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Domestic investigations and Operations Guide
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Federal~,Bu_re_a'u of Investigation FBI!,
- December 16, 2008 I
Thisis a privileged document that cannot be released in whole or in part to persons or agencies outside the Federal
Bureau of Investigation, nor can it be republished in whole or in_ pan in any written form norcontaining this
statement, including general-use pamphlets, without the approval of the Director of the Ecderal Bureau of »
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Domestic Investigations and Operations Guide
GENERAL INFORMATION: Questions or comments pertaining to the DIOG can be
_ _ directed to:
The Deputy Direct0rs Office. ' or I
- FBIHQ, Directors Ofce, Resource Planning Office RPO!, Division.[00]
Corporate Policy Ofce CPO! b6
Division Point of Contact:| I 1°76
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Table of Contents
U! Preamble ............................................................................................................................... .. xi
1. U! Scope. and_Purpose..._..,... ............................................................................. ..1
I.l.. U! Scope ............ ....................... ..
1.2. U!~Purpose .......................................................................... ..
2. U! General Authorities and.PrincipIes ....................... .. ..... ..'. .................................
2.1. U! Scope of the Attomey Genera1s Guidelines for Domestic FBI Operations
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4.
52.2. U! General FBI Authorities under AGG-Dom ..................................................
2.3. U! FBI as an Intelligence Agency ................ .......................... ..2.4. U! FBI Lead Investigative Authorities .........2.5. U! Status as Intemal Guidance ..............
2.6. U! Departures from the AGG-Dom................ .............................. ..
2.7; U! Departures from the DIOG .......... ..: ........................ .. ............... ..2.8. U! Other F~BIActivities~ Not Limited by AGG-Dom
2% WU$ohawmwwwwekwmwmvwa - ---------- ~2.10. U! Application ofAGG-Dom and moo ......... .............. .. F .... .f...§L.
U! Core Values, Roles, and Responsibilities .................................................... .. .......;..13
3.1. U! The FBIs Core Values ........................................................ ..= ................ I3
3.2. U! Deputy Director Roles and Responsibilities ................. ..l ........... ..-. ....................... .. 143.3. U! Special Agent/Intelligence Analyst/T ask Force Officer/F BI Contractor/Others
Rolesiand Responsibilities ...................... .................................................... ..l43.4. U! Supervisor Roles and Responsibilities .... .........
3.5. U! Chief Division Counsel Roles and Responsibilities ............. ..........................<l5
...l8
3.6. U!Of_ce of the General Counsel Roles and Responsibilities ..................... .;...l 8
3.7. U! Corporate Policy Office Roles and Responsibilities ................... ..=...l93.8. U! Office of Integrity and.Compliance Roles and Responsibilities I93.9. U! Operational Program Manager Roles and Responsibilities... ................. .....l93.10. U! Division Compliance Officer Roles and Responsibilities ...................... ..3.1 1. U! FBI Headquarters Approval Levels ............................................................... .. ...... ..20
U! Privacy and Civil Liberties, and Least Intrusive Methods ...................................... ..2I
4.1-. U! Civil Liberties and Privacy ................................. ... .........................................4.2. U! Protection of First Amendment Rights ............................................4.3. U! Equal Protection under the Law...., .... ..» ........ ..4.4. » U! Least Intrusive Method.. .... -L .................................................................................. ..34
U! Assessments.................... .............................................................................................. ..39
5.1. U! Overview ............... .......................................... ..395.2. U! Purp0seandScope .... .... .................... .......::405.3. U! Civil Liberties and Privacy ......................................................................
5.4. U! Authorized Purposes AGG-Dom, Part lI.A.2.Authorized Activities!....=..........44
5.5. U//FOUO! Standardsfor'lnitiating- or Approving an Assessment .............. ............. ..455.6. U!.Duration, Approval, Notice, Documentation, File Review and Responsible Enti
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5.7. U! Sensitive Investigative Matter / Academic Nexus / Buckley Amendment ..... ..57
5.8. U//FOUO! Standards for Initiating or Approving the Use of an Authorized
Investigative Method ................................................................................................... ..5 85.9. U! Authorized_.l_nvestigative Methods-in Assessments and Predicated -Inv,éstigations.585.10. U! Investigative Methods Not~Authoi'ized During Assessments .......... .. .................... ..71
5.11. U//FOUO! FBI National Collection Requirements ..................... .. .... ..72 .5.12. U//FOUO! FBI Field Ofce Collection Requirements. ...................... ..
5.13. U! Retention and.Dissemination~of Privacy Act Records ................... ..
5.14. U! Assessmentfile Records.Management and Retention ........................................ .f..74
6. U! Preliminary Investigations.............................. ............................................................ ..76I 16.1.. U! Overview ........................ ................................... ..76
6.2. U! Purpose and.Scope ..........................................................................6.3. U! Civil Liberties and Privacy ......................... .. - - 76--»-----.-6.4. U! Legal Authority .................6.5. U! Predication ........... .......... .......................................................... ............... ........,..786.6. U//FOUO! Standards for Initiating or- Approving a Preliminary Investigation............786.7. U! Duration, Approval, Notice, Documentation and File Review ...... ..... ..78T6.8. U//FOUO! Standards for. Initiating or Approving the Use of an Authorized Q g 7I I -Investigative Method..,...... ..... ....... ....I .... ............... L 8 l---------- ..6.9. U! Authorized Investigative Methods in Preliminary Investigations .................6.10. U! Sensitive Investigative Matter / Academic Nexus / Buckley Amendment. 6.11. U! Program Speciclnvestigative Requirements ......... ... .................................. ..........84
7.4 U!FullInvestigations ................ ., ...... ........... ..................................................... .. ...... ..ss
7.1. U! Overview ............................................................................... ..857.2. U! Purpose and Scope ..... ..., ......... .. 85oooocolnooo7-.3. U! Civil Liberties anClPrivacy........ ................. ..857.4. U! LegalAuthority .................. .................... 86- "5 .... .-7.5., U.! Predication... ....... ............ ., ..................................... ... ................7.6. U//FOUO! Stand_ards for Initiating or Approving a-Full Investigation7.7. U! Duration, Approval, Notice, Documentation and File Review ......................... .I....88" 7.8. U//FOUO! Standards for Initiating or Approving the Use of an Authorized
. Investigative Method .................. ........................... ... ......... ................. .. 90---------- ~-7,9. U! Authorized Investigative Methods in Full Investigations ....................._ 7.10. U! Sensitive ,Investigative*Matter-'/, Academic Nexus /Buckley Amendment
7.11. U! Program Specicllnvestigative Requirements ........................................... ..... ..93'
H8. U! Enterprise Investigations .... ., ..... .............. ., ........ ., .............. .. ..........94 *
8.1. U! Overview ............... .._. ...................................................... ..8.2. U! Purpose, Scope and Denitions........ ....................... ..8.3. U! Civil Liberties and Privacy .... ....................................... .. ...,......948.4. U! Legal Authority ....... .., ..........
8.5. U! Predication .......................................... ..'. .................... .. ................. ..... ..958.6. U! Duration, Approval, Notice, Documentationand File Review ....
9. _ U! Foreign Intelligence. ...................... ..l, ............................ ............................................ ..98
9.1. U!Ov_erview ......................................................................... .................................. ..98
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9.2. U! Purpose and S<:ope..., ............ ......................................................... ..99
9.3. U! Civil Liberties and Privacy................... .... ..99
. 9.4. U! Legal Authority ....................................................................... ..} ......................... ..1009.5. ' U//FOUO! Duration, Approval, Notice, Documentation, File Review and FBIHQ
Standards for Approving the Initiation of Positive Foreign Intelligence1nvéstigations101
9.6. U//FOUO!-Standards for Initiating or Approving the Use of an Authorized
Investigative Method ...................... ..- ................................................. ..'. ..... ..: ............. ..102
, 9.7. U! Authorized Investigative Methods in Foreign Intelligence Assessmentsiand
Predicated Investigations ....................................................... .................................. .. 1029.8. U//FOUO! Investigative Methods Not Authorized During Foreign Intelligence
Investigations ............................................................................. ..... ..l049.9. U! Sensitive Investigative Matter............... ...........................
9.10. U! Approval, and Notication ..... . 1 05.
9.11. U! Retention of Information , .................................................................................... ..107
10. ' U! Sensitive Investigative Matter / Academic Nexus .... ..,». ........................................... ..108
10.1. U! Overview ................................... ................................................... .. 10810.2. U! Purpose, Scope and Denitions .... ........ .................................... ..l0_8. . ~10-3~ . U//FOU0! Fa<:tors.tQ C9n.S.id<->r When 1n.itiati'ng.s>.r Appr.Qving~an Investigative . . .
Activity Involvinga Sensitive Investigative -Matter ........ ........ ..10910.4. U! Duration, Approval, Notice and Documentation ................................ .: ............... ..1 1010.5. U//FOUO! Distinction Between Sensitive Investigative Matter and Sensitive I
Circumstance .... ... ...................................... .............................................................. ..111
11. U! Investigative Methods .- ............................................................................... ..~. ............ ..112
11.1. U! Overview ., ...... ........ .............. .............................. ............ ..1'l21 1.1.1.. U! Least Intrusive Method .............. ............................................... .. ............... ..1121 1.2.} U! Authorized Investigative Methods in Assessments and Predicated Investigationsl 13e l 1.2.1. U! Authorized Investigative Methods in.Assessments ................................... ....1 13
11.2.2. U! Authorized Investigative Methods in Preliminary Investigations.............,...11311.2.3. ' U! Authorized Investigative Methods in Full Investigations .............. .. .. .... ..1 1411.2.4. U! Particular Investigative Methods... .............................................................. ..1151 1.3. U! Investigative Method: Mail Covers ................ ......................... ..116
11.3.1
~ 11.3.2.
11.3.3
11.3.4.
1"1.3.5
A 1 1.3.6
11.3.7. U! Summary ............. ................... .. .. .... ..116
U! Legal Authority ................................ 16
U! Denition of Investigative Method ................ .f. ............................. ...... ..1'16 U! Standard for Use and Approval Requirements for Investigative Method 17
U! Duration of Approval ............................ .................................................... ..119
U! Specic Procedures ............... .......... ..119
U! Compliance and Monitoring ........................................................................ ..1 1911.4. U! Investigative Method: Physical searches of personal or real property where a
warrant or court order is not legally required because there is no reasonable
expectation of privacy e.g., trash covers! ...................................... .._ ...................... .;...12011.4.1. U! Summary ......... ............ ..-. ..................... ....... ................... .. 120.11.4.2. U!_ Legal Authority ...... .,, .... ., ............................ .. .......12011.4.3; U! Denition of Investigative Method ............................................................. ..120
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11.4.4. U//FOUO! Standards for Use and Approval Requirements for Investigative
Method ............................................................... .;_ ................................. .... ..... ..12111.5. U! Investigative Method; Consensual Monitoring of Communications, including J
consensual cjomputeremonitoring ........................ ..~ .............................................. ..... ..122
11.5.1
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11.5.3
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11.5.5
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'1 1 .5 .7 U! Summary ....................... ........122
U! Legal Authority ..... ..' ........................... ..............................
U! Denition of Investigative Method ............ ................................ ... ...... ..122
U! Standards for Use and Approval Requirements for Investigative Method ...123
U! Duration of Approval .............. ...... ..................................... ., ........... .. .......... ..127
U//FOUO! Specic -Procedures ...... .._. .............. ........ .... ..l28 u//Fouo! Compliance and Monitoring ......... ...... .; .......................... .......... .. 12911.6. U! Investigative Method: Use of closed-circuit television, direction nders, and other
monitoring devices Not needing a Court Order!...,...., ............................................. .. 130
1 1.6.1
11.6.2
11.6.3
1 1.6.4.
1 lg.6.;5.
11.6.6.
1 1,617 U! Summary .... .. ................... ., ......... ............................. .. 130
U! Legal Authority ...... .................................. .... .. 130
U//FOUO! Denition of Investigative Method ..................................... .. ......... ..130 U//FOUO! Standards for Use and Approval Requirements for Investigative i
Method .................................. ................ .. .... ... ............... .. ..... ..131
_U,!.Duration _of.Approva1, ............ .... ..132
U//FOUO! Specic Procedures ............. .. .... ..132
U//FOUO! Compliance and Monitoring ......................... .. .. .... ..13311.7. U! InvestigativeMethod:Polygraph ........................... .. .. .... ..134
11.7.1
1 1.7.2
11 .7»,3
11.7.4
11.7.5
1 1.7.6
1 1.7.7 U!Summary ......................... ., .... .. .... ..134 U! Legal Authority ........ .._ ................. .....'......._ ....... ................ .,..134 U//FOUO! Denition of Investigative Method ................................................ ..134
U//FOUO! Standards for Use and Approval Requirements for Investigative
Method .................................................................................. ... .......................... .. 134
U! Duration ofApproval ............ .......................... .. .......-I134.
U//FOUO! Specic Procedures ................. ........................ .. ........135
U//FOUO! Compliance and Monitoring ........... ........13511.8. U!, Investigative Method: Undercover Operations ........13611;8.'1. . U! Summary ........................................................................... .. ........136
11.8.2. U! Legal Authority ...........................................................
11.8.3. U//FOUO! Denition .of1nvestigative Method ................. ........................... ..136 U//FOUO! Distinction Between Sensitive1Circu1'nstance_ and Sensitive Investigative Matter:13711.8.4. U//FOUO! Standards for Use and Approval Requirements for Investigative
Method ............................... ....................................................................... ..'13711.8.5. U! Duration ofApprova1 .......13911.8.6. U! Additional Guidance, ................................................. ................... ..............13911.8.7. U//FOUO! Compliance and Monitoring, and Reporting Requirements. ......... ..13911.91 - U! Investigative Method: Compulsory process as authorized by law, including grandjury subpoenas and other subpoenas, National Security'Letters ....... ..-. ............ ....... .. 14011.9.1. U! Federal Grand Jury Subpoena ..... ....... .. ........ .1 ................. .. ...........14011.9.2. U! Administrative Subpoena .... .......................... .. .......15211.9.3. U! National Security Letter ......... .......1.5811.9.4. U! Business Record Under F lSA ...................................................................... ..165
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1 1.10. U! Investigative Method: Accessing stored wire and electronic communications and
transactional records in conformity with chapter 121 of title 18, United States Code16711.10.1. U! Summary ...................... ., ......................................................1 1.10.2. U! Legal Authority ........................... ..................... .. ........168l'1.10.3. U! Denition of Investigative Method .......................... .. ........168
-11.10.4. U! Approval Requirements for investigative Method......, ............... ..1791l.10.5. U! Duration of Approval .................................... ............... .. l7_9. l1.10.6. U//FOUO! Specic Procedures ........................... .. .... ..1791 1.10.7: U! Notice and Reporting Requirements .. .... ..1801 1.10.8. U! Other Applicable Policies ...................................... .................... .... ..180 U! Stored Communications Quick Reference Guide 5/1/2008 ........................................ ..1801 1.11. U! Investigative Method: Pen Registers and Trap and Trace devices in conformity' with chapter 206 of Title 18, United States Code, and the Foreign Intelligence -_
Surveillance Act ....... .._ .......... .., .................................................... .., ....... .... ..l8l'1 1.1-1.1. U! Summary .......... .. ............. ..~. ...... ....................... .... ..l8l
l1.11.2. U_!Legal Authority ................................ .... ..l8ll1».11.3. U! Definition of Investigative Method .............................. .., ............................ ..l8lI 11.1 1.4. U! Standards for Use and Approval Requirements for lnvestigative=Method ...181
.5. ......... .....;............: ..... .:. ..... ..*.-;_......§;" .......... .;..'. ........ ..;'.;..'i11.1 1.6. U//FOUO! Specic Procedures ........................................................................ ..1-84l 1.1 1'/'7. U! Use and Dissemination of Information Derived from Pen Register/Trap and
Trace Authorized Pursuant to FISA... ............ ................................ ..l8511.1 1.8. U! Notice and Reporting Requirements .......
