FC: Analysis of FBI's new surveillance powers, from CDT

From: Declan McCullagh (declanat_private)
Date: Sun Jun 02 2002 - 10:07:39 PDT

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    Date: Thu, 30 May 2002 15:22:32 -0400
    Subject: FBI Guidelines Changes: More Surveillance, Less Purpose
    From: Ari Schwartz <ariat_private>
    The FBI has begun releasing information about its guidelines
    changes. Here is what we know so far:
    *  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 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 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.
    5.  Use of Commercial Data Mining Services.  The FBI will now be
    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 (or not 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.
    6.  Preliminary Inquiries.  I don't understand this point, about
    preliminary inquiries not serving as the basis for broader intelligence
    investigations.  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
    7.  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.
    8. 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, 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
    9. 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.
    One fact suggesting that there is more here than meets the eye 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
    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 the guidelines.
    For more information, contact Jim Dempsey , CDT Deputy Director,
    jdempseyat_private, (202) 637-9800 x 112.
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