people. That’s not just bad civil liberties policy; it makes the FBI less likely to identify the truly dangerous among us. Here in Boston, we won’t soon forget it.

Since the Boston Marathon bombing, officials in Washington have hinted that the FBI needs more power to confront security threats. But the facts suggest the opposite. The FBI has extremely broad powers to investigate anyone at any time. Since 2008, the bureau has had the authority to open an investigation on you or anyone else even if it has no reason to believe you are involved in criminal activity. The FBI may keep this investigation open indefinitely, as long as higher-ups in the organization give the ok. During this first tier of investigation, called an “assessment”, the FBI can do all manner of things to invade your privacy, including:

  • search for information about you online;
  • ask other government agencies for information about you;
  • follow you around in real life, conducting physical surveillance;
  • rifle through your trash and take things from it;
  • conduct queries in innumerable government and corporate databases, searching for information about you;
  • interview you, your friends and family, your coworkers, and anyone else;
  • subpoena your phone and internet records; and
  • send confidential human sources (otherwise known as informants) to secretly get information from you, which is then fed to the FBI.

The FBI’s Domestic Investigations Operations Guidelines (DIOGs), the handbook that governs the conduct of FBI agents during investigations, clearly states that "no particular factual predication" is required in order for agents to conduct the kinds of surveillance described above.

The second tier of investigation, called a preliminary investigation, doesn’t require that agents have evidence of a crime, either. But it does require a predicate.

Specifically, the FBI handbook states that agents may open a preliminary investigation on someone if, among other things, that "individual…may be a target of…recruitment in connection with criminal activity in violation of federal law or a threat to the national security and the investigation may obtain information that would help to protect against such activity or threat."

In March 2011, the Russian government informed the FBI that Tamerlan Tsarnaev was a terrorist threat, and asked the US government to look into him. The Russians said that they thought Tamerlan was preparing to travel to Dagestan, where he would meet with violent terrorist organizations. These allegations indicated that Tsarnaev intended to violate US federal law. As former FBI agent Mike German, now at the Brennan Center for Justice, has said, it's "difficult to understand why that didn’t raise more alarms" inside the Boston FBI office.

Instead of opening a preliminary investigation into Tsarnaev, as the FBI agents could have, they opened the lower-tier assessment. It was one of tens of thousands of dead-end assessments the FBI conducted that year alone.

According to government records obtained by the New York Times, the FBI opened 82,325 assessments during the years 2009-2011. A little over half—or 42,888—were related to terrorism or espionage. Of those related to terrorism, as Tamerlan’s was, only 1,986 rose to the level of a preliminary investigation. Overall, about 96 percent of the FBI assessments opened during the 2009-2011 period went nowhere.

We know that the Boston FBI office conducted at least 1,000 assessments in 2011 alone. An ongoing ACLU public records lawsuit against the FBI seeks more detailed records about exactly how many of those assessments rose to the level of preliminary or full investigations, and of those, how many resulted in criminal charges and convictions.

But even absent more detailed information about investigations at the Boston office, the national trends are clear—and they clearly indicate that the FBI’s ability to conduct invasive investigations without a factual predicate does not promote public safety.

A week after the Boston Marathon bombings in April 2013, the government leaked information to the press alleging that Tamerlan Tsarnaev had killed his best friend and two other men in a Waltham apartment on the night of September 11, 2011. According to the FBI itself, Tamerlan was all the way back in 2011 not an innocent man. The lesson from Boston is clear: Police and federal authorities should investigate people whom they suspect of actual crimes, not people who think or say things officials don’t like. Chasing down ghosts (or politically-motivated leads that have nothing to do with terrorism) ties up finite resources that could be marshaled to solve serious crimes.

Allowing FBI agents to investigate people even if agents have no evidence of wrongdoing is not just terrible for civil liberties. It’s also terrible security policy. Instead of granting the FBI even wider authority to collect and share private information about innocent people, as so often happens in the wake of terrorist attacks, we should return to the pre-2008 rules, which required that agents had at least reasonable suspicion that a target of an investigation was involved in criminal activity.

The first FBI guidelines requiring a factual predicate were written after J. Edgar Hoover’s COINTELPRO operations were exposed to the public in the 1970s. They never should have been discarded. In the interest of both public safety and personal liberty, we should reinstate them.

© 2021 ACLU of Massachusetts.