i1_.1 1.9. U! Special Circumstances ........ ... ............................................. .= ....................... ..18611.12. U! Investigative Method:~Electronic Surveillance under Title III and under FISA..=l931 1.12.1. U! Summary: .......... .I ...................... ..... .., ...................................... ..l9311.1212. U! Legal Authority .............................1 1.12.3. U! Denition of Investigative Method ............................................................. .19311.12.4. U! Standards for Use'and Approva1.Requirements for Investigative Method ...l9_3l1.12.5. U! Duration of'Approval ...... ........................................................ ..l~96l 1.12.6. U! Specic Procedures .............. .......I 1.12.7. U! Notice and Reporting Requirements ........................ ..l99 lI.12.8. U! Compliance and Monitoring ............ .. ........................................ ..200l1.12.9. U! Special Circumstances ....... ....................1l.12.l0._ U! Other Applicable Policies .................................. .Z ...... ..-'. .................... ......... ..2 _11.13. U! Investigative Method: Physical searches, including mail openings, requiringjudicial order or warrant ............................. .. ....... .................................. ..20l1 1.13.1. U! Summary ........ .................I ll.13.2. U! Legal Authority .............................. ........20l
11.13.3. U! Denition of Investigative Method .................................... .. . ..... ..20111.13.4. U! Approval Requirements forlnvestigative Method ......... .. ........204.1 1113.5. U! Duration ofApproval .. ..................................... .._ ..... ......_..2041 1.13.6. U! Specic Procedures ........... ..= ......... ........ ... ................................................. ..2041 1.14. U! Investigative Method: Acquisition of foreign intelligence information in
conformity with Title VII of the Foreign Intelligence Surveillance Act.._.._. .............. ..213l1.14.l. U! Summary ... .................................. ................................. .= ........................... ..213
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11.14.3
ll.14.4.
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U! Legal Authority .............. ...................................... ., ............................. .......213
U!Denition of InvestigativeMethod ....................................... ..~ ................. .,...2 1 3 U//FOUO! Standards for Use and Approval Requirements For Investigative
Method ......................... ......... ................................. ................ ..2l3
U! Duration ofApproval ...............................................
U//FOUO! Specic Collection Procedures for Title VII .................................. ..213
12. U! Assistance to Other Agencies ................................................. ................................. ..21_6
12.1. U! Overview .............................................. ........................................ ..2l612.2. U! Purpose and Scope ......................................................... ................................ .,....2l6
12.3. U//FOUO! Standards for Providing and Approving Investigative Assistance to Other
Agencies ................................. .. ........................................... ............... ..21712.4. U! Documentation andRecord Retention ................................................................ ..2l712.5. U! Duration, Approvaland Notice for Investigative Assistance to Other Agencies..21712:6. U//FOUO! Standards for Providing and Approving Technical Assistance to Foreign.State, Local and Tribal Agencies .... ..- .................... ................................ ..225
13. U! Extraterritorial Provisions ............ ........................ .1 ................. .. .. .... ..22713.1. U! Overview .... .. .................. .. ........................................................ .. .. .... ..22713.'2; * U!*Purposeand Scope... .... .. .............. .;22713.3. U! Legal Attache Program ...................................................................... ..228
14-. U! Retention and Sharing of Information .................................................................... ..'229
14.1. U! Purpose and Scope ..................................... .. ........................................................ ..22914.2. U! The~FBls Records Retention Plan, and Documentation ,.......22914.3. U! Information Sharing ......................................................................... .. ........23014.4. U! Infomaation Related to Criminal Matters ........................... .. ........231* A. U! Coordinating with Prosecutors .................... .. V ........231B_. U! Criminal Matters Outside*FBI .......... ..23lCI U! Reporting of Criininal.Activity'. ............................... .. ......... .............................. ..-...23214.5. U! Information Related to National Security and Foreign Intelligence Matters ..... ..=232 U! Department of Justice ......................... .._. ......... ..». ................ ..- ....... ..~. .............................. ..232 U! White House ............................... ........................ ..23314.6. U! Special Statutory Requirements .... .., ................................................. ..235
15. U! Intelligence Analysis and Planning .................................................... .. .......236
15.1. U! Overview ............... .......................................................... .. .......23615.2. U! Purpose and Scope ................ ......... ..23615.3. U! Civil Liberties and Privacy.............................. ................... ......... ..23715.4. U! Legal Authority ................................................................................... .............. ..23715.5. U//FOUO! Standards for Initiating or Approving Intelligence Analysis and Planning23815.6. U//FOUO! Standards for Initiating or Approving the Use of an AuthorizedInvestigative Method in Intelligence.Analysis and Planning .............. ., .................... ..23815.7. U! Authorized Activities in Intelligence Analysis and Planning ............................. ..238
16. U! Undisclosed Participation UDP! ..................................... ..242*
16.1. U! Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ...24216.2. U! Purpose, Scope, and Denitions .......................................................................... ..243
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16.3. U! Requirements for Approval .............................. .............16.4. U! Supervisory Approval Not Required .........
16.5. U//FOUO! Standards for Review and Approval .... .. ................. ..16.6. U! Requests for. Approval of Undisclosed Participation .......... ..16.7. e U! Duration ........................................................................ ..
16.8. U//FOUO! Sensitive Oversight Review'Committee ................. ..->
17. U! Otherwise Illegal Activity 1..., ..................................... ..-. .............. ..
17.1.. U! Overview ......................................................... ..
17.2. U! Purpose and Scope .... ..=.. .........................
217.3. . U//FOUO! OIA in Undercover Activity .....................
17.4. U//PO_UO!.OIA fora Condential Human Source .................... ..
1715. U//FOUO! Approval of OIA by a Special Agent in Charge ...... ..
17.6. U//FOUO! Standards for Review and Approval of OIA .......... ..
17.7. U//FOUO! OIA not authorized .......................................... ..
17.8. U//FOUO! Emergency Situations ................. ..» ............................ ..
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Appendix A
Appendix B:
Appendix C
Appendix D
Appendix E:
Appendix F:
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I Domestic Investigations and Operations Guide
3 List of Appendices
The Attorney Generals Guidelines for'D0mestic FBI Operations ............. .. A-1
Executive Order 12333 .................. ..<. ............... ............ ..-....B-1
Sensitive Operations Review Committee ........................ .; ............. C-1
Superceded Documents, and NFIP, MIOG, and MAOP Sections ................ .. D-1
Key Words, Denitions, and Links ............................... ................... ..E-1
Acronyms .... ...... .................................................................................... ..F-I
Investigations Manual_ Classied Pr,ovisions;...._. ................................. ..~ ..... .. G-1
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U! Preamble
< December 1,2008
U! As the primary investigative agency of the federal govemment, the FBI has the authority andresponsibility to investigate all violations of federal law that are not exclusively assigned toanother federal agency. The FBI is'further vested by law and by Presidential directives with theprimary role in carrying out criminal investigations and investigations of threats to the nationalsecurity of the United States. This includes the lead domestic role in investigating internationalterrorist threats to the United States, and in conducting counterintelligence activities to counterforeign entities espionage and intelligence efforts directed against the United States. The FBI isalso vested with important functions in collecting foreign intelligence as a member agency of theUnited States Intelligence Community USIC!. AGG-Dom, Introduction! -
U! While investigating crime, terrorism, and threats to the national security, and collectingforeign intelligence, the FBI must fully comply with all laws and regulations, including thosedesigned to protect civil liberties and privacy. Through compliance, the FBI will continue to earnthe support, condence and respect of the people of the United States.
U!_To assist theFBI-_in=it's»niission, the-Attomey Generalsigned The Attorney General Ks" Guidelinesar Domestic FBI Operations AGG-Dom! on September 29, 2008. The primarypurpose of the AGG-Dom and the'Domestic Investigations and Operations Guide DIOG! is.tostandardize policy so that criminal, national security, and foreign intelligence investigativeactivities are accomplished in a consistent manner, whenever possible e.g., same approval,notication, and reporting requirements!. In addition to>the DIOG, each F Bll-IQ substantiveDivision has apolicy implementation guide PG! that supplements this document. NumerousFBI manuals, electronic communications, letterhead memoranda, and other policy documents areincorporatedinto the DIOG and the substantive Division policy implementation guides, thus,consolidatingthe FBls policy guidance. The FBII-IQ Corporate Policy Ofce CPO! plays aninstrumental role in this endeavor. Specically, the CPO maintains the most current version ofthe DIOG on its website. Asfederal statutes, executive orders, Attorney General guidelines, FBIpolicies, or other relevant authorities change, CPO will electronically update the DIOG afterappropriate coordination and required approvals. -
U! The changes implemented by the DIOG should better equip you to protect the people of theUnited States against crime and threats to the national security and to collect foreign intelligence.This is your document, and it requires your input so that we can provide the best service to ournation. If you discover a need for change, pleaseforward your suggestion to FBII-IQ CPO; A
U! Thank you for your outstanding service! .
Robert S¬ Mueller, II I
Director
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1. U! Scope and Purpose Z
. 1.1. U! Scope
U! The DIOG applies to all investigative activities andzintelligence collection activities
conducted by the FBI within the United States or outside the territories of all countries. This .
policy document does not apply to investigative and intelligence collection activities of the_FBI
in foreign countries; those are govemed by The Attorney General s Guidelines for
Extraterritorial FBI Operations. '-
1.2. U! Purpose
U! The purpose of the DIOG is to standardize policy so that criminalfnational security, and
Foreign intelligence investigative activities are consistently and uniformly accomplished
whenever possible e.1g,, same approval, notication, and reporting requirements!. -
U! This policy document also stresses the importance of oversight and self-regulation to ensure
that all investigative and intelligence collection activities are conducted within Constitutional
and statutory parameters and that civil liberties and privacy are protected.
U!>Inaddition-tothisipolicy d_ocumeiit,_each.FBIHQsubstantive,Division;has a;PG that _
supplements the DIOG. As a result, numerous FBI manuals, electronic communications,
letterhead inemoranda, and other policy documents are incorporated into the DIOG and Division
PGs, thus, consolidating FBI policy guidance.
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2. U! General Authorities and Principles _
2.1. U! Scope of the Attorney Generals Guidelines for Domestic FBI'Operati0ns
U! The Attornev General s Guidelines for Domestic FBI O_neration.s' AGG-Dom! apply to
investigative and intelligence collection activities conducted by the FBI within the United States,
in the United States territories, or outside the territoriesof all countriefs. They do not apply to
investigative andintelligence collection-activities of the FBI in foreign countries, which will be
govemed by the Attorney General s Guidelines for Extraterritorial FBI Operations, when '
published. Reference: AGG-Dom, Part I.A.!
U! The AGG-Dom replaces the following six guidelines:
¢ U! The Attorney General s Guidelines on General Crimes, Racketeering Enterprise and
Terrorism Enterprise Investigations- May 30, 2002! A _
Q U! The Attorney General s Guidelines for FBI National Security Investigations and
Foreign Intelligence Collection October 31, 2003! '
v The Attorney General s Supplemental Guidelines ir Collection, Retention, and
Dissemination of Foreign Intelligence November 29; 2006!
Q U! The Attorney General Procedure for Reporting and Use of Information Concerning .
Violations of Law and Authorization for Participation in Otherwise Illegal Activity in F
Foreign Intelligence, Counterintelligence or International Terrorism Intelligence
Investigations August 8, 1988!.
O U! The Attorney General.'s Guidelinesfor Reporting on Civil Disorders and I
Demonstrations Involving a Federal Interest April 5, 1976!
Q U! ' The Attorney General 's Procedures for Lawful, Warrantless Monitoring of Verbal
Communications May 30, 2002! [only portion applicable to FBI repealed]
U! The Attorney General will be issuing a separate set of new guidelines for extraterritorial
operations, the Attorney General s Guidelines for Extraterritorial FBI Operations. However,
certain of the existing guidelines that are repealed by the AGG-Dom currently apply in part to
extrateiritorial operations, including the Attorney General s Guidelines for FBI National Security
Investigations and Foreign Intelligence Collection, and the Attorney General Procedure for
Reporting and Use of Information Concerning Violations of Law-and Authorization for
Participation in Otherwise Illegal Activity in FBI Foreign Intelligence, Counteriritelligence or
International Terrorism Intelligence Investigations. To ensure that there is no gap in the
existence of guidelines for extraterritorial operations, these existing guidelines will remain in
effect in their application to extraterritorial operations until the Attorney General s Guidelines
for Extraterritorial FBI Operations are issued and take effect, notwithstanding the general repeal
ofthese existingguidelines by the AGG-Dom.
U! Also, the classied Attorney General Guidelines for Extraterritorial FBI Operation and
Criminal Investigations 993! will continue to apply to FBI criminal investigations, pending the
execution of the new guidelinesfor extraterritorial operations, as discussed above. Finally, for
national security and foreign-intelligence investigations, FBI investigative activities will continue
to be processed as set forth in the classied'Memoi-andum of Undeizvtaiiding Concerning *
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Overseas qnt1D0mesIic Activities. ofthe Central Intelligence A genev and the F ederul Bureau of
Investigation 005!. .
2.2. . U! General FBI Authorities under AGG-Dom -
U! The AGG-Dom recognizes four broad, general FBI authorities. AGG-Dom, Pa1tI.B.!
A. U! Conduct Investigations and Collect Intelligence and Evidence '
U! The FBI is authorized to collect intelligence and to conduct investigations to detect,
obtain information about, and prevent and protect against federal crimes and threats to the
national security and to collect foreign intelligence, as provided in the DIOG AGG-Dom,
Part II!. -
U! By regulation, the Attomey General has directed the FBI t0'rinves_tigate violations of the
laws of the United States and collect evidence in cases in which the United States is or may
be a party in interest, except in cases in which such responsibility is by statute or otherwise
' specically assigned to another investigative agency. The F BIs authority to investigate and
collect evidence involving criminal drug laws of the United States is concurrent with such
authority of the Drug EnforcementAdministration 8 C.F.R. '§ 0.85[a]!.
B- ' U!Pr9vid§iInve$tigative Assistance
U! The FBI is authorized.to provide investigative assistance to other federal, state, local, or
tribal agencies, and foreign agencies as provided in Section l2 of theDIOG AGG-Dom, Part
III!.
C. U! Conduct Strategic Analysis and Planning I
U! The FBI is authorized to conduct intelligence analysis and planning as provided in
Section l5 of the DIOG AGG-Dom, Part IV!. .
D. U! Retain and Share Information
U! The FBI is authorized to retain and share information obtained pursuant to the AGG-
Dom, as provided in Section I4 of the DIOG AGG-Dom, Part VI !.
