The PJ Tatler

Great news: FBI expands its search (without warrants) power

One of Ace’s bloggers calls this writs of assistance, an issue over which our founders ended up rebelling from the king and setting up a separate country. Whether it’s quite that or not, it’s yet another crack in the idea of privacy.

The Federal Bureau of Investigation is giving significant new powers to its roughly 14,000 agents — allowing them more leeway to search databases, go through household trash or use surveillance teams to scrutinize the lives of people who have attracted their attention.

The FBI soon plans to issue a new edition of its manual, called the Domestic Investigations and Operations Guide, according to an official who has worked on the draft document and several others who have been briefed on its contents. The new rules add to several measures taken over the past decade to give agents more latitude as they search for signs of criminal or terrorist activity.

Does the FBI have the unilateral power to overrun the Fourth Amendment? Maybe in the age of Hoover it did, but now? I’d say not but I’d like to hear from attorneys among Tatler writers and readers.

I’m curious about something else here, too. Terrorism is not ordinary criminal activity; since 9-11 we have mostly treated it as acts of war if we could connect it to international terrorist groups. This blurring of the line between the two strikes me as unwise in that it waters down terrorism while possibly elevating ordinary crimes.

Some of the most notable changes apply to the lowest category of investigations, called an “assessment.” The category, created in December 2008, allows agents to look into people and organizations “proactively” and without firm evidence for suspecting criminal or terrorist activity.

Under current rules, agents must open such an inquiry before they can search for information about a person in a commercial or law enforcement database. Under the new rules, agents will be allowed to search such databases without making a record about their decision.

This looks like a significant and dangerous development to me.