Reporting on Released Manual Shows FBI Surveillance More Prevalent, Invasive Than Previously Known

Posted on February 8, 2017

Extensive investigation from The Intercept last week has shed much light on formerly opaque and murky FBI practices. The new details presented in the reports arise from the disclosure of documents, obtained via Freedom of Information Act requests, which were either never previously revealed or released with substantially heavier redaction. Most illuminating among these is the Domestic Investigations and Operations Guide, or DIOG, a bureau manual which outlines regulations for the deployment of invasive surveillance practices ranging from physically tailing a target to issuing National Security Letters. Together, the trove of internal documents demonstrates an even broader and more unsettling array of surveillance tools available to the bureau than previously understood.

One report notes that National Security Letters aimed at monitoring journalists require scant approval from within the FBI in certain cases. One of the FBI’s most secretive and powerful tools, National Security Letters (or NSLs) are letters directing parties which retain phone and internet communication data, usually telecommunications companies, to hand over records to the FBI and barring them from disclosing the reception of or compliance with an NSL to their customers, their staff, or the public.

While issuing NSLs to acquire data on journalists usually requires the authorization of three FBI officials, if it is issued as part of an investigation into an unauthorized leak of classified documents, or if FBI agents determine that the journalists are working on behalf of a foreign power, then only two officials must approve the NSL. In addition to the fact that the issuance of NSLs does not require approval from a judge, it is alarming that only two officials must approve letters before the bureau may wiretap a journalist. What makes this especially damaging to press freedom is that reporting on documents provided by whistleblowers is often of the greatest value to the public, yet it is also the easiest for the FBI to investigate.

Another report found that NSLs issued by the FBI regularly exceed the limitations that the Department of Justice has placed on their use. While NSLs are only explicitly approved to request basic telecommunications account and billing data, the FBI was found to issue NSLs seeking email and internet browsing data, which the Department of Justice has expressly prohibited. The fact that NSL templates reviewed by the Intercept list such internet metadata among its requests suggests that this is a common bureau-wide tactic.

The FBI also routinely uses NSLs to request “second generation” information, data of accounts or phone numbers which have been in contact with target accounts or phone numbers. Although regulations in the DIOG indicate that requests for second generation data should be sparing, in 2010 the FBI inspector general found that such requests were common. Not only do these revelations demonstrate a systematic overreach by the FBI in their excessively invasive requests for target data, but also appallingly little concern for the privacy of innocent third-parties inadvertently swept up in second generation requests, as evidenced by blatant disregard for regulations designed to minimize such requests.

Physical monitoring, by both FBI agents and their informants, was also found to be excessive and discriminatory. According to another Intercept piece, the FBI utilizes racial, religious, and other kinds of profiling as part of their activities. The more complete DIOG obtained through the disclosures does not explicitly forbid profiling along these lines but, rather, permits agents to engage in profiling if it supplements other criteria or factors for investigating an individual.

Additionally, profiling is permitted when developing “domain awareness” intelligence, such as when mapping out communities in which operations will be carried out. These mapping activities narrowed by a demographic are permissible as long as they are part of an approved intelligence operation or are designed to achieve some investigative objective. This wide array of permissible applications of profiling has the potential to make profiling, especially racial or religious profiling, a routine bureau practice, disproportionately subjecting racial and religious minorities to physical and electronic surveillance.

Further endangering the freedoms of vulnerable groups is the ease with which agents and informants can sidestep rules designed to put up obstacles to monitoring organizations engaged in First Amendment activity, as shown in another article from the batch by the Intercept. While the infiltration of groups by FBI agents or informants usually requires approval by a supervising agent before personnel are embedded in the group, not only do these restrictions only kick in after five undercover visits, but approval can be circumvented altogether if one of two criteria are met. If the agent or informant reasonably believes that the group is operating on behalf of a foreign power, or if they reasonably determine that the organization’s primary activity is not lawful in nature, they can proceed in infiltrating the group without the sign-off of a superior.

Though seemingly narrow, these exceptions can be readily stretched to grant wider latitude than ordinary bureau operations would permit. For instance, it would be a simple matter for an agent or informant to contend that a protest group intends to engage in rioting or unlawful disruption, thus allowing them to work their way into the group without any oversight. The possibility of such an invocation of this exception raises troubling First Amendment implications.

Most troubling among the details revealed is that the requirements FBI agents must meet to spy on an individual, even one who is not the subject of an investigation, are shockingly lax. Ordinarily, to proceed with an investigation into some individual or organization, an agent must be able to demonstrate an “articulable factual basis” for it. To carry out an “assessment,” however, an agent need only present an “authorized purpose” for looking into a tip or lead (though a tip or lead must prompt it).

While an assessment offers a somewhat more limited scope of surveillance measures available to agents, it is still astonishingly broad. Under a normal assessment, informants may gather information on a target, and agents may physically tail or monitor them, including from the air. If it is a counterterrorism assessment, agents may query FBI databases of telephone and email data, access travel history from State Department document applications and records retained by the Airlines Reporting Corporation (ARC), pull up gun purchase records from the ATF, analyze financial data from the Treasury Department, and in some cases delve into NSA and CIA databases. This alarming mountain of data on a potential target is available to FBI agents without even opening an investigation, provided it is for the purposes of fighting terrorism, an extremely malleable pretext, and was prompted by a tip from an informant or other source.

In response to a request for comments, an FBI spokesperson indicated that these assessments are limited by “realistic resource constraints” and that, though there is no upper limit on how long an assessment may last, they must be renewed every 60 to 90 days. However, the breadth of surveillance activities that are permitted under an assessment, and the ease with which an assessment may be initiated, leave room for rampant abuse of FBI surveillance powers. Although this surveillance must be targeted, the targeting criteria are so minimal that, given the right justification, conceivably anyone could be monitored for nearly any reason.  This represents a grave threat to civil liberties if left unchecked.

You can find The Intercept’s complete reporting on these recent disclosures, with accompanying documents, here.