FBI Keeps Surveillance Policies Secret


Redacted FBI surveillance memo

From the legal rationale for lethal drone strikes to the when and how of perusing library records to the basis for warrantless wiretapping, the federal government's increasingly obvious stance ranges somewhere between "trust us" and "catch us if you can." That's all the more apparent now that the Federal Bureau of Investigation has responded to an American Civil Liberties Union freedom of information request for two memos on the bureau's (supposedly) revised tracking and surveillance policies with 111 pages of almost solid black ink.

The ACLU asked for the two memos after the U.S. Supreme Court ruled in U.S. v. Jones that Fourth Amendment protections apply when law-enforcement agents want to use GPS trackers to monitor people's movements by automobile, and FBI General Counsel Andrew Weissmann was subsequently recorded discussing the bureau's ponderings upon the various and sundry ways the ruling might apply to surveillance efforts. Logically enough, the ACLU was curious as to how these ponderings manifested themselves in terms of actual snooping. As the ACLU's Catherine Crump put it:

Courts are often slow to extend constitutional protections to new technologies. The telephone was invented in the 1870s, but not until 1967 did the Supreme Court hold that the government needs a warrant to wiretap a telephone conversation.

While we wait for courts to weigh in, how much privacy do Americans have in their movements? Exactly as much as law enforcement agents believe they must give us.

That is why the two memos the ACLU seeks are so important.

The FBI's response can best be characterized as a bureaucratic FU. The ACLU was sent the two memos it wanted — "Guidance Regarding the Application of United States. v. Jones, 132 S. Ct. 945 (2012), to GPS Tracking Devices" (PDF) and "Guidance Regarding the Application of United States. v. Jones, 132 S. Ct. 945 (2012), to Additional Investigative Techniques" (PDF) — in almost completely redacted form.

Sometimes, you can send a clear message without using words at all.

The problem with secret policies should be obvious. Without knowing what government officials consider to be acceptable uses of their powers, and the arguments they make in defense of their positions, it's almost impossible to assess those policies and agree with them, challenge them, or even know if secretive agencies are sincerely trying to abide by constitutional protections. The implicit message administration officials and federal snoops want us to take away is, "you can trust us." But the disdain they shower on every effort to examine their conduct makes it very clear that they intend to do as they please behind a veil of secrecy until some leak or accident exposes a subset of their activities to embarrassing scrutiny.

In a supposedly open society, you shouldn't have to rely upon Wikileaks to find out how the government goes about its business.