The FBI Can Engage In All Sorts Of Surveillance And Snooping Without Actually Placing Someone Under Investigation

from the massessments dept

It’s unclear how many Americans are under surveillance by the FBI. Not only would the agency be extremely unwilling to even provide a broad estimate, but the underlying basis for a preliminary investigation is so thin it could conceivably cover a majority of US residents.

A previously-classified document [pdf] obtained by The Intercept gives more insight into the FBI’s use of “assessments” — an investigation the agency doesn’t consider an investigation.

Assessments allow agents to look into tips or leads that don’t meet the standard for opening an investigation, which requires specific information or allegations of wrongdoing — an “articulable factual basis” for suspicion, as FBI rules put it. In an assessment, by contrast, an agent just needs to give an “authorized purpose” for their actions. Agents can open assessments “proactively,” in order to evaluate potential informants, collect intelligence about threats surrounding public events, study a field office’s geographical area, or gather information about a general phenomenon of interest to the bureau.

This practice has been referred to elsewhere as “circling the target.” The FBI scours publicly-available information on potential investigation targets, gathering anything it can without a subpoena or warrant. But it doesn’t stop there. It goes much further, based on little more than unverified tips from confidential informants or indulging in its own hunches.

[I]f agents decide to dig deeper by opening an assessment, they are allowed to have informants collect information, and they can also physically surveil the subject — including by airplane. In some cases, they can issue grand jury subpoenas. If the purpose of an assessment is to evaluate someone as a potential informant, agents can give polygraph tests, dig through trash, and use fake identities in the course of their research.

In addition to these information-gathering tools, the FBI also has access to massive databases of information collected by other government agencies, including the NSA. [Thanks Obama] Analysts use FBI-built tools to uncover links between assessment targets and other suspects by poring through massive amounts of third-party records (email, phone, banking, etc.)

Then the agency starts tracking the target’s movements.

The FBI also traces the subject’s travel history through Department of State visa and passport records, a Customs and Border Protection database, and data held by a private company called the Airlines Reporting Corporation, which manages itineraries for airlines and travel agencies. In 2009, Wired reported that the FBI was seeking access to ARC’s full database, which would include billions of travel records showing the data printed on the front of an airplane ticket and the method of payment used.

ARC told Wired it only handed over info in response to subpoenas and National Security Letters, which is likely the impetus for the FBI’s push for full access. Anything that eliminates paperwork and paper trails for mostly-suspicionless investigations is a win for the agency. And, it must be noted, the information sought from ARC does not fall under the DOJ’s guidelines for what records can be obtained with NSLs.

This is added to everything else the FBI can obtain without actually officially engaging in an investigation — something that covers records held by the ATF, CIA, and NSA. Powerful data mining tools crack open a target’s social media life for deeper exploration while FBI planes circle overhead. And yet, this person remains — according to the FBI — not under investigation.

In all fairness to the FBI, the assessments place it in the worst possible position. It’s not allowed to convert these into investigations if it can’t uncover anything more substantive during its assessment. FBI insiders say there’s pressure to convert these as soon as possible, albeit not because of civil liberties concerns. And when its assessments fail to snag people who later engage in acts of terror, the FBI is viewed as incompetent.

Then again, in all fairness to the FBI’s track record, it tends to spend a lot of its time converting mostly-incompetent people into “dangerous” terrorists — effort that might be better expended chasing down truly dangerous individuals. And the sheer amount of information it has access to without actually opening an investigation can do more harm than good. It can generate a lot of false positives while burying stuff the FBI should be focusing on. Signal-to-noise is always a concern for intelligence agencies, and the FBI’s dual hat-wearing (law enforcement/counterterrorism) gives it access to more data than more single-minded agencies.

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Comments on “The FBI Can Engage In All Sorts Of Surveillance And Snooping Without Actually Placing Someone Under Investigation”

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Anon E. Mous (profile) says:

So basically on a whim an agent can decide to start investigating everything they can on you or about you and work to build a case, then use this information to start an official investigation and cover up the fact that there was a ton of information gathered on or about you which was purposed to unoffically and without a legal basis thus allowing the FBI to get the means to launch one officially with affidavits and warrants for wiretaps, surveillance, records, ect and leave everything gathered before the legal investigation out of the disclosure to ensure the case doesnt get tossed.

