Vol. 72/No. 38      September 29, 2008

The new guidelines give agents legal cover to use informants, gather information undercover, and conduct physical surveillance on individuals and organizations in the United States before opening an investigation. FBI spokespeople said the new regulations seek to end “illogical” distinctions between what are currently three separate categories: criminal, national security, and foreign intelligence.

The spy methods are already authorized for FBI agents gathering information on “general crimes.” But the changes will encourage these methods in fishing for information on activity, including legal activity, that an agent claims is a threat to national security or connected to the interests of another nation. Until now the Justice Department says such spying requires enough “evidence” to open an investigation, but the new regulations require no prior information of any kind.

In the September 12 Justice Department press conference, a senior FBI official gave some examples. The official complained that under current rules agents can’t use informants, undercover methods, or physical surveillance to spy on Chinese students based on their attendance at universities that research classified technology that the Chinese government may be interested in.

An official from the Justice Department said one of the “challenging” areas in rewriting the guidelines was the “use of race, religion, and ethnicity.” The guidelines maintain the approach established in 2003 to use profiling based on race, religion, and ethnicity when “appropriate,” he said.

The new regulations would also revise the guidelines established in 1976 that placed some legal restrictions on FBI spying at public demonstrations and infiltration of political organizations, coming out of the revelations of government surveillance and disruption exposed by the Watergate scandal.

The Justice Department revisions are scheduled to go into effect October 1. FBI agents are already being trained on the new guidelines.
 
 
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