2.3; U! FBI as an Intelligence Agency
U! The FBI isan intelligence agency as well as a law enforcement agency. Its basic functions
accordingly extend beyond limited investigations of discrete matters, and include broader
analytic and planning functions. The FBIs responsibilities in this area derive from various
administrative and-statutory sources. See Executive Order L2333; 28 U.S.C. § 532 note
incorporating P.L. 108-458 §§ 2001-2003! and 534 note incorporating P.L. 109-162 § 1'1 07!.
U! Part IV of the AGG-Dom authorizes the FBI to engage in intelligence analysis and planning,
drawing on all lawful sources of information. The functions authorized underthat Part includes:
i! development of overviews andanalyses concerning threats to and vulnerabilities of the United
States and its interests; ii! research and analysis to produce reports and assessments see note
below! conceming matters relevant to investigative activities or other authorized FBI activities;
and iii! the operation of intelligence systems that facilitate and support investigations through
the compilation and analysis of data and information on an ongoingbasis.
U! Note: In the DIOG, the Word assessment has two distinct meanings. The AGG-Dom
authorizes as an investigative activity an assessment which requires an authorized purpose as
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discussed in the DIOG.Section 5. The United States Intelligence Community USIC!, however,
also uses the word assessment to describe written intelligence products as discussed in the
DIOG Section 15.7.13. I '
2.4. U! FBI Lead Investigative Authorities
U! Introduction
U/YFOUO! The FBIs primary investigative authority is derived from the authority-of the
Attomey General as provided in 28 U.S.C. §§ 509, 510, 533 and 534. Within this authority,
the Attorney General may appoint officials todetect crimes against the United States and to
conduct such other investigations regarding official matters under the control of the
Department of Justice DOJ! and the Department of State DOS! a's may be directed by the
Attorney General 8 U.S.C. § 533!. The Attomey General has delegated a number of his '
statutory authorities and granted otherauthorities to the~Director of the FBI 8 C.F.R.
§ O.85[a]!. Some of these authorities apply both inside and outside the United States.
U! Terrorism and=Counterterrorism Investigations I
U! The Attomey General has directed the FBI to exercise Lead Agency responsibility in
iinvestigatingall crim_e_s.for whi<_:h"DOJ has primary or concurrentjurisdiction and which
involve terrori_st'activitiés or acts inpreparation of terrorist activities within the statutory
jurisdiction of the United States. Within the United States, this includes the collection,
coordination, analysis, management and dissemination of intelligence and criminal
information, as appropriate. If another federal agency identies an individual who is engaged
in terrorist activities or in acts in preparation of terrorist activities, the other agency is
required to promptly notify the FBI. Terrorism, in this context, includes the unlawful use of
force and violence against persons or property to intimidate or coerce a govemment, the
civilian population, or any segment thereof,_to further political or social objectives 8 C.F.R.
§ O.85[a]!. G
U! - Federal Crimes of Terrorism
U! Pursuant to the delegation in 28 C.F.R. § 0.85 a!, the FBI'exercises the Attomey
Generals lead investigative responsibility under 18 U.S1C. § 2332b t! for all federal crimes
of terrorism as identied in that statute. Many of these statutes grant the FBI extraterritorial
investigative responsibility. Check the citedstatute for the full particulars conceming
elements of the offense, jurisdiction, etc. Under l8U'.S.G. ,§ 2332b g!!, the term "federal
crime of terrorism" means an offense that is: i! calculated to inuence or affect the conduct
of govemment by intimidation or coercion or to retaliate against government conduct; and ii!
is a violation of federal statute relating to:
1. U! Destruction of aircra or aircraft facilities I8 U.S.C. § 32!; K
2. U! Violence at intemational airports~ applies to offenses occurring outside the United
Statesiinacertain situations! 8 U.S.C. § 37!;
Ii. U! Arson within special maritime and territorialjurisdiction of the United States
SMTJ is dened in 18 U.S.C. § 7! 8 U.S.C. § 81!;
4. U! Prohibitions with respect to biological weapons extraterritorial federal jurisdiction if
offense committed by or against a United States national! -18 U.S.C. § I75!; .
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U! Possession of biological agents or toxins by restricted persons 8 U.S.C. § 1,75b!;
U! Variola virus includes smallpox and other derivatives of the variola major virus!
applies to offenses occurring outside the United States in certain situations! 8 U.S.'C.
§ 175<=!;
U! Prohibited activities regarding chemical weapons applies to offenses occurring
outside the United States in certain situations! 8 U-.S.C. § 229! E.O. 13128 directs any
possibleviolation of this statute be referred to the FBI!;
U! Congressional, Cabinet, and Supreme Court assassination, kidnapping and assault 8
U.S.C. § 351[a]-[d]! 8 U.S.C. § 351 [g] directs that the FBI shall investigate violations
of this statute!;
U! Prohibited transactions involving nuclear materials applies to offenses occurring
outside the United States in certain situations! 8 U.S.C. § 831!;
U! Participation in nuclear and weapons of mass destruction threats .to the United States
extraterritorial federal jurisdiction! 8 U;S.C. § 832!;
U! Importation, exportation, shipping,¢transport, transfer, receipt, or possession,of plastic
explosivesethat do_no't¥contain.a detection,agent,8 U.S.C. §r.8,42[m] and [n]!;_
U! Arson or bombing of govemment property risking or causing death 8 U.S.C., i
§ 844[f][2] or [3]! 8 U.S.C.,§ 846[a] grants FBI and the Bureaurof Alcohol, Tobacco,
Firearms, and Explosives ATF! concurrent authority to investigate violations of this
statute!;
U! Arson of bombing of property used in or affecting interstate or foreign-commerce 8
U.S.C. ,§ 844[i]! 8 U.S.C. § 846[a]' grantsl~TB_I and ATF concurrent authority to
investigate violations of this statute!;
U! Killing or attempted killing during an attack on a federal facility with a dangerous
weapon 8 U.S.C. § 93O[c]!;
U! Conspiracy within United States jurisdiction to murder, kidnap,'or maim-persons at
any placeoutside the United States 8 U.S.C. § 956[a][l]!; ,
U! Using a computer for unauthorized accessptransmission, or retention of protected
information 8 U.S.C'.$§, 1030[a][l]! 8 U.S.C; § l030[d][2] grants the FBI primary
authority to investigate Section l030[a][1] offenses involving espionage, foreign
counterintelligence, information protected against unauthorizeddisclosrire for reasons of
national defense or foreign relations, or Restricted Data as dened i_nthe Atomic Energy
Act, except for offenses affecting UnitedFStates Secret Service USSS! duties under 18
UIS.C. § 3056[a]!; ' 1 "
U! Knowingly transmitting a program, information, code, or command and thereby
intentionally causing damage, without authorization, to a protected computer 8 U.S.C.
§ 103°[a][5][A]li]!;
U! Killing or attempted killing of officers or employees of the United States, including
any member of theunifonned services 8 U.S.C. § 1114!;
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U! Murder or manslaughter of foreign ofcials, ofcial guests, or intemationally
protected persons applies to offenses occurring outside the United States in certain
situations! 8 U.S;C. § 1116! Attomey General may request/military assistance in the
course of enforcement of this section!;
U! Hostage taking applies to offenses occurring outside the United States in certain
situations! 8 U.S.C. § 1203!; - . I
U! Willfully injuring or committing any depredation against govemment property or
contracts 8 U.S.C. § 1361!; 1
U! Destruction of communication lines, stations, or systems 8 U.S.C. § 1362!;
U! Destruction or injury to buildings or property within special.maritime and territorial
jurisdiction of the United States 8 U.S.C. § 1363!;
U! Destruction of $100,000 or more of an energy facility property as dened in the
statute 8 U;S.C. § 1366!; -
U! Presidential and Presidential staff assassination, kidnapping, and assault 8 U.S.C.
§ 175 1[a], [b], [c], orr[d]! extraterritorialjurisdiction! Per 18 U.S.C. §, l751[i], 1751
violationsmust beinvestigated bythe FBI; FBI njay__ request assistance from any federal
[including military], state, or local agency notwithstanding any statute, rule, or regulationto the contrary!; I -
U! Terrorist attacks and other violencetagainst railroad carriers and against mass
transportationsystems on land, onwater, or through the air includes a school bus,
charter, or sightseeing transportation; or any means of transport onland, water, or
through the air! 8 U.S.C.-§ 1992!;
U! Destruction of national defense materials, premises, or utilities' l 8 U.S.C. 2155!;
U! Production of defective national defenseimaterials, premises, or utilities 8 U.S.C.
§ 2156!; -
U! Violence against maritime navigation'8 U.S.C. § 2280!;
U! Violence against maritime xed platforms locatedon the continental shelf of the
United States or located intemationallyin certain situations! 8 U.S.C. § 2281!;
U! Certain homicides and other violence against United States nationals occurring
outside of the United States 8 U.S.C. § 2332!;
U! Use of weapons of mass destruction againsta national of the United States while
outside the_Uni_ted States; against certain persons or property within the United States; or
by a national of the United States outsidethe United States! 8 U.S.C. § 2332a! WMD
dened in 18 U.S.C. § 2332a[c][2]!; 1
U! Acts of terrorism transcending national boundaries includes murder,ikidnapping, and
other prohibited acts occurring inside and outside the United States under specied
circumstances -including that the victim is a member of a uniform service; includes
offenses committed in the United States territorial sea and airspace above and seabed
below; includes offenses committed in special maritime and territorial jurisdiction of the
United States as dened in 18, U.S.C. § 7! 8 U.S.C. § 2332b!;
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U!, Bombings of places of public use, govemment facilities, public transportation
systems and infrastructure facilities applies to offenses occurring inside or outside the
United States in certain situations; does not apply to activities of armed forces during an
armed'conict! 8 U.S.C. § 23321!;
U! Missile systems designed to destroy aircraft applies to offenses occjurring outside the
United States in certain situations! l8U.S.C. § 2332g!;
U! Radiological dispersal devices applies to offenses occurring outside the United
States in certain situations! 8 U.S.C. § 2332h!; U
U! l-larboring or concealing terrorists l8 U.S.C. § 2339!;
U! Providing material support or resources to terrorists 8 U.S.C. § 2339A!;
U! Providing niaterial support or resources to designated foreign terrorist organizations
extraterritorial federaljurisdiction! 8 U.S.C. §2339B! The Attomey General shall A
conduct any investigation of a possible violation of this section, or of any license, order,
or regulation issued pursuant to this section. 18 U.S.C. § 2339B[e][l]!;
U! Prohibitions against the nancing of terrorism applies to offenses occurring outside
the United States in certain situations including on board a vessel ying the ag oftthe
United States or an aircraft registered under the laws of the UnitedStates! 8'U.S.C.
§ 2339C! Memorandum of Agreement between the Attomey General and the»Secretary*
of Homeland Security, dated May 13, 2005: FBI leads all terrorist nancing *
investigations and operations!;
U! Relating to military-type training from a foreign terrorist organization extraterritorial
jurisdiction! 8 U.S.C. § 2339D!; A _
U! Torture applies only to torture committed outside the United States in certain
situations; torture is dened in 1'8 U.S.C. § 2340" 18 U.S.C. §,2340A!;
U! Prohibitions goveming atoinic weapons applies to offenses occurring outside the
United Statesin certain situations! 2 U.S.C. § 21-22! FBI shall investigate alleged or
suspected violations per 42 U.S.C. § 2271[b]!;
U! Sabotage of nuclear facilities or fuel 2 U.S.C. § 2284! FBI shall investigate I
alleged or suspected violations per 42;U.S.C. § 2271 [b]!; _ '
U! Aircraft, piracy applies to offenses occurring outside the United States in certain
situations! 9 U.S.C. § 46502! FBI shall investigate per 28 U.S.C. § 538!;
- U! Assault on aright crew with a dangerous weapon applies to offenses occurringin
the special aircraftjurisdiction of the United States as dened in 49 U.S.C. § 4650l'[2]!
second sentence of 49 U.S.C. § 46504! FBI shall investigate per 28 U.S.C. § 538!;
U! Placement of an explosive or incendiary device on an aircraft 9 U.S.C.
§_46505[b][3]! FBl shall investigate per 28 U.S.C. § 538!; - __
U! Endangerment of human life on aircraft by means of weapons 9 U.S.C. §-46505[c]!
FBI shall investigate per 28 U.S.C. § 538!; U
U! Application of certain criminal lawsto acts onraircraft- if homicide or attempted
homicide is involved! applies to offenses occurring in the special aircraft jurisdiction of
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the United States as dened in 18 U.S.C. § 46501[2]!; 9 U.S.C. § 46506! FBI shall
investigate per 28 U.S.C.-§ 538!;
50. U! Damage or destruction of interstate gas or hazardous liquid pipeline facility 9
U.S.C. § 60123[b]!; and p 1 .
51. U! Section 1010A of the Controlled Substances Import and Export Act relating to' narco~terrorism!. y '
U! Additional offenses not dened as Federal Crimes of Terrorism '
U! Title 18 U.S.C. § 2332b f! expressly grants the Attomey General primary investigative
authority for additional offenses not dened as Federal Crimes of Terrorism. These
offenses are Note: nothing in this section of the DIOG may be construed to interfere with
the USSS under 18 U.S.C. § 3056!:
.l. U! Congressional, Cabinet, and Supreme Court assaults 8 U;S.C. § 35l[e]! 8 U.S.C.
§ 351 [g]! directs that the FBI investigate violations of this statute!;
2. U! Using mail, telephone, telegraph, or other instrument of interstate or foreign
commerce to threaten to kill, injure, or intimidate any individual, or unlawfully to
damage qr destrqy any building, vel1L<>.le.s>r other real or personalrropeltytby means of
re or explosive l 8 U.S.C. § 844[e]!; 8 U.S.C. § 846[a] grants FBI and ATF ~
concurrent authority to investigate violations of this statute!;
3. U! Damages or destroys by means of fire or explosive any building, vehicle, or other
personal or real property, possessed, owned, or leased to the United States or any agency
thereof, or any institution receiving federal nancialassistance l8.U.S.C.-§ 844[f][l]!
l8 U.S.C; § 846[a] grants FBI and ATF concurrent authority to investigateviolations ofthis statute!; '
4. U! Conspiracy within United States jurisdiction to damage or destroy property in a
, -foreign countiy and belonging to a foreign country, or to any railroad, canal, bridge,
airport, aireld, or other public utility, public conveyance, or public structure, or any
religious, educational, or cultural property so situated 8 U.S.C. § 956[b]!;
5. U! Destruction of $5,000 or more, of an energy facility property as dened in l8 U.S.C.
§ l366 c!. l'8 U.S.C.~§ 1366[b]!; and ,
6. U! Willful trespass upon, injury to, destruction of, or interference with fortications,
harbor defenses, or defensive sea areas l8 U.S.C. § 2_l52!. A 1
U//FOUO! NSPD-46/HSPD-15, U.S. Policy and Strategy in the War on Terror Y
U//FOUO! Annex Il Consolidation and Updating of Outdated Presidential Counterterrorism
Documents!, dated January 10, 2007, to National Security Presidential Directive NSPD!
