CDT's GUIDE TO THE FBI GUIDELINES: IMPACT ON CIVIL LIBERTIES AND SECURITY - THE NEED FOR CONGRESSIONAL OVERSIGHT

June 26, 2002

Jerry Berman and James X. Dempsey*
Center for Democracy and Technology

OVERVIEW

On May 30, 2002, Attorney General John Ashcroft issued revised Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations (FBI Guidelines).

Based on examination of the historical context for the FBI Guidelines and the justifications for the current revisions, and analysis of the particular changes themselves, it is apparent that -

• the changes will likely have a negative impact on both civil liberties and the effectiveness of US anti-terrorism operations, and
• Congress should undertake in-depth scrutiny and on-going oversight of the revisions and their implementation.

Historical Summary on the Significance of the Guidelines and the Role of Congress: Attorney General Edward Levi first issued the FBI Domestic Security Guidelines, specifically authorizing investigations to prevent terrorism, during the Ford Administration in 1976. The Guidelines were amended and reissued by the Carter Administration and, in 1983, by Ronald Reagan's Attorney General William French Smith, who issued guidelines governing General Crimes, Racketeering Enterprise, and Domestic Security/Terrorism Investigations. The Smith guidelines, with minor changes by Attorney General Thornburgh, remained in place until last month.

The initial issuance and subsequent major revisions of the FBI Guidelines were undertaken in conjunction with Congressional consultation and oversight. In effect, the Guidelines have had a quasi-legislative status. Indeed, the Guidelines were adopted in lieu of legislation. A major debate in the 1970s was over the framing of a statutory charter for the FBI. (The CIA has a legislative charter, the FBI does not.) Attorney General Levi's adoption of guidelines took the steam out of the FBI charter effort. Congress never adopted the charter, based on two grounds: (i) Executive Branch claims that the guidelines embodied all the protections that would be included in a charter but did so with greater detail, providing just the right mix of guidance and flexibility to the FBI, and (ii) the understanding that Guideline changes would be subject to prior Congressional review and public input.

Never before has an Attorney General undertaken major revisions to the FBI Guidelines without any prior consultation with the relevant Committees of Congress.

The Misleading Justifications for the Revisions: The current revisions to the FBI Guidelines are predicated on misleading claims and unexamined justifications:

• First, it is misleading to argue that the FBI did not act prior to September 11 because the earlier Guidelines denied it a preventative mission. To the contrary, FBI Guidelines from Levi to 2002 clearly stated that preventative intelligence investigations were an FBI priority both for domestic and foreign terrorism.
   
• Second, suggestions that changes in the FBI Guidelines are necessitated to respond to international terrorism, such as uncovering the al Qaeda, are misleading because the FBI has traditionally investigated organizations such as al Qaeda under separate foreign intelligence guidelines that are largely classified and that have not been revised by Attorney General Ashcroft. The revised FBI Guidelines apply not only to international groups but also to domestic groups (anti-abortion groups, militias, opponents of Federal controls).

Three Major Concerns with the Changes: The revisions represent a significant policy shift that greatly increases the FBI's surveillance and data collection authority. The most notable change are:

• New authority for the FBI to attend public meetings and events of domestic groups, without any scintilla of suspicion of criminal or terrorist activity, with poor guidance on what can be recorded and no time limits on the retention of data acquired;
   
• Routine mining of vast and diverse commercial databases containing personal information about citizens and organizations, again without a scintilla of suspicion, no guidelines on how inferences will be drawn from such data, no limits on the actions that may be taken based on such marketing data, no limits on FBI warehousing or sharing of such information, and no time limits on retention.
   
• Finally, the revisions decrease the internal supervision and coordination at various stages of investigation, in particular expanding the scope and duration of preliminary inquiries (by definition, these are cases that do not involve the reasonable indication of criminal or terrorist conduct), encouraging the use of more intrusive techniques with no sense of prioritization and allowing intrusive investigations to go on for periods without producing results and without internal review or any outside or independent scrutiny.

