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America's Domestic Spying Renaissance

By Mark Rasch Earlier this month, Attorney General Ashcroft announced that he was

essentially removing the shackles from the FBI, and permitting agents to

engage in surveillance -- including certain Internet surveillance -- of

political, social or ethnic groups, without either probable cause or

reasonable suspicion that any of these groups had been or were likely to be

engaged in any form of criminal activity.

In detailing the changes, FBI Director Mueller explained the FBI guidelines

that have previously precluded such conduct applied only to the FBI and not

other law enforcement agencies, had no basis in Fourth Amendment or other

privacy jurisprudence, were voluntary, and were significantly hampering the

ability of FBI agents to gather basic intelligence of the sort that could be

gathered by any eleven-year-old with a desktop PC. In this day of

terrorism, Ashcroft and Mueller hypothesized, law enforcement must be

unshackled to prevent all sorts of criminal activities, and fear not, ye

defenders of liberty, for the FBI will continue to monitor itself, and keep

itself in check.

The old FBI guidelines emerged in the wake of Watergate-era revelations that

the bureau had engaged in extensive surveillance of political and religious

groups for unlawful purposes. In 1976 then-attorney general Edward Levi

imposed a series of "voluntary" restrictions on the authority of the FBI to

engage in surveillance of domestic political groups. Under programs like

the FBI's COINTELPRO, the bureau had not only engaged in surveillance of

political groups -- agents attended political rallies and maintained

dossiers on leaders like Rev. Martin Luther King, Jr. -- but they went

beyond this and actively disrupting the lives and careers of those it

considered to be disloyal to America.

What is important to note is that these activities were all done without any

reason to believe that any of these groups or individuals were engaged in

any activity that violated any law.

The Levi guidelines -- voluntary only in the sense that they were imposed

before Congress could make them mandatory -- stated that investigations of

political and religious organizations could be brought only where "specific

and articulable facts" indicated criminal activity, and even then, required

reporting directly to the Attorney General -- not simply the FBI director.

The guidelines were successively weakened by attorneys general Smith and

Thornburgh in the Reagan Administration, to permit "preliminary

investigations" of such groups if there was a "reasonable indication" of

criminal activity.

WEB OF SPIES. With the explosive growth of the Internet, particularly during the Clinton

administration, privacy advocates and others (particularly those old enough

to remember the COINTELPRO program) were naturally concerned about the FBI's

role in "monitoring" the Internet.

It is important to distinguish various kinds of "monitoring" and types of

information contained on the Web. At one end of the privacy spectrum are

private or personal communications, like e-mail. The interception of such

communications requires either a Title III wiretap (which demands a high

level of proof to a court that criminal activity is ongoing) or a wiretap

order under the Foreign Intelligence Surveillance Act (FISA), which

similarly requires a court order from a special intelligence court, but does

not require a showing of criminal activity. For the most part, discussions

related to "Carnivore" and "Magic Lantern" focuses on this type of


The new guidelines should have little effect on this type of surveillance,

since the FBI must at least initiate an investigation and make some showing

of probable cause before engaging in this type of spying.

It's the other end of the spectrum where the new guidelines come into play.

This is the "public" Internet -- publicly available Web sites, message

boards, Web logs and other information that is accessible to anyone online.

The real question is whether the FBI should be permitted to gather

intelligence, do profile analysis, and research on information that is

publicly available to us all, without having to show that it is doing so for

the purpose of investigating some specific criminal activity.

CHILLING EFFECTS. FBI director Mueller correctly points out that the information the bureau

will now gather is, essentially, public information. Sure, the FBI could

follow me through the streets and ascertain that I went to a meeting of the

local chapter of the Chamber of Commerce, or the Libertarian Party, or an

EPIC film opening, but these activities occur in either a public or

semi-public space.

But this is a red herring. The problem that the Levi guidelines were

intended to solve -- and that the new guidelines will exacerbate -- relates

to the purpose for which the public information is gathered and utilized,

not so much with the privacy of the information itself. Imagine if the FBI

routinely monitored rape crisis and awareness postings on Web message

boards -- or made false postings themselves -- with no suspicion that the

posters were engaged in criminal activity . Imagine that they're doing it

solely for the purpose of gathering intelligence.

Magnifying the problem is the fact that the intelligence gathering

activities may now be directed at political meetings -- particularly

unpopular political meetings. Imagine FBI agents taking notes on a pastor's

sermon, a rabbi's lecture, a priest's homily -- and noting the names and

license plate numbers of attendees. Your "Greenpeace" bumper sticker,

publicly displayed, becomes sufficient cause for the FBI to open a file on


Privacy is the right to be left alone. Political freedom is the right to

engage in vigorous discourse and exploration of ideas -- even unpopular and

potentially subversive ideas. We have and should expect a right to privacy

even in those things that occur and are reported on in the public. The mere

act of the FBI collecting newspaper clippings mentioning our name --

something clearly public -- has a chilling effect on our free discussion.

The requirement that they do so only where there is some reason to believe

that were are engaged in criminal activity is not unreasonable.

Permitting law enforcement agencies to gather "intelligence" on religious

organizations, political groups, or other such associations not only

violates the spirit of the Fourth Amendment, but chills speech and

association rights as well. Let the FBI investigate crime. Let them not

investigate thought. SecurityFocus Online columnist Mark D. Rasch, J.D., is an independent

computer security and privacy consultant in Bethesda, Maryland, and a former

attorney with the U.S. Department of Justice Computer Crime Unit.

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