46/Homeland Security Presidential Directive HSPD! l5, dated March 6, 2006, establishesFBI lead responsibilities. as wel ' ' '
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U//FOUO! Areas addressed in Anne§lI|W_7 I g I
g g , iBoth'NSPD-
- and'792nnex Hiereto are classied. ,
U! Counterintelligence and Espionage Investigations _
U//FOUO! A representative list of federal statutes applicable to counterintelligence and
espionage investigations appears below. For additional information, refer to the
Counterintelligence Program implementation Guide and thecurrent list of espionage and
counterintellieence authorities.
l., U! Espionage Investigations of Persons in UnitedStates Diplomatic Missions
Abroad
U! Section 603 of the Intelligence Authorization Act of 1990 P-.L. l0l-193! states that,
subject to the authority of the Attomey General, the FBI shall supervise the conduct of
all investigations of violations of the espionage laws of the United States by persons
employed by or assigned to"United States diplomatic missions abroad. All departments
ans1.agenc_i_<=s shall nrtévigle appropriate assistance to the FBI in the conduct of §u¢h'investigations? Consult the Attorney Generals extraterritorial guidelines and other Z
applicable policy or agreements.
2. U! Investigations o_f Unauthorized Disclosure of Classied Information to a Foreign _
Power or Agent of atForeign Power '
U! The National Security Act of l947, "as amended, establishes procedures for the
coordination ofcounterintelligence activities 0 U.S.C. § 402a!. Part of that statute C
requires that, absent extraordinary circumstances as approved by the President in-writing
on a case-by-case basis, the head of each executive branch department or agency must
ensure that the FB_I is advised immediately of any information, regardless of its origin,
which indicates that classied information is being, or may have been, disclosed in an
unauthorized manner to atforeign power or an agent of a foreign power.
U! Criminal Investigations
U//FOUO! In addition to the statutes listed above and below, refer to the Criminal
investigative Division CID! Program implementation Guide PG! for additional criminal
jurisdiction information.
l. U! Investigations of aircraft privacy and related-violations
U! The FBI shall investigate any violation of 49iU.S.C. § 46314 Entering aircraft or
airport areas in violation of security requirements! or chapter 465 Special aircra
jurisdiction ofthe United States! of Title 49, United States Code. 8 U.S.C. § 538!
2. U! Violent crimes against foreign travelers g
U! The Attorney General and Director of the FBI shall assist state and local authorities
in investigating and prosecuting a felony crime of violence in violation of the law of any
State in which the victim appearssto have been selected becauserhe or she is a traveler
from a foreignnation. 8 U.S.C. § 540A[b]!
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3. U! Felonious killings of state and locallaw enforcement ofcers 8 U.S.C. § 540!; and
4. U! Investigations ofserial killings 8 U.S.C. § 540B! .
H. U! Authority of an FBI»Special Agent
U! An FBI Special Agent has the authority to:
. 1. U! Investigate violations of the laws, includjngthe criminal drug laws, of the-United
States,1U.'S.C. §'871; 28 U.S.C.-§§ 533, 534 and 535; C.'F.R. § 0.85!. _
2. U! Collect evidence in cases in which the United States is or may be a party in interest
. 8 C.F._R. 0.85 [a]! as redelegated through exercise of the authority contained in 28
, C.F.R. § 0.138 to direct personnel in_ the FBI. I
. 3. U! Make arrests 8 U.S.C. §§ 3052 and 3062!. '
4. U! Serve and executearrest warrants and seize property under warrant; issue and/or
serveadministrative subpoenas; serve subpoenas issued by other proper authority; and
- make civil investigative demands 8 U.S.C. §§ 3052, 3107; 21 U.S.C. § 876; 15 U.S.C.
§ 1312!. '
5. L1! Carry rea1'r,nS l8 u_.s.g;.§3o52!. , g g
6. U! Administer oaths.to witnesses attending totestify or depose in the course of
investigations of frauds on or attempts to defraud the United States or irregularities or
misconduct of employees or agents of the United States U.S.C. § 303!.
7. . U! Seize property subject to seizure under the criminal and civil forfeiture laws of the
. United States e.g., 18 U.S.C. §§ 981 and 982!. '
8. U! Perform other duties imposed by>law. _
2.5. U! Status as Internal Guidance 7
U!-The AGG-Dom and this DIOG are set forth solely for the purpose of intemal DOJ and'FBI
guidance. They are not intended to, do not, and may not be relied upon to create any rights,substantive or procedural, enforceable by law by any party in any- matter, civil or criminal, nordo they place any limitation on otherwise lawful investigative and litigative-prerogatives of theDOJ and the FBI. AGG-Dom, Part 1.0.2.! e t
2.6. U! Departures from the AGG-Dom i _ D
A. U//FOUO! Departure fromethe AGG-Dom in Advance of an Operation: A Departurefrom the AGG-Dom must be approved by the.Director of the FBI, by the Deputy Director of
the FBI, or by an Executive Assistant Director EAD! designatedby the Director. The
Director of the FBI has designated the"EAD National Security Branch or the EAD.Criminal .
Cyber Response and Services Branch to grant departures from the_AGG-Dom. Notice of thedeparture must be provided to the General Counsel GC!.
B. U//FOUO! Emergency Exception for a Departure from the AGG-Dom: If a departurefrom the AGG-Dom is necessarypwithoutsuch prior approval because of the immediacy orgravity ofa threat to the safetyof persons or property or to the national security, the Director,the Deputy Director, or a designated EAD, and the GC must be notied by theofcial
granting the emergency departure asesoon thereafter as practicable. The FBI must -providetimely written notice of departures from the AGG-Dom to the.DO.I Criminal Division or
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National Security Division NSD!, as appropriate, and the Criminal Division or NSD must
notify the Attomey General and the Deputy Attorney General. Notwithstanding this
paragraph, all activitiesin all circumstances must be carried out in a manner consistent with
the Constitution and laws of the United States. AGG-Dom, Part I.D.3.!
C- U//FOUO! Records of Departures from_the AGG-Dom: The Ofce of the General
Counsel OGC! is responsible for maintaining records of all requests and approvals or
denials of departures from the AGG-Dom. I
2.7. U! Departures fromthe DIOG
A. - U//FOUO! Departure from the DIOG in Advance of an Operation: Arequest for a
departure from any provision of the DIOG must be submitted to theappropriate
substantiveprogram Assistant Director AD! and to the GC for approval prior to exercising a
departure from the DIOG. The AD may designate the"Deputy Assistant Director DAD!,and
the GCmay designate the Deputy General Counsel;for the National-Security Law Branch
NSLB! o_r the Deputy General Counsel for the Investigative Law Branch ILB! to approve
departures. Notwithstanding this paragraph, all activities-in all circumstances must be carried t
out in a manner consistent with the Constitution and laws of the United States. __
B. U//FOUOI! Emergency Exception for aD¬pai'tiire from the DIOG:Ifa"departure*is
necessary because of the immediacy or gravity of a threat to.the safety of persons or property
or to thenational security, the approvingauthority may, atihis/herdiscretion, authorize an
emergency departure from the DIOG. As soon as practicable thereafter, the Special A'gent in
Charge SAC! or'FBlHQ Section Chief must provide, in writing, notice to the appropriate
AD and GC describing the circumstances and necessity for the departure. Notwithstanding
this paragraph, all activities in all circumstances must be carried out ina manner consistent i
with the Constitution and laws of the United States.
C. U//FOUO! Records-of Departures from theDIOG: The OGC -is responsible for
maintaining records of all requests and approvals ofr denials of departures from the DIOG.
2.8. U! Other FBI Activities Not Limited by AGG-Dom
U!'The AGG-Dom apply to FBI investigative activities as provided herein and do not limit
other authorized activities of the FBI, such as the FBls responsibilities to conduct background
checks and inquiries conceming applicants and employees under federal personnel security ' 3
programs e.g., background investigations!, the FBIs maintenance and operation of national
criminal records systems and preparation of nationalcrime statistics, and theforensic assistance
and administration functions of the FBI Laboratory. AGG-Dom, Part I.Di4.!
U! FBI employees may incidentally obtain information relating to matters outside of the FBl?s
primary investigative responsibility. For example, information relating to violations of state or
local law or foreign law may be incidentally obtained in the couise of investigating federal
crimes or threats to the national security or in collecting foreign intelligence. The AGG-Dom
does not bar.the acquisition of such information in the course of authorized investigative
activities, the retention of such information, or.its dissemination as appropriate to the responsible
authorities in_ other jurisdictions. AGG-Dom, Part II! i I
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2.9. U! Use of Classied Investigative Technologies
U! Inappropriate use of classied investigative technologies may risk the compromise of such
technologies. Hence, in an investigation relating to activities in violation of federal criminal law,
that does not concem a threat-to the national security or foreignintelligence, the use of such
technologies must be in conformity with the Procedures for the Use of Classied Investigative
Technologies in Criminal Cases. AGG-Dom, Part V.B.2! s l
V 2.10. U! Application of AGG-Dom and DIOG a i
U//FOUO! The AGG-Dom and DIOG apply to all FBI domestic investigations andioperations
conducted by FBI employees such as, but not limited to, applicable support personnel,
-intelligence analysts, special agents, task force officers, detailees, FBI contractors, and
condential human sources' CHS!. All of these FBI employees are bound by the AGG-Dom
and DIOG. In the DIOG, the use of FBI employee implies the use of all personnel descriptions,
if not otherwise prohibited by law or policy. For example, if the DIOG states the FBI
employee is responsible for a particular investigative activity, the supervisor has the exibility
to assign that responsibility to any. person bound by the AGG-Dom and DIOG' i.e.,_agent,
intelligence analyst, task force ofcer!, if not otherwise prohibited by law or policy.
-U//FOUO!.FBII*IQ:Division.l?olicy1ImplementatibnGL1iC1§S cannot be less restrictive than the
DIOG. Additionally, FBII-IQ Division Policy Implementation Guides must comply with the
policy contained in the DIOG, unless approval for deviation from the DIOG isreviewed by the
General Counsel and approved by the FBI Deputy Director. I
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3. U! Core Values, Roles, and Responsibilities
3.1. U! The FBIs Core Values I
U! The FBIs values do not exhaust the many goals we wish to achieve, but they capsulate them
as well as can be done in a few words. The F Bls core values must be fully understood, practiced,
shared, vigorously defended, and preserved. The values are: " ,_
¢ U! Rigorous obedience to the Constitution of the United States
U! Respect for the dignity of all those we protectO
Q U! Compassion , _
U! Faimess I
U! Uncompromising personal integrity and institutional integrity
0 U! Accountability by accepting responsibility for our actions and decisions and their
COl1S¬ql.16l'lC6S r
°? U! Lcadershimby ¢2<,.amPls=, botperspnal and prqfsssignal I -
U! By observing these core values, we achieve a high level of excellence in performing the
FBls-national security and criminal investigative functions as well as the trust of the American
people. Rigorous obedience to constitutional principles ensures that individually and
institutionally our adherence to constitutional guarantees is more important than theoutcome of
any single interview, search for evidence, or investigation. Respect for the dignity of all reminds
us to wield law enforcement powers with restraint. Fairness and compassionensure that we treat
everyone with the highest regard for constitutional, civil, and human rights. Personal and
institutional integrity reinforce each other and are owed to our Nation in exchange for the sacred
trust and great authority conferred upon us. '
U! We who enforce the law must not merely obey it. We have an obligation to set a moral
example that those whom we protect can follow. Because the-FBls success in accomplishing its
mission is directly related to the support and cooperation of those we protect, these core values
are the ber that holds together the vitality of our institution. -
U! Compliance I
U! All F Bl'p6I'SOI1n_6l must fully comply with all laws, rules, and regulations goveming FBI
investigations, operations, programs and activities, including those set forth in the AGG-Dom.
We cannot and do not countenance disregard for the law for the sake ofexpediency in anything
we do..The FBI expects its personnel to ascertain the laws and regulations that govem the
activities in which they engage, to acquire sufcient knowledge of those laws, rules, and.
regulations to understand their requirements and to conform their professional and personal
conduct accordingly. Under no circumstances will expediency justify disregard for the law;
Further, the FBI requires its employees to report to proper authorityany known or suspected
failures to adhere to the law, rules or regulationsby themselves or others. Information for
reporting such violations is available from the Office of Integrity and Compliance OIC!.
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FBI policy must be consistent with Constitutional, legal and regulatory requirements.
Additionally, the FBI must provide sufficient training to affected personnel and ensure that
appropriate oversight monitoring mechanisms are in place. '
-3.2. U! Deputy Director Roles and Responsibilities ,
U//FOUO! The Deputy Director is the proponent ofthe DIOG, and he hasioversight regarding
compliance with the DIOG and subordinate implementing procedural directives and.divisional
specic policy implementation guides PG!. The Deputy Director is also responsible for the
development and the delivery of necessary training andthe-execution of the monitoring and
auditing processes, The Deputy Director works throughthe Corporate Policy Ofce CPO! to
ensure that the DIOG is updated, as necessary, to comply with changes in the law, rules, or
regulations, but not later than one year from the effective date of this DIOG, and every three
years thereafter. T - Q
3.3. U! Special Agent/Intelligence Analyst/Task Force Ofcer/FBI
Contractor/Others Roles and:Responsibilities
U//FOUO! Agents, analysts, task force ofcers TFO!, FBI contractors and others bound by the
AGG-Dom~1and>DlOG must:
A. U//FOUO! Ensure compliance with the DIOG standards for initiating, conducting, and
closingfan investigative activity; collection. activity; or use of an investigative method, as
provided in the DIOG; l
B. U//FOUO! Obtain training on the DIOG standards relevant to his/her position and perform
activities consistent with those standards;
C. U//FOUO! Ensure all investigative activity complies with the Constitution, federal law,
executive orders, Presidential Directives, AGG_-Dom, other AttomeyGeneralGuidelines,
Treaties, Memoranda of Agreement[Understan_ding, this policy document, and any other
applicable legal and policy requirements if anagent, analyst, TFO, or other individual is
unsure of the legality of-any action, he/she must consult with his/her supervisor and Chief
Division Counsel [CDC] or OGC!; , _
D., U//FOUO! Ensure that civil liberties and privacy are protected throughout the assessment or
investigative process; ~
E. U//FOUO! Conduct n_q investigative activity solely on the basis of activities that are
protected by the First Amendment or so_lely on the basis of the race, ethnicity, nationalorigin
or religion of the subject; -
F. U//FOUO! Comply with the law, rules, or regulations, and report any non-compliance
concern to the proper authority, as stated in_ the DIOG Section 3.1; and
G. U//FOUO! Identify victims who have suffered direct physical, emotional, or nancial harm
as result of the commission of federal crimes, offer the FBI's assistance to victims of these
crimes and provide victims contact infomiation to the r'e'sponsible'FBI Victim Specialist, and
keep themeupdated on the status of the investigation.,The FBI's responsibility for assisting
victims is continuous as long as there is an open investigation. -
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3.4. U! Supervisor Roles and Responsibilities
U! Supervisor Den_ed:_Supervisors include, butare not limited to, Field Ofce and
F BIHQ personnel including: Supervisory Intelligence Analyst SIA!, Supervisory Special
Agent SSA!, Supervisory Senior Resident Agent SSRA!, Unit Chief UC!, Assistant
Special Agent in Charge ASAC!, Assistant Section Chief ASC!, Section Chief SC!,
Special Agent in Charge SAC!, Deputy Assistant Director DAD!, Assistant Director AD!,
Assistant Director in-Charge ADIC!, and Executive Assistant Director EAD!.
