September 29, 2009 | By David Sobel

Prompted by EFF Lawsuit, FBI (Partially) Releases Domestic Surveillance Guidelines

The Federal Bureau of Investigation has released a heavily censored version of its controversial Domestic Investigations and Operations Guidelines (DIOG), which became effective on December 1, 2008. EFF requested public disclosure of the guidelines under the Freedom of Information Act in December and, after more than six months passed with no response, we filed suit against the Department of Justice in June 2009. In response to the lawsuit, the Bureau agreed to answer EFF's disclosure request no later than October 13, and the court ordered it to do so. The FBI’s partial release of the DIOG complies with the court's order to respond to our request.

The 258-page document implements the Attorney General’s Guidelines for Domestic FBI Operations, the most recent version of which was issued late last year by former Attorney General Michael B. Mukasey. For 33 years, the FBI's domestic surveillance activities have been conducted according to a set of guidelines promulgated and revised by successive Attorneys General. Initially crafted by Edward Levi in 1976, the first set of guidelines were put into place to curb the invasive techniques of the FBI's Counterintelligence Programs (“COINTELPRO”) of the 1960s and 1970s.

The Mukasey guidelines, among other things, gave the FBI the authority to open investigative “assessments” of any American without any factual predicate or suspicion. Such “assessments” allow the use of intrusive techniques to surreptitiously collect information on people suspected of no wrongdoing and no connection with any foreign entity. These inquiries may include the collection of information from online sources and commercial databases, and the use of grand jury subpoenas to obtain telephone and email subscriber information.

In light of the invasive techniques that can be used as part of an “assessment,” it is disturbing that large portions of Section 5 of the DIOG, which governs the conduct of “assessments,” has been blacked out by the FBI in the publicly accessible version of the guidelines. The withholding of this information is particularly troubling when the Bureau concedes in a released portion of the DIOG that “assessments” are undertaken with "no particular factual predication," a standard which the agency itself admits is "difficult to define." It is also notable that the FBI has withheld virtually all of the section of the DIOG (Section 16) that governs “undisclosed participation” by FBI agents and informants in political and civic organizations.

The extensive withholding of critical parts of the DIOG conflicts with public assurances made by FBI and Justice Department officials. In a letter to Senate Select Committee on Intelligence Chairman John D. Rockefeller IV, dated December 15, 2008, Valerie Caproni, the General Counsel of the FBI, noted that “we understand that the expansion of techniques available . . . has raised privacy and civil liberties concerns [but] we believe that our policies and procedures will mitigate those concerns.” Ms. Caproni stated that the FBI will “reassess the policy judgments made in the DIOG in one year.” She stated that the reassessment will be “informed by our experience in the coming year, as well as by comments and suggestions received from Congress and interested parties.” More recently, in an interview about the DIOG posted on the FBI website, Ms. Caproni said, “to the extent that the public has comments and concerns, they should let us know because nothing is written in stone and we hope we’ve gotten it right but if we haven’t gotten it right, our goal is to make it right.” Similarly, Assistant Attorney General for National Security David S. Kris promised in his confirmation hearing that “input from Congress and the public” would play an important role in the reassessment of the DIOG that is scheduled to occur at the end of this year.

EFF agrees that the DIOG – the blueprint for the FBI’s use of invasive techniques – should be the subject of a full and informed public debate. To that end, we plan to continue to pursue our pending FOIA litigation to challenge the FBI’s decision to withhold substantial portions of the document.

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