By Mark Rasch Earlier this month, Attorney General Ashcroft announced that he was
essentially removing the shackles from the FBI, and permitting agents to
engage in surveillance -- including certain Internet surveillance -- of
political, social or ethnic groups, without either probable cause or
reasonable suspicion that any of these groups had been or were likely to be
engaged in any form of criminal activity.
In detailing the changes, FBI Director Mueller explained the FBI guidelines
that have previously precluded such conduct applied only to the FBI and not
other law enforcement agencies, had no basis in Fourth Amendment or other
privacy jurisprudence, were voluntary, and were significantly hampering the
ability of FBI agents to gather basic intelligence of the sort that could be
gathered by any eleven-year-old with a desktop PC. In this day of
terrorism, Ashcroft and Mueller hypothesized, law enforcement must be
unshackled to prevent all sorts of criminal activities, and fear not, ye
defenders of liberty, for the FBI will continue to monitor itself, and keep
itself in check.
The old FBI guidelines emerged in the wake of Watergate-era revelations that
the bureau had engaged in extensive surveillance of political and religious
groups for unlawful purposes. In 1976 then-attorney general Edward Levi
imposed a series of "voluntary" restrictions on the authority of the FBI to
engage in surveillance of domestic political groups. Under programs like
the FBI's COINTELPRO, the bureau had not only engaged in surveillance of
political groups -- agents attended political rallies and maintained
dossiers on leaders like Rev. Martin Luther King, Jr. -- but they went
beyond this and actively disrupting the lives and careers of those it
considered to be disloyal to America.
What is important to note is that these activities were all done without any
reason to believe that any of these groups or individuals were engaged in
any activity that violated any law.
The Levi guidelines -- voluntary only in the sense that they were imposed
before Congress could make them mandatory -- stated that investigations of
political and religious organizations could be brought only where "specific
and articulable facts" indicated criminal activity, and even then, required
reporting directly to the Attorney General -- not simply the FBI director.
The guidelines were successively weakened by attorneys general Smith and
Thornburgh in the Reagan Administration, to permit "preliminary
investigations" of such groups if there was a "reasonable indication" of
WEB OF SPIES. With the explosive growth of the Internet, particularly during the Clinton
administration, privacy advocates and others (particularly those old enough
to remember the COINTELPRO program) were naturally concerned about the FBI's
role in "monitoring" the Internet.
It is important to distinguish various kinds of "monitoring" and types of
information contained on the Web. At one end of the privacy spectrum are
private or personal communications, like e-mail. The interception of such
communications requires either a Title III wiretap (which demands a high
level of proof to a court that criminal activity is ongoing) or a wiretap
order under the Foreign Intelligence Surveillance Act (FISA), which
similarly requires a court order from a special intelligence court, but does
not require a showing of criminal activity. For the most part, discussions
related to "Carnivore" and "Magic Lantern" focuses on this type of
The new guidelines should have little effect on this type of surveillance,
since the FBI must at least initiate an investigation and make some showing
of probable cause before engaging in this type of spying.
It's the other end of the spectrum where the new guidelines come into play.
This is the "public" Internet -- publicly available Web sites, message
boards, Web logs and other information that is accessible to anyone online.
The real question is whether the FBI should be permitted to gather
intelligence, do profile analysis, and research on information that is
publicly available to us all, without having to show that it is doing so for
the purpose of investigating some specific criminal activity.
CHILLING EFFECTS. FBI director Mueller correctly points out that the information the bureau
will now gather is, essentially, public information. Sure, the FBI could
follow me through the streets and ascertain that I went to a meeting of the
local chapter of the Chamber of Commerce, or the Libertarian Party, or an
EPIC film opening, but these activities occur in either a public or
But this is a red herring. The problem that the Levi guidelines were
intended to solve -- and that the new guidelines will exacerbate -- relates
to the purpose for which the public information is gathered and utilized,
not so much with the privacy of the information itself. Imagine if the FBI
routinely monitored rape crisis and awareness postings on Web message
boards -- or made false postings themselves -- with no suspicion that the
posters were engaged in criminal activity . Imagine that they're doing it
solely for the purpose of gathering intelligence.
Magnifying the problem is the fact that the intelligence gathering
activities may now be directed at political meetings -- particularly
unpopular political meetings. Imagine FBI agents taking notes on a pastor's
sermon, a rabbi's lecture, a priest's homily -- and noting the names and
license plate numbers of attendees. Your "Greenpeace" bumper sticker,
publicly displayed, becomes sufficient cause for the FBI to open a file on
Privacy is the right to be left alone. Political freedom is the right to
engage in vigorous discourse and exploration of ideas -- even unpopular and
potentially subversive ideas. We have and should expect a right to privacy
even in those things that occur and are reported on in the public. The mere
act of the FBI collecting newspaper clippings mentioning our name --
something clearly public -- has a chilling effect on our free discussion.
The requirement that they do so only where there is some reason to believe
that were are engaged in criminal activity is not unreasonable.
Permitting law enforcement agencies to gather "intelligence" on religious
organizations, political groups, or other such associations not only
violates the spirit of the Fourth Amendment, but chills speech and
association rights as well. Let the FBI investigate crime. Let them not
investigate thought. SecurityFocus Online columnist Mark D. Rasch, J.D., is an independent
computer security and privacy consultant in Bethesda, Maryland, and a former
attorney with the U.S. Department of Justice Computer Crime Unit.