U! Supervisor Responsibilities:
1. U//FOUO! Anyone in a supervisory role that approves/reviews investigative or
collection activity must determine whether the standards for initiating, approving,
conducting, and closing an investigative activity, collection activity or investigative
method, as provided in the DIOG, are satised. "
2. U//FOUO! Supervisors must monitor to ensure that all investigative activity, collection
activity and the use of investigative methods comply with the Constitution, federal law,
Executive Orders, Presidential Directives, AGG-Dom, other Attorney General Guidelines,
Treaties, Memoranda of Agreement/U nde_rstandii'1g,=»this policy_.docu1ent,-'and.anyother
applicable legal and policy requirements. t
3. U//FOUO! Supervisors must obtain training on the DIOG standards relevant to their
position and conform their decisions to those standards. Supervisors must also ensure that
all subordinates have received the required training on the DIOG standards and
requirements relevant to their positions.
4. U//FOUO! _All supervisors must ensure that civil liberties and privacy are protected
throughout the investigative process. . -
5. U//FOUO! If encountering a practice-that does not comply with-the law, rules, or
regulations, the supervisor must report that complianceconcem to the proper authority p
~-and, whennecessary, take action to maintain compliance.
6. U//FOUO! Supervisors must not retaliate or take adverse action against persons who
raise compliance concems. See OIC non-retaliation policy in the CPO policy and
guidance librag!
U//FOUO! Supervisory Delegation: Throughout the DIOG, any requirement imposed on a
supervisor maybe performed by a designated Acting, Primary or Secondary Relief
Supervisor, unless specied otherwise by federal statute, Executive Order, Presidential
Directive, Attomey General Guidelines, FBI policy, or any other applicable regulation. Alldelegations must be made in writing and retained appropriately.
U//FOUO! A supervisor may delegate authority to a supervisor one level junior to himself or
herself, unless specied otherwise e.g., the SAC may delegate authority to the ASAC!. This
delegation must: i! identify the task delegated; ii! identify the supervisory position given
approval authority; iii! be in writing; and iv! be retained appropriately. This delegation
authority is not further delegable. Except as provided in the preceding paragraph, an SSA or
SIA may not delegate authority.
U//FOUO! Any supervisor can request that a supervisor at a higher level approve a
particular activity, so long as the higher-level supervisor is in the original approval
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supervisors chain-of-command e.g., SSA approval is required to open a preliminary
investigation,'but the SSA requests that his/her ASAC or SAC approve the preliminary _
investigation because he/she will be on TDY!. Unlike delegations ofauthority which require
written documentation, higher supervisory approval than required by the AGG-Dom or
DIOG does not require written authorization.
U//FOUO! File Reviews: Full-time supervisors or primary relief supervisors relief '
supervisors require SAC approval! must conduct investigative le reviews with their
subordinates, as discussed below. Investigative lerreviews must be conducted with all
agents, Resident Agents, TFOs, analysts, detailees, and FBI.contractors as appropriate.
Investigative le reviews for probationary agents are recommended every 30 days but must
be conducted at least every 60~days.
1, U//FOUO! Assessment.Justication/File Re'views,:*Supervisors must conduct 30-day
justicationireviews for types I and 2 assessments and 90-day le reviews for types 3, 4
and~6 assessments, as"required in Section 5 of the DIOG. These justication/le reviews
must: i! evaluate the progress made toward the achievement of the authorized purpose
and objective; ii! ensure activities that occurred in.the prior 30/90 days were appropriate;
iii! determine whether it_is reasonably likely that.infQ_rmati_9n may be obtained that
relevant to the authorized objective, thereby warranting an extension for another 30/90
'days;: iv! determine whether adequate predication has been developed toopen and/or
continues to justify a predicated investigation; and v! determine whether the assessment
should be terminated, I
a. U//FOUO! Type 1 and 2 Assessments: Supervisory justicationl reviews must
be conducted for each 30 day period. Following the end of the 30-day period, the
agent,analyst, TFQ, detailee or FBI contractor and thesupervisor have up to I0
calendar days to complete all aspects of the review and to appropriately document
thereview, as specied in this section of the DIOG. -
b. U//FOUO! Type 3, 4 and46 Assessments: Supervisoryjustication/le reviews
must be conducted for each 90 day period. Following the end.of each 90 day .
period, the agent, analyst, TFO, detailee or FBI contractor and the supervisor-have
up to 30 days to complete all aspects of the review and to appropriately document
the review, as specied in this section of the DIOG..Investi_gative le reviews for
probationary FBI~employees are recommended-every 30 days but must be
conducted at least every 60 days.
2. U//FOUO! Predicated Investigations: Supervisory investigative le reviews must be
conductedfor each 90 day period. Following the end of each 90 day period, the agent,
analyst, TFO, detailee or FBI contractor and the supervisorhave up'to 30 days to
completeall aspects of the review and to appropriately document the review, as specied
in this section of the DIOG. Investigative le;reviews-forprobationary FBI employees
are recommended every 30 days but must be conducted" at least every 60 days. -
3. U//FOUO! General _PoIicy for Justication/File, Reviews: A justication/le review -
must-be: i! in person or. by telephone when necessary e.g., FBI employee is TDY!; ii!
conducted in private; and iii! notedin the Automated Case Support ACS! Investigative
Case Management Case Review or on the FD-7l or Guardian. J ustication/le review
documentation must be executed in duplicate, with the subordinate being permitted to
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retain a'copy, and the originals ,retained' by the supervisor in each sub0rdinates
administrative folder until the next inspection. If the subordinate only has applicant cases
assigned and is in compliance with FBI deadlines and regulations, thein-person
conference may be waived. If the conference is waived, the, supervisor will make suitable
comments conceming the subordinates caseload, performance, compliance with FBI
deadlines and regulations, and record the fact that no conference was held. The results of
thejustication/le reviews must be considered when,preparing midjyear progress
reviews, annual appraisals, and developmental worksheets, except this provisiondoes not
apply to TFOs, other agency detai lees, or FBI Contractors.
E. U//FOUOUnaddressed Work for Assessments and Full Investigations
_ u//Fouoj ' ' ' I e ll, _ 92 . _ x i
V U92//FOIJO!|
U//Fouo!| I |'
_ u//Fouoi " ' - L
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U//FOUO! The FD-71 provides a mechanism to assign an Assessment to an appropriate
Unaddressed Work File, if appropriate. In the FD7l, the Supervisor must select a_reason for
assigning the matter to the Unaddressed Work File, andchoose the_appropriate classication.
Upon submitting the FD-71, a new Unaddressed Work File will be opened.
3.5. U! Chief Division Counsel Roles and Responsibilities _
U//FOUO! The Chief Division Counsel CDC! must review all assessments and predicated 1
investigations involving sensitive investigative matters as discussed in DIOG Section IO as well
as review the use of particular investigativemethods as discussed in Sections 5 and'l_l of the
DIOG. The primary purpose of the CDCs review is to ensure the legality of the actions
proposed. Review, in this context, includes a determination that the investigative activity is: i!
not legally objectionable i.e., that it is not based solely on the exercise of.First Amendment
rights or on the race, ethnicity, national origin or religion of the subject; and ii! founded upon an
authorized purpose and/or adequate factual predication and meets the standard specied in the
DIOG. The CDC should also include in his or her review "and recommendation, if appropriate, a
determination of the Wisdom of the proposed action e.g., the CDC may have no legal objection
but may recommend denial because the value of the proposal is outweighed by the intrusion into
legitimateprivacyrinterests!; TheCDC5sdeterminationthataninvestigativevactivity is:~ i! not
legally objectionable; and ii! warranted from a mission standpoint is based on facts known at the
time of the review and recommendation. Often these facts are not veried or otherwise
corroborated until the investigative activitycommences. As a result, the CDC may require
additional CDC reviews or provide guidance to supervisory personnel with regard to monitoring
the results of the investigative activity to ensure that the authorized purpose and/or factual
predication remains in tact after the facts are. developed. '
U//FOUO! For investigative activities involving a sensitive investigative matter, the CDC must_
also independently.consider the factors articulated. in the DIOG and provide the approving . _
authority with a recommendation as to whether, in the CDCsjudgment, the investigative
activity should be approved. Activities found to be legally objectionable by the CDC may not be
approved unless and until the CDCs determination is countermanded by the FBI General
Counsel or a delegated designee.
U//FOUO! Throughout the DIOG, any requirement imposed on the CDC may be performed by
an Associate Division Counsel ADC!, Legal Advisor, or designated Acting CDC. All CDC
delegations must be made in writing and retained appropriately.
5 3.6. U! Office of the General Counsel Roles and Responsibilities
U//FOUO! In coordination with the DOJ NSD, the OGC is responsible for conducting regular
reviews of allaspects of FBI national security and foreign intelligence activities. The primary
purpose of the OGCs review is to ensure the legality of the actions proposed. These reviews,
conducted at FBI Field Offices and Headquarters Units, broadly examine such activities for
compliance with the AGG-Dom and other applicable.requirements. Review, in this context,
includes _a determination that the investigative activity is: i! not legally objectionable i.e., that it
is not based solely on the exercise of First Amendment rights or on the race, ethnicity,,national
origin or religion of the subject; and ii! founded upon an authorized purpose-and/or adequate *
factual predication and meets the standard specied in theDIOG. The OGC should also include
in its review and recommendation, if appropriate, a determination of the wisdom of the proposed
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action e.g., the OGC may have no legal objection but may recommend denial because the value
of the proposal is outweighed by the intrusion into legitimate privacy interests!. The OGCs
determination that an investigative activity is: i! not legally objectionable; and ii! warranted
from a mission standpoint is based onfacts known at the time of the review and recommendation
Often these facts are not veried or otherwise corroborated until the investigative activity e
commences. As a result, the OGC may require additional OGC reviews or provide guidance to
supervisory personnel with regard to monitoring the results of the investigative activity to ensure
that the authorized purpose and/or factual predication remains in tact after the facts are
developed. , '
U//FOUO! For those investigative activities involving a sensitive investigative matter requiring
OGC. review, the OGC must independently consider the factors articulated in the DIOG and
provide the approving authority with a recommendation as to whether, in the OGCs judgment,
the investigative activity should be approved. .
U//FOUO! Throughout the DIOG, any requirementimposed on the General Counsel may be
delegated and performed by a designated OGC attomey. All delegations must be made in~writing
and retained appropriately;
33.7. U! Corpomte Policy Office" Roles and Responsibilities l V
U//FOUO! Subject to the guidance of the Deputy Director, the CPO has oversight of the
implementation of the DIOG. In the process of-implementing and analyzing the DIOG, the CPOshould report any~apparent compliance risk areas directly to the OIC. Additionally, the CPO willwork directly with the OIC to ensure that the policies, training and monitoring are adequate to
meet compliance monitoring procedures.
3.8. U! Office of Integrity and Compliance Roles and Responsibilities -
U//FOUO! OIC is responsible for reviewing the DIOG, and working with each FBI Division
and the CPO, to identify compliance risk areas and ensure the adequacy of policy statements,
training and monitoring. When compliance risk areas are identied, the OIC works with the
Divisions, Field Offices, and/or programs affected by the risk and develops programs to review
the adequacy of policy statements, training, and monitoring and mitigates those concerns
appropriately.
3.9. U! Operational Program Manager Roles and Responsibilities
U//FOUO! FBIHQ Operation Program Managers must review notices and actions received fromFBI'Field Ofces pursuant to procedures contained in the applicable FBII-IQ substantive
Divisions policy implementation guide. This responsibility includes notifyingthe.appropriateDOJ entity of FBI Field Ofce and FBIHQ investigative activities, within the time period A
specified by the AGG-Dom, when required.
U//FOUO! FBIHQ Operational Program Managers are responsible for identifying, prioritizing,and analyzing potential compliance risks within their programs regarding implementation of the
DIOG, and developing mitigation plans where warranted.
U//FOUO! Operational Program Managers must proactively identify and take appropriate actionto resolve-potential compliance concerns. In identifying possible compliance concems, Program
Managers should consider the following indicators of possible compliance issues:
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A. U//FOUO! Similar activities being handled differently from Squad-to-Squad / Unit-to-Unit/
Field Ofce-to-Field Ofce;
B. U//FOUO! Unusually high need for contact with Headquarters Division for basic
S information on how to conduct an activity; '
C. U//FOUO! Apparent confusion over how to conduct a certain activity;
D. U//FOUO! Conflicting policy; _
E. U//FOUO! Non-existent/inaccurate/wrongly targeted training;
F. U//FOUO! Monitoring mechanisms that do not exist or do not test the right information e.g
le reviews/program management!; and
G. U//FOUO! Inadequate audit for compliance. ' - W
U//FOUO! Operational Program Managers may not retaliate or take adverse actioneagainst
persons who raise compliance concems.
3.10. U! Division Compliance Officer Roles and Responsibilities
U//FOUO! Each FBII-IQ Division and Field Ofce must have a Division Compliance Officer
DCO!-who-willproactively identify potentialenon-complianceerisk areas conceming theimplementation of the DIOG and report them to the proper authority and the OIC. The DCO .
must always be aware that the focus of a complianceprogram is the identication and resolution
of a compliance problem and the process must not be punitive or retaliatory.
3.11. U! FI3I7Headquarters Approval Levels - *
U//FOUO! If a DIOG provision does not specically provide, or prohibit, FBI}-IQ approval
authority for conducting certain investigative activities or investigative methods, the below Field
Ofce approval authorities equateto the following FBIHQ personnel and approving officialswhen FBIHQ initiates? conducts, or closes an investigative activity or utilizes an investigative
method:
0 U//FOUO! Field Ofce Analyst or Special Agent SA! =. FBIHQ Analyst, SA, or
Supervisory Special Agent SSA!; '
¢ U//FOUO! Field Ofce Supervisory Intelligence Analysts SIA! = FBIIIQ_SIA; .
0 U//FOUO! Chief Division Counsel CDC! =~FBII-IQ Ofce of the General Counsel
. OGC!; -
~ U//FOUO! Field Ofce SS_A = FBII-IQ Unit Chief UC!; and
5 U//FOUO! Special Agent in.Charge SAC! = FBI}-IQ Section Chief SC!.
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U! Privacy and Civil Liberties, and Least Intrusive Methods
A.
B4.1., Civil Liberties and Privacy
U! Overview
U!'The FBI is responsible for protecting the American public, not only from crime andterrorism, but also fromincursions into their constitutional-rights. Accordingly, all-AGG~Dom investigative activities must be carried out withfull adherence to the Constitution,
federal laws and the principles of civil liberty and privacy.
U! The FBI has a long-established commitment to protecting the civil liberties of Americans
as it investigates threats to national security and public safety. As discussed below,
compliance with the FBls comprehensiveinastructure of legal limitations, oversight and .self-regulation effectively ensures that this commitment is honored. Because our ability toachieve our mission requires that we have the trust and condence of the American public,and because that trust and condence can be signicantlyshaken by our failure to respect thelimits of our power, special caremust be taken by all employees to comply with these
limitations.
U! Purpose or Investigative Activity ' " ' "
U! One of the most important-safeguards in the AGG-Dom-one that is intended to ensure
that FBI employees respect the constitutional rights of Americansis the thresholdrequirement that all investigative activity be conducted for an authorized purpose. Under theAGG-Dom that authorized purpose must bean authorized national security, criminal, or
foreign intelligence collection purpose.
