[FYI] (Fwd) FC: Analysis of FBI's new surveillance powers, from CDT

["Axel H Horns" <horns@ipjur.com>]

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Date sent:      	Sun, 02 Jun 2002 13:07:39 -0400
To:             	politech@politechbot.com
From:           	Declan McCullagh <declan@well.com>
Subject:        	FC: Analysis of FBI's new surveillance powers, from CDT
Send reply to:  	declan@well.com

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"Ashcroft on new investigation rules: FBI has been 'frustrated'"
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Date: Thu, 30 May 2002 15:22:32 -0400
Subject: FBI Guidelines Changes: More Surveillance, Less Purpose
From: Ari Schwartz <ari@cdt.org>

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
http://www.usdoj.gov/ag/readingroom/generalcrimea.htm#general

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
activity.

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.

Background

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 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 the guidelines.

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





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