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The Proof is in the Practice: FBI Documents Show Misuse of Community Outreach for Intelligence Gathering and Privacy Act Violations

Nusrat Choudhury,
Former Legal Director, ACLU of Illinois
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December 9, 2011

Last week, the ACLU released FBI documents showing that the bureau is secretly and deliberately collecting information about innocent Americans through community outreach programs and retaining information about these Americans’ speech, beliefs, and other First Amendment-protected activities in violation of the Privacy Act. The Washington Post reported on Muslim community concerns over this practice.

In response, the FBI defended itself: “FBI policy requires that an appropriate separation be maintained between outreach and operational activities.” It added: “It is important to maintain an appropriate separation between outreach activities conducted to build trust and confidence and those conducted with a specific operational or intelligence purpose.”

We couldn’t agree more. The problem is that the FBI’s own documents show that, at least in California, FBI practice violates FBI policy. Numerous additional FBI documents released last week provide further support for the findings we originally highlighted: information collected through community outreach is recorded in memoranda sent to “800 series” case files — files specifically established for the FBI’s Domain Management intelligence program.

These FBI documents cannot be squared with the FBI’s statement that “[t]he community outreach program cannot be used to conduct domain assessments.” That’s exactly what the documents show. So does a 2010 Sacramento FBI memorandum that is clearly labeled “Domain Management” and was prepared “[t]o document a community outreach meeting” between FBI and other government officials and the leader of a local mosque.”

The FBI’s response to our document release doesn’t address the crux of another problem we identified: FBI documents show violations of the Privacy Act, which prohibits the government from retaining records describing how individuals exercised their First Amendment rights, absent special circumstances.

According to the FBI: “Field offices may maintain a database of their outreach contacts, but in keeping with applicable privacy laws and guidelines, this data should be kept separate from operational and intelligence databases. The policy expressly requires full compliance with the Privacy Act.” Again, that sounds great. But our alert showed that the FBI has recorded First Amendment protected beliefs and activities, such as this FBI memorandum documenting the names, contact information and First Amendment-protected opinions and associations of attendees at a Ramadan Iftar dinner, and this FBI memorandum identifying the expressive activities of a Pakistani community organization and the names of its leaders.

It’s time for the FBI to come clean. The first step in restoring the community trust betrayed by the activities documented in the FBI’s own records is to acknowledge that FBI policies and the law were violated. And to remove the taint from its community outreach efforts, the FBI must assure targeted communities and the American public that it is committed to investigating wrongdoing and that in the future it will not misuse community outreach to gather intelligence on innocent Americans, or record their First Amendment-protected activities.

Everyone knows that the FBI has an important job to do, but that job has to be done honestly, and in compliance with the law.

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