CDT's Analysis of New FBI Guidelines

More complete notes may be found at http://www.cdt.org/wiretpa/020606guidelines.shtml.

May 30, 2002

On May 30, 2002, Attorney General John Ashcroft issued revised guidelines for FBI investigations.

• The changes mean that the FBI, which has failed to manage the ocean of information it already collects, will be gathering yet more information in situations completely unconnected to any suspicion of criminal conduct, and will be continuing for longer periods of time investigations that are producing nothing.
   
• The expanded surveillance and use of data mining could be written off as just a waste of money, but for two paramount problems: the changes are likely to make the FBI less efficient in preventing terrorism, by diverting resources down rat-holes of fruitless investigations; and the DOJ has proven its determination since September 11 to arrest people based on innocent coincidences and hold them in jail even after concluding that they were unrelated to any terrorism and in some cases (the material witnesses) had committed no legal violation at all.
   
• The FBI is using the terrorism crisis as a cover for a range of changes, some of which have nothing to do with terrorism.
   
• The online surfing provisions, for example, relate not only to terrorism cases, but to all other investigation -- drugs, white collar crime, public corruption, and copyright infringement.
   
• Other changes affect how the FBI conducts investigations under RICO, the racketeering and organized crime law, allowing the FBI to use the heavy weaponry of RICO (forfeiture, enhanced penalties) against crimes that are not committed for monetary gain.
   
• The FBI was never prohibited from surfing the Internet or using commercial data mining services -- the FBI has long been a major customer of many private information systems. But in the past, the search had to be related to some investigation. The threshold was very low -- under the old guidelines, the FBI could maintain a preliminary inquiry for 90 days using data mining, undercover operations, photo surveillance, informants, etc, whenever it had "information or an allegation whose responsible handling required some further scrutiny." In fact, the FBI could open preliminary inquiries solely for the purpose of data mining. But it had to be looking for some criminal conduct. The new changes allow the data mining technique -- who has changed apartments three times in the past 2 years? who has been making a lot of international phone calls? -- as the basis for generating the suspicion of criminal conduct in the first place.
   

Specific Changes

1. Topical Research. According to the explanatory memo, FBI agents could not conduct online searches under the term "anthrax," even after the initial appearance of the anthrax letters. That is absurd -- there was an ongoing investigation. Anyhow, no privacy rights or civil liberties are implicated in searches -- before or after the appearance of the anthrax letter -- for words like "anthrax." This has little to do with searching for words like "anthrax." The question is whether general topical research includes searches for "Palestinian rights" or other terms with a political, ethnic or religious significance. If it does, then it seems a prelude to questioning people and even detaining them on the basis of their exercise of political freedoms.
    
2. Online Surfing. This change is intended to allow FBI to search the Internet before they have any indication of criminal conduct. In other words, it authorizes fishing expeditions, plain and simple -- FBI agents spending their days searching the Web to see what turns up -- or more likely, FBI agents setting robots to search the web looking for certain terms. But the guidelines do not seem to limit the type of searches. It is one thing to surf for information about bomb making or child porn, but it is another thing to search for information about Palestinian rights. This change is not limited to terrorist cases.
    
3. Use of Commercial Data Mining Services. The FBI will now be conducting fishing expeditions using the services of the people who decide what catalogues to send you or what spam e-mail you will be interested in. The problem is, the direct marketers can only call you during dinner time or mail you another credit card offer based on that information -- the FBI can arrest you. And since September 11 the FBI has in fact arrested and held people based on innocent activity.
    
4. Preliminary Inquiries. This change is unclear. The DOJ claimed that under the old guidelines, preliminary inquiries could not serve as the basis for broader intelligence investigations. Yet the old Guidelines clearly stated, "If, on the basis of information discovered in the course of a preliminary inquiry, an investigation is warranted, it may be conducted as a general crimes investigation, or a criminal intelligence investigation, or both." See http://www.usdoj.gov/ag/readingroom/generalcrimea.htm#general
    
5. Criminal Intelligence Investigations. These changes include the change allowing investigations under RICO where there is no profit motive. Otherwise these changes reduce headquarters oversight, running the risk that worthless or improper investigations will be allowed to go on too long.
    
6. Enhancing Preliminary Inquiries. Preliminary inquiries (PIs) allow the FBI to conduct investigations even when there is no reasonable indication of criminal activity. Under the old Guidelines for PIs, the FBI could use all techniques except three: mail covers, mail openings and wiretaps. This meant that the FBI could use informants, Internet searches, undercover operations, physical and photographic surveillance, and data mining. Under the old guidelines, if 90 days of investigation turned up no indication of criminal activity, the investigation could be continued only with HQ approval. Under the changes, PIs can continue 1 year without HQ approval. This means that the FBI can conduct an investigation, using highly intrusive techniques, for one year (and longer with HQ approval) even if the investigation is turning up no reasonable indication of criminal activity.
    
7. Information Systems. One of the biggest changes is the last one on the DOJ list. It is called "Enhancing Information Analysis at FBI Headquarters," but it says that the FBI is authorized to "participate in .. information systems ... [that] draw on and retain pertinent information from any source ... including ... publicly available information, whether obtained directly or through services or resources (whether nonprofit or commercial) that compile or analyze such information .... ." This means that the FBI can subscribe to any commercial profiling and data mining service, such as the one described on today's Washington Post business page. Some data mining services routinely profile people by race and religion. Another clause in the same new section permits acceptance and retention of information "voluntarily provided by private entities," which harkens back to the days of private intelligence gathering by right wing groups.

Background

One fact suggesting that these changes are not a response to September 11 is this: All of the changes relate to the FBI's domestic guidelines, not the international terrorism guidelines under which Osama bin Laden and Al Qaeda are investigated.

The FBI is subject to two sets of guidelines, a classified set of guidelines for foreign intelligence and international terrorism investigations, and an unclassified set of guidelines on general crimes, racketeering and domestic terrorism. The old domestic guidelines are at http://www.usdoj.gov/ag/readingroom/generalcrimea.htm. A heavily redacted copy of the international guidelines can be downloaded in PDF from http://www.usdoj.gov/ag/readingroom/terrorismintel2.pdf

The distinction between foreign and domestic has nothing to do with where the investigation is conducted -- both sets of guidelines relate to investigations in the United States. Rather the difference between the two sets of guidelines has to do with the nature of the organization being investigated. The foreign guidelines govern investigations inside the United States of foreign powers and international terrorism organizations (such as al Qaeda or Hamas), groups that originate abroad but carry out activities in the US. The domestic guidelines govern investigations of organized crime and of terrorist groups that operate in the US and originate in the US -- white supremacists, animal rights activists, what remains of the Weather Underground.

In some ways, the foreign intelligence and international terrorism guidelines have always given the FBI more latitude than the domestic guidelines. In particular, they allow investigations to be conducted where there is absolutely no suspicion of criminal activity -- investigations can be opened merely on the basis of suspicion that a person is affiliated with an international terrorist group, even if there is no evidence that the person is doing anything illegal. The irony is that the FBI's failed investigations of the Osama bin Laden group and of Islamic fundamentalists in general were conducted under those looser guidelines, indicating that the problem was not the limits imposed by guidelines but the failure of the FBI to use the information it already had.

For more information, contact Jim Dempsey , CDT Deputy Director, jdempsey@cdt.org, (202) 637-9800 x 112.

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