Broadening the FBI's surveillance authority threatens civil liberties and wastes resources while increasing the risk of intelligence failures. The salient identifiable cause of the September 11 intelligence failure was the inability of the FBI and other agencies to use the information they already had. The guidelines are likely to compound that defect, thereby producing no improvement in security. Increased data collection prevents little without a corresponding increase in analytical capabilities, supervision and coordination. An agent at every meeting sows distrust and suspicion and dries up sources of information. An agent behind every web page wastes resources on fishing expeditions. Moreover, the risk of chilling effects and infringement on civil liberties outweighs any ostensible gains in law enforcement.

Congressional Oversight is Necessary

Consistent Congressional oversight is vital to protect our security and our civil liberties. The FBI Guidelines were changed by Attorney General Ashcroft with the stroke of a pen without prior notice or consultation with Congress. This is not only unprecedented, but does not bode well for Congressional oversight over FBI activity to ensure both protection of constitutional rights and success in the fight against terrorism.

Congress should focus on 4 key questions:

1. Is the Executive Branch committed to consultation with Congress in policy making? Why was Congress cut out of this process? How can Congress be included in the future?
    
2. As the FBI expands its surveillance capability, will the Judiciary Committees engage in parallel build up of oversight capability? Will more staff be devoted to oversight?
    
3. Will the Executive Branch report to the Committees the critical data which may yield patterns of Bureau activity requiring oversight and investigation?
    
4. If not, what is the alternative for keeping the FBI on the criminal investigative course and our citizens safe?

Recommendations

In responding to the issues raised by the guideline changes, we recommend the following steps for consideration by the Congress:

1. Require prior notice and meaningful consultation before future guideline changes can take effect - No funds shall be expended implementing any future changes in Attorney General Guidelines on General Crimes, Racketeering Enterprise and Terrorism Enterprise Investigations, or successor guidelines, unless such proposed guidelines have been transmitted to Congress for review and comment at least 60 days prior to adoption.
    
2. Require the adoption, following Congressional consultation and comment, of Guidelines for collection, use, disclosure and retention of public event information and data mining.
    
   • In terms of the changes already adopted, Congress should consider appropriations language limiting the implementation of the guidelines as they relate to data mining and collecting information from public meetings and events until Guidelines on collection, use, disclosure and retention have been adopted following appropriate consultation and comment.
      
   • Such guidelines should include a provision specifying that no information regarding the First Amendment activities of a US person or group composed substantially of US persons can be disseminated outside the FBI except as part of a report indicating that such person or group is planning or engaged in criminal activity.
      
3. Provide resources and authority to the General Accounting Office and the DOJ Inspector General to collect and analyze information on implementation of the anti-terrorism guidelines and to submit to Congress public and classified reports on their (a) impact on an open society, free speech, and privacy; (b) costs to the private sector, (c) benefits and costs to national security.
    
4. Require public reporting of statistical information on sensitive issues, such as
    
   • number and length of anti-terrorism inquiries and investigations under the guidelines;
   • number of undercover visits to places of worship;
   • number of undercover visits to public meetings;
   • description of data mining contracts and arrangements, including types of databases mined and approximate numbers of persons in each database;
   • number of individuals listed in NCIC as suspected terrorists or associates;
   • the use of intrusive techniques,
   • number and duration of pen registers and trap and trace devices, including number of persons affected,
   • number of subpoenas, and other requests or orders for stored records, including number of disclosures under 18 USC 2702 and number of orders under 18 USC 2703 and section 215 of the PATRIOT Act;
   • number of instances of consensual electronic surveillance;
   • number, duration, costs and results of undercover operations.