U! Simply stating such a purpose is not sufficient, however, .to ensure compliance with this K
safeguard. It is critical that the authorized purpose not be, or appear to be, arbitrary orcontrived; that it be well-founded and well-documented; and that the information soughtand
the investigative method used to obtain it befocused in scope, time, and manner to achieve
the underlying purpose. Furthennore, there are constitutional provisions that set limits onwhat that purpose may be. It may notbe solely to monitor the exercise of rights that are
protected by the Constitution, and, equally important, the authorized purpose may not bebased solely on race, ethnicity, national origin or religion.
U! It is important to understand how the authorized purpose requirement and theseconstitutional limitations relate to one another. For example, individuals or groups whocommunicate with each other or with members of the public in any form in pursuit of social.or political causessuch as opposing war or foreign policy, protesting government actions,
promoting certain religious beliefshave a fundamental constitutional right to do so. Noinvestigative activity may be conducted for the sole purpose of monitoring the exercise ofthese rights. If, however, there exists a well-founded basis to conduct investigative activityfor one of the authorized purposes listed above--and that basis is not solely the race,ethnicity, national origin or religion of the participantsFBI employees may assess orinvestigate these activities, subjectto other limitations in the AGG-Dom and the DIOG. Inthis situation, the investigative activity would not be based solely on Constitutionally-protected conduct or on race, ethnicity,nationality or religion. Finally, although investigativeactivity would be authorized in this situation, it is important that it be conducted in a manner
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that does not materially interfere with the ability of the individuals or groups to engage in theexercise of Constitutionally-protected rights. s
U! Oversight and Self-Regulation
U! Provisionsof the AGG-Dom, other AGG, and oversight from DOJ components are
designed to ensure the activities of the FBI are lawful, appropriate and ethical as well as .
effective in protecting the civil liberties and privacy of individuals in the UnitedlStates. DOJ
and the-FBIs Inspection Division, OIC, and OGC, along with every FBI employee, share '
responsibilityfor, ensuring that the FBI meets these goals.
_U! In the criminal investigation arena, oversight.of"FBI activities has traditionally come
from prosecutors and district courts. Because many national security investigations do not-iresultiin prosecutions, other oversight mechanisms are necessaiy. Various features of theAGG-Dom facilitate the DOJ NSD oversight functions in the national security and foreign-intelligence collection areas. Relevant requirements and provisions include: i! requirednotication bythe FBI to the DOJ NSD conceming a full investigation that involves foreign
intelligence collection, a full investigation of a United States person in relation to a threat to0the national security; or a national security investigation involving a sensitive investigative
matterg? ii! an annual report, by the FBI to the DOJ NSD concerning, the F BIs foreign
intelligencecollectionprogram,includinginformationreflecting, the scopeand nature offoreign intelligence collection activities in each FBI Field Office; iii! access by the DOJNSD toinformation obtained by the FBI through national security or foreignintelligenceactivities; and iv! general authority for the Assistant Attorney General for National Securitytotobtainreports from the FBI conceming these activities. AGG-Dom, Intro.4.C! _
U! The DOJ NSDs Oversight Section and the FBls QGC areresponsible for conducting
regular reviews of all aspectsof FBI national security and foreign intelligence activities.
These reviews, conducted at FBI. Field Offices and YFBIHQ Divisions, broadly examine suchactivities for compliance withthe AGG-Dom and other applicable requirements.
U! Further examples of oversight mechanisms include the involvement of both FBI and
prosecutorial personnel in the review of undercover operations involving sensitive
circumstances; notice requirements .for investigations involving sensitive investigative
matters; and notice and oversight provisions for enterprise investigations, which involve.abroad examination of groups implicated in criminal andnational security threats. These
requirements and procedures help to ensure that the rule of law is respectedin the F BIsactivities andthat public condence is maintained in these activities. AGG-Dom, Intro.4.C!
U! In addition to the above-mentioned oversight entities DOJ has in1place, the FBI is subjectto a regime of oversight, legal limitations, and self-regulation designed to ensure strictadherence to civil liberties. This regime is comprehensive and has many facets, including the
following:
1. U! The Foreign Int'elligenceiSurveillance Act of I978, as amended,92and Title III of theOmnibus and Streets Act of .1968. These laws establish the processes for obtainingjudicial approval of: electronictsurveillance and physical searches for the purposes ofcollecting foreign intelligence and electronic surveillance for the purpose of collecting
evidence of crimes.
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2. U! The Whistleblower Protection Acts of I989 and 1998: These laws-protect
whistleblowers from retaliation.
3. U! The Freedom of Information Act of 1966: The law provides the public with access
to FBI documents not-covered by a specic statutory exemption.
4. U! The Privacy Act of "l 974: The purpose of the Privacy Act is to balance the
- govemment's need to maintain information about United States citizens and legal
permanent resident aliens with the rights of those individuals to be protectedagainstunwarranted invasions of their privacy stemming from the govemment's collection, use,
maintenance, and dissemination. of that information. The Privacy Act forbids the FBIand other federal agencies Tfrom collecting informationabout how indivi,duals§ex_ercise
their First Amendment rights, unless that collection is expressly authorized by statute or
by the individual, or is pertinent to and within the scope of an authorized law
enforcement activity U.S.C. § 552a[e][7]!. Except for collection of foreign
intelligence, activities authorized by the 'AGG-Dom are authorized law enforcementactivities or activities for which there is otherwise statutory authority for purposes of
the Privacy Act. Foreign intelligence-collection is not an authorized law enforcementactivity. '
U!Congressio'nal Oversight is conducted by various committees afthe-Unitedsta:es . i
Congress, but primarily by the Judiciary and -Intelligence Committees. These committeesexercise regular, vigorous oversight into all aspects of the FBIs operations. To this end, theNational Security Act of I947 requires the FBI to keep the intelligence committees for theSenate andil-louse of Representatives! fully and currently informed of substantial intelligenceactivities. This oversight has signicantly increased in breadth and intensity since the l970s,and it provides important additional assurance that the FBI conducts its investigations
according to the law and the Constitution. A
U! The _FBIs counterintelligence and counterterrorism operations are subject to signicantself-regulation and oversight beyond -that conducted by Congress. The Intelligence OversightBoard -IOB!, comprised of members from the Presidents'Intelligence,Advisory Board PIAB!,~also conducts oversight of the FBI. Among its other responsibilities, the IOB *
reviews violations of The Constitution, national security law, E.O.,or Presidential DecisionDirective' PDD! by the FBI and the other intelligence agencies, and issues reports thereon tothe Presidentand the Attomey General.
U!.Intemal FBI safeguards include: i! the OGCs Privacy and Civil Liberties Unit PCLU!,which reviews plans of any record system proposed within the FBI for compliance with thePrivacy Act and related privacy" protection requirements and policies; ' ii! the.criminal andnational security undercover operations review committees, comprised of senior DOJ andFBI ofcials, whichreview all proposed undercover operations that involve sensitivecircumstances; iii! the Sensitive Operations Review Committee SORC!, c
' . K A I. " iv! all FBI employees have an obligation to reportiviolations of the DIOG
to their supervisor, other management ofticiaIs,~or appropriate authorities; and v! the FBIrequirement for training of new FBI employees and periodicrtraining for all FBI employees
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to. maintain currency on the latest guidelines, changeseto laws and regulations, andjudicial
A decisions related to constitutional rights and liberties.
U! The AGG-Dom and DIOG set forth the standards and requirements under which an
investigative activity may be initiated and are designed to provide FBI employees with a
framework that maintains the proper balance between the publics need for effective law
_ enforcement and protection of the national security and the protection of civil liberties andprivacy. Among the provisions that specifically serve to protect civil liberties and privacy arethe following: i! the prohibition against initiating investigations based solely on the exerciseof First Amendment rights or other constitutionally protected activity; ii! the requirement
that FBI employees use the least intrusive method reasonable under the circumstances to
achieve their investigative goals; and iii! the prohibition against engaging in ethnic and
racial proling. Further, in the contextof collecting foreign intelligence, the FBI is further
required to operate openly and consensually with United States persons; tothe extent
practicable.-
4.2, U! Protection of First Amendment Rights
U! A fundamental principle of the Attomey Generals guidelines for FBI investigations and
operations since the.fi_rst guidelines were issued in 1976 has been that investigative activity maynot beb*asedsolely. on the exercise of rights giuaranteednby the First Amendment to the United
States Constitution. This principle carries through to the present day in the AGG-Dom. There is acorollary to this principle in the Privacy Act of 1974, 5 U.S.C. § 552a, which prohibits theretention of information describing how a person exercises rights under the First Amendment,unless there is a valid law enforcement purpose. - _
U! The First Amendment states:
U! Congress shall make no law respecting an establishment of religion or* prohibiting the ee exercise thereo or abridging the freedom of speech, or of
the press; or of the right of the people to peaceably assemble, and to petition
the Government for redress of grievances. M
U! Although the amendment appears literally to apply only to Congress, the Supreme Courtmade it clear long ago that it also appliesuto activities of the Executive Branch, includingvlaw
enforcement agencies. Therefore, for FBI purposes, it would be helpful to read the introductionto the rst sentence as: The FBI shall take no action respecting . . . In addition, the word
abridging must be understood. - Aibridging, as used here, means diminishing? Thus, it is notnecessary for a law enforcement action to destroy or totally undermine the exercise of FirstAmendment rights for it to be unconstitutional; signicantly diminishing or lessening the abilityof individuals to exercise these rights without an authorized investigative purpose is sufficient.
U! This is not to say that any diminishment of First Amendment rights is unconstitutional. TheSupreme Court has never held that the exercise of these rights is absolute. In fact, the Court hasset forth realistic interpretations of what level and kind of government activity actually violates aFirst Amendment right. For example, taken to an extreme, one could argue that themerepossibility of an FBI agent being present at an open forum or an on-line presence! woulddiminish the right of free speech by, for example, an anti-war protestor because he/she would beafraid to speak freely._The Supreme Court, however, has never found an abridgeinent of FirstAmendment rights based on such a subjective fear. Rather, it requires an action that, from an
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objective perspective, truly diminishes-the speakers message or his/her ability to deliver it e.g.,pulling the plug on the sound system!. For anothergexample, requiring protesters to use a_ certain
parade route may diminish,*in a practical sense, delivery of their message. The'Court has madeit
clear, however, that for legitimate reasons e.g., public safety!, the govemment may imposereasonable limitations in terms of time, place and manner to the exercise of such rights+as long
as the ability to deliver the message remains. a
U! While the language of the First Amendment prohibits actionthat would abridge the '
enumerated rights, the implementation of that prohibition in the AGG-Dom reects the Supreme
¬ourts opinions on the constitutionality of law enforcement action that may impact the exerciseof First Amendment rights. As, stated above, the A,GG-Dom prohibits investigative activity forthe sole purpose of monitoringthe exercise of First Amendment rights. The import of thedistinction between this language and the actual text of the First Amendment language is two-fold: i!*the line drawn bythe AGG-Dom prohibits even monitoring the exercise of First
Amendment rights far short of abridging those rights! as the sole purpose of FBI activity; and ii!the requirement of an authorized purpose for all investigative activity provides-additionalprotection for the exercise of Constitutionally protected rights. '
U! The AGG_-Dom classies investigative activity that involves a religious or political
Organization or an individual prominent in suchan Organization! 9r a member <!f.th¢,!1eWSmedia as a sensitive investigative matter. That designation recognizes the sensitivity ofconduct that traditionally involves the exercise of F irst Amendment rightsi.e., groups who
associate for political or religious-purposes, and the press, The requirements for opening andpursuing a sensitive investigative matter are set forth in Section l0 of this policy document. Itshould be clear, however, from the discussion belowjust howpervasive the exercise of FirstAmendment rights is in American life and that not all protected First Amendment activity willfall within the denition of a sensitive investigative matter. Therefore, it» is essential that FBI
employees recognize when investigative activity may have an impact on the exercise of thesefundamental rights and be especially sure that any such investigative activity has avalid lawenforcement or national security purpose, even if it is not a sensitive investigative matter asdefined in the AGG-Dom and the DIOG. M
U! Finally, itis important to note that United States persons and organizations comprised ofUnited States persons! do not forfeit their First Amendment rights simply because they alsoengage in criminal activity or in conduct that threatens national security. For example, an
organization -suspected of engaging in acts of domestic terrorism may also pursue legitimate
political goals and may also engage in lawful means to achieve those goals. The pursuit of these
goals through constitutionally-protected conduct does notlinsulate them from legitimateinvestigative focus for unlawful'activitiesbut the goals andthe pursuit of their goals throughlawful means remain protected from unconstitutional infringement.
U! When allegations of First Amendment violations are brought to a court of law, it is usually inthe form of a civil suit inwhich a plaintiff has to prove some actual" or potential harm.
Presbyterian-Church.v. United States. 8_70 F.2d 518 9th Cir. 1989!. In a criminal trial, a
defendant-may seek either or both of two remedies aspart of a claim that his or her First
Amendment rights were violated: suppression of evidence gathered in the alleged First
Amendment violation, a claim typically analyzed under the reasonableness clause of theFourth Amendment, and dismissal of the indictment on thebasis of outrageous governmentconduct in violation of the Due Process Clause of the Fifth Amendment. .
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U! The scope of each of the primary First Amendment rights and their impact on FBIinvestigative activity are discussed below. The First Amendmenfs establishment clause, the
prohibition against the government establishing or sponsoring a specic religionhas little
application to the FBI and, therefore, is not discussed here.
U! Free Speech . ,
U! The exercise of free speech includes far more than simply speaking on a controversialtopic in the town square. It includes such activities as carrying placards in a parade, sending '
letters to a newspaper editor, posting a web site on the Intemet, wearing a teeshirt witha
political message, placinga bumper sticker critical ofthe President on ones car, andpublishing books or articles. The common thread in'these examples is conveying a public
message or an idea through words or deeds. Law enforcement activity that diminishes a
persons ability to communicatein any of these ways may interfere with his or her freedomof speechand thus may not be undertaken by the FBI solely for that purpose.
U! The line between constitutionally protected speech and advocacy of violence or of
conduct that may lead to violence or other unlawful activity must be understood. In -
Brandenburg v. Ohio, 395 U.S. 444 L969!, the Supreme Court establisheda two-part test todetermine whether such speech is constitutionally protected: the government may not
-prohibit advocacy:of~force or violenceexcept when such-advocacy= i!isintendedeto incite
imminent lawless action, and ii! is likely to do so. Therefore, even heated rhetoric or
offensive provocation thatcould conceivably lead to a violent response in the future is
usuallyprotected. Suppose, for example, aipoliticallyactive group advocates on its web sitetaking unspecied action against persons or entities it views as the enemy, who thereafter
suffer property damage and/or personal injury. Under the Brandenburg two-part test, themissing specicity and imminence in the message may provide it constitutional protection.Forthat» reason, law enforcement may take no action that, in effect, blocks the message orpunishes its sponsors. '
U! Despite the high standard for prohibiting free speech or punishing those who engage in it,the law does not preclude FBI employees from observing and collectingeany of the forms ofprotected speech and considering its contentas long as those activities are done for. a validlaw enforcement or national security purpose and conducted in a manner that does not undulyinfringe upon the ability "of the speaker to deliver his or her message. To be an authorized
purpose, it must be one that is authorizedby the AGG-Domi.e.', to furtheran FBI
assessment, predicated investigation, or other authorized function such as providingassistance to other agencies. Furthermore, by following the Standards for Initiating orApproving an Assessment or Predicated Investigation as contained in the DIOG, the FBIwill ensure that there is a rational relationship between that authorized purpose and_theprotected speech such that a reasonable person with knowledge ofthe circumstances couldunderstand why the information is being collected, 1 '
U! Retuming to the-example posed above, because the gr'oups advocacy of action could bedirectly related by circumstance to property damage suffered by one of the groups knowntargets, collecting the speechalthough lawfully protected-can lawfully occur. Similarly,listening to the public talks by a religious leader, who is suspected of raising funds for a
terrorist organization, may yield clues as_to his motivation, plan of action, and/or hiddenmessages to his followers. FBI employees should not, therefore, avoid collecting First 1
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Amendment protected speech if it is relevant to an authorized AGG-Dom, purposeas longas they do so in a manner that doesnot inhibit the delivery of the message or the ability of the
audience to hear it, and so long'as the method of collection is the. least intrusive means
feasible to gather the relevant information.
