MIOG Introduction, Section 1: Investigative Authority and Responsibility (Section I-1 thru I-4)

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MIOG INTRODUCTION SECTION 1. INVESTIGATIVE AUTHORITY AND RESPONSIBILITY •
MIOG INTRODUCTION. SECTION 1. INVESTIGATIVE AUTHORITY AND RESPONSIBILITY
SENSITIVE
**EffDte: MCRT#: 0 Div: D9D6 Cav: SeCC1s:
1-1 AUTHORITY OFA SPECIAL AGENT
(1) Investigate violations of the laws, including the
criminal drug laws, of the United States (Title 21, USC, Section
• 871; Title 28, USC; Sections 533, 534, and 535; Title 28, CFR,
Section 0.85).
(2) Collect evidence in cases in which the United
States is or niay be a parry' in interest (28, CFR, Section 0.85 (a)
as redelegated through exercise of the authority contained in 28, '- •
• I CFR, Section10.138Ito direct personnel in the•FBI).
• (3) Make arrests (Title 18, USC, Sections 3052 and
3062). .
(4) Serv• e and execute arrest warrants; serve and execute
search warrants and seize property under warrant; issue and/or serve
administrative subpoenas; serve subpoenas issued by other proper
authority; and make civil investigative demands (Title 18, USC,
Sections 3052, 3107; Title 21, USC, Section 876; Title 15, USC;
Section 1312).
. (5) Carry firearms (Title 18, USC, Section 3052). •
(6) Administer oathS to witnesses attending to testify
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 (Title 5, USC, Section
303).
(7) Seize property subject to seizure under the
criminal and civil forfeiture laws of the United States (e.g., Title •
18, USC, Sections 981 and 982). •
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•(8) Perform other duties, imposed by law. .
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1-2 INVESTIGATIVE RESPONSIBILITY •
(1)The FBI is charged with the duty of investigating
violations of the laws of the United States and collecting 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 specifically assigned to another investigative agency.
(Title 28, CFR, Section 0.85 (a))
(2)In addition to the FBI discharging those
responsibilities with which it is charged by 'statutes, the FBI
expeditiously carries out directives of the President and the
•Attorney General.
(3) Unless otherwise prohibited by law, the FBI may
initiate a general criminal investigation whenever facts and
circumstances reasonably indicate that a federal crime has been or is
being committed. When the factual predicate does not justify a full
general crimes investigation, but does indicate criminal activity
that warrants further inquiry, a preliminary inquiry may be opened to
detemiine whether there is a sufficient factual basis to support a
full investigation: Apart from the authority to open a general
crimes investigation; the FBI may initiate a •iiminal intelligence
investigation of enterprises whose members seek either to obtain
I monetary or commercial gains through racketeeringior terrorist!
activities or to further political or social gdals ,through violent ,
activities. The conduct of general crimes and criminal intelligence .
investigations'will be in strict compliance with, and conformity to,
• the United States Constitution, the rams of the United States and
their implementing regulations, andlthe Attorney General's Guidelines
on General Crimes, Racketeering Enterprise and Terrorism Enterprise
I Investigations (effective May 30, 2002). (See MIOG, Introduction,
1-j.).! Results of investigations are furnished to United States •
Attorneys and/or the Department of Justice.
• (4) Requests for FBI investigations in selected civil
matters in which the United States is or may be a party in interest •
may be received from the United States Attorneys and/or the
Department of Justice. These are handled in strict conformity with
guidelines furnished by the Department of Justice, as are also
-. -investigations of violations of the civil rights, antiriot, election
laws, and antitrust laws. ,
(5) Under no circumstances may a Special Agent of the
FBI acting within the scope of his/her employment seek to obtain the
commitment of any individual for psychiatric evaluation or otherwise
become involved in commitment proceedings. Special Agents subpoenaed
to give testimony at commitment proceedings. must first comply with
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the provisions of Part 2, Section 6 Of this manual. Questions should
be referred to Office of the General Counsel, FBIHQ.
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1-3 THE ATTORNEY GENERAL'S GUIDELINES ON GENERAL CRIMES, RACKET h,ERING
ENTERPRISE ANDITERRORISM ENTERPRISE' INVESTIGATIONS (See MIOG, Part 1, Section
92 , 100-1.1 , and 266-1 .)
• IPREAMBLEI
"As the primary criminal investigative agency in the
federal government, the[Federal Bureau of Investigation (FBI)'
has the authority and responsibility to investigate all criminal
violations of federal lawIthat arelnot exclusively assigned to .
another federal agency, The FBI thus plays a central role inIthe
enforcement of federal MIA/stand in the proper administration of
jukice in the United States. disdharging this function, the
highest priority is to protect the security of the nation and the
safety of the American peOple against the depredations ofterrbrists
and foreign aggressoA.I
"Investigations by the FBI are premised upon the
Ifundamentallduty of government to protect the public against general
crimes, against organized criminal activity and against those who
I-wouldithreatea the fabric of our society through terrorism or mass
I 'destruction. ThatIduty must be performed with care to protect
individual rights and to insure that investigations are confined to
matters of legitimate law enforcement interest. The•purpose.of these
Guidelines, therefore, is to establish a consistent policy in such
I matters. The Guidelinesiwill enablelAgents of the FBI to
perfoun their duties with greater certainty, confidence and •
'effectiveness, and will provide the American'people Withla firm
assurance that the FBI is acting properly under the law.
"These Guidelines provide guidance •forlgeneral crimes and
criminal intelligence investigations by the FBI.I. The standards and
requirements set forth herein govern the circumstances under which
such investigationsImay be begun, and the permissible scope, •
duration, subject matters, and objectives ofithese investigations. •
They do not limit activities carried out under other Attorney General
guidelines addressing such matters as investigations and information
collection relating to international terrorism, foreign
counterintelligence, or foreign intelligence.'
"The Introduction that follows explains the background of •
the reissuance of these Guidelines, their general approach and
structure, and their specific application in furtherance of the FBI's
central mission to protect the United States and its people from acts
of terrorism.' Part I sets forth general principles that apply to all
investigations conducted under these,Guidelines. Part II governs
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I investigations undertaken toiprevent, solve oriprosecute specific
I violations of federal law. (Subpart A ofiPartIIII, govemslcriminal
intelligence investigations undertaken to obtain information
concerning enterprises which are engaged in racketeering activities.
'Subpart B of Part III governslcriminal intelligence investigations
undertaken to obtain information concerning enterprises which seek to
Ifiwtherlpolitical or sociallgoals through violence or which otherwise
aim to engage in terrorism or the commission of terrorism-related .
crimes. Parts IV through VII discuss authorized investigative
techniques, dissemination and maintenance of information,
counterterrorism activities and other authorized law enforcement
activities, and miscellaneous matters.'
"These Guidelines are issued under the authority of the
I Attorney General, as provided inIsections 509, 510, 533, and 534 of,
I title 28, United States Code.'-
"TABLE OFI CONTENTS
I"INTRODUCTION
"A. CHECKING OF LEADS•AND PRELIMINARY INQUIRIES
B. FULL INVESTIGATIONS -
C.AUTHORIZED INVESTIGATIVE TECHNIQUES
D. OTHER AUTHORIZED ACTIVITIES
"I.GENERAL PRINCIPLES
•
"II.GENERAL CRIMES INVESTIGATIONS
"A. DEFINITIONS
' B. PRELIMINARY INQUIRIES
C. INVESTIGATIONS
• "III. CRIMINAL INTELLIGENCE INVESTIGATIONS
"A. RACKETEERING ENTERPRISE INVESTIGATIONS
"1. 'Definition'
2: General Authority
3. Purpose
4. SCope
5. Authorization and Renewal
"B. (TERRORISM ENTERPRISEIINVESTIGATIONS
"1. General Authority
2. Purpose
3. Scope
4. Authorization and Renewal
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• • 011
"IV.INVESTIGATIVE TECHNIQUES
"V.DISSEMINATIONIAND MAINTENANCEIOF INFORMATION
"VI.'COUNTERTERRORISM ACTIVITIES AND -OTHER AUTHORIZATIONS
"A. COUNTERTERRORISM ACTIVITIES
"1. Information Systems
2: Visiting Public Places and Events
"B. OTHER AUTHORIZATIONS '
"1. General Topical Research
2. Use of Online Resources Generally
3. Reports.and Assessments • •
4. Cooperation with Secret Service
"C. PROTECTION OF PRIVACY AND OTHER LIMITATIONS
"1. General Limitations
2. Maintenance of Records Under the Privacy Act
3. Construction of Parti
. "VII. RESERVATION
I" INTRODUCTION
"Following the September 11, 2001, terrorist attack on the
United States, the Department of Justice carried out a general review
of existing guidelines and procedures relating to national security
and criminal matters. The reissuance of these Guidelines reflects
the result of that review.