So much for that thing called the Constitution and your rights

Not an Electronic Rodent (profile) says:

Re: Re:

Yeah, the semantic gymnastics needed to pull off this manoeuvre are impressive;

"We’ll investigate, but we won’t say we’re investigating until the investigation passes some more-or-less arbitrary line for investigation at which point we’ll call it an investigation and investigate."

That’s some serious word-fu!

DillonN says:

Re: J Edgar Hoover


J. Edgar Hoover had been doing this same type of illicit surveillance since year 1924. The FBI does what it always did, starting with warrantless wiretaps in the 1920’s.

It routinely operates outside the law & Constitution. What did you expect it to do with the vastly greater surveillance technology now available to it ??

Eldakka (profile) says:

Re: Re: Re: Re:

What information mentioned do you consider non-public?

From the TD article (without even going to linked references):

  • third-party records (email, phone, banking, etc.) [paragraph 4]
  • traces the subject’s travel history through Department of State visa and passport records, a Customs and Border Protection database [3rd quote block]
  • records held by the ATF, CIA, and NSA. [paragraph 7]
Anonymous Coward says:

So When...

Will TD Start calling this a police state? Cause we have been a for a while now…
Police State
: a political unit characterized by repressive governmental control of political, economic, and social life usually by an arbitrary exercise of power by police and especially secret police in place of regular operation of administrative and judicial organs of the government according to publicly known legal procedures.

When your rights can be trampled without a warrant, when the police can just murder you by saying they feared for their life, when the government can lock you up just by labeling you a terrorist, when you can be secretly spied upon almost by default…. what kind of state is it? If not a police state?

Anon E. Mous (profile) says:

Re: Re: Re:

To an extent, but look how much information they are hoovering up without our knowledge. The Snowden leaks have show us all just what the Government agencies have the capabilities to do, how much other methods are there that we dont know about?

There is probably much more that hasn’t leaked out yet, I am sure we are all going to be surprised yet again at some new revelation

That One Guy (profile) says:

Re: Re: Not 'everyone', but not for lack of trying

And how messed up is it that the likely reason the FBI and other government agencies aren’t scooping up everything on everyone at all times isn’t because they don’t want to, or the because law prevents them from doing so, but simply because it’s not technically feasible to do so yet?

w@tch3d says:

FBI Snooping

Does this mean if an agent doesn’t like his daughters date he can screw with the guy? If he’s teed off at his girl or ex he can mess with them? If his neighbor is married to a foreigner he can look them up? Does he get a government vehicle to drive back and forth to work as well? Does he get to keep his cool wind braker or does he have to turn it in after each on camera performance?

Eldakka (profile) says:

Re: FBI Snooping

Does this mean if an agent doesn’t like his daughters date he can screw with the guy? If he’s teed off at his girl or ex he can mess with them? If his neighbor is married to a foreigner he can look them up?

TL:DR it’s par for the course.

Of course they can, and have since day dot of the existence of any such body.

Police have done it for ever, staff at intelligence agencies, Attorney General’s staff, DA’s, Sheriff’s (both the US-style Sheriff and the ‘old times’ Sheriff of Nottingham-type Sheriffs) and other positions that give access to such information/powers.

It is illegal in most places for ‘the authorities’ to do that. But in many departments it’s one of those nudge-nudge-wink-wink type situations, as long as you aren’t too obvious about it it’s ignored and swept under the rug. In others, it might be a sackable (even indictable) offense, but if there is no oversight or monitoring in place (if you don’t audit accesses to records, you’ll never know) then it’s never found out.

There were articles on TD a couple years ago about the NSA/CIA having a term for it, LOVINT ("love" intelligence, a play on the term intelligence agencies have for Human Intelligence, that is actual spies/informants on the ground, HUMINT, and Signals Intelligence, that is interception of communications, SIGINT, and the other xxxINT terms). An employee would look up the backgrounds of loved ones, family, partners, potential love interests etc. And they were only found out because THEY came forward to their auditors that they had done it (guilty conscience – they are actually the ones who we want to keep in the agencies), not because they were "found out" by their auditing systems.

Anonymous Coward says:

I think anyone familiar with recent history it should be clear that the FBI will investigate anyone opposed to government policies (imagined or real) whether it’s legal or not, Constitutional or not and there’s generally not a damned thing anyone can do about it because the *courts* will generally reject a lawsuit on “standing” because you can’t “prove” you were targeted (even if have reasonable proof).

For reference the history of the FBI, specifically J. Edgar Hoover’s time as director and more recently the Snowden files. Reference the brief history of Stingray devices, pen registers, and meta data collection. Also reference illegal GPS tagging.

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