U! In summary, during the course of lawful investigative activities, the FBI may lawfullycollect, retain, and consider the content of constitutionally protected speech, so long as: i!the collectionris logically related to an authorized investigative purpose; ii! theicollectiondoes not actually infringe on the ability of the speaker to deliver his or her message; and iii!
the method of collection is the least intrusive altemative feasible.
U! Exercise of Religion.
U! Like the other First Amendment freedoms, the free exercise of religion clause is
broader than commonly believed. First, it covers any form of worship of a deityeven formsthat are commonly understood to be cults or fringe sects, as well as the right not to worshipany deity. Second, protected religious exercise also extends to dress or food that is requiredby religious edict, attendance at a facility used for religious practice no matter how unlikelyit appears to be intended for that purpose!, observance of the'Sabbath, raising money for
evangelical or missionary purposes, and proselytizing. Even in controlled environments like*prisoi1s, religious exercise must'be"permitted#¥subject to reasonable restrictions as to time,place, and manner. Another featurejof this First Amendment right is that it is a matter of
heightened sensitivity to some Americansespecially to devout followers. For this reason, itis a matter that is more likely to provoke an adverse reaction, if the right is violatedregardless of which religion is involved. Therefore, when essential investigative activity mayimpact this right, it must be conducted in a manner that avoidsthe actualand the
appearance ofinterference with religious practice to the maximum extent possible.
U! While there must-be an authorized purpose for any investigative activity that could havean impact on religious practice, this does not mean religious practitioners or religiousfacilities are completely free from being examined as part of an assessment or predicated
investigation. If such practitioners are involved inor such facilities are used foractivitiesthat are the proper subject of F BI-authorized investigative orintelligence collection activities,
their religious affiliation does not immunize them to any degree from these efforts. it isparamount, however, that the authorized purpose of such efforts be properly documented. It
is also important that investigative activity directed at religious leaders or at conductoccurring withinereligious facilities be focused in time and manner so as not to infringe onlegitimate religious practice by any individual but especially by those who appearunconnected to the activities under investigation.
U! Furthermore, FBI employees may take appropriate cognizance of the role religion mayplay:in the membership or motivation of a criminal or terrorism enterprise. If, for example,affiliation with a certain religious institution or a specic religious sect is a known irequirement for inclusion in a violent organization that is the subject of an investigation, thenwhether a person of interest is a member of that institution or sect.is a rational and ,
permissible consideration. Similarly, if investigative experience and reliable intelligencereveal that members of a terrorist or criminal organization are known to commonly possessor exhibit a combination of religion-based characteristics or practices e.g., group leaders
state that acts of terrorism are based in religious doctrine!, it is rational and lawful to consider
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such a combination in gathering intelligence about the groupeven if any one of these, byitself, would constitute an impermissible consideration. l3y contrast, solely because priorsubjects of an investigation of a particular group were members of a certain religion and they
claimed a religious motivation for their acts of crime or terrorism, other members mere
affiliation with that religion, by itself, is not a basis to assess or investigateabsent a knownand direct connection to the threat under assessment or investigation. Finally, the absence of
a particularreligious affiliation can be used by analysts and investigators to eliminate certain-_individuals from further investigativeconsideration in those scenarios where religiousailiationeis relevant. i ' ' ~
U! Freedom of the Press
U! Contrary to what many believegthis well-known First Amendment right is not owned bythe news media; it is a right of the American people. The drafters of the Constitution believed
that a freepress wasessential to preserving democracy. Although the news media typicallyseeks to enforce this right, freedom of the press should not be viewed as a contest betweenlaw enforcement or national security, on the one hand, and the interests of news media, on
the other. -
U! Freedom of thepress includes such matters as reasonable access to news-making events,the-making of documentaries, andrthe posting of*blogs; The 'news>gatheringfunction is theaspect of freedom ofthe press most likely to intersect with law enforcement and national
security investigative activities. Within that category, the interest of the news media in
protecting condential sources and the interest of agencies like the FBI in gaining access tothese sources who may haveevidence of a crime or national security intelligence often clash.The seminal case inthis area is Branzburg v. Hayes, 408 U.S. 665 977!, in~which theSupreme Court held that freedom of the press does not entitle a news reporter to refuse todivulgethe identity of his source to. a federal grandjury. The Courtreasoned that, as long asthe purposeof law enforcement is notharassment or vindictiveness against the press, anyharm to the news gathering function of the press by revealingsource identity! is outweighedby the need of the grand jury to gather evidence of crime. ' »
U! Partially in response to Branzburg , the Attorney General has, issued regulations thatgovern the issuance of subpoenas for reporters testimony and telephone toll records, thearrest of a reporter for a crime related to news gathering, and_ the interview of a reporter as asuspect in a crime arising from the news gathering process. In addition, an investigation of amember of the news media in his official capacity, the use of a reporter as a source, andposing as a member of the news media areall sensitive circumstances in the AGG-Dom and _
other applicable AG guidelines. d
U! These regulations arenot intended to insulate reporters and other news media from FBIassessments or predicated investigations. They are intended to ensure that investigativeactivity that seeks information from or otherwiseinvolves members of the news media: isappropriately authorized; is necessary for an important law enforcement or nationalsecurityobjective; is the least intrusive means to obtain the information or achieve the goals; and doesnot unduly infringe upon the news gathering aspect of the constitutional right to freedom of
the press.
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U!,Freedom of Peaceful Assembly and to Petition the Government for Redress ofGrievances
U! Freedom of peaceful assembly, often called the right to freedom of association, presentunique issues for law enforcement agencies, including the FBI. Individuals who gather withothers to protest govemment action, or to rally or demonstrate in favor of,*~or in opposition to,asocial cause sometimes present a threat to public safety either by their numbers, by theiractions, by the anticipated response to their message, or by creating "an opportunity forindividuals or other groups with an unlawful purpose to inltrate and compromise thelegitimacyof the group for their own ends. The right to peaceful assembly includes morethanjustpublic dem0nstrationsit includes, as well, the posting of group web sites on theIntemet, recruiting others .to a cause, marketing a message, and fund raising. All are protectedFirstAmendment activities if they are conducted in support of the organization or political,
religious or social cause. ~
U! The right to petition the government foriredress of grievances is so linked to peacefulassembly and association that it is included in this discussion. A distinction between the twoisthat an individual may exercise the right to petitionthe government by himself whereasassembly necessarily _involv_es others, The right topetition the govemmentzincludes writing,letters to Congress, carrying a placard outside city hall that delivers a political message,recruiting others to ones cause, and lobbying Congress or an executive agency for a 'particular result. j 1
U! Forthe FBI, covert presence or action withimassociations, also called undisclosed .participation, has the greatesbpotential to impact this Constitutional right. The SupremeCourtaddressed this issue as atresult of civil litigation arising from one of the many protestsagainst the Vietnam War. In Laird v, Tatum, 408 U.$. l 972!, the Courtfoundrthat themere existence of an investigative program~consisting of covert physical surveillance inpublic areas, inltration of public assemblies by government operatives or sources, and thecollection of news articles and other publicly available informationfor the purpose ofdetermining the existence and scope of a domestic threat to national security does not, byitself, violatethe First Amendment rights of the members of the assemblies- The subjective chill to the right to assembly, based on the suspected presence of goveminent operatives,did notby itself giverise to legal standing to argue__that'their constitutional rights had beenabridged.,Instead,i the Court required a showing that the complained-of govemment action 'would reasonably deter the exercise of that right. I
U! Since Laird v. Tatum -was decided, the lower courts have examinedgovemment activityon many occasions to determine whether it gave rise to a subjective chill or an objective rdeterrent. The basic standingrequirement establish by i remains unchanged today. Thelower courts,-however,have often imposed a very low threshold of objective harm to survivedismissalof the case. For example, plaintiffs who haveshown a loss of membership in anorganization, loss of nancial support, loss to reputation and status in the community, andloss of employment by members have been granted standing to sue.
U! More signicant for the F Blthan the standing issue has been the lower courts evaluationof investigative activity into First Amendment protected associations since gig. The courtshave held thefollowing investigative activities to be constitutionally permissible under FirstAmendment analysis: undercover participation in group activities; physical and video
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surveillance in public areas; properly authorized electronic surveillance; recruitment andoperation of sources; collection of information from govemment, public, and private sources with consent!; and the dissemination of information for a valid law enforcement purpose.However, these decisions were not, reached in the abstract. In every case in which the courtshave found govemment acti_on to be proper, the government proved that it was conducted foran authorized law enforcement or national security purpose and that it was conducted insubstantial compliance with controlling regulations; In addition, in approving,thesetechniques, the courts have often considered whether a less intrusive technique was availableto the agency, and the courts have balanced the degree of intrusion or impact against theimportance of the law enforcement or national security objective.
U! By contrast, since Qir_d, the courts have found these techniques to be legallyobjectionable: initiating an investigation solely on the basis of the groups social or politicalagenda even if the agenda made the group susceptible to subversive inltration!; sabotagingor neutralizing the groups legitimate social or political agenda; disparaging the groupsreputation-or standing; leading the group into criminal activity that otherwise probably wouldnot have occurred; and undermining legitimate recruiting or funding efforts. In every suchcase, the court found the govemmentis purpose either was not persuasive,,was_ too remote, orwastes speculative to justify the intrusion and the potential harm to the exercise of First IAmendment rights. i
U! Once again, the message is clear that investigative activity that involves assemblies orassociations of United States persons exercising their First Amendment rights mustehave anauthorized purpose under the AGG-Domand one to which the information sought and thetechnique to_ be employed are rationally related. Less in_trusive techniques should always beexplored rst and those authorizing such activity which, as discussed above, will almostalways constitute a sensitive investigative matter! should ensure that the investigative activityis focusedas narrowlyas feasible and that the purpose is thoroughly documented.
4.3. U! Equal Protection under the Law
U! Introduction i
U! The Equal Protection Clause of the. United States Constitution provides in part that: No _State shall make or enforce any law which shall . . . deny to any person within its jurisdiction.the equal protection of the laws. The Supreme Court and the lower courtshave made it clearthat it applies as well to the ofcial acts of United States govemment law enforcement
agents. Specically, govemment employees are prohibited from engaging in invidious discrimination against individuals on the basis of race, ethnicity, national origin, or religiousaffiliation. This principle is further reected and implemented for federal lawienforcement inthe United States Department of Justices Guidance Regarding the Use 0/'Race bv Federal ,Law Enfbrcenrenl Agencies hereinafter DOJ Guidance !. I ' I I
U! The DOJ Guidance statesthat investigative and intelligence collection activities must notbe based solely on race, ethnicity, national origin, or religious ailiation. Any such activitiesthat are based solely on such considerations are invidious by denition, therefore,
L mt' See, e.g., Whren v. United States 517 U.S. 806 996!' see also Chavez v. Illinois State Police 251I 1 IF.3d 612 th Cir. 2001!. '
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unconstitutional. This standard applies to all investigative and collection activity, including
collecting and retaining information, opening cases, disseminating information, and indicting
and prosecuting defendants. It is paiticularlyapplicable to the retention and dissemination of
personally identifying information about an individualas further illustrated in the examples
enumerated below.
U! The constitutional prohibition against invidious discrimination based on race, ethnicity,
national origin of religion isrelevant to both the~national security and criminal investigative
programs of the FBI. National security investigations often have ethnic aspects;_ mernbersof
a foreign terrorist organization may be primarily or exclusively from a particular country or
area of the world. Similarly, ethnic heritage is frequently the common thread running through
violent gangs or other criminal organizations. It should be-noted that this is neither a new nor
isolated phenomenon. Ethnic commonality among criminal and terrorist groups has lpeen
relatively constant and widespread.across many ethnicities throughout the history of the FBI.
U! Policy Principles '
U! To ensure_that assessment and investigative activities and strategies consider racial,
ethnic, na'tional.origin and religious factors properly aitd-effectively'and to help assure the
American public that the FBI does not engage in invidious discrimination, the following
policy principles are established. ~ o '
l. U! The prohibition against investigative activity based solely on race or ethnicity is not
avoided by considering it in combination with other prohibited factors. For example, a
person of acertain race engaging in lawful public speech about his religious l
convictions is not a proper subject of investigative activity based solely on" any one of
these factorsor by the combination of all three. Before collecting and using this
infomiation, a well-founded and authorized investigative purpose must exist as to
' which any or all of these otherwise prohibited factors is relevant; .
2. U! When race or ethnicity is a relevant factor to consider, it should not be the
dominant or primarytfactor. Adherence to this standard will not only ensure that it is
never the sole factorit will also preclude undue and unsound reliance on race or
. ethnicity in investigativeanalysis. It reects the recognition that there are thousands
and, in some cases, millions of law abiding people in American society of the same race
or ethnicity as those who are the subjects of FBI investigative activity, and it guards
against the risk of sweeping some of them into the net of suspicion without a sound
investigative basis. -
3. U! The FBI willnot collect or_ use behavior or characteristics-common to particular
racial.or ethnic community as investigative factors unless they bear clear and specic
relevance to a matter under assessment or investigation. This policy is intended to
prevent the potential that collecting ethnic characteristics or behavior will inadvertently
lead to individual identication based solely on such matters,-as well as to avoid the
7 appearance that the FBI is engaged in ethnic or racial proling.
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U! Guidance on the Use of Race and Ethnic Identity in Assessments and Predicated
Investigations
U! Considering -the reality of common ethnicity or raceamong many criminal and terrorist
groups, some question how the prohibition against racial or ethnic proling is to be
effectively appliedand not violated-in FBI assessments and predicated investigations.