. • -
"These Guidelines follow previous guidelines in their
classification of levels of investigative activity, in their
classification.oftypes of investigations, in their standards for .
initiating investigative activity, and in their identifiCation of
permitted investigative techniques. There are, however, a number of
changes designed to enhance the general effectiveness of criminal
investigation, to bring the Guidelines into conformity with recent .
changes in the law, and to facilitate the FBI's•central mission of
preventing the commission of terrorist acts against the United States .
and its people.
"In their general structure, these Guidelines prOvide
graduated levels of investigative activity, allowing the FBI the
necessary flexibility to act well in advance of the commission of
planned terrorist acts or other federal crimes. The three levels of
investigative activity are: (1) the prompt and extremely limited'
checking of initial leads, (2) preliminary inquiries, and (3) full
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'
investigations. Subject to these Guidelines and other guidelines and .
poliCies noted in PartIV below, any lawful investigative technique •
may be used in full investigations, and with some exceptions, in
preliminary inquiries.
"A. CHECKING OF LEADS AND PRELIMINARY INQUIRIES
"The lowest level of investigative activity is the 'prompt
and extremely limited checking out of initial leads,' which should be
undertaken whenever information is received of such a nature that
some follow-up as to the possibility of criminal activity is
warranted. This limited activity shoUld be conducted with an eye
toward promptly determining whether further investigation (either .a
.preliminary inquiry or a full investigation) should be conducted.
"The next level of investigative activity, a preliminary
inquiry, should be undertaken when there is information or an
allegation which indicates the possibility of criminal activity and
whose responsible handling requires some further scrutiny beyond
checking initial leads. This authority allows FBI agents to respond
to information that is ambiguous or incomplete. Even where the
available information meets only this threshold, the range of
available investigative techniques is broad. These Guidelines
categorically prohibit only mail opening and nonconsensual electronic .
surveilance athistage. Other methods, including the development
of sources•and informants and:undercoVer activities and Operations;
are permitted in preliminary inquiries. The tools available to
develop information sufficient for the commencement of a full
investigation, or determining that one is'notmerited - the purpose
of a preliminary inquiry. - should be fully employed, consistent with .
these Guidelines, with a view toward preventing terrorist activities. •
. "Whether it is appropriate to open a preliminary inquiry
immediately, or instead to engage first in a limited checking out of .
leads, depends on the circumstances presented. If, for example, an
agent receives an allegation that an individual or group has •
advocated the commission of criminal violence, and no other facts are
available, an appropriate first .step would he checking out of leads
to determine whether the individual, group, or members of the
audience have the apparent ability or intent to carry out the
advocated crime. A similar response would be appropriate on the
-basis of non-verbal conduct of an ambiguous character - for example,
where a report is received that an individual has accumulated •
explosives that could be used either in a legitimate business or to
commit a terrorist act. Where the limited checking out of leads
discloses a possibility or reasonable indication of criminal
activity, a preliminary inquiry or full investigation may then be
initiated. However, if the available information shows at the outset
that the. threshold standard for a preliminar.*y inquiry or full
investigation is satisfied, then the appropriate investigative .
activity may be initiated immediately, without progressing through
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more limited investigatiVe stages.
"The application of. these Guidelines' standards for
inquiries merits special attention in cases that involveefforts by
individuals or groups to obtain, for no apparent reason, biological,
chemical, radiological, or nuclear materials whose use orpossession
is constrained by such statutes as 18 U.S.C. 175, 229, or 831. For
example, FBI agents are not required to possess information relating
to an individual's intended criminal use of dangerous biological
agents or toxins prior to initiating investigative activity. On the
contrary, if an individual or group has attempted to obtain such
materials, or has indicated a desire to acquire them, and the reason
is not apparent, investigative action, such as conducting a checking
out of leads or initiating a preliminary inquiry, may be appropriate
to determine whether there is a legitimate purpose for the possession
of the materials by the individual or group. Likewise, where
individuals or groups engage in efforts to adquire or show an
interest in acquiring, without apparent reason, toxic chemicals or
their precursors or radiological or nuclear materials, investigative
action to determine whether there is a legitimate purpose maybe
justified.
"B. FULL INVESTIGATIONS
"These Guidelines provide for two types of fill
investigations: general crimes investigations (Part Ifbelow),and '-
criminal intelligence investigations (Part. III below). The choice of
the type of investigation depends on the information and the .
investigative focus. A general crimes investigation may be initiated
where facts or circumstances reasonably indicate that a federal crime
has been, is being, or will be committed. Preventing future criminal
activity, as well as solving and prosecuting crimes that have already
occurred, is an explicitly authorized objective of general crimes
investigations. The 'reasonable indication' threshold for
undertaking such an investigation is substantially lower than
probable cause. In addition, preparation to Commit a Criminal act
can itself be a current criminal violation under the conspiracy or
attempt provisions of federal criminal law, or other provisions
defining preparatory crimes, such as 18 U.S.C. 373 (solicitation.of a
crime of violence) or 18 U.S.C. 2339A (including provision of
material support in preparation for a terrorist crime). Under these
Guidelines, a general crimes investigation is warranted where there
is not yet a current substantive or preparatory crime, but where
facts or circumstances reasonably indicate that such a crime will
occur in the future.
"The second type of full investigation authorized under
these Guidelines is the criminal intelligence investigation. The
focus of criminal intelligence investigations is the group or
enterprise, rather than just individual participants and specific
acts. The immediate purpose of such an investigation is to obtain
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information concerning the nature and structure of the enterprise -
including information relating to the group's . membership, finances,
geographical dimensions, past and future activities, and goals - with
a view toward detecting, preventing, and prosecuting the enterprise's
criminal activities. Criminal intelligence investigations, usually . •
of a long-term nature, may provide vital intelligence to help prevent
terrorist acts. .
"Authorized criminal intelligence investigations are of two
types:' racketeering enterprise investigations (Part III. A) arid
terrorism enterprise investigatibns (Part III. B). A racketeering
enterprise investigation may be initiated When facts, or circumstances
reasonably indicate that two or more persons are engaged in a pattern .
of racketeering activity as defined in the Racketeer Influenced and •
Corrupt Organizations Act (RICO). However, the•USA PATRIOT ACT
(Public Law 107-56) expanded the predicate acts for RICO to include
the crimes mdst likely to be committed by terrorists and their
supporters, as described in 18 U.S.C. 2332b(g)(5)(B). To maintain
uniformity in the standards and procedures for criminal intelligence
investigations relating to terrorism, investigations premised on
racketeering activity involving offenses described in 18 U.S.C.
2332b(g)(5)(B) are subject to the provisions for terrorism enterprise
investigations rather than those for racketeering enterprise
investigations.
tentrism- enterprise- iiivegigation may be initiated when .
facts 'or circumstances reasonably indicate that two Or more persons . •
are engaged in an enterprise for the purpose of: (1) furthering
political or social goals wholly or in part' through activities that
involve force or violence and a federal crime, (2) engaging in
terrorism as defined in 18 U.S.C. 2331(1) or (5) that involves a
federal crime, or (3), committing any offense described in'18
2332b(g)(5)(B). As noted aboVe;criminal intelligence investigations
premised on a pattern of racketeering activity involving an 18 U.S.C.
2332b(g)(5)(B) offense are also treated as terrorism enterprise
investigations.
