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.
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.
Dayton defense attorney Jon Paul Rion said the changes raise troubling issues about the assumption of privacy. Not creating a record when performing an investigation could thwart later review.
“A lot of (FBI) activities will now occur that won’t be checked by the judiciary. It prevents another branch of government from making sure it’s constitutionally sound,” Rion said.
University of Dayton professor Art Jipson, who teaches a course on cyber crime, said Monday some of the revisions are designed to help the FBI adapt to an explosion of Internet social networking.
“The information readily available today is mind-boggling. You no longer need just a Social Security number when you can look at a person’s Twitter or Facebook account.”
Valerie E. Caproni, the FBI general counsel, said it was too cumbersome to require agents to open formal inquiries before running quick checks. She also said agents could not put information uncovered from such searches into FBI files unless they later opened an assessment.
Michael Brickner, spokesman for the American Civil Liberties Union of Ohio, pointed to the State of Ohio government database breaches that have included unauthorized queries by state employees into Obama critic “Joe the Plumber,” or Joe Wurzelbacher, and American Idol contestant Crystal Bowersox.
“The scariest change is that the FBI can conduct preliminary assessments without creating a record. That opens the Pandora’s Box wider. A lot of innocent people will have their information looked at. They are trying to justify fishing expeditions.”
The FBI recently briefed several privacy advocates about the coming changes. Among them, Michael German, a former FBI agent who is now a lawyer for the ACLU, argued it was unwise to further ease restrictions on agents’ power to use potentially intrusive techniques, especially if they lacked a firm reason to suspect someone of wrongdoing.
“Claiming additional authorities to investigate people only further raises the potential for abuse,” German said, pointing to complaints about the bureau’s surveillance of domestic political advocacy groups and mosques and to an inspector general’s findings in 2007 that the FBI had improperly used “national security letters” to obtain information like people’s phone bills.
Caproni said the bureau had fixed the problems with the national security letters and had taken steps to make sure they would not recur. She also said the bureau — which does not need permission to alter its manual so long as the rules fit within broad guidelines issued by the attorney general — had carefully weighed the risks and the benefits of each change.
“Every one of these has been carefully looked at and considered against the backdrop of why do the employees need to be able to do it, what are the possible risks and what are the controls,” she said, portraying the modifications to the rules as “more like fine-tuning than major changes.”