Security Downside of the New Guidelines

An important issue before the Congress is the impact of these guideline changes on security. Much has been written about how the criminal nexus was designed to protect civil liberties and how, on their face, the Ashcroft Guidelines give the FBI sweeping authority to collect information about lawful political, religious, and social activity about citizens without such a criminal nexus. But the Levi-Smith Guidelines had another purpose: they were intended to make the FBI's security operations more efficient by tying FBI inquiries and investigations to some modest showing that they were focused on suspected criminal or terrorist activity for security reasons as well. Headquarters supervision is intended to ensure coordination, prioritization of resources, and sharing of information.

Broad Surveillance Likely to Prevent Nothing. During the Hoover years, hundreds of thousands of investigations were opened and files compiled on groups and individuals only engaged in lawful speech, protest, and civil rights activities. Informants were vacuum cleaners of information. This massive surveillance effort proved wholly ineffective and was in fact a barrier in thwarting or preventing terrorism. It was documented by the General Accounting Office that the overbroad investigations of the sixties and seventies prevented not a single serious act of violence. Then, as now, the issue was not information, but analysis.

New authorization to surf online and utilize commercial and non-profit data mining services absent any indication of possible criminal conduct will likely lead to fishing expeditions. The new Guidelines authorize surfing the Internet as any member of the public might do to identify, e.g., public websites, bulletin boards, and chat rooms in which bomb making instructions, child pornography, or stolen credit card information is openly traded or disseminated. Surfing the Internet or ordering ISPs to engage in extensive data retention is likely to produce massive volumes of irrelevant information.

HISTORICAL BACKGROUND

Attorney General Edward Levi first issued the FBI Domestic Security Guidelines in 1976, which specifically authorized investigations to prevent terrorism. In 1980, Attorney General Benjamin Civiletti expanded the guidelines to encompass General Crimes, Racketeering, and Criminal Intelligence Guidelines, and folded the Levi Domestic Security Guidelines into the Criminal Intelligence section.

Attorney General William French Smith issued revised Criminal Intelligence Guidelines that specifically authorized investigations to detect and prevent activities by two or more persons whose goals are to achieve political or social change through activities that involve force or violence. The guidelines were only slightly modified by Attorney General Thornburgh in 1989.

The Attorney General's Office has a long history of working in conjunction with the Congress when revising the Guidelines. Since the Guidelines' inception, the Attorney General has always consulted with the Congress before making major revisions.

SUMMARY OF RELEVANT CHANGES

The revisions significantly alter the FBI's surveillance and data collection authority. Perhaps the largest changes fall under the newly created section VI titled COUNTERTERRORISM ACTIVITIES AND OTHER AUTHORIZATIONS. The section first authorizes the FBI to operate and participate in identification, tracking, and information systems in order to locate and remove terrorists, as well as assess and respond to terrorist activities. The directive includes authorization to subscribe to any commercial or non-profit profiling and data mining service. This is particularly disconcerting given that it also authorizes investigators to visit any place and attend any event that is open to the public. Most notably, these actions may be undertaken in the absence of any minimal suspicion of illegal activity - without even the smallest justification needed for the checking of leads or a preliminary inquiry.

The revisions have authorized a number of other new data collection methods as well, such as general web surfing, again, with no basis.

The changes significantly lower procedural safeguards for preliminary inquiries and full investigations. Limitations on duration for each have been extended. The period for preliminary inquiries with no supervisory review has increased from 90 to 180 days. Preliminary inquiries may go on for up to one year without notifying Headquarters. Correspondingly, the initial period for full investigations has increased from 180 days to one year.

While the time limitations have increased, the levels of authorization have decreased. Authority for extensions in preliminary inquiries - cases that are producing no reasonable indication of criminal conduct - has been reduced from FBI Headquarters to a Special Agent in Charge. Likewise, authority for the initiation and review of full investigations has been reduced from a Director or Assistant Director to a Special Agent in Charge, and the role of the Justice Department's Office of Intelligence Policy and Review appears to have been downgraded.