The question arises generally in two contexts: i! with respect to an individualor a group of
individuals; and ii! with respect to ethnic'or racial communities as a whole.
ll . U! Individual Race or Ethnicity as a Factor
U! The DOJ Guidance permits the consideration of ethnic and racial identity information
based on specic reportingsuch as from an eyewitness. As a general rule, race or-
ethnicity as an identifying feature of a suspected perpetrator, subject, and in some cases, a
victim, is relevant if it isbased on reliable evidenceior informationnot conjecture or
stereotyped assumptions. In addition, the DOJ Guidance permits consideration of race or
ethnicity in other investigative or collection scenarios ifit is relevant. These examples
-illustrate: . _
a. -U! The race or, ethnicity of suspected members, associates,~or supporters of an
ethnic-based gang or criminal enterprise may be collected and retained when
gathering information about or investigating the organization.
b. U! Ethnicitymay be considered in evaluating whether a subject isor is nota
possibleassociate of a criminal or terrorist group that is known to be comprised of
members of the same ethnic grouping-as long as it is not the dominant factor for
focusing on aiparticular person. It is axiomatic that there are many members of the
same ethnic group who are not members of the group; and for that reason, there must
be other information beyond race or ethnicity that links the individual to the terrorist _
or criminal group or to the other members of the group. Otherwise, racial or ethnic
identity would be the sole criterion, and that is impermissible. U
2. - U! Community Race or Ethnicity as a Factor
a. U! Collecting and analyzingdemographics. The DOJ guidance and FBI policy
permit the FBI to identify locations of concentrated ethniccommunities in the Field
Ofces domain, if these locations will reasonably aid the analysis of potential threats
and vulnerabilities, and, overall, assist domain awareness for the purpose of '
performing intelligence analysis, If, for example, intelligence reporting reveals that
members of certain terrorist organizations live and operate primarily within aicertain
concentrated community of the same ethnicity, the location of that community is
clearly valuableand properly collectibledata, Similarly, the-locations of ethnic- '
» oriented businesses; and other facilities may be collected if their locations will
reasonably contribute to an awareness-of threatsand, vulnerabilities, and intelligence
collection opportunities. Also, members of some communities may be potential
victims of civil rights crimes and, for this reason, community location may aid
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enforcement of civil rights laws. Information about such communities should not be
collected, however, unless the communities are sufciently concentrated and
established so as to provide a reasonable potential for intelligence collection that
would support FBI mission programs e.g., where identied terrorist subjects from
certain countries may relocate to blend in and avoid detection!.
I _ U| ethnic/racial demographics] . I I
c.
d. U! General ethnic/racial behavior. The authority to collect ethnic community
location information does not extend to the collection of cultural and behavioral
information about an ethnic community that bears norrational relationship to a valid
investigative or analytical need. Every ethnic community in the Nation that has been
associated with a criminal or national security threat has a.dominant majority» of law-
abiding citizens, resident aliens, and visitors who may share common ethnic behavior
but who have no connection to crime or terrorism as either subjects or victims!. For
this reason, a broad-brush collectionof racial or e_thnic»characteristics or behavior is
not helpful to achieve any authorized FBI purpose and may create the appearance of
improper racial or ethnic proling.
U! Specic and relevant ethnic behavior. On the otherrhand, knowing the
behavioral and life style characteristics of known individualswho are criminals or
who pose a threat to national security may logically aid in the detection and
prevention of crime and threats to the national security within the communityiand
beyond. Focused behavioral characteristics reasonably believed to be associated with
a particular criminal or terrorist element of an ethnic community not with the
community as a whole! may be collected and retained. For example, if it is known
through intelligence analysis or otherwise that individuals associated with an ethnic-
based terrorist or criminal group conduct their nances by certain methods, travelina
certain manner, work in certain jobs, or come from a certain part of their home
country thathas established links to terrorism, those are relevant factors to consider
when investigating the group or assessing whetherit may have a presence within a~
community. It is recognized that the t between specic behavioral characteristics
and a terroristror criininalrgroupis unlikely to be perfectthat is, there will be
members of the group who do not exhibit the behavioral criteria as well as persons
who exhibitthe behaviors who are not members of the group. Nevertheless, in order
to maximize EBI mission relevance and to minimize the appearance of racial or
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ethnic proling, the criteria used to identify members of the group within the larger
ethnic community to which they belong must be as focused and as narrow as
intelligence reporting and other circumstances permit. If intelligence reporting is
insufciently exact so that it is reasonable to believe that the criteria willinclude an
unreasonable number of people who are not involved, then it wouldtbe inappropriate
to use the behaviors, standinggalone, as the basis for FBI activity.
U! Exploitive ethnic behavior. A related category of information that canbe collected
is behavioral and cultural information about ethnic or racial communities that is
reasonably likely to be exploited by criminal or terrorist groups who hide within those
communities in order to engage in illicit activities undetected. For example, the existence
pf a cultural tradition of collecting funds from members within the community to-fund
charitable causes in theirihomeland at a certain time of the year and how that is
accomplished! would be relevant if intelligence reporting revealed that, unknown to
many donors, the charitable causes were fronts for terrorist organizations or that terrorist
supporters within the community intended to exploit the unwitting donors for their own
purposes.
4.4- .<uv_1._.e.=isr I_n ri!§iY9;MethQd .
A. U! Overview
U! The AGG-Dom requires that the "least intrusive" means or method be considered
and-if operationally sound and effectiveused to obtain intelligence or evidence in lieu
of a more intrusive method. Thisprinciple is also reected in Executive Order 12333
which govems the activities of the United States intelligence "community. The concept of
least intrusive method applies to the collection of all intelligence and evidence. Regarding
the collection of foreign intelligence that is not collected as lpartiof the FBIs traditional
national security or criminal missions, the-AGG-Dom provides that open and overt
collection activity must be used with United States persons if feasible.
U! By emphasizing the use of the least intrusive means to obtain intelligence and evidence,
FBI employees can effectively execute their duties while mitigating potential negative
impacts on the privacy and civil liberties of all people encompassed within the
investigation, including targets, witnesses, andvictims. This principle is not intended to
discourage FBI employees from seeking relevant and necessary intelligence, information, _
or evidence, but rather is intended to encourage investigators to choose theleast intrusive-
but still e'ffectivemea'ns from the available options,to obtain thetmaterial.
U! This principle is embodied in statutes and DOJ policies on a variety of topics including
electronic surveillance, the use of tracking devices, the temporary detention of suspects,
and forfeiture. In addition, the concept of least intrusive methodcan be found in case law
as a factor to be considered in assessing thereasonableness of an investigative method in
. the face of a First Amendment or due process violation claim. See Clark v. Library of
Congress, 750 F;2d 89, 94 D.C. Cir I984!; Alliance to End Repression v. City of Chicagg,
627 gr. Supp. 1044, 1055 N.D. 111. 1985!, citing Elrod v. Bums, 427 U.S. 347, 362-3
976!.
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U! General Approach to Least Intrusive Method Concept
U! Applying the concept of least intrusive method to an investigative or intelligence
collection scenario is both a logical process and an exercise in judgment. It is logical in the
sense that the FBI employee must rst determine the relative iintrusiveness of the method
that would provide information:
1. U! Relevant to the assessment or predicated investigation;
2. U! Within the time frame required by the assessment or predicated investigation;
3. U! Consistent with operational security and the protection of sensitive sources and
rnethods; and ,
4. U! In a manner that provides condence in.the accuracy of the information.
U!.Determining the least intrusive method also requires sound judgment because it is clear
that the factors discussed above are~not xed points on a checklist; They require careful
consideration based on a thorough understanding of investigative objectives and
circumstances.
U! Determining Intrusivcness
U! ln determining intrusiveness, the primary factor shouldbe the degree of procedural
protection that established law andthe AGG-Dom provide for the use of the method. Using
this factor; search warrants, wiretaps, and undercover operations are very intrusive. 'By
contrast, investigative methods with limited procedural requirements, such as checks of
govemment and commercial data bases and communication with established sources, are
less. intrusive. _
U! The following guidance is designed to assist FBI personnel injudging-.the relative-
intrusiveness of different methods:
l. U! Nature of theinformation sought: Investigative objectives-generally dictate the
type of information required and from whom, it should be collected. This subpart is not
intended toaddress the situation where the type of information needed and its location
are-clear so that consideration of altematives would be pointless. When the option
exists, however, to seek information from any of avariety of places, it is less intrusive
to seek information from less sensitive and less protected places. Similarly, obtaining
information that is protected by-*a statutory scheme e.g., nancial records!'or an
evidentiary privilege e.g., attomey/clientcommunications! is more intrusive than
obtaining information that is not so protected. In addition, if there exists a reasonable
"expectation oprivacy under the Fourth Amendment i.e., private communications!, ~
obtaining that information is more intrusive than obtaining information that is
knowingly exposed to public viewas to which there is no reasonable expectation of
privacy. _ A _ 1
2. U! Scope of the information sought: Collecting information regardingan isolated
eventsuch as a certain phone numbercalled on a specic date or a single nancial
transactionis less intrusive or invasive of an individual's privacy than collecting a
complete communications or nancial "prole." Similarly, a complete credit history is
a more intrusive view into an individual's lifethan a few isolated credit charges. In
some cases, a complete nancial and credit prole is exactly what the investigation
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requires for example, investigations of terrorist nancing or money laundering!. if so,
FBI employees should not hesitate to use appropriate legal process to obtain such
information if thepredicate requirements are satised. It is also recognized that
operational securitysuch as source protection'ma'y dictate seeking a wider scope of
information than is absolutely necessary for the purpose of protecting a specic target
or source. When doing so, however, the concept of leastintrusive alternative still
applies. The FBI may obtainmore data than strictly needed, but it should obtain no
more data than is needed to accomplish the operatio,nal~security goal.
U! Scope of the use of the method: Using a method in a manner that captures a
greater picture of an individual's or a group's activities is more intrusive than using the
same method or a different one that is focused in time and location to a specic
objective. For example, it.is less intrusive to use a tracking device to verify point-to-
point travel than it is to use the same device to track an individual's movements over a
sustained period of time. Sustained tracking on public highways would bejust as lawful
but more intrusive because it captures a greater portion of an individual's daily
movements. Similarly, surveillance by closed circuit television that checks a discrete
location within a discrete time frame is less intrusive than 24/7 coverage of a wider area.
For anotherexample, a computer intrusion device that captures only host computer
identication information is'fafless"inti-iisiife than one that capti.'1res"file content.
U!-Source of the information sought: It is less intrusive to obtain information from
existing govemment sources such as state, local, tribal, international, or federal
partners! or from publicly¢available datain commercial data bases, than to obtain the
same information from a third party usually throughlegal process! that has a'
condential relationship with the subjectsuch as a nancial or academic institution.
Similarly, obtaining information from a reliable condential source whoiis lawfully in
possession of the information and lawfully entitled to disclose it such as obtainingan
address from an employee of a local utility company! is less-intrusive thanobtaining
the information from an entity with a.condential relationship with the subject. It is
recognizedin this category that the accuracy and procedural reliability of the
infonnation sought is an important factor in choosing the source of the information. For
example, even if the information is available from a condential source, a grandjury
subpoena, -nationalsecurity letter N SL!, ex paite order, or other process may be
required in order to ensure informational integrity. -
U! The risk of public exposure: Seeking information about an individual or group Z
under circumstances that create a risk that the contact itself and the-information sought
will be exposed to the individual's or group's detriment and/or embarrassment+
particularly if the method used carries no legal obligation to maintain silence-is more
intrusive than information gathering that does not carry that risk. Interviews with
employers, neighbors, and associates, for example, or the issuance ofjgrandjury
subpoenasat a time when the investigation has not yet been publicly exposed are more
intrusive than methods that gather information covertly. Similarly, interviews of a
subjectin a discrete location would beless intrusive than an interview at, for example, a
place of employment or other location where the subject is known.
U! There is a limit to the utility of this list of intrusiveness factors. Some factors may be
inapplicable in a given investigation and, in many cases, the choice and scope of the
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method will be dictated wholly by investigative objectives andcircurnstances. The
foregoing is not intended to provide a comprehensive checklist or even an overall
continuum of intrusiveness. It is intended instead to identify the factors involved in a
determination of intrusiveness and to attune FBI employees to select, within each
applicable category, a less intrusive method if operational circumstances permit. In the end,
selecting the least intrusive method that will accomplish the objective is_ a matter of sound
judgment. In exercising suchjudgment, however, consideration of these factors should _
ensure that the decision to proceed is well founded. I
U! Standard for Balancing Intrusion and Investigative Requirements
U! Once an appropriate method and its deployment have been. determined, reviewing and
approving authorities should balance the level of intrusion against investigative
requirements. This balancing testis particularly important when the information sought
involves clearly established constitutional, statutory, or evidentiary rights or sensitive
circumstances such as obtaining information from religiousor academic institutions or
public fora where First Amendment rights are being exercised!, but should be applied in all
circumstances to ensure that the least intrusive alternative feasible is being utilized.
U! Balancing the factors discussed above with the considerations discussed below will
help dete_rmine*wh'ether tlie"meth'od*and the extent towhich it'intrudejsinto privacy or *
threatens civil liberties is proportionate to the signicance of the case and the information
sought. - I
U! Considerations on the investigative side of the balancing scale include the:
1. U! Seriousness of the crime or national security threat; __ '
2. U! Strength and signicance of the intelligence/information to be gained;_,
3. U! Amount of information already known about the subject or group under
investigation; and
4. U!.Requirements of operational security, including protection of sources and methods.
U! If, for example, the threatis remote, the individua]'s involvement is speculative, and the
probability of obtaining probative information is low, intrusive methods may not be
justied, i.e., they may do more harm than good. At the other end of the scale, if the threat
is signicant and possibly imminent e.g., a bomb threat!, aggressive measures would be
appropriate regardless of intrusiveness. i
U! In addition, with respect to the investigation of a group, if the terrorist or criminal
nature of the group and its membership is well established e.g;, al Qaeda, Ku Klux Klan,
Colombo Family of La Cosa Nostra!, there is less concem that pure First Amendment
activity is at stake than there would be for a group whose true character is not yet known
e.g., an Islamic charity suspected of terrorist funding! or many of whose members appear
,to be solely exercising First Amendment rights anti-war protestors suspected of being
inltrated by violent anarchists!. This is not to suggest that investigators should be less
aggressive in determining the true nature of an unknown group, which may be engaged in
terrorism or other violent crime. Indeed, a more aggressive and timely approach may be in
order to detennine whether the group is violent or to eliminate it as aithreat. Nevertheless,
when First Amendment rights are at stake, the choice and'use of investigative methods
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should be focused in a manner that minimizes potential infringement of those rights.
Finally, as the investigation progresses and the subject's or group's involvement becomes
clear, more intrusive methods may be justied. Conversely, if reliable information emerges
refuting the individual's involvement or the group's criminal or terrorism connections, the
use of any investigative methods must be carefully evaluated. _
U! Another considerationto be balanced is operational security. ls it likely that if a less
intrusive but feasible method were selected, the subject would detect its,use and alter his
activitiesincluding his means of communicationto thwart the success of the operation.
Operational securityparticularly in national security investigations_should not be
undervalued and may, by itself, justiiy coverttactics which, tunder other circumstances,
would not be the least intrusive.
U.! Conclusion I A
U! The foregoing guidance is offered toassist FBI employees in navigating the often
unclear course to select the least intrusive investigative method that effectively '
accomplishes the operational objective at hand. In the nal analysis, the choice of method
and balancing of the impact on privacy and civil liberties with operational needs is a matter
ofjudgment, based on training and experience. Pursuant to the AGG-Dom, other applicable
la'w's_ andpolicies, andthis'guidance; FBI employeesmayeuse any lawfuhnethod, allowed, M
even if intrusive, where the intrusiveness is warranted by the threat to the national security
or to potential victims of crime and/or the strength of the information indicating its
existence.
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