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

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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