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Emily Berman

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New FBI Rules Go Too Far

Posted: 06/22/11 11:44 AM ET

Since 9/11, the FBI's power to investigate and collect information about Americans, often without any indication of wrongdoing, has expanded on several occasions. Now, according to the New York Times, the FBI is once again poised to extend its authorities by issuing a new version of the rules governing its domestic investigative activity. The changes represent another significant and troubling expansion of power, approved not by Congress or the Attorney General, but apparently by the Bureau itself.

Modifications to the FBI's rules governing agents' undisclosed participation in groups, such as religious congregations or political activists, are perhaps the most problematic. Current rules governing the FBI's monitoring of groups already cause serious concern because they are not even public, leaving us with no idea what constraints are in place or if they are sufficient. Now, the proposed changes allow FBI agents to attend five group meetings before those rules even apply. But what of the information gathered during those five sessions? Does a list of attendees make its way into a government database? Does a political activist opposed to U.S. policy find herself on a watchlist?

New rules regarding searching commercial or law enforcement databases also seem to invite abuse. They permit agents to search these databases without making any record of the search. Will an agent be able to resist the temptation of searching for information about neighbors, ex-girlfriends, or celebrities, knowing that he will not be asked to account for the search because no record of it exists?

Agents may also search an individual's trash for the purpose of finding material that might pressure him into becoming a government informant. Reports that federal agents use potential informants' immigration status or that of their family members for this purpose are already rampant. Now, agents will also be able to threaten a husband that they will show his discarded pornography to his wife, or threaten to bring criminal charges against someone whose trash contains traces of marijuana.

The FBI should of course have the power to follow every lead. But agents can do that without using the highly intrusive tools permitted by the current rules, much less the even-more-liberal impending rules -- this is not an all or nothing issue.

An agent can respond to a tip about a suspicious-looking car with no license plate by going to look at the car to determine if it poses a threat -- such as whether it contains some sort of explosive device. The current regulations, however, would allow that agent to look at the car; follow its driver 24-hours per day documenting all of his activities; interview his neighbors under the pretext of being someone else; and send an informant into his place of worship to find out what his rabbi, priest, or imam preaches. And the new rules add to that list the ability to go through the driver's friends', coworkers', or neighbors' garbage, looking for leverage to use to get them to spy on him.

These most recent changes also raise what is perhaps a broader, more systemic concern: One can infer from the New York Times article's statement that the FBI "does not need permission to alter its manual" that the FBI itself took the lead in formulating these new rules. This is problematic.

The very purpose of this set of rules is to ensure that the FBI's investigative activities are limited in scope, never more intrusive than necessary, and subject to proper oversight. They safeguard Americans' civil liberties against law enforcement activities that, absent sufficient regulation, could result in unwarranted intrusions into people's lives. But even the most well-intentioned FBI officials are likely to craft rules that err on the side of permitting agents to act aggressively. Thus the fox is not only guarding the henhouse -- he is also determining how high the fence that surrounds it and how thick the walls will be.

A continuing trend -- one that started years ago but accelerated rapidly after 9/11 -- is to increase federal law enforcement power while cutting back oversight of how that power is used. This trend has eliminated many of the measures implemented to avoid the now notorious Hoover-era abuses resulting from the consolidation of too much power within a domestic intelligence agency. In light of these many recent changes, it is time that Congress and the American people take a closer look at the FBI's investigative powers, consider whether they may have grown too broad, and act to re-establish meaningful limits on the ways the Bureau carries out its mission.