"As with the other types of full investigations authorized '
by these Guidelines, any lawful investigative technique may be used
in terrorism enterprise investigations, including the development of
sources and informants and undercover activities and operations. The
'reasonable indication' standard for commencing a terrorism
enterprise investigation is the same as that for general crimes and
racketeering enterprise investigations. As noted 'aboye, it is
substantially lower than probable cause.
"In practical terms, the 'reasonable indication' standard
for opening a criminal intelligence investigation of an enterprise in
the terrorism context could be satisfied in a number of ways. In
some cases satisfaction of the standard will be apparent on the basis
of direct evidence of an enterprise's involvement in 'or planning for
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the commission of a federal offense involving the use of force or
violence to further political or social goals, terrorism as defined
in 18 U.S.C. 2331(1) or (5), or a crime described in 18 U.S.C.
2332b(g)(5)(B): For example, direct information may be available
about. statements made in furtherance of an enterprise's objectives
which show a purpose of committing such crimes or securing their
commission by others.
"In other caSes, -the nature of the conduct engaged in by an
enterprise will justify an inference , that the standard is satisfied,
even if there are no known statements by participants that advocate
or indicate planning for violence or other prohibited acts. For
example, such activities as attempting to obtain dangerous biological
agents, toxic chemicals; or nuclear materials, or stockpiling
explosives or weapons, with no discernible lawful purpose, may be
suffidient to reasonably, indicate that an enterprise aims to engage
in terrorism.
"Moreover, a group's activities and the statements of its
members may properly be considered in conjunction with each other. A
combination of statements and activities may justify a. determination
that the threshold standard for a terrorism enterprise investigation
is satisfied, even if the statements alone or the activities alone
would not warrant such a determination.
' "While no particular factoi or•coinbination of factors -is
required, considerations that will generally be relevant to the
deterinination whether the threshold standard for a terrorism -
'enterprise investigation is satisfied include, as noted, a group's
statements, its activities; and the nature of potential federal
criminal law violations suggested by its statements or activities.'-
Thus, where there are grounds for inquiry concerning a group, it may
be helpful to gather information about these matters, and their to
consider whether these factors, either individually or in
combination, reasonably indicate that the group is pursuing terrorist
activities or objectives as defined in the threshold standard.
Findings that would weigh in favor of such a conclusion include, for
example, the following:
"(1).THREATS OR ADVOCACY OF VIOLENCE OR OTHER COVERED
CRIMINAL ACTS:.
Statements are made in relation to or in furtherance of an
_enterprise's .political or social objectives that threaten or
advocate the use of force or violence, or statements are
Made in furtherance of an enterprise that otherwise threaten •
or advocate criminal conduct within the scope of 18 U.S.C. •
2331(1) or (5) or 2332b(g)(5)(B), which may concern such
matters as (e.g.):
"(i) engaging in attacks involving or threatening massive loss of
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I life or injury, mass destruction, or endangerment of the
national security; .
•
"(ii)killing or injuring federal personnel, destroying federal
facilities, or defying lawful federal authority;
"(iii)killing, injuring or intimidating individuals because of
their status as United States nationals or persons, or
because of their national origin, race, color, religion, or
sex; or
"(iv) depriving individuals of any right's secured by the
Constitution or laws of the United States.
"(2) APPARENT ABILITY OR INTENT TO CARRY OUT VIOLENCE OR
OTHER COVERED ACTIVITIES: '
The enterprise manifests an apparent ability or intent to
carry out violence or other activities within the scope of
18 U.S.C. 2331(1) or (5) or 2332b(g)(5)(B), e.g. •
. . "(i)by acquiring, or taking steps towards acquiring, biological
agents or toxins, toxic chemicals ortheir precursors,
radiological or nuclear materials, explosives, or other
destruCtive or dangerous materials (or plans or. formulas for
subh nialefies),..orweapons, under circumstances where, by "
reason of the quantity or character of the items, the lawful •
purpose of the acquisition is not apparent;
"(ii) by the creation, maintenance, or support of an armed
paramilitary organization;
. "(iii) by paramilitary training; or
. "(iv) by other conduct demonstrating an apparent ability or intent
to injure or intimidate individuals, or to interfere with
the exercise of their constitutional or statutory
rights.
"(3) POTENTIAL FEDERAL CRIME:
The group's statements oractivities suggest potential
federal criminal violations that may be relevant in applying
the standard for initiating a terrorism enterprise.'
investigation - such as crimes under the provisions of the
U.S. Code that set forth specially defined terrorism or
support-of-terrorism offenses, or that relate to such
matters as aircraft hijacking or destruction, attacks on
transportation, communications, or energy facilities or '
systems, biological or chemical weapons, nuclear or
radiological materials, civil rights violations,
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assassinations or other violence against federal officials
or facilities, or explosives (e.g., the offenses listed in
18 U.S.C. 2332b(g)(5)(B) or appearing in .such provisions' as
18 U.S.C. 111, 115, 231, 241, 245, or 247).
"C.AUTHORIZED INVESTIGATIVE TECHNIQUES
"All lawful investigative techniques may be used in general
crimes, racketeering enterprise, and terrorism enterprise
investigations. In preliminary inquiries, these Guidelines bar the
use of mail. openings and nonconsensual electronic surveillance
(including all techniques covered by chapter 119 of title 18, United .
States Code), but do not categorically prohibit the use of any other
lawful investigative technique at that stage. As set forth in Part
IV below, authorized methods, in investigations include, among others,
use of confidential informants, undercoVer activities and operations,
nonconsensual electronic surveillance, pen registers and trap and
trace devices, accessing stored wire and electronic communications
and transactional records; consensual electronic monitoring, and
searches and seizures. All requirements for the use of such methods.
under the Constitution, applicable statutes, and Department
regulations or policies must, of course, be observed.
"D.OTHER AUTHORIZED ACTIVITIES
"Current 'counterterr ' orism priorities 'and the ,advent of the
Internet have raised a number of issues which did not exist in'any
comparable form when the last general revision of these Guidelines
was carried out in 1989 - a time long preceding, the September 11
attack's disclosure of the full magnitude of the terrorist threat to
the United States, and a time in which the Internet was not available
in any developed form as a source of information for counterterrorism
and other anti-crime purposes. Part VI of these Guidelines is .
designed to provide clear authorizations and statements of governing
principles for a number of important activities that affect these
areas. Among other things, Part VI makes it clear that the
authorized law enforcement activities of the FBI include: (i)
operating and participating in counterterrorism information systems,
.such as the Foreign Terrorist Tracking Task Force (VI. A(1)); (ii)
visiting places and events which are open to the public for the
purpose or detecting or preventing terrorist activities (VI. A(2);
-(iii) carrying out general topical research, such as searching online
under terms like 'anthrax' or 'smallpox' to obtain publicly available
information_about agents that may be used in bioterrorism attacks
(VI. B(1)); (iv) surfing the Internet as any member of the public
might do to identify, e.g. ; public websites, bulletin board's, and
chat rooms in which bomb making instructions, child pornography, or •
stolen credit card information is openly traded or disseminated, and
observing information open to public view in such forums to detect
terrorist activities and other criminal activities (VI. B(2)); (v)
preparing general reports and assessments relating to terrorism or
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(
I other criminal activities in support of strategic planning and
investigative operations (VI. B(3)); and (vi) providing investigative
assistance to the Secret Service in support of its protective
I responsibilities (VI. B (4)).
" I. GENERAL PRINCIPLES (See MIOG, Part 1, 100-1.2.3 .)
"Preliminary inquiries and investigations governed by
these Guidelines are conducted for the purpose of preventing,
detecting, or prosecuting violations • of federal law. !The FBI shall
fully utilize the methods authorized by these Guidelines to maximize
the realilation of these objectives.
