Privacy SOS

After the FBI was caught spying on and disrupting non-violent political movements in the United States in the 1960s and '70s, Attorney General Edward Levi wrote the first Attorney General Guidelines for domestic operations. Those rules protected free speech from government spying. As EPIC observes:

Levi's Guidelines prohibited investigations into speech activities where there was no advocacy of violence. Levi also prohibited the FBI from engaging in disruption of protected First Amendment activity and from attempting to discredit individuals. The Guidelines specified that investigations should be limited to exposing criminal conduct and should not involve simple monitoring of unpopular political views. Investigations could only be brought where “specific and articulable facts” indicated criminal activity.

In other words, back then when the federal government wanted to investigate you, they had to have some kind of proof that you were engaged in criminal activity. Not anymore

In late 2008, the Attorney General of the United States released new regulations for domestic investigations procedure. The FBI used these regulations to write new guidelines for their own domestic investigations, called the Domestic Investigations Operations Guidelines, or DIOGs. (The following slides come from FBI training materials released to the ACLU through a FOIA request.) (UPDATE: In June 2011, the FBI announced further changes to its DIOGs. See those changes here.)

As you see above, the FBI's DIOGs apply not only to FBI agents, but also to task force agents deputized to work for the FBI. These include state and local law enforcement officers working with Joint Terrorism Task Forces (JTTFs) at so-called “fusion” surveillance centers nationwide.

The new DIOGs grant the FBI broad powers, including the authority to spy on anyone for no articulable reason and to use ethnicity and race as determining factors in investigations.

The DIOGs divide up investigations into the following categories:

Agents need have no proof of wrongdoing to open an “Assessment” of someone. What do they need? 

To put that in plain language: an FBI employee can open an assessment of someone for any reason at all, even if the assessment is related to the exercise of First Amendment rights, as long as the agent suspects that something else is going on. Again, no evidence is necessary. The DIOG clearly states: “no particular factual predication” is required to open an assessment.

According to DOJ documents obtained by the New York Times, the FBI has initiated 11,667 assessments, of which about 95% led to no further investigation.

As former FBI agent Mike German told the New York Times: “These are investigations against completely innocent people that are now bound up within the F.B.I.’s intelligence system forever. Is that the best way for the F.B.I. to use its resources?”

What can FBI agents and task force agents do during an assessment? 

Physical surveillance, trash searches, the tasking of confidential human sources, Grand Jury subpoenas for telephone or electronic mail subscriber information, interviews, mail covers and extensive records searches in public, government and corporate databases. Maybe a better question is, what can't they do?
Pursuant to the Buckley Amendment, agents involved in assessments can't ask academic institutions for records about students. But agents working “preliminary investigations” are allowed to do so, and much more.
What exactly serves as cause to open a “preliminary investigation” into someone?
The DIOGs state:
Preliminary investigations may be initiated on the basis of any “allegation or information” indicative of possible criminal activity or threats to the national security.
Even if you aren't a lawyer, you can likely see how easy it is for the FBI to justify opening preliminary investigations. Again, no mention is made of “probable cause” or “reasonable suspicion” of wrongdoing. These investigations can last up to a year with approval from the Special Agent in Charge of an FBI field office. Extensions beyond a year can be approved by FBI headquarters. 
What surveillance and spying techniques can agents use when they work preliminary investigations? 
The slides above are a little hard to read. They say that agents engaged in preliminary (or “predicated”) investigations are allowed to:
  1. obtain publicly available information;
  2. task an undercover informant to attend a religious service (with supervisory approval);
  3. conduct physical surveillance;
  4. access government database records;
  5. use online services and resources (both nonprofit and commercial);
  6. conduct interviews with anyone (except for contact with represented persons and federal officials or their staff);
  7. accept information voluntarily provided by government or private entities;
  8. use and recruit human sources;
  9. use Federal Grand Jury subpoenas for telephone or electronic mail subscriber information (with US Attorney office approval — note, this is not the same as a warrant; warrants come from judges);
  10. use pattern based data mining;
  11. deploy consensual monitoring of communications, including computer monitoring (with supervisory approval);
  12. use polygraph examinations;
  13. engage in undercover operations (with supervisory approval);
  14. issue federal Grand Jury subpoenas to compel people to testify (pending US Attorney approval);
  15. use administrative subpoenas (pending supervisory or US Attorney approval);
  16. issue National Security Letters (pending supervisory approval);
  17. access stored wire and electronic communications and transactional records (this is a big one—please take a skip over to this page to learn about when the government needs a court order and when they don't);
  18. use of pen registers and trap and trace devices (FISA court or District court order); and
  19. acquisition of foreign intelligence information (FISA court order).

As you can see, there are many redactions on the second slide showing approved investigations methods. It's strange that the Bureau chose to redact some portions of those slides, because in the actual DIOG document, available on the FBI's website, it clearly states that agents involved in preliminary investigations are allowed to use:

  1. mail covers;
  2. physical searches of personal or real property where a warrant or court order is not legally required because there is no reasonable expectation of privacy (e.g. open fields, trash covers); and
  3. surveillance cameras, direction finders and other monitoring devices (subject to legal review — not a court order unless they involve non-consensual monitoring of communications or where there is a reasonable expectation of privacy).

All of these rules apply to regular FBI investigations. 

Do you think the FBI should be able to photocopy your mail, rifle through your trash, follow you around town, see your phone and email records, and monitor your movements with cameras and directional microphones all without a warrant or reasonable suspicion that you've committed a crime? No?

Resistance to this dangerous degradation in law enforcement standards is cropping up nationwide. You can join us in fighting back. 

© 2024 ACLU of Massachusetts.