The NYT reports on pending revisions to the FBI’s Domestic Investigations and Operations Guide that will give agents more leeway in their investigations.
The F.B.I. recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former F.B.I. agent who is now a lawyer for the American Civil Liberties Union, argued that it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing.
“Claiming additional authorities to investigate people only further raises the potential for abuse,” Mr. German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the F.B.I. had frequently misused “national security letters,” which allow agents to obtain information like phone records without a court order.
Valerie E. Caproni, the F.B.I. general counsel, said the bureau had fixed the problems with the national security letters and had taken steps to make sure they would not recur. She also said the bureau, which does not need permission to alter its manual so long as the rules fit within broad guidelines issued by the attorney general, had carefully weighed the risks and the benefits of each change.
“Every one of these has been carefully looked at and considered against the backdrop of why do the employees need to be able to do it, what are the possible risks and what are the controls,” she said, portraying the modifications to the rules as “more like fine-tuning than major changes.”
Marcus says:
I dunno. It seems that the thought processes that held that filing requests for warrants three days after the fact was too burdensome has now been expanded to filing formal inquiries and the like. Not being FBI, the best I can say regarding these changes is: the looser you set the collar, the easier it is to shake the leash.
June 13, 2011, 9:34 amaeolius says:
Was legality considered?
June 13, 2011, 10:28 amLTEC says:
It seems to me that making it easier for agents to obtain information like phone records is much more an invasion of privacy than surveillance of domestic political advocacy groups and mosques. The latter is looking at public activity. Surely an agent should always be allowed to attend a public meeting or service, just as he should be allowed to “visit” a public web site.
June 13, 2011, 10:47 amOrin Kerr says:
aeolius:
All of the relevant techniques are legal. The FBI has policies it imposes on itself to limit its authority as a matter of internal policy, even though the courts and Congress allow it.
June 13, 2011, 11:16 amguest890 says:
Oh, ok, the problems have been fixed. No need to worry.
June 13, 2011, 11:21 amFC says:
Ohmygod policestateHooverStasiGeorgeWBush! Seek asylum in CANADA whilethereisstillTIME!
June 13, 2011, 12:01 pmOne Man's View says:
“Unleash”??? A bit breathless no? Reading the article closely it seems that the FBI can now check criminal and commercial record databases without formally opening an investigation. A change, to be sure, and possibly one that allows for surreptitious checking of which there is no record. But it might just as likely reduce the number of investigations actually opened and seems to involve only preliminary matters. Do we really want the FBI to open an investigation as a prerequisite for googling a name?
June 13, 2011, 12:23 pmluagha says:
“Do we really want the FBI to open an investigation as a prerequisite for googling a name?”
Yes, we do. As the recent saw states, everyone breaks about three federal laws a day. If they want you they can get on something as amazingly stupid as it may be and so we need limits on that process to keep personal or political preferences out of it.
June 13, 2011, 2:37 pmIndiana Guy says:
Yes. Without opening an investigation they can run any name they want through NCIC without a good and justifiable reason. Do you want someone running your son’s name through NCIC just because your son is dating their daughter?
If they don’t have to open an investigation, the level of accountability goes way down. If they have enough reason to run a name, they have enough reason to open an investigation.
Another example of why it’s a bad policy is that it can cause problems for someone who is attempting to legally purchase a firearm. A recent hit on NCIC can cause a flag on NICS. “A right delayed is a right denied” MLK.
Just because it’s legal does not make it right. It is always better when an agency polices itself rather than having Congress pass a law to do it. This is a bad decision by the FBI.
June 13, 2011, 3:01 pmCrunchy Frog says:
There’s a huge difference between googling a name and running someone through NCIC. One is available to the public, and one is not.
I fully expect and endorse the rule that if something is open to the general public, that law enforcement should not be barred from it. An officer should be able to walk into any store, place of worship, public assembly, etc that I can. They should be able to access any web site that a member of the general public can (without hacking, of course).
However, when they use the tools specific to the law enforcement community, they should have a damn good reason to do so, and not just be on a general fishing expedition.
June 13, 2011, 4:30 pmClark says:
In fact, didn’t one of the TSA chief nominees do something similar for the boyfriend of his ex-wife?
June 13, 2011, 6:58 pmHere come the Judge: says:
OK then
June 13, 2011, 8:48 pmaeolius says:
All government agencies have policies and procedures. Some agencies actually enforce or try to enforce them. Others rarely punish transgressors. It does seem to me that the FBI does not have a good record of self-policing.
And who is it that decides that these new policies are Constitutional? If it is just an internal affair then it is the fox guarding the henhouse There is no meaningful Congressional oversight `of intelligence and security.
It takes a rather sophisticated person to understand that the power given to him by the State is different then his own personal power. NYC police training seems to have made their recruits more aware of this then 30-40 years ago.
June 13, 2011, 9:46 pmUnfortunately most accounts I have read of FBI agents portray them as quite arrogant and filled with their sense of power. FBI agents are among the last I would want to trust to stay within legal and constitutional boundaries. No matter what the policies may be.
Orin Kerr says:
aeolious,
I don’t know why you care if the FBI changes the policies you think it doesn’t follow.
June 14, 2011, 2:48 amClark says:
The real problem is what the pressure here for privacy is. Given general public apathy, the lack of transparency, and the incentive for the govt to take any measures that seem like they might help in reducing crime, it seems like the ratchet turns only in one direction here.
June 14, 2011, 3:16 amHarryEagar says:
This seems right to me.
I know as a reporter you sometimes see something that doesn’t seem quite right, and the first thing you do is check common data sources to see if anything clicks.
I have turned up several felonies that were being committed openly that way. If I can, you’d think the FBI should be able to also.
June 14, 2011, 2:15 pmIgotBupkis, President, United Anarchist Society says:
More critically, wasn’t Hillary found to be demanding the FBI look into her husband’s political enemies? If this were “allowed” by this, and it seems likely it would have, would anyone have heard about it?
Never forget the motto:
Better Police, for a Better Police State!
.
June 16, 2011, 12:47 amIgotBupkis, President, United Anarchist Society says:
Indeed:
“It was illegal for us to tap telephones. I seem to remember we did it anyway.”
– U.S. Representative Don Edwards, CA, a former FBI Agent under Hoover -
OTOH, It does pay to have a noose to strangle ‘em with when you DO catch them, rare though that is.
The problem with having such NOT be illegal/unacceptable, it engenders a great deal of sneering presumption on the part of our civil masters when they think we have no recourse no matter what they do.
“Among other things, being disarmed causes you to be despised.”
– Machiavelli -
In a sense, saying “Go ahead and do it, we know you do anyway” leads to considerable contempt on their part.
They know it’s wrong, we know it’s wrong. If we say “go ahead”, then that makes us contemptible in their eyes.
June 16, 2011, 1:18 am