The revisions greatly increase the allowable level of intrusiveness in preliminary inquiries. New wording states that the FBI should not hesitate to use any lawful techniques É even if intrusive, where the intrusiveness is warranted in light of the seriousness of the possible crime. What this fails to consider is the likelihood of the crime occurring and the likelihood of the investigative technique being productive. Thus, under the new guidelines, intrusive techniques may be used when a serious crime is only remotely likely and when the techniques are not likely to produce any useful information. The prior guidelines allowed the use of highly intrusive techniques only in compelling circumstances.

These changes significantly blur the distinction between preliminary inquiries and full investigations. First, the revisions extend the duration of preliminary inquiries to that previously allotted to full investigations. Second, authorization for both preliminary inquiries and full investigations now rests solely in the field. Third, while mail openings and nonconsensual electronic surveillance are still prohibited under preliminary inquiries, cautionary wording in relation to the use of all other highly intrusive investigative techniques has been removed.

Consequences of the New FBI Guidelines

• 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 the kinds of innocent coincidences that data mining may flag 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 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, searches of data bases 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.
   
• The FBI was never prohibited ion the past from going to mosques, political rallies and other public places, to observe and record what was said, but, again, in the past it had to be guided by the criminal nexus - in deciding what mosques to go to and what political meetings to record, it had to have some reason to believe that terrorism might be discussed. Under the new guidelines, even before opening a preliminary inquiry, the FBI can go to mosques and political meetings. How will it decide which ones to go to - we fear it will be on the basis of politics.
   
• The DOJ 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.

Specific Changes

1. Topical Research. According to justifications issued by the DOJ with the new guidelines, 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 has 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.
    

DOMESTIC VS. INTERNATIONAL GUIDELINES

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 were being investigated before September 11.

In the past, the FBI was 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. Nor did the distinction concern the nationality of those being investigated: Aliens and citizens could be investigated under either set of guidelines. 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, and their agents (agents could be either citizens or non-citizens). In the past, the domestic guidelines governed 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.

Before the Ashcroft changes, the two sets of guidelines were mutually exclusive - intelligence investigations of international groups could be conducted only under the guidelines for international terrorism. Now, intelligence investigations of international groups can be conducted under either set of guidelines, a source of potential confusion for agents.

Other Information

The new guidelines are available at http://www.usdoj.gov/olp.

On May 30, Attorney General Ashcroft also issued revised guidelines on (i) FBI Undercover Operations and (ii) the Use of Confidential Informants. Compared to the changes to the terrorism guidelines, the changes to those other guidelines were relatively minor, although they did reduce levels of internal oversight and control.

For more information, contact:
Jerry Berman (202) 637-9800; (202) 262-4582 (cell); jberman@cdt.org
Jim Dempsey (202) 637-9800 x 112; (202) 258-8169 (cell); jdempsey@cdt.org

Note

* Jerry Berman is Executive Director of the Center for Democracy and Technology, a high tech civil liberties and Internet policy organization in Washington. Previously, at the Center for National Security Studies, and as Chief Legislative Counsel to the ACLU, Berman worked with Congress and the Executive Branch on the original FBI Guidelines, FBI ÒcharterÓ legislation, the Foreign Intelligence Surveillance Act of 1978, and other national security issues, and wrote widely on FBI reform.

Jim Dempsey is Deputy Director at CDT. He served as assistant counsel to the House Judiciary Subcommittee on Civil and Constitutional Rights from 1985 to 1994, where he was responsible for FBI oversight. He is co-author (with David Cole) of Terrorism and the Constitution (2002).

Free Speech | Data Privacy | Government Surveillance | Cryptography | Domain Names | International | Bandwidth | Security | Internet Standards, Technology and Policy Project | Terrorism | Authentication | Right to Know | Spam

Our Mission / Get Involved / Staff / Publications / Links / Search CDT / Jobs / Action! Previous Headlines | Legislative Tracking | CDT's Privacy Policy