I"The conduct. of preliminary inquiries and
investigations may present choices between the use of investigative
methods which are more or ress intrusive, considering such factors
as the effect on the privacy of individuals and potential damage
to reputation. Inquiries and investigations shall be conducted with
as little intrusion as the needs of the situation permit. It is .
recognized, however, that the choice of techniques is a matter of
judgment. The FBI shallnot hesitate to use any lawful techniques
consistent with these Guidelines, even if intrusive, where the
intrusiveness is warranted in light of the seriousness of a crime
or the strength of the information indicating its commission or
potential future commission. This point is to be particularly
bliservedln the investigation of terroiist crimes and in the
investigation of enterprises that engage in terrorism.' All
preliminary inquiries shall be conducted pursuant to the General
Crimes Guidelines I(i.e., Part II of these Guidelines),I There is no
separate provision foripreliminary inquiriesIunder the Criminal'
Intelligence Guidelinesl(i.e., Part III of theseGuidelines) because
preliminary inquiries under Part*II may be carried out not only to '
determine whether the grounds exist to commence a general 'crimes
investigation under Part II, but alternatively or in addition to
determine whether the grotindS exist to commence a racketeering
enterprise investigation or terrorism enterprise, investigation under
PartIII.I A preliminary inquiry shall be promptly terminated when it
becomes apparent that a full investigation is not warranted. If, on
the basis of information discovered in the course of a preliminary
inquiry, an investigation is warranted, it may be conducted as a
general crimes investigation, or a criminal intelligence
investigation, or both. All such investigations, however, shall be
based on a reasonable factual predicate and shall have a valid law
enforcement purpose. •
"In its efforts to anticipate or prevent crime, the FBI •
must at times initiate investigations in advance of criminal conduct.
It is important that such investigations not be based solely on
activities protected by the First Amendment or on the lawful exercise
of any other rights secured by the Constitution or laws of the United
States. When, however, statements advocate criminal activity or
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indicate an apparent intent to engage in crime, particularly crimes of
violence, an investigation under these Guidelines may be warranted
unless it is apparent, from the circumstances or the context in which
the statements are made, that there is no prospect of harm.
"General crimes investigations and criminal intelligence
investigations shall be terminated when all logical leads have been
exhausted and no legitimate law enforcement interest justifies their
continuance.
"Nothing in these,GuidelineslprohibitsIthe FBI from
I 'ascertaining the general scope and nature of criminal activity in
I. a particular location or sector -of the economy, orifrom collecting and
maintaining publicly available information consistent with the Privacy
Act.
" II. GENERAL CRIMES INVESTIGATIONS
"A. DEFINITIONS
"(1) !Exigent circumstances' are circumstances
requiring action before authorization otherwise necessary under these ".
guidelines can reasonably be obtained, in order to protect life or •
Substantial property interests; to apprehend or identify a fleeing
offender; to preVent the hiding, destruction or alteration of
evidence; . or to avoid 'offer serious impairiiient or'luhdfance , Of an
investigation. • • -
"(2) 'Sensitive criminal matter' is any alleged
criminal condUct involving corrupt action by a public official or
political candidate, the activities of a foreign government, the .
activities of a religious organization or a primarily political
organization or, the related activities of any individual prominent in
such an organization, or the activities of the news media; and any •
other matter which in the judgment of a Special Agent in Charge (SAC)
I should be brought to the attention of the UnitedIStateslAttomey or
other appropriate official in the Depal tinent of Justice, as well as
FBI Headquarters (FBIHQ).
"B. PRELIMINARY INQUIRIES
"(1) On some occasions the FBI may receive information or an
allegation not warranting a full investigation -- because there is not
--yet alreasonable indication' of criminal activities -- but whose
responsible handling requires some further scrutiny beyond the prompt
and extremely limited checking out of initial leads. In such
circumstances, though the factual predicate for an investigation has
not been met, the FBI may initiate anl'inquiry' iniresponse to the
allegation or information indicating the possibility of criminal
•activity.
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"This authority to conduct inquiries short of a full
investigation allows the government to respond in a measured way to
I ambiguous or incompletejinformation vvithlas little intrusion as the .
needs of the situation permit. 'This.is especially important in such.
• areas as white-collar crime where no complainant is involved or when
an allegation or information is received from a source of unknown
I reliability. ISuch inquiries are subject to the limitations on
duration under paragraph (3) below and are carried out to obtainIthe
information necessary to make an informed judgement as to whether a
full investigation is warranted:
"A preliminary inquiry is not a required step when facts Or
circumstances reasonably indicating criminal activity are already
available; in such cases, a full investigation can be immediately
opened.
"(2) The FBI supervisor authorizing an inquiry shall •
assure that, the allegation or other information which warranted the
inquiry.has been recorded in writing. In sensitive criminal matters
the United States Attorney or an appropriate Department of Justice
offiCial shall be notified of the basis for an inquiry as soon as
practicable after the opening of the inquiry, and the 'fact of
notification shall be recorded in writing.
I" - "(3) Inquiries shall be completed within1180Idays after
iiiitiation of the first investigative step: The 'date of.the " -4• .
first investigative step is not necessarily the same date on which the
first incoming information or allegation was received. An extension
of time in an inquiry for succeedingI90-daylperiods may belgranted.
A?n1 SAC may grant 4 to two extensions based on a -statement of the •
reasons why further investigative steps are, warranted when there is
no 'reasonable indication' of criminal activity. All extensions •
following the second extension may Only be granted by FBI Headquarters
upon receipt of a written request and such a statement of reasons.'
"(4) IThe choice of investigative techniques in an inquiry is a
matter of judgment, which should take account of: (i) the objectives •
of the inquiry and available investigative resources, (ii) the
intrusiveness of a technique, 'considering such factors as the effect
on the privacy of individuals • and potential damage to reputation,
(iii) the seriousness of the possible crime, and (iv) the strength of
the information indicating its existence of future commission. Where
the conduct of an inquiry presents a choice between the use of more or
.less intrusive methods, the FBLshould consider whether the
information could be obtained in a timely and effective way by the
less intrusive means. The FBI should not hesitate to use any lawful
techniques consistent'with these Guidelines in an inquiry, even if
intrusive, where the intrusiveness is warranted in light of the
seriousness of the possible crime or the strength of the information
indicating its existence or future commission. This.point is to be
particularly observed in,inquiries relating to possible terrorist " ,
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activities.]
1 "(5) All lawful investigative techniques may be used in an
1 inquiry except:I
"(a)I Mail openings;Iandl
1 I"(b)I Nonconsensual electronic surveillance,or any
other investigative technique covered bylchapter 119 of title 18,
I United States Code (18 U.S.C. 2510-2522).1 : •
"(6) The following investigative techniques may be. .
used in an inquiry without any prior authOrization from a supervisory ,
agent:
"(a) Examination of FBI indices and files;
"(b) Examination of records available to the public .
and other public sources of information;,
"(c) Examination of available federal, state an
local government records;
"(d)«Interview>> ofthe complainant, previously
establi. shed. informants', andlother sources of information;I
"(e)«Interview>> of the potential subject;
"(f)«Interview» of persons who should readily be able,
to corroborate or deny the truth of the allegation, except this does
not include pretext interviews or interviews of a potential subject's .
employer or coworkers unless the interviewee Was the complainant;
landI
"(g) Physical or photographic surveillance of any
person.
"The use of any other laWful investigative technique
that is permitted in an inquiry shall meet the requirements and
I limitations of Part IV and, except in exigent circumstances,IrequiresI
I prior approval by a supervisory agent. .
"(7) Where a preliminary inquiry fails to disclose
-gufficient information to justify an investigation ; the FBI shall
terminate the inquiry and make a record of the closing. In a ,
sensitive criminal matter, the FBI shall notify the United ,States
• Attorney of the closing and record the fact of notification in
writing. Information on an inquiry which has been closed shall be
I available on request to a United States Attorney orlhis' or her'
designee or an appropriate Department of Justice official.
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"(8) All requirements regarding inquiries shall
apply to reopened inquiries. In sensitive criminal matters, the
United States Attorney or the appropriate Department of Justice
official shall be notified as soon as practicable after the reopening
of an inquiry.
".C. INVESTIGATIONS
"(1) A general crimes investigation maybe initiated
by the FBI when facts or circumstances reasonably indicate that a
federal crime has been, is being, or will be committed..The
I investigation may be conducted to prevent, solvelor[ prosecute such
criminal activity.
"The standard of'reasonable indication' is substantially lower
than probable cause. In determining whether there is reasonable
indication of a federal criminal violation, a Special Agent may take
into account any faCts or circumstances that a prudent investigator
would consider. However, the standard does require specific facts or
1 circumstances indicating a past, current orifuturel violation. There
must be an objective, factual basis for initiating the investigation;
a mere hunch is insufficient.
