FBI Grants Itself New Powers to Conduct Low-level Searches Without a Paper Trail

The New Powers the FBI Just Granted Itself

June 13, 2011

The Atlantic Wire - The Federal Bureau of Investigations has rewritten its own operations manual, giving its agents more autonomy than ever to conduct low-level searches without a paper trail.

As The New York Times reported today, there's no court decision or change in privacy laws governing the bureau's search techniques. Rather, the 2011 update to the 2008 Domestic Investigations and Operations Guide changes the bureau's own guidelines.

But some of the new powers trouble privacy activists even though they're perfectly legal. Here's what FBI agents will be allowed to do under the new guidelines:

Undocumented database searches: Right now, agents can search commercial and law enforcement databases for any individual or organization they want, even without real evidence of wrongdoing, but they must officially open a so-called assessment inquiry. "Under the new rules, agents will be allowed to search such databases without making a record about their decision," The Times reports. ACLU lawyer and former FBI agent Michael German said that would make it "harder to detect and deter inappropriate use of databases for personal purposes," but Valerie Caproni, the FBI's general counsel, "said it was too cumbersome to require agents to open formal inquiries before running quick checks."

Lie-detector tests: Under the current rulebook, agents can't administer a lie-detector test until they open a "preliminary investigation," which requires a factual basis for suspected wrongdoing (unlike the assessment). The new rules will allow agents to use lie-detector tests not just on suspects, but on potential informants, in an investigation considered an assessment.

Trash searches: Similar to the relaxed restriction on lie-detector tests, agents will be able to search the trash of a potential informant as part of an assessment. "Agents have asked for that power in part because they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others. But Ms. Caproni said information gathered that way could also be useful for other reasons, like determining whether the subject might pose a threat to agents."

Surveillance squads: The current guidelines stipulate that these highly trained squads can only be used on a target once during an assessment. The new rules would allow them to be used multiple times, but keep in place limits on the duration of physical surveillance. Caproni told The Times that overuse of the squads would be curbed because of tight resources at the Bureau.

"Undisclosed participation" in organizations: The special rules governing agents' and informants' attendance of meetings and surreptitious participation in organizations on which they are gathering information haven't been made public. But the new rules clearly state that agents or informants can freely attend five meetings of an organization before those rules apply.

Authorizing informants at religious ceremonies: In this case, the FBI tightened its restrictions: "Currently, a special agent in charge of a field office can delegate the authority to approve sending an informant to a religious service. The new manual will require such officials to handle those decisions personally."

Investigating public officials: Some investigations, including those into public officials, are considered sensitive and call for additional oversight. Under the new rules, investigations into public officials, if the official is a victim or a witness rather than the target of an investigation, the additional oversight won't be called for. "Also excluded from extra supervision will be investigations of low- and midlevel officials for activities unrelated to their position — like drug cases as opposed to corruption, for example."

Investigating scholars and members of the news media: Investigations into members of the press and academic scholars are also considered sensitive, and call for extra supervisions. The new rules make a distinction between bloggers as members of the press: "Prominent bloggers would count, but not people who have low-profile blogs," but the details of that distinction are unclear. The new rules also "limit academic protections only to scholars who work for institutions based in the United States."