The FBI guidelines as revised in May 2002 allowed the FBI to freely infiltrate mosques, churches and other meeting places, participate in online chat rooms, obtain information from data mining companies and conduct full investigations for one year with no evidence that a crime had been committed and no oversight from headquarters.
The FBI was given additional powers in December 2008, when it was permitted to use political speech, ethnicity and religion as a factor in opening investigations – as long as it was not the only one. Even if there was no reason to suspect someone or a group of wrongdoing, the FBI could conduct “threat assessments” on that person or group based (in part) on race and ethnicity. They could also investigate the likelihood of violence occurring at a planned demonstration. These “threat assessments” could last for 30 days, with renewals of this time period subject to supervisory approval. Assessments can involve physical surveillance, interviews and the use of informants. The FBI’s 12,000 agents were also given a green light to conduct interviews and surveillance in a public place and recruit informants without identifying themselves and without the approval of a Bureau supervisor.
At the same time, the FBI issued an internal 270-page Domestic Investigations and Operations Guide (DIOG), which was finally made public in redacted form in response to FOIA lawsuits.
The section on “undisclosed participation” by agents and informants in domestic groups is almost entirely redacted. The manual acknowledges it is “difficult to define” when under the new rules an “assessment” can be undertaken which can lead to a full investigation.
On June 13, 2011 The New York Times' Charlie Savage reported that “[t]he Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents, allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.”
Domestic Intelligence: New Powers, New Risks, a report issued in January 2011 by the Brennan Center for Justice, finds that the FBI’s 2008 Guidelines “tip the scales too far in favor of relatively unchecked government powers…allowing the FBI to sweep too much information about too many innocent people into the government’s view. In so doing, they pose significant threats to Americans’ civil liberties and risk undermining the very counterterrorism efforts they are meant to further.”
The report is sharply critical of the Guidelines for authorizing investigations when there is no indication of wrongdoing; for permitting intrusive investigative techniques – including the use of informants – when there is no indication of wrongdoing; for permitting the government to collect and disseminate vast amounts of information about law-abiding individuals; for weakening supervision and safeguards that were put in place in 1976 after the excesses of COINTELPRO. The Brennan Center condemns the FBI's use of profiling on the basis of race, religion and ethnicity as both ineffective and counterproductive.