"(2) Where a criminal act maybe committed in the
Ifuture, preparation for that actIcan bela current criminal violation
f under the conspiracy- Or attempt provisions of federal criminalilaw, - -
or other provisions defining preparatory crimes, such as 18 U.S.C. 373 .
(solicitation of a crime of violence) or 18 U.S.C. 2339A (including
provision of material support in preparation for a terrorist crime).
The standard for opening an investigation is satisfied where there is
not yet a current substantive or .preparatory crime, but facts or
circumstances reasonably indicate that such a, crime will occur
future:I
"(3) The FBI supervisor authorizing an investigation
shall assure that the facts.or circumstances meeting the standard of
reasonable indication have been recorded in writing. -
. . "In sensitive criminal matters, as defined in paragraph A(2), the
United States Attorney Or an appropriate Department of .
1Justicelofficial, as well as FBIHQ,!shall be notified in writing of
the basis for an investigation as soon as practicable after
commencement of the investigation.
•
"(4) The Special Agent conducting an investigation
shall maintain periodic written or oral contact with the appropriate
-federal prosecutor, as circumstances require and as requested by the
prosecutor.
"When, during an investigation, a matter appears to
arguablyltolwarrant prosecution, the Special Agent shall present the
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(
-
relevant facts to the appropriate federal prosecutor. In every
•sensitive criminal matter, the FBI shall notify the appropriate
federal prosecutor of the termination of an investigation within 30
days of such termination. Information on investigations which have
been closed shall be available on request to a United States Attorney
orIhis otherldesignee or an appropriate Department of Justice
official.
"(5) When a serious matter investigated by the FBI
is referred to state or local authorities for prosecution, the FBI,
insofar as resources permit'shall proniptly advise the federal
prosecutor in writing if the state or local authorities decline
prosecution or fail to commence prosecutive action within 120 days. •
. Where an FBI field office cannot provide this follow-up, the SAC shall
so advise the federal prosecutor.
"(6)When credible information is received concerning serious
criminal activity not within the FBI investigative jurisdiction, the
FBI field office shall promptly transmit the information or refer the
complainant to the law enforcement agencies having jurisdiction, ,
except where disclosure would jeopardize an ongoing investigation,
•endanger the safety of an individual, disclose the identity of an
informant, interfere with an informant's cooperation, or reveal
legally privileged information. If full disclosure is not made for
the reasons indicated, then whenever feasible the FBI field office
shall make at least limited disclosure 1:0-tlIQ law enforcemetit•agency - -
haying jurisdiction, and full disclosure shall be made as soon as the ,
need for restricting dissemination is no longer present. Where full
disclosure is not made to the appropriate law enforcement agencies
within 180 days, the FBI field office shall promptly notify FBI
Headquarters in writing of the facts and circumstances concerning,the
criminal activity:The FBI shall make a-periodic report to the Deputy
Attorney General .on such nondisclosure and incomplete disclOsures, in
.a form suitable to protect the identity ofiinformants.I •
"Whenever information is received concerning unauthorized
criminal activity byla confidential informant,Iit shall be handled
inlaccordance with theIAttorney General's GuidelineslRegarding the use
I of Confidential Informants.'
. "(7) All requirements regarding investigations shall
apply to reopened investigations. In sensitive criminal matters, the
United States Attorney or the appropriate Department of Justice
official shall be notified in writing as soon as practicable after the .
reopening of an investigation.
" III. CRIMINAL INTELLIGENCE INVESTIGATIONS
"This section authorizes the FBI to conduct criminal
intelligence investigations of certainlenterprises.I These
investigations differ from general crimes investigations, authorized
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by Section II, in•several important respects. As a general rule, an
investigation of a completed criminal act is.noithally confined to
determining who committed that act and with securing evidence to
establish the elements of the particular offense. It is, in this . .
respect, self-defining. An intelligence investigation, of an ongoing
criminal enterprise must determine the size and composition of the
group involved, its geographic dimensions; its past acts and intended
criminal goals, and its capacity for harm. While a standard criminal
investigation terminates with the decision to prosecute or not to
proseeute,•the investigation of a criminal enterprise does not
necessarily end, even though one or more of the participants may have
been prosecuted.
"In addition, the organization provides a life and
continuity of operation that are'not normally found in a regular
criminal activity. As a consequence, these investigations may
1 continue for several years. 'Furthermore, thelfocus of such .
investigations 'may be less precise than that ,directed against more
conventional types of crime.' United States v. United States District
Court, 407 U.S, 297, 322 (1972) Unlike the usual criminal case,
there may be no completed offense to provide a framework for the
investigation. It often requires the fitting together of bits and
• pieces of information, many meaningless by themselves, to determine,
whether a pattern of criminal activity exists. For this reason, the
investigation is broader and less discriminate than usual, involving
- - 'the interrelation of various sources and types•of information: Id..
. "Members Of groups or -organizations acting in concert to
violate the law present a grave threat to society„ An investigation .
of organizational actiVity, hbwever, may present special problems,
particularly where it deals with politically motivated acts. There
is 'often ... a convergence of First and Fourth Amendment values,' in
such matters that is 'notipresentlin cases 'of 'ordinary' crime.' 11d. -
1 at 313.1 Thus, special care must be exercised in sorting out protected
. activities from those which may. lead to violence or serious disruption
of society. As a consequence, the guidelines establish safeguards for
group investigations of special sensitivity, including tighter . management controls and higher levels of review. • .
• " A . RACKETEERING ENTERPRISE INVESTIGATIONS (See MIOG, Part 1, 92-8,
19473.7 .)'
"This section•focuses on investigations of organized
.1 crime. It is concerned Withlthelinvestigation of entire enterprises,
1rather thantjustlindividual participantslandIspecific . criminal acts,
and authorizes investigations to determine the structure and scope of
1 the enterprise, as well as the relationship of thelmembers.1
"1. Definition
Racketeering activity is any offense, including
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(r.
lalviolation of state law, encompassed by the Racketeer Influenced
and Corrupt Organizations Act' (RIC0),I18 U.S.C. 1961(1);
"2. General-Authority
"a. IA racketeering. enterprise investigation .
may be initiated when facts or circumstances reasonably indicate that
two or more persons are engaged in a pattern of racketeering activity
as defined in the RICO statute, 18 U:S.C. 1961(5). However, if the
pattern of racketeering activity involves ari offense or offenses
described in 18 U.S.C. 2332b(g)(5)(B), the investigation shall be
deemed a terrorism enterprise investigation and shall be subject to
the standards and procedures of Subpart'B of this Part in lieu of
those set forth in this Subpart. The standard of 'reasonable
indication' is identical to that governing the initiation of a general
crimes investigation under Part
"b. 'Authority to conduct racketeering
enterprise investigations is in addition to general crimes
investigative authority under Part II, terrorism enterprise
investigative authority under Subpart B of this Part, and activities
under other Attorney General guidelines, addressing such matters as
investigations and information collection relating to international
terrorism, foreign counterintelligence, or foreign intelligence.
Information wa. nanting initiation-of a racketeering enterprise
'investigation may be obtained the course oralg-enerareiimes
inquiry or investigation, a terrorism enterprise investigation, or an
investigation under other Attorney General guidelines. Conversely, a
racketeering enterprise investigation may yield information warranting
a general crimes inquiry or investigation, a terrorism enterprise
investigation, or an investigation under. other Attorney General
guidelines.'
"3. Purpose
The immediate purpose of a racketeering
enterprise investigation is to obtain information concerning the
nature and structure of the enterprise, as specifically delineated in
paragraph14.Ibelow, with a view to the longer range objective of
detection, prevention, and prosecution of the criminal activities of
I the enterprise.
"4. Scope
"a. A racketeering enterprise investigation
properly initiated under these guidelines may collect such information
as:
"(i) the members of the enterprise and
- other persons likely to be knowingly actingin the furtherance of
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racketeering activity, provided that the information concerns such
persons' activities on behalf of or in furtherance of the enterprise;
"(ii) the finances of the enterprise;
"(iii), the geographical dimensions of the
enterprise; and
"(iv) the past and future activities and
goals of the enterprise.
