In the decade since 9/11, the FBI has broadly used expanded authorities to peer into the lives of American communities on the basis of constitutionally protected beliefs and activities.
Today, the FBI is also engaged in unconstitutional and crude stereotyping, attributing certain types of crimes to entire racial and ethnic communities around the country. It is then collecting racial and ethnic information to “map” those communities on the basis of race, ethnicity, religion, and national origin. Learn more about the ACLU’s “Mapping the FBI” initiative »
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Sweeping away protections that have been in place since the 1970s, new, permissive regulations also allow the FBI to spy on innocent Americans and peaceful groups with little or no suspicion of wrongdoing, using intrusive techniques such as physical surveillance, commercial and law enforcement data base searches, FBI interviews, and informants. And even when these investigations produce no evidence of wrongdoing, the FBI retains the information collected indefinitely.
This misguided approach to law-enforcement betrays fundamental American principles of equal protection under the law and freedom of speech, religion and thought, without making us any safer.
But it doesn’t have to be this way. The Department of Justice and the FBI can reverse the abusive new authorities. Below, we have identified some of the most intrusive authorities, as well as the ACLU’s recommendations for reform. For a more in-depth dicussion, read our report, “Unleashed and Unaccountable: The FBI’s Unchecked Abuse of Authority.”
ACLU RECOMMENDED SOLUTION
Racial and Ethnic Mapping: The FBI is collecting and mapping racial and ethnic demographic data about American communities for intelligence purposes, based on crude stereotypes regarding which groups commit different types of crimes.
The Department of Justice’s 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies purported to ban racial profiling, but it contains broad exemptions for national security and border integrity investigations. Exploiting this loophole, in 2008, the FBI issued its Domestic Investigation and Operations Guide, which permits FBI agents to collect, analyze and “map” racial and ethnic demographic information and the location of ethnic oriented business and facilities in both national security and other law enforcement investigations.
- The Attorney General must enforce the Department of Justice’s 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies (Guidance on Race) by prohibiting the use of race to “any degree” in law enforcement investigations
- The Attorney General must amend the Guidance on Race to prohibit racial profiling in all contexts, including national security and border integrity investigations, and to prohibit profiling based on religion and national origin.
- The Attorney General must require the FBI to amend the FBI Domestic Intelligence and Operations Guide (DIOG) to: incorporate existing prohibitions on the use of race and ethnicity in law enforcement investigations and the amendments requested above.
- Congress must pass the “End Racial Profiling Act,” which would prohibit any local, state or federal law enforcement agency or officer from engaging in racial profiling.
Suspicion-less Investigations: The FBI claims the unfettered authority to conduct investigations without a factual basis to suspect that targeted individuals have engaged in wrongdoing or pose a threat to national security. It derives this authority from amendments made in 2002 and 2008 to the DOJ’s Attorney General’s Guidelines for Domestic FBI Operations.
So-called “Assessment” investigations can be conducted without any suspicion whatsoever. During these suspicion-less Assessments, the FBI can use intrusive investigative techniques including physical surveillance, interviews conducted without any suspicion of wrongdoing, and the use of informants.
“Preliminary Investigations” require only “information or an allegation” of wrongdoing, authority which the FBI has interpreted to permit surveillance based on mere speculation that a crime may be committed in the future. During these Preliminary Investigations, the FBI is permitted to use the same intrusive techniques available for full investigations, with the exception of court-ordered electronic surveillance and searches.
- The Attorney General must amend the Attorney General’s Guidelines for Domestic FBI Operations (Attorney General’s Guidelines) to remove the “Assessment” authority.
- The Attorney General must amend the Attorney General’s Guidelines to require an articulable factual basis for opening a Preliminary Investigation, to shorten the time during which a Preliminary Investigation may remain open and to limit the investigative techniques that can be used to ensure that the least intrusive means necessary are employed to quickly determine whether a full investigation should be opened.
Misuse of Informants: When conducting suspicion-less “Assessment” investigations, the FBI has the authority to use informants to spy on innocent Americans. This authority has been used to conduct surveillance in community centers, mosques, and other public gathering places, and against people exercising their First Amendment right to worship or to engage in political advocacy.
- The Attorney General must amend the Attorney General’s Guidelines to remove the “Assessment” authority and to prohibit the recruitment or tasking of informants when there is no reasonable suspicion of wrongdoing.
Inappropriate FBI Interviews: The FBI is using its “Assessment” authority to conduct interviews based on race, ethnicity, national origin and religion.
- The Attorney General must amend the Attorney General’s Guidelines to remove the “Assessment” authority.
- The Attorney General must amend the Guidance on Race to prohibit racial profiling in all contexts, including national security investigations, and to prohibit profiling based on religion and national original.
Biased Training Materials: Documents obtained by the ACLU and the news media reveal that FBI and DOJ training materials and FBI intelligence products are factually-flawed and biased. Many of the materials reflect an anti-Muslim and anti-Arab viewpoint based on prejudice or political animus.
- The Attorney General must conduct a comprehensive review of FBI and DOJ training materials and FBI intelligence products to ensure they are factually accurate and do not contain assertions or analysis based on racial, ethnic or religious bias or political ideology.
- The Attorney General must establish effective standards and procedures to vet FBI trainers and intelligence analysts and ensure that they possess valid credentials and appropriate education and training relevant to the material that they publish and/or present.
- The Attorney General must establish effective standards and procedures to ensure that FBI training programs and/or intelligence products only contain information based on empirically sound research, unbiased by racial, ethnic or religious animus or political viewpoint, and are aimed at actual crime problems or national security threats.
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