"b. In obtaining the foregoing information, any
lawful investigative technique•may be used, in accordance with the
requirements of Part IV. •
"5. Authorization and Renewal •
"a. A racketeering enterpriSe investigation may
be authorized by thelSpecial Agent in Charge, with, notification to
FBIHQ,1upon a written recommendation setting forth the facts and
circumstances reasonably indicating!that the standard of paragraph
2.a. is satisfied]
1"b. The FBI sliall notify the Organized Crime
and Racketeering Section of the Criminal Division and any affected
tflicted-State Attorney's office Of the opening, of diacketeering
enterprise investigation.• On receipt of such notice, the Organized .
Crime and Racketeering Section'shall immediately notify the Attorney
General and the Deputy Attorney General: In all racketeering ,
enterprise investigations, the,. Chief of the Organized Crime and
Racketeering Section may, as he or she deems necessary, request the
FBI to provide a report on the status of the investigation] • • -•
!"c.l A racketeering enterprise investigation
may be initially authorized for a period of up toga year] An
investigation may be continued upon renewed authorization for
additional periods each not to exceedla year. Renewal authorization
shall. be obtained from theISAC with notification to FBIHQ. The FBI
shall notify the Organized Crime and Racketeering Section of any
renewal, and the Organized Crime and Racketeering Section shall
immediately notify the Attorney General and the Deputy Attorney
General]•
' "d.I. Investigations shall be reviewed by the
:ISACIon or before the,expiration of the period for which the
investigation and each renewal thereof is authorized.
re.1 An investigation which has been terminated
may be reopened upon a showing of the same standard and pursuant to
the same procedures as required for initiation of an investigation.
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•
Page 21 of 31
•.1"f. In addition to the authority-of Special
Agents in Charge under this paragraph, the Director of the FBI, and
any Assistant Director or senior Headquarters official designated
by the Director,.may authorize, renew, review, and reopen racketeering
enterprise investigations in conformity with the standards of this .
paragraph.I
"B..ITERRORISM ENTERPMSEIINVESTIGATIONS (See MIOG, Part 1, 100-1.2 .)
• "This section focuses on investigations ofienteipriSes that seek
to further political or social goalsIthrough activities that involve
force oriviolence, or that otherwise aim to engage in terrorism or
terrorism-related crimes. Like the section addressinglracketeering
enterprise investigations, it is concerned with the investigation of
entire enterprises, rather thanhjustlindividual participants and
specific criminal acts, and authorizes investigations to determine the
• structure and scope of the enterprise as well as the relationship of
the members.
"1. General Authority (See MIOG, Part 1, 100-12.2 .)
"a.Alterrorism enterpriselinirestigation
may be initiatedIwhen factslor circumstances reasonably indicate
that two or more persons, are engaged in an enterprise for the purpose
of: l(i)Ifarthering political or social goals wholly or in part .
thithighactivities th.a.f iiivaive force or violeffEe and a viblationlof
federal criminal law, (ii) engaging in terrorism as defined in 18
U.S.C. 2331(1) or (5) that involves a violation of federal criminal
law, or (iii) committing any offense described in 18 U.S.C. . •
2332b(g)(5)(B). A terrorism enterprise investigation may also be
initiated when facts or circumstances reasonably indicate that two or
More persons are engaged in a pattern, of racketeering activity as
defined in the RICO statute, 18 U.S.0 1961(5), that involves an
offense or offenses described in 18 U.S.C. 2332b(g)(5)(B),I The
standard of 'reasonable indidation' is identical to that governing
the initiation of a general crimes investigation under Part II. In
determining whether an investigation should be conducted, the FBI
I shall consider all of the circumstances including: I(i)Ithe magnitude
of the threatened harm;I(ii)Ithe likelihood it will occur;I(iii)Ithe
I immediacy of the threat; andl(iv) anyldanger to privaCylorlfree
expression posed by an investigation. .
"b.Authority to conductIterrorism enterprise!
investigationslis inladdition to general crimes investigative — • •
authority under Part II, racketeering enterpriselinvestigative
authority under SUbpart-A of this Part and activities under other
Attorney General guidelines addressing such matters as investigations
and information collection relating to international terrorism,
foreign counterintelligence,.or foreign intelligence.' Information
warranting initiation ofla terrorism enterprise investigationImay be
obtainediduringlthe course of a general crimes inquiry or
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I, investigation, a racketeering enterprise investigation, or an
I investigationlunder other Attorney General guidelines.' Conversely, a
''terrorism enterpriselinvestigation may yield information warranting a
general crimes inquiry or investigation, a racketeering enterprise
I investigation, or an investigationlunder other Attorney General •
I guidelines.'
"c. 'Mere speculationIthat force or violence
might occur during the course of an otherwise peaceable demongtration
is not sufficient grounds for initiation of an investigation under
thisISultart, but where facts or circumstances reasonably indicate
that a group or enterprise has engaged or aims to engage in
activities involving force or violence or other criminal conduct
I described in paragraph La. in a demonstration, an investigation
I may be initiated,in conformity with the standards of that paragraph.'
For alternative authorities see Part II relating to General Crimes
Investigations and the Attorney General's Guidelines on 'Reporting on
Civil Disorders and Demonstrations Involving a Federal Interest.'
I This does notIlimitIthe collection of information about public
demonstrations by enterprises that are tinder active investigation
I pursuant to paragraph' 1.a.labove.
"2. Purpose (See MIOG, Part 1, 100-2.1 ..)
I "The immediate purpose of alterrorism enterprise' .
"-investigation is to obtain information concerning the
nature arid structure of the enterprise, as specifically delineated
in paragraph 3. below, with a view to the longer range objectives of
detection, prevention, and prosecution of the criminal activities of
the enterprise.
"3. Scope (See MIOG, - Part 1, 100.-2:2 .)
"a. Alterrorism enterpriselinvestigation
initiated under these guidelines may collect such information as:
"(i) the members of the enterprise and
other persons likely to be knowingly acting in furtherance of its
criminal objectives, provided that the information concerns such
I persons' activities on behalfloflor in furtherance of the enterprise;
•
"(ii) the finances of the enterprise;
. the geographical dimensions of the enterprise;
and
"(iv) past and future activities and goals of the
. enterprise.
"b.*In obtaining the fbregoing information, any
I lawful investigative technique may be used in accordance withlthel
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:requirements of Part IV.
"4. Authorization and Renewal (See MIOG, Part 1, 100-2.3 .)
"a.Alterrorism enterpriselinvestigation
may be authorized by thelSpecial Agent in Charge, with notification
to FBIHQ,Iupon a written recommendation setting forth the facts or
circumstances reasonably indicating the existence of an enterprise, as
described in1paragraph 1.a.1 The FBI shall notify the Terrorism
and Violent Crime Sectionlof the1Criminal Division,Ithe Office of the
Intelligence Policy and Review, and affeCted United States Attorney's
Officelof the opening ofla terrorism enterprise investigation. On
receipt of such notice, the Terrorism and Violent Crime Section shall
immediately notify the Attorney General and the Deputy Attorney
General. In all 'such investigations, the Chief of the Terrorism
and Violent Crime Sectionlmay, as hejor sheldeems necessary, request
the FBI to provide a repOrt on the status of the investigation..
"b.Ajterrorism enterpriselinvestigation
may be initially_ authorized for a-period of up tola year.1 An
investigation may be. continued upon renewed authorization for
additional periods each not to exceedla year.' Renewal authorization
shall be Obtained from theISAC with notification to FBIHQ. The FBI
shall notify the Terrorism and Violent Crime Section and the Office
of Intelligence Policy and Review of any renewal, and the Terrorism
and Violent Criffie Section shall immediately -notify the Attorney - . .:.
General,and the Deputy Attorney General.'
•
"c.Investigations shall be reviewed by theISACIon or
before the expirationlof thelperiod for which the investigation and
each renewal thereof is authorized.
'In some cases, the enterprise may meet the.
threshold standard but be•temporarily inactive in the sense that it
has not engaged in recent acts of violence or other criminal
activities as described in paragraph 1.a., nor is there any
immediate threat of harm - yet the compoSition, goals and prior
history of'the group suggest the need for continuing federal interest.
The investigation may be continued in such cases with whatever scope
is warranted in light of these considerations.'
rd.1 An investigation which has been terminated
may be reopened upon a showing of the same standard and pursuant to
the same procedures as required for initiation of an investigation. •
.1"e. In addition to the authority of Special •
Agents in Charge under this paragraph, the Director of the FBI, and
any Assistant Director or senior Headquarters official designated by
the Director, may authorize; renew, review, and reopen terrorism
enterprise investigations in confollulty with the standards of this
paragraph.'
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DOJOIG013241
ILL LA.,1 III 11110 6/ 1111V 6_1111.1V JCL:UW.11 .11L111 rage 24 Ot 1
"f. The FBI shall reportIto - the Terrorism and
Violent Crime Section of the Criminal Division and the Office of
I Intelligence Policy and Review the progress of a terrorism enterprise
. investigationlnot later than 180 days afterlits initiation,land
the results at the end of each year the investigation continues. The
Terrorism and ViolentiCrimelSection shalllimmediately transmit copies
I of these reports to the'Attorney General and the Deputy Attorney
I General]
" IV. INVESTIGATIVE TECHNIQUES (See MIOG, Part 1, 100-2.2 .)
"A. When conducting investigations under these guidelines
the FBI may use any lawful investigative technique. !The choice of
investigative techniques is a matter of judgment, which should take •
account of (i) the objectives of the investigation and available
investigative resources, (ii) the, intrusiveness of a technique,
considering such factors as the effect on the privacy of individuals
and potential damage to reputation, (iii) the seriousness of the
crime, and (iv) the strength of the infoi. nation indicating its •
existence or future commission. Where the conduct of an investigation
presents a choice between the use of more or less intrusive methods,'
the FBI should consider whether the information could be obtained in
a timely and effective way bylthelless intrusive means. IThe FBI
should not hesitate to use any lawful techniques consistent with thek •
'Guidelines in an investigation, even if intrusive, where the • .. -
intrusiveness. is warranted in light of the seriousness of the crime or
the strength of the information indicating its'existence or future
Commission. This point is to be particularly observed in •
investigations relating to terrorist activities. I .
"B. All requirements for use of a technique set by .
statute, Department regulations and policies, and Attorney General •
Guidelines must be complied with. The investigative technique's listed
below are subject to the noted restrictions:
• I "1. ,Confidential informantslmust be used in compliance with the
Attorney General's Guidelineslregardinglthe Use ofiConfidential .
Informants;I
"2. Undercoverlactivities andlolierations must be
conducted in compliance with the Attorney General's Guidelines on-FBI
Undercover Operations;
"3. situations involvinglundisclosed participation in the
.activities of an organization by an undercover employee or cooperating
private individuallany potential constitutional concerns relating to •
activities of the organization protected by the First Amendment must
be addressed through full compliance with all applicable provisions of
the Attorney General's Guidelines on FBI Undercover Operations and the
Attorney General's Guidelines Regarding the Use of Confidential
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1Informants;1
•"4. Nonconsensual electroniC surveillance must be
conducted pursuant to the warrant procedures and requirements of
I chapter 119 of title 18, United States Code (18 U.S.C. 2510, 2522);1
"5. Pen registers and trap and trace devices must be
installed and used pursuant to the procedures and•requirements of
'I 'chapter 206 of title 18, United. States Code (18 U.S.C._ 3121-3127);]
"6. Access to stored wire•and electronic communications. and
•transactional records must be obtained pursuant to the procedures and
!requirements OfIchapter 121 of title 18, United States Code (18 U.S.C.
12701-2712);I
"7. Consensual electronic monitoring.must be authorized
pursuant to Department policy. For consensual monitoring of •
conversations other. thantelephone conversations, advance
authorization must be obtained in accordance with established
guidelines. This applies both to devices carried by, the cooperating
participant and to devices installed on premises under the control of
the participant. SeelU.S. Attorneys' Manual 9-7.301 and 9-7.302.1
For consensual monitoring of telephone conversations, advance
authorization must be obtained from the SACIor Assistant Special
Agent in Charge(and the appropriatelU.S. Attorney, Assistant Attorney
Genera; or D'eputy Assistant Attorrie -Y.Gerie-ral,leXcept in exigent'
!circumstances. An Assistant Attorney General or Deputy Assistant
Attoiney General who provides such authorization shall notify the
appropriate U.S. Attorney;1
"8. Searches and seizures must be conducted under
the authority of a valid warrant unless the search or seizure comes
within a judicially 'recognized exception to the warrant requirement.
See also, Attorney General's Guidelines on Methods of'Obtaining' .
Documentary Materials Held by Third!Parties; 28 CFR Part 59;1 (Se
MIOG, Part 2, Section 28 .)
"9. 'Classified investigative technologies must be
1 used in compliance with the Procedures for the Use of Classified
(Investigative Technologies in Criminal Cases; and(
. 1"10.1 Whenever an individual is known to be represented by counsel
•in a particular matter, the FBI shall follow applicable law and
Department procedure concerning contact with represented individuals
in the absence of prior notice to their counsel.'The SAC or his
designee and the United States Attorney shall consult periodically on
1 applicable law and Department procedure, !Where issues arise • .
I concerning the consistency of contacts with represented persons with
. 1 applicable attorney conduct rules, the United States Attorney should
!consult with the Professional Responsibility Advisory Office.!
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" V. DISSEMINATIONIAND MAINTENANCEIOF INFORMATION
"A. The FBI may disseminate information duringlthe
checking of leads, preliminary inquiries, and investigations conduCted
pursuant to these Guidelines to United States Attorneys, the Criminal
Division, and other components, officials, and officers of the
Department of Justice. The FBI may disseminate information during
the checking of reads, preliminary inquiries, andlinvestigations
conducted pursuant to these Guidelines to another Federal agency, or
to a State or local criminal justice agency when such information: •
1 1"1.1 falls within the investigative or protective
1jurisdiction orlmitigativelresponSibility of the agency;
1 • 1"2:1 may assist in preventing a crime or the use of
violence or any other conduct dangerous to human life;
• l"3.1 is required to be furnished to another Federal
agency by Executive Order 10450, as amended, dated April 27, 1953,1orl
1"4.1 is required to be disseminated by statute,
interagency agreement approved by the Attorney General, or
Presidential Directive; and to other persons and agencies aslrequired
by 5 U.S.C. 552 or as otherwise perniitted by 5 U.S.C. 552a.1
• .1"B. The. FBI shall maintain a database that fdehtifies all
preliminary inquiries and investigations conducted pursuant to these:
Guidelines and that permits the prompt retrieval of information
concerning the status (open or dosed) and subjects of all such
inquiries and investigations.
" VI. 'COUNTERTERRORISM ACTIVITIES AND OTHER AUTHORIZATIONS
"In order to carry out its central mission of preventing
the commission of terrorist acts against the United States and its
people; the FBI must proactively draw on available sources of
information to identify terrorist threats and activities. It cannot
be content to wait for leads to come in through the actions of others,
but rather must be vigilant in detecting terrorist activities to the
full extent permitted by law, with an eye towards early intervention
and prevention of acts of terrorism before they occur. This Part
accordingly identifies a number of authorized activities which further
this end, and which can be carried out even in the absence of a
checkhig-ofIzads, preliminary, inquiry, or full investigation as
described in Parts I-III of these Guidelines. The authorizations
include both activities that are specifically focused on terrorism
(Subpart A) and activities that are useful for law enforcement
purposes in both terrorism and non-terrorism contexts (Subpart B).
"A. COUNTERTERRORISM ACTIVITIES
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"1. Information. Systems
"The FBI is authorized to operate and participate in
identification, tracking, and information systems for the purpose of
identifying and locating terrorists, excluding or removing from the
United States alien terrorists and alien supporters of terrorist •
activity as authorized by law, assessing and responding to terrorist
risks and threats, or otherwise detecting, prosecuting, or preventing
terrorist activities. Systems within the scope of this paragraph may
draw on and retain pertinent information from any source perinitted by
law, including information derived from past or ongoing investigative
activities; other information collected or provided by governmental
entities, such as fdreign intelligence information and lookout list
information; publicly available information, whether obtained directly
or through services or resources (whether nonprofit or•commercial)
that compile or analyze such information; and information voluntarily
provided by private entities. Any such system operated by the FBI
shall be reviewed periodically for compliance with all applicable
statutory provisions, Department regulations and policies, and •
Attorney General Guidelines.
"2. Visiting Public Places and Events
• "For the purpose of detecting or preventing .
terrorist activities, the FBI is authorized to visit any place and
attend any.event that is operoci -the public, on the same terms and
conditions as members.of the public generally. No information
obtained from such visits shall be retained unless it relates to
potential criminal or terrorist activity.
"B. OTHER AUTHORIZATIONS
"In addition to the checking Of leads, preliminary
inquiries, and investigations as described in Parts I-III of these
Guidelines, and counterterrorism activities as described in Part A
above, the authorized law enforcement activities of the FBI include
carrying out and retaining information resulting from the following
activities:
"1. General Topical Research •
"The. FBI is authorized to carry out general topical
research, including conducting online searches , and accessing online •
sites and forums as part of such research on the same.terms and
conditions as members of the public generally. 'General topical
research' under this paragraph means research concerning subject areas
that are relevant for the purpose of facilitating or supporting the
discharge of investigative responsibilities. It does not include
online searches for information by individuals' names or other .
individual identifiers, except where such searches are incidental to
topical research, such as searching to locate writings on a topic
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fFby
searching under the names of authors who write on the topic, Or
searching by the name of a party to a case in conducting legal
research.
"2.Use of Online Resources Generally
"For the purpose of detecting or preventing terrorism
or other criminal activities, the FBI is authorized to conduct online
search activity and to access online sites and forums-on the same
terms and-conditions as members of the public-generally..
"3.Reports and Assessments
"The FBI is authorized to prepare general reports and
assessments concerning terrorism or other criminal activities for
purposes of 'strategic planning or in support of investigative
activities.
"4.Cooperation. with Secret Service
"The FBI is authorized to provide investigative
assistance in support of the protective responsibilities , of the Secret
Service, provided that all preliminary inquiries or investigations are
conducted in accordance with the provisions of these Guidelines. •
"C. PROTECTION OF PRIVACYAND OTHER-LIMITATIONS
"1.General Limitations
"The law enforcement activities authorized by this
Part do not include maintaining files on individuals solely for the ..
,purpose of monitoring activities protected by the First Amendment or
the lawful exercise of any other rights secured by the Constitution •r
• laws of the United States. Rather, all such law enforcement -
activities must have a valid law enforcement purpose as described in
this Part, and must be carried out in conformity with all applicable .
statutes, Department regulations and policies, and Attorney General
-Guidelines_ . In particular, the provisions of this Part do not
I supersede any otherwise applicable provision or requirement of the
I Attorney General's Guidelines on FBI Undercover Operations or the
Attorney General's Guidelines Regarding the Use of Confidential
Informants.
"2.Maintenance of Records Under the Privacy Act
"Under the Privacy Act, the permissibility Of maintaining
records relating to certain activities of individuals depends in part
on whether the collection of such information is 'pertinent to and
within the scope of an authorized law enforcement activity.' 5 U.S.C.
552a(e)(7). By its terms, the limitation of 5 U.S.C. 552a(e)(7) is
inapplicable to activities that do not involve the 'maintain?ingl' of
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'•
a 'record' within the meaning of the Privacy Act, or that occur
pertinent to and within the scope of an authorized law enforcement
activity. 'Authorized law enforcement activit?iesl' for purposes of
the Privacy Act include carrying out and retaining information
resulting from the checking of leads, preliminary inquiries, or
investigations as described in Parts I-III of these Guidelines, or
from activities described in Subpart A or B of this Part. As noted
in paragraph 3. below, however, this is not an exhaustive enumeration
of 'authorized law.enforcement activit?iesl.' Questions about the
application of the Privacy Act to other . activities should be addressed
to the FBI Office of the General Counselor the Office of Infounation
and Privacy.
"3. Construction of Part
"This Part does not limit any activities authorized
by or. carried out under other Parts of these Guidelines. The
specification of authorized law enforcement activities under this
Part is not exhaustive, and does not limit other 'authorized law
enforcement activities, such as those relating to foreign
counterintelligence or foreign intelligence.I'
" VII. RESERVATION
"A.Nothing in these. Guidelines shall limit the general •
'reviews or audits -of papers, files, contracts or other•record -slia .
:government's possession, or the performance of similar services at the
specific request of a Department or agency of the United States. Such
reviews, audits or similar services must be for the-purpose of --
detecting or preventing violations of federal law which are within the
investigative responsibility of the FBI. •
"B.Nothing in these Guidelines is .intended to limit the .
FBI's responsibilities to investigate certain applicants and employees
under the federal personnel security program.
"C.These Giiidelines are set forth solely for the purpose
of internal Department of Justice guidance. They are not intended to,
do not, and may not be relied upon to create any rights, substantive
or procedural, enforceable at law by any party in any manner, civil or
criminal, nor do they place any limitation on otherwise lawful
investigative andlmitigativelprerogatives of the Department of
Justice.
"Effective: 5/30/02 John Ashcroft
Attorney General"'
**EffDte: 07/23/2002 MCRT#: 1216 Div: D6CT Cav: SecCls:
1 . 1 -4 'INVESTIGATIVE AUTHORITY AND THE FIRST AMENDMENT ,
I (1) The First Amendment to the United States
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Constitution guarantees the rights of free speech and peaceful
assembly. Because of the importance of these rights in American .
society, acts by law enforcement agencies that.could possibly chill
the exercise of these rights have historically been reviewed by the
legislative. and judicial branches of government with careful
scrutiny. Experience has shown that investigations by law
enforcement into individuals, or the members of assembled groups, who
advocate political or social goals through violent means, as well as
investigations into the causes of civil or social disorder, have the
greatest potential o•exposure to such scrutiny. Therefore, it is -
important that these investigations be conducted according to strict
guidelines and in a manner that respects. the First Amendment rights
of all persons, including those under investigation.'
(2) lIn particular, investigations that have this
potential may only be initiated in strict compliance with the
AttOrney General's Guidelines and other -applicable Department and .
FBIHQ directives: Information from private or public sources of
possible violations of federal laws, which give rise to such
investigations, must be carefully documented and particularized as to
those persons suspected of such violations. Furthermore, the scope
of each investigation must be carefully tailored to fit the
circumstances giVing rise to the investigation; although
expansion in the scope of an investigation may be undertaken ifjustified
by a change in these circumstances: , Finally; the duration
of the investigation must not be permitted to extend -beyond the.goint
at which its underlying justification no longer exists.'
(3) !Generally, an FBI investigation may employ any
authorized investigative technique. In the case of those
investigations with the potential to infringe upon, First Amendinent
rights, consideration must be given to using those techniques that
are less intrusive and less likely to adversely affect the exercise
of those rights. For example, infiltrating private meetings of
targeted groups should only be undertaken if attendance at public
meetings is likely to produce critical investigative -information.
(4) Furthermore, the collection of information
concerning groups and individuals must be justified as reasonable and
necessary for investigative purposes. Information concerning the
' exercise of First Amendment rights should be made a matter of record'
only if it is pertinent to and within the scope of the authorized law,
enforcement activity. When public-source printed material concerning
the exercise of First Amendment , rights is obtained and a decision,
made to retain such material, a notation must be placed on the
material describing the reason(s) it was collected and retained. The
notation must clearly indicate the specific investigative interest(s)
which led to the decision to retain the item.
• (5) Finally, if an individual, group, or activity has
been characterized in a certain manner by the originators of .
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information collected in the course Of an-investigation, FBI records,
including transmitting documentation, should reflect that the
. characterization was made by another party, not the FBI. However, if
the characterization comports in whole or in part with the results of
independent FBI investigation; the transmitting communication may so
stated
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©1996